The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 57-year-old female residing in Jacksonville, Florida. Petitioner wishes to open her own group respite care home for adults with developmental disabilities. As such, Petitioner seeks to become a direct-care provider to the Agency’s clients with developmental disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. For the last 29 years, Petitioner has been employed by Vistakon, a division of Johnson & Johnson Vision Care, Inc. Her current position is Distribution Operator II, fulfilling customer orders for shipping. Petitioner is a long-term member of Faith United Miracle Temple in Jacksonville, where she serves on the usher board, greets churchgoers on Sunday mornings, and teaches children’s Sunday school classes. Petitioner is involved in many community service projects including Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting her employer’s diversity and inclusion programs. The Disqualifying Offense On December 26, 2003, Petitioner, then known as Mamie Faith Fields, was arrested at her home and charged with domestic battery on her husband, Gregory Fields. Petitioner’s mother witnessed the incident. Petitioner was 44 years old at the time of the offense. The facts surrounding the incident are in dispute and there was insufficient reliable evidence for the undersigned to make any findings of fact relative to the details of the incident.1/ Petitioner pled no contest to the offense of domestic battery, was sentenced to eight months’ probation, and ordered to attend a batterer’s intervention course and pay court costs of $480. On June 26, 2004, Petitioner completed the Hubbard House First Step Program, a 24-class batterer’s intervention course. Petitioner’s probation was terminated early on July 26, 2004. Subsequent Non-Disqualifying Offense On May 8, 2007, Petitioner was involved in another physical altercation with Mr. Fields. The incident occurred while Petitioner was a right front-seat passenger in the vehicle Mr. Fields was driving. Petitioner was arrested and charged with domestic battery. The arresting officer observed scratches on Mr. Fields’ face and on the back of his right shoulder. The arresting officer observed no injury to Petitioner. Petitioner was 48 years old at the time of her arrest. The charges against Petitioner were dropped by the State Attorney’s Office and Petitioner was not prosecuted for any crime.2/ Subsequent Personal and Professional History Petitioner and Mr. Fields were divorced in 2011. Petitioner reported having attended six weeks of marital counseling with Mr. Fields, but the record does not support a finding of the timeframe in which the counseling occurred. Petitioner’s employment has not changed since the disqualifying offense. In 2014, Petitioner sought, and was granted, an exemption from disqualification from the Department of Children and Families (“DCF”). Her reported interest was in opening, or working in, a day care facility. By May 2015, Petitioner had completed over 50 hours of child care training, including child care facilities rules and regulations, early literacy, and family child care home certificates. Petitioner has not been employed with any child care provider subsequent to receiving the exemption from DCF. In response to questioning by the undersigned as to why Petitioner had not pursued employment with a DCF provider, Petitioner stated that there were “way too many restrictions” and that she had discovered that “if a kid says you hit them, an action could be taken against you.” Petitioner’s current interest is in opening a group home to provide respite care services for the Agency’s adult clients with developmental disabilities. Petitioner filed two previous applications with Respondent--in 2010 and 2014--for exemption from disqualification, but was denied both times. In 2016, Petitioner completed four courses required by the Agency for providers of direct-care services to its clients: Introduction to Developmental Disabilities; Health and Safety; HIV/Bloodborne Pathogens; and Zero Tolerance. The Agency has certified that Petitioner has completed a course required for providers in the Medicaid Waiver program. Earlier this year, Petitioner also completed HIPAA training and three hours of classroom training in “Personal Outcome Measures-Overview: Choices and Rights.” Petitioner’s Exemption Request The Exemption Questionnaire presented by the Agency to Petitioner listed three offenses to which she was to respond: the 2003 disqualifying offense, the 2007 non-disqualifying arrest, and an earlier 1994 arrest for aggravated battery/domestic violence. The 1994 offense involved Petitioner, then known as Mamie Faith Lundy, and her previous husband, John Lundy. The 1994 offense resulted in an arrest, but charges were later dropped and Petitioner was not prosecuted. In response to a request for her detailed version of the events of the 2003 disqualifying offense, Petitioner explained that “it was Christmas Day, my ex-husband was upset about me spending too much money. I didn’t want to hear him talk about it he got upset. We [had] guest[s] and it got out of control. Charges were dropped and we forgave each other.” Charges for the 2003 offense were not dropped and Petitioner pled no contest to domestic battery. The offense of battery requires an intentional touching of another person against their will, or intentionally causing harm to another person. See § 784.03(1)(a), Fla. Stat. (2015).3/ Petitioner’s version of the disqualifying offense does not contain any relevant detail regarding the offense. At hearing, Petitioner testified only that “he pushed me and I pushed him back.” In response to the question regarding the degree of harm to the victim or property, Petitioner stated “there is no property, no victim harm.” According to the observations of the police officer at the scene in 2007, Petitioner scratched her then-husband’s face and right shoulder. With regard to stressors in her life at the time of the disqualifying offense, Petitioner wrote “there were divorce[s] in both marriage[s].” With regard to current stressors, Petitioner revealed, “No current stressors. My support system is my family, God, children, job, friends, church family, Bible. I [am] living alone now.” When requested to list her educational achievements and training, Petitioner responded that she attends “Word of Life students’ bible school.” Regarding counseling she has received, she listed “Alison Behrens, six weeks.” Apparently Ms. Behrens is the marriage counselor she saw with Mr. Fields, but the record does not reveal whether the counseling was before or after the 2003 offense, or even after the 2007 non-disqualifying offense. The most relevant answer given by Petitioner on her exemption questionnaire was with respect to accepting responsibility, and expressing remorse, for her actions. Tellingly, Petitioner stated, “I feel very bad about my action, not to leave when people get upset. Try not to let people know what going on in my family. And I feel responsibility for let[ting] things go to[o] far. I feel very remorse about it. I’m very much ashamed as a mother, and a Grandmother that I allowed this to happen to me.” Petitioner’s explanation sounds more like regret for allowing others to learn the details of incidents involving battery on her husband, rather than remorse for losing her temper and striking out at another person. Furthermore, Petitioner’s statements express regret for what has happened to her, rather than harm she has inflicted on others. Similarly, at hearing, Petitioner testified that in 2003 she had left her home, but that her mother called her and asked her to return. Petitioner stated that it was a “mistake” for her to have returned to the house, but she did not describe as mistakes the actions she took upon her return. Along with her exemption application, Petitioner submitted two character reference letters.4/ Anthony Howard, an Elder in Petitioner’s church, described her as “kind, compassionate, and a hard working person” and applauded her commitment to the church as an active member, Sunday School teacher, and usher. A letter from Michelle Dunnam describes Petitioner as the “most kind hearted person I know” and applauds her volunteerism. The letter does not reveal how long she has known Petitioner or in what capacity. There is no record evidence of Ms. Dunnam’s relationship to Petitioner, whether family, friend, employer, or otherwise. Along with her request for a hearing, Petitioner submitted one additional character reference letter. Eric Mitchell, her employer’s Diversity and Inclusion Community Ambassador, submitted a “letter of appreciation” for Petitioner’s continuous service to the Jacksonville community through Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting the Employee Resource Groups in their message of diversity and inclusion and at her church. When asked if any of those who submitted character references were aware of her disqualifying offense, Petitioner was defensive and seemed concerned that someone at the Agency might reveal her background to them. Final Hearing At final hearing, Petitioner presented very little testimony and no witnesses on her behalf. Petitioner presented two additional character reference letters: One each from both of her ex-husbands. In his letter, Mr. Lundy described Petitioner as an excellent mother, caring, intelligent, motivated, and “more than capable of managing a group of people.” He cited her long-term employment and her involvement with the church as evidence of her dedication to family and community. He explained that Petitioner had asked for forgiveness and that they have forgiven each other. Mr. Fields wrote that Petitioner has expressed that she is truly sorry, that he has forgiven her, and that he hopes for her to have a successful life. Despite Petitioner’s obvious commitment to her church and community, Petitioner’s case for rehabilitation is thin. Petitioner was involved in a subsequent domestic battery incident, in which she caused minor injury to her husband, after completing a batterer’s intervention course. There is no evidence of Petitioner pursuing anger management or any other counseling subsequent to the 2007 incident. Furthermore, the 2007 incident took place in a car while Mr. Fields was driving, which put Petitioner, her husband, and other drivers at risk, a fact which was not acknowledged by Petitioner. Petitioner was not forthcoming with the details of any of the incidents in question, yet denied the details as recorded in the police reports. Petitioner was middle-aged when the 2003 and 2007 incidents occurred, thus eliminating any explanation on the basis of lack of maturity. Petitioner’s community volunteer work is laudable and she has reason to be proud of her service. However, the work does not demonstrate Petitioner’s ability to calmly handle day- to-day difficult situations with developmentally-disabled clients. Even Petitioner admitted that she has not encountered behavioral issues with the children in her Sunday school class because their “parents are right there.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 8th day of November, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 8th day of November, 2016.
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter." The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times. While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist. Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working. Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her. Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3 In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off. To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work. Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed. In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4 Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination. DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2006.
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact By letter dated October 13, 2016, Respondent issued its notice of proposed agency action by which it informed Petitioner that her request for exemption from disqualification was denied. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner. After filing the hearing request, Petitioner responded to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally disabled people served in programs regulated by Respondent.
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, Kyanna Raquel Dixon’s, request for an exemption from disqualification. DONE AND ENTERED this 27th day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 January, 2017. COPIES FURNISHED: Kyanna R. Dixon Post Office Box 454 Quincy, Florida 37353 Kyanna Dixon 1720 Bordeaux Boulevard Tallahassee, Florida 32303 Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issues to be resolved in this proceeding are whether Petitioner was terminated from his employment with Respondent because of his race, his alleged disability, and in alleged retaliation for his attempt to file a workers' compensation claim in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. Petitioner also has been diagnosed with obsessive/compulsive disorder and major depression. On March 21, 1997, Petitioner began his employment with Florida Department of Corrections as a substance abuse counselor at Lancaster Correctional Institution. Petitioner's employment status was in career service, probationary status for six months from the date of his employment. A probationary status employee can be terminated without cause. Petitioner's employment as a counselor required him to be present at the institution a reasonable amount of time in order to perform his counseling duties. From March 21, 1997 through September 2, 1997, Petitioner failed to report for work 39 full workdays out of a possible 115 workdays. In addition, Petitioner had five other workdays that he only worked part of the day, with a total of 16 hours of leave used over those days. Sixteen hours is the equivalent of two full workdays missed by Respondent. As a result, Petitioner was absent from work approximately 35 percent of the time. Thirty-five percent absence rate was excessive based on Petitioner's job duties. Most of the leave was without pay because Petitioner had not accumulated enough sick or annual leave to cover his absences. The leave was taken for various reasons, but a large part of the leave was taken when Petitioner was hospitalized due to his mental condition. Petitioner's doctor released him from his hospitalization on August 8, 1997; however, Petitioner did not return to work until August 20, 1997. The last pay period ran from Friday, August 22, 1997 to Thursday, September 4, 1997. Petitioner only worked 20 hours out of 40 the first week and two hours out of 40 the second week. Around September 1, 1997, Petitioner went to the personnel office to inquire about filing a workers' compensation claim based on his disability. The staff person he spoke to did not know the procedure for filing a workers' compensation claim. She told Petitioner she would find out the procedure and asked him to return the next day. Other than Petitioner's speculation about the events following his initial inquiry about filing a workers' compensation claim, other material evidence regarding the events following his initial inquiry and Respondent's response thereto was submitted into evidence. The evidence is insufficient to draw any conclusions of a factual or legal nature regarding Petitioner's workers' compensation claim and his termination. Petitioner was terminated on September 2, 1997, the day following his initial inquiry about workers' compensation. Petitioner received his letter of termination on September 2, 1997. Petitioner was a probationary status employee when he was terminated. Eventually, Petitioner filed a workers' compensation claim. The claim was denied by the Florida Department of Labor and Employment Security. In 1997, L.D. "Pete" Turner was the warden at Lancaster Correctional Institution. As warden, Mr. Turner supervised Petitioner. Mr. Turner made the decision to terminate Petitioner due to his excessive absences. Mr. Turner did not terminate Petitioner based on Petitioner's race, his alleged disability, or because of Petitioner's attempt to file a workers' compensation claim. Petitioner was needed at work and he was not there a sufficient amount of time to fulfill his job duties. In fact, there was no competent evidence that there was any connection between Petitioner's termination and/or his race, disability, or desire to file a workers' compensation claim. Petitioner alleged that two employees at the institution were excessively absent but were not terminated. The employees were Doris Jones and Victoria Englehart. Both individuals were career service employees with permanent status. They were not probationary status employees. Doris Jones is an African-American female. Victoria Englehart is a white female. No other evidence was produced at the hearing regarding these two employees, their attendance records, job duties or anything else of a comparative nature. Clearly, the evidence is insufficient to make any comparison between these two employees and Petitioner's employment and termination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of June, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of June, 2001. COPIES FURNISHED: Otis Ware Post Office Box 2155 Trenton, Florida 32693 William J. Thurber, IV, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons; and, if so, whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. Petitioner seeks an exemption from disqualification from employment in order to work with APD clients. In a letter dated April 11, 2017, Respondent issued its notice of proposed agency action which informed Petitioner that her request for exemption from disqualification was denied. Petitioner filed a timely Petition for Formal Administrative Hearing involving disputed issues of material fact. After filing the hearing request, Petitioner joined in the response to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing that Petitioner requested. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally-disabled persons served in programs regulated by Respondent. Petitioner has abandoned her hearing request.
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, Carla Johnson-Lane’s, request for an exemption from disqualification. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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, 2017.
The Issue Whether Petitioner proved by clear and convincing evidence that she has been rehabilitated from her disqualifying offense(s), and, if so, would it be an abuse of discretion for the agency to deny her exemption application under section 435.07, Florida Statutes.
Findings Of Fact Agency for Health Care Administration ("AHCA") is the state agency required to conduct background screenings for employees who provide certain types of services related to health care under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing services to residents of a health care facility or under a license issued by Respondent. As such, Petitioner is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 2004, Petitioner was convicted of the felony offenses of grand theft and burglary, in violation of sections 812.014 and 810.02, Florida Statutes (2004) respectively, in Dade County, Florida, Case No. 132004CF030578C000XX. These offenses were used by the agency as the disqualifying offenses under chapter 435. Petitioner was subsequently convicted of felony grand theft in 2007, in violation of section 812.014, Florida Statutes (2007), in Broward County Circuit Court, Case No. 062007CF013247A88810. In 2013, Petitioner was convicted of theft in violation of section 812.014, Florida Statutes (2013), in Dade County, Florida, Case No. 132013CF0268560001XX. The criminal convictions in 2004 disqualified Petitioner and made her ineligible for licensure or to provide services in a health care facility licensed by Respondent. She was disqualified unless she applied for and received an exemption from AHCA, pursuant to section 435.07. In addition, Petitioner’s background check revealed that she was arrested in 1997 for Battery and Resisting Arrest; in 2009 for Petit Theft involving unemployment compensation, which was ultimately dropped; and in 2012 for retail theft. Petitioner initially submitted an application for an exemption to Respondent in accordance with sections 408.809 and 435.07 on June 9, 2017. She participated in a telephonic hearing to discuss her application conducted by Respondent on August 1, 2017. Respondent’s witness, Kelley Goff, a health services and facilities consultant for the Agency’s Background Screening Unit, testified that she was the analyst assigned to Petitioner’s case and attended the telephonic hearing on August 1, 2017. Respondent’s Exhibit R1-1 through R1-75, is AHCA's file for Petitioner’s exemption request. It contains: the exemption denial letter; internal agency notes; panel hearing notes from the August 1, 2017, teleconference; Petitioner’s criminal history; Petitioner’s exemption application; personal attestations; arrest affidavits; conviction records; probation records; court records; education records; and several letters in support of Petitioner’s requested exemption. After the telephonic hearing and discussion, Respondent denied Petitioner’s request for an exemption by letter dated August 4, 2017. Subsequently, Petitioner requested an administrative hearing. In making the decision to deny, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner and her explanations during the teleconference. Respondent also considered Petitioner’s other arrests and convictions, in addition to the disqualifying offenses. The history of Petitioner’s theft-related crimes and the recent 2012 and 2013 theft-related incidents were significant factors in Respondent’s decision to deny Petitioner’s application for exemption. The agency concluded that Petitioner was not particularly candid during the August 1, 2017, teleconference, and that some of Petitioner’s statements during the teleconference conflicted with the police reports and other documentation in Petitioner’s exemption file. This was true particularly with respect to the 2012 retail theft incident at Home Depot, which Petitioner attributed to actions by a client during the teleconference. During the telephone interview, Petitioner stated that she could not remember the arrests and/or convictions from the time period from 1997 through 2007. Although Petitioner had some positive letters of recommendation, she did not have anyone speak on her behalf during the telephonic discussion in August 2017. Based on Petitioner’s entire file and her responses during the teleconference, the agency concluded that Petitioner had not satisfied her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offenses. Goff testified that, while preparing for the hearing, she researched Petitioner’s 2007 criminal case and discovered that Petitioner still owed outstanding fines in that case in Broward County, and felt that Petitioner was not eligible to apply for an exemption until those fees were paid. During the final hearing Petitioner presented the testimony of her former client, Yohandra Sota. She testified that she had known Petitioner during the time of the 2012 incident of theft at Home Depot, that she was not with Petitioner during that time, and that she had never witnessed Petitioner involved in theft. Sota testified that Petitioner is a nice person who does not do bad things and has never fought, fussed, or threatened her. Petitioner testified on her own behalf and admitted that she has things on her record and is not happy with them. She explained that everyone does things that he or she does not necessarily have a choice over. Petitioner explained that she is asking for a second chance to get her life back on track and to get her life together. Petitioner explained that she was not aware of the outstanding fines and that when she went to Broward County Courthouse, they told her they could not find information on the case. Petitioner further explained that she is raising her three grandchildren and needs to provide for them and that she is unable to do that without a job. Petitioner stated that she is unable to work with her client because of this situation (the present disqualification). Petitioner explained that everyone makes mistakes and no one is perfect and that she had a rough childhood and had to raise herself. Petitioner then presented the testimony of her brother, Jamvar Thomas. He testified that he has seen Petitioner go through a lot of changes and that she has made some mistakes in her life. He felt that the fact that Petitioner asked for his help shows tremendous growth in her. Thomas testified that Petitioner is trying to put herself in a position so that she will not have to go back to her old habits and that she needs a second chance. Thomas stated that Petitioner has worked with Yohandra Sota for 15 years and helped Sota cope with her life. Thomas testified that helping people has helped Petitioner become a better person and that Petitioner has paid for her past mistakes and has come a long way. Thomas requested that Petitioner be given the opportunity to do the right thing and that granting the exemption would allow Petitioner to work in her field of expertise. Although Petitioner professed that she was remorseful for her criminal convictions and wants to move forward with her life, the undersigned is not persuaded by clear and convincing evidence that (1) she is rehabilitated from her disqualifying offenses, or (2) that it would be an abuse of discretion for the agency to deny the exemption.1/ The undersigned finds that under the facts presented Petitioner has failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 12th day of January, 2018, 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 12th day of January, 2018.
The Issue Whether the Respondent should grant the Petitioner an exemption from disqualification from employment in positions of special trust.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Thomas seeks employment at the Everglades Youth Development Center, which is a 102-bed residential treatment facility for high-risk male juvenile offenders aged 13 to 18 years. Because of Mr. Thomas's criminal background, he is disqualified from working in positions of trust with the Department and can only work in such positions if he is granted an exemption from the disqualification. Criminal History Mr. Thomas was arrested in August 1987 and charged with lewd and lascivious behavior with a minor. In an Information dated October 7, 1987, issued by the State Attorney for the Sixth Judicial Circuit in Pinellas County, Florida, Mr. Thomas was charged with three counts of handling and fondling two girls under the age of 16 years in or about July or August 1987, in violation of Section 800.04(1), Florida Statutes (1987).1 At the time, Mr. Thomas was known as Anthony Lee Sanders, "Sanders" being his father's surname. Count I of the Information named Carolyn Coston, a/k/a Carolyn Gordon, as an alleged victim, and Counts II and III of the Information named Lonnette Frazier as an alleged victim. Mr. Thomas first met Ms. Frazier when he played basketball at Gibbs High School in St. Petersburg, Florida; she used to attend the games. Mr. Thomas also knew Ms. Frazier's parents. At the times set forth in the Information, Mr. Thomas was a counselor in the summer recreation program of the Police Athletic League, where he was responsible for supervising and working with children enrolled in the program. Ms. Coston and Ms. Frazier were enrolled in the program and under Mr. Thomas's supervision. Mr. Thomas and Ms. Frazier had dated more than six months before the incident in August 1987 that resulted in his arrest. At the time, Ms. Frazier was 14 or 15 years of age; Mr. Thomas was 19 years of age and a student at Manatee Junior College. Mr. Thomas admits that he and Ms. Frazier had one encounter of a sexual nature in August 1987, but he denies that he and Ms. Frazier had a second such encounter. Mr. Thomas knew Ms. Coston only as a client in the Police Athletic League summer recreation program. He denies ever having had an encounter of a sexual nature with her. After his arrest, Mr. Thomas was jailed for two weeks, then released on his own recognizance. He was represented by a public defender, who advised him and his mother that, if he were convicted of any one of the charges, he could be sent to prison for 25 years. Mr. Thomas was afraid of being sentenced to prison, and he agreed to accept a plea bargain offered by the State Attorney's office. It was his understanding that his attorney tried to convince the State Attorney to dismiss the count in the Information involving Carolyn Coston but was unsuccessful. As a result, Mr. Thomas pleaded guilty to all three counts of the Information, although he insists that he was actually guilty of engaging in only one sexual encounter with Ms. Frazier and that he never had a sexual encounter with Ms. Coston. In an Order Withholding Adjudication of Guilt and Placing Defendant on Probation, dated January 15, 1988, the court found that Mr. Thomas was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." Accordingly, the court withheld adjudication of guilt and placed Mr. Thomas on two years of community control and five years of probation. Mr. Thomas was permitted to continue attending classes and athletic games and practices, and he was allowed to travel with his athletic team. He was also required to pay for the duration of his community service and probation $12.00 per year to First Step, Inc., an organization whose function is not explained in the order. In an order entered May 12, 1988, the court modified the terms of Mr. Thomas's community control by changing the remainder of the community-control period to probation, with the sentence of five years of probation previously imposed to follow. Supervision of Mr. Thomas's probation was transferred to Sioux City, Iowa, where Mr. Thomas had received a scholarship to attend Morningside College. The May 12, 1988, order further provided that, "upon the Defendant's arrival in Sioux City, Iowa, he shall be evaluated to determine whether counseling as a sex offender is needed and, if needed, sex offender counseling shall be made a condition of Defendant's probation." Mr. Thomas did not graduate from Morningside College, but transferred to Bethune Cookman in Dayton Beach, Florida. In an undated affidavit prepared on or around August 25, 1992, Mr. Thomas's Florida probation officer stated that Mr. Thomas had violated the terms of his probation in the following respects: Violation of Condition (8) which states: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit your home, at your employment site or elsewhere, and you will comply with all instructions he may give you." In That, the aforesaid has violated this condition by willfully refusing to attend and successfully complete a Sexual Offender Treatment Program as instructed by his Probation Officer throughout his probation and as ordered by Judge Crockett Farnell on 5-12-88.[2] Violation of Condition (9) which states: "You will pay to First Step, Inc. the sum of Twelve Dollars ($12) per year for each year of probation ordered, on or before ninety days from the date of this order." In That, the aforesaid has violated this condition by willfully refusing to pay to First Step, Inc. the sum of $84 or $12 per year as evidenced by a balance of $84.00 as of 8-12-92. Mr. Thomas was at the time attending Bethune Cookman College. He did not enroll in sex offender counseling because he could not afford the fee; he did not make the payments to First Step, Inc., because he believed that these payments were waived because all of the other fees related to his probation had been waived. Mr. Thomas sold his car, paid the monies owing First Step, Inc., and enrolled in the counseling program. On November 6, 1992, Mr. Thomas entered a plea of guilty to the charges that he had violated the terms of his probation. An order was entered in which Judge Grable Stoutamire accepted the plea, continued Mr. Thomas on probation, and imposed the conditions that Mr. Thomas would "[s]uccessfully complete sex offender counseling now enrolled in" and that Mr. Thomas's "[f]our years DOC [Department of Corrections] suspended sentence is reinstated and will be imposed if defendant deliberately fails to complete sex offender course." Mr. Thomas successfully completed counseling, and he was granted early termination of probation on July 26, 1994. Employment history since 1994. Todd Speight, who is currently the Program Director of the Everglades Youth Development Center, has known Mr. Thomas since they met in 1989, when they both attended Morningside College in Iowa. Mr. Speight observed Mr. Thomas work with children when he was in college, and, in 1994, Mr. Speight recruited Mr. Thomas to work as a youth care worker at the Victor Cullen Academy, which is a residential treatment facility for high risk juveniles located in Maryland. At the time he recommended Mr. Thomas in 1995 for employment at the Victor Cullen Academy, Mr. Speight was aware that Mr. Thomas had pleaded guilty to charges of inappropriate sexual conduct with a girl who was a client of an agency that employed him.3 Mr. Speight was also aware that Mr. Thomas, nonetheless, successfully passed the Maryland employee screening process after he was hired at the Victor Cullen Academy. Mr. Thomas ended his employment at the Victor Cullen Academy when he moved back to Florida in 1995. In 1995 and 1996, Mr. Thomas worked briefly for Bridges of America, a drug and alcohol treatment program that was under contract with the Department of Corrections. He left his position with that organization because the Department of Corrections required that employees of the program be released from probation for at least three years. In the latter part of 1996, Mr. Thomas began working as a residential instructor at the Hope Center, which is a residential center for persons with developmental disabilities that operates under contract with the Department of Children and Families. The Hope Center serves males and females from the age of 12 years to the age of 70 years. Most of the residents are adults, but the Hope Center also serves children. Mr. Thomas disclosed his criminal background when he applied for the job at the Hope Center, and he discussed his background during his employment interview. Mr. Thomas worked at the Hope Center for a short time but was let go when the background screening done by the Department of Children and Families confirmed his criminal background. Mr. Thomas requested an exemption from disqualification from employment, and the exemption was granted in May 1997. Mr. Thomas was rehired by the Hope Center, where he worked from 1997 until the summer of 2002, when he was laid off due to budget cuts. At the time of the final hearing in January 2003, Mr. Thomas was employed at the Bayview Center of Mental Health, a residential program for mentally ill persons aged 18 through 60 years that is funded by the Department of Children and Families. Mr. Thomas was hired as a horticulture assistant, but, after six months of employment, he was promoted to a residential supervisor, effective January 20, 2003. First request to the Department for an exemption from disqualification from employment. In 1995, a request was made to the Department for a background check on Mr. Thomas, and, in July 1995, Mr. Thomas submitted to the Department an Affidavit of Good Moral Character in which he failed to disclose his criminal record. The Department learned through its background investigation that Mr. Thomas had pleaded guilty to three counts of lewd and lascivious behavior with two girls under the age of 16 years, offenses that disqualified him from working in positions of trust and responsibility. The Department also determined that Mr. Thomas did not have good moral character based on the submission of the false affidavit. Mr. Thomas did not request an exemption from disqualification. In 1996, Mr. Thomas was offered a job of trust and responsibility at the Everglades Youth Development Center, and Outreach Broward, Inc., submitted a request to the Department for a background check of Mr. Thomas. A form entitled Consent to Background Screening that was signed by Mr. Thomas on October 8, 1996, accompanied the request, and Mr. Thomas completed an Affidavit of Good Moral Character on October 8, 1996, in which he disclosed that he had a disqualifying criminal offense. The screening resulted in a determination that Mr. Thomas had an unfavorable/disqualifying sex offense of fondling a child. Mr. Thomas requested an exemption from disqualification from employment, and, after he was notified of the Department's intent to deny his request for an exemption, he requested an administrative hearing before an administrative law judge of the Division of Administrative Hearings. The hearing was conducted on May 5, 1998, and a Recommended Order was entered in which the administrative law judge found that Mr. Thomas had established by clear and convincing evidence that he was entitled to an exemption from disqualification from employment in a position of trust. The administrative law judge accordingly recommended that the Department grant Mr. Thomas an exemption so that he could work at the Everglades Academy with youthful male offenders. The Department entered a Final Order dated July 1998, in which it disagreed with the administrative law judge's recommendation and denied the request for an exemption. Second request to the Department for an exemption from disqualification from employment. In or around June 2002, Mr. Thomas wrote to Governor Jeb Bush regarding his efforts to obtain an exemption from disqualification from employment. In a letter dated June 7, 2002, the Secretary of the Department, W.G. Bankhead, responded to Mr. Thomas and advised him that, because more than three years had passed since his 1996 exemption request was denied, he would be allowed "to request an exemption via the desk review process." Secretary Bankhead directed Ray Aldridge, supervisor of the Background Screening Unit, to notify Mr. Thomas in writing of the requirements of the desk review process. Mr. Thomas was further advised that he would be required to undergo a criminal history background and driver's license screening. In early July 2002, Mr. Thomas submitted a Request for Desk Review on Disqualification, in which he checked the statement: "I request a Desk Review of my request for an exemption from disqualification based on the fact that I have clear and convincing evidence to support a reasonable belief that I am of good moral character." As part of the desk review, persons requesting exemptions are required to submit a letter describing the nature of their criminal offenses and their life since they committed the offenses. The following paragraph is contained in a letter to Mr. Aldridge dated July 28, 2002, and signed by Mr. Thomas: On August twenty second, nineteen eighty- seven, I Anthony L. Thomas was charged with sex offenses: two counts against a child, fondling/lewd and lascivious acts. On January fifteenth, nineteen eighty-eight I was found guilty of the two counts against a child, fondling/lewd and lascivious acts. I was sentence to complete seven years probation, which included attending counseling for sex offenders. In the next paragraph of the letter, Mr. Thomas refers to a single victim.4 The results of the Department's background screening were sent to the Department's Inspector General in a memorandum dated August 13. 2002. In the memorandum, Mr. Thomas's criminal history is described as "Sex offense - Against Child Under 16 - Lewd and Lascivious Act," with an arrest date of August 22, 1987. The false Affidavit of Good Moral Character submitted July 10, 1995, was noted in the memorandum as "Other history, which is not disqualifying." On September 9, 2002, the Department's Inspector General indicated on the memorandum that Mr. Thomas's request for an exemption from disqualification from employment was again denied. Subsequent to notice of the intent to deny the exemption request, Mr. Thomas requested the instant administrative hearing. Work record and character of Mr. Thomas. Mr. Speight was a team leader at the Victor Cullen Academy in 1994-1995, and Mr. Thomas worked on his team. Mr. Speight observed Mr. Thomas's job performance and found that the children in his charge were comfortable with Mr. Thomas and that Mr. Thomas did an excellent job with the children. Mr. Speight did not observe Mr. Thomas engage in any inappropriate conduct during his time at the Victor Cullen Academy. During the years he was employed at the Hope Center, from 1997 until the fall of 2002, Mr. Thomas worked in both the residential program supervising the residents and as an assistant in the social services program, arranging for services to residents, planning and supervising residents on outings and field trips, and communicating with residents' families. Aileen Phelan and David Chiverton, two of his supervisors at the Hope Center, consider Mr. Thomas an exemplary employee: He worked exceptionally well with the residents of the Hope Center, was attentive to the needs of the residents, was very caring, had a good work ethic, and was always willing to help where help was needed. Neither Ms. Phelan nor Mr. Chiverton observed Mr. Thomas engage in any inappropriate behavior during the seven years he worked there. Both were aware of his criminal background, including the charges of sexual misconduct with a minor client while he was a counselor in the Police Athletic League and the violation of probation for failing to complete sex offender counseling. They were not, however, aware that Mr. Thomas had pleaded guilty to charges involving two girls under the age of 16 years; Mr. Thomas had told them he had sexual contact with one girl. The knowledge that the criminal charges involved two girls did not alter Ms. Phelan's and Mr. Chiverton's opinions, based on their long association with Mr. Thomas and their familiarity with him as a person and as an employee working with developmentally disabled persons, that he is suitable for employment in a position of trust and that he should be granted an exemption from disqualification from such employment. Mr. Chiverton has such a high opinion of Mr. Thomas and his contributions to the community that, in April 2000, he extended an invitation to Mr. Thomas to serve as a trustee of the Foundation of Community Assistance and Leadership, of which Mr. Chiverton is the Executive Director. As the Program Director of the Everglades Youth Development Center, Mr. Speight would hire Mr. Thomas in an appropriate position at the Everglades Youth Development Center were the Department to grant him an exemption from disqualification from employment in a position of trust. In addition to being familiar with Mr. Thomas's work with children at the Victor Cullen Academy, Mr. Speight has spoken with some of Mr. Thomas's supervisors and co-workers over the past seven or eight years. Although Mr. Speight is aware that Mr. Thomas engaged in a sexual act with a minor in 1987, Mr. Thomas has been a good citizen during the years Mr. Speight has known him. In Mr. Speight's opinion, based on his personal knowledge of Mr. Thomas's character and of his work with high-risk juveniles and on the references from his co-workers, Mr. Thomas would be a highly desirable employee at the Everglades Youth Development Center, and he should be granted the exemption from disqualification from employment in a position of trust that will enable him to work at the Everglades Youth Development Center. Mr. Thomas acknowledges that, even though they had been dating for some time and he cared for her, he was wrong to engage in sexual behavior with Lonnette Frazier. He has been in touch with Ms. Frazier over the years and understands that she has been to college and is doing well.5 Mr. Thomas has been married since November 1999 to Francia Thomas, whom he met when he attended Bethune Cookman College in 1990-1991. Ms. Thomas is a high school business education teacher, and she and Mr. Thomas have a four-year-old son. Ms. Thomas has been aware of her husband's criminal history since shortly after they met. Mr. Thomas is currently attending college to complete his bachelor's degree. He believes that he can be a good example to youthful offenders and can show them that life does not end when you get in trouble as long as you change and use your life to do good. Summary The credible and persuasive evidence submitted by Mr. Thomas is sufficient to establish clearly and convincingly that he is rehabilitated, that he is of good moral character, that he is currently fit for employment in a position of trust and responsibility with the Department, and that he should be granted an exemption from disqualification from employment: Mr. Thomas was 19 years of age when he was arrested and charged with three counts of lewd and lascivious behavior with two girls under the age of 16 years, and 15 years have passed since he pleaded guilty to these offenses. At the time, the criminal court judge believed that Mr. Thomas was unlikely to engage in criminal behavior in the future, and he withheld adjudication of guilt. The only subsequent criminal violation in Mr. Thomas's background is the violation of probation in 1992. Mr. Thomas's failure to comply with two conditions of his probation was not the result of a bad and purposeful disobedience. Rather, Mr. Thomas's failure to attend sex offender counseling was the result of a lack of money to pay for the counseling, and his failure to pay a total of $84.00 to First Step, Inc., was the result of a misunderstanding of his obligation to pay the $12.00 per year fee. Mr. Thomas was granted early release from probation in July 1994, having successfully completed all of the conditions of his probation. Mr. Thomas long ago fulfilled the requirements imposed on him by Florida's criminal justice system, and he has no criminal history since the probation violation in 1992 but has, by all accounts, lived a good and productive life. Mr. Thomas has worked in positions of special trust with young people and with developmentally disabled children and adults since his release from probation in 1994: He worked with juveniles in a high-risk treatment facility in Maryland before returning to Florida in 1995; he was employed for seven years at the Hope Center as a residential instructor; and he is currently working as a residential supervisor at a center in Pembroke Pines that serves mentally ill residents. Mr. Thomas has the respect and loyalty of former supervisors and co-workers in these programs, and they describe a man who was an exemplary employee and a caring social service worker with whom adults and children were comfortable. The evidence is, therefore, sufficient to support a firm and unhesitating belief that Mr. Thomas would not pose a threat to children were he permitted to work with juveniles committed to the care of the Department.6 Mr. Thomas is married, he has a child and a stable home life, and he is completing his college education. Mr. Thomas admits that, in 1995, he submitted a false Affidavit of Good Moral Character in which he failed to disclose that he had pleaded guilty to a disqualifying offense. Although the false affidavit Mr. Thomas prepared in 1995 could reasonably serve as a basis for denying his 1996 request for an exemption from disqualification from employment, seven and one-half years have elapsed and Mr. Thomas has fully disclosed and discussed his criminal history with the Department. In light of his personal and employment history since 1995, Mr. Thomas's failure to disclose this criminal history in 1995 is not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Mr. Thomas's failure to state in the July 28, 2002, letter to Mr. Aldridge that he was charged with three counts of lewd and lascivious behavior with two separate girls under the age of 16 years is, likewise, not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Although Mr. Thomas pleaded guilty to the three counts of lewd and lascivious behavior in 1987, when he was 20 years old, the credible and persuasive evidence establishes that he did so as part of a plea bargain to avoid what he feared could be a prison sentence of 25 years. Throughout the hearing, Mr. Thomas proclaimed his innocence with respect to the charge that he engaged in lewd and lascivious conduct with Carolyn Coston, and he repeatedly asserted that he had actually engaged in conduct of a sexual nature only with Lonnette Frazer, and the omission in the letter of reference to the third count of and the second girl named in the Information is a minor error of omission that is insufficient to outweigh Mr. Thomas's personal and employment history during the past nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Anthony L. Thomas an exemption from disqualification from employment in a position of trust or responsibility with the Department of Juvenile Justice. DONE AND ENTERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 17th day of March, 2003.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 33-year-old female residing in Lake City, Florida. Petitioner has three children, ages 19, 16, and and 12, from her first marriage. Her first husband is deceased. Petitioner was remarried in April 2015. Petitioner and her husband live with, and care for, her three children, as well as two young grandchildren and her seven-year-old niece. Between November 2015 and September 2016, Petitioner was employed at CARC, a residential group home licensed by the Agency.1/ Petitioner provided personal care to the residents, as well as transportation for the residents to doctor’s appointments, shopping, and occasionally to cash their personal checks. In her capacity with the group home, Petitioner had access to and responsibility for the group home van, as well as the corporate credit card for purchasing gasoline. Since being disqualified from employment serving Agency clients, Petitioner has been employed at “Still Waters,” a residential nursing home facility. She works 12-hour shifts, four days on, three days off. Petitioner testified that the hours make it too difficult to care for her children, grandchildren, and niece. Petitioner wishes to return to her employment in the group home as a direct service provider to clients of the Agency. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offense On May 23, 2005, Petitioner was arrested for forgery and grand theft, stemming from having cashed a forged check. The check was written for $391.83, payable to a third party and cashed by Petitioner at her bank. Petitioner pled guilty to both charges, which are third- degree felonies. In August 2005, the court withheld adjudication, ordered Petitioner to complete two years’ probation, and entered a final judgment for fines and costs in the amount of $373. Petitioner’s fines and costs were later converted to community service hours, which she completed. Petitioner was also required to pay restitution to the bank, which she satisfied. Petitioner completed probation timely on August 22, 2007. Petitioner was 21 years old at the time of the disqualifying offense. The details are sketchy. Neither Petitioner’s testimony nor her exemption questionnaire provide much of an explanation. The explanation in Petitioner’s exemption questionnaire indicates that a friend gave her a check from the friend’s employer, and Petitioner cashed it at Petitioner’s bank and kept the cash. She explained that she was young and dumb and did not know better. Petitioner’s testimony was brief, stating that she had been hanging around with the wrong crowd, and that a friend got a check from McDonald’s which Petitioner deposited in her own account. In the questionnaire, Petitioner indicated no one else was involved in the crime because “I did not tell on my friend.” She answered “n/a” to questions regarding the degree of harm to the victim or property (permanent or temporary), as well as whether there were any stressors in her life at the time of the disqualifying offense. When prompted in the questionnaire to provide any additional comments, Petitioner explained that she knew what she did was wrong; that she does not get in trouble any more; that she has three kids, and only has time to go to work, church, and home; and that she wants to take care of “my people,” which she enjoys. Subsequent Non-Disqualifying Offenses The Agency’s Exemption Review Summary lists two2/ non- disqualifying offenses subsequent to Petitioner’s disqualifying offense.3/ In March 2006, Petitioner was arrested for, and adjudicated guilty of, passing a worthless check to Publix in the amount of $76. On June 8, 2006, Petitioner was ordered to complete 12 months’ probation and pay restitution, court fines, and fees in the amount of $329. Petitioner’s probation was terminated on June 4, 2007, having satisfied all terms thereof. Petitioner wrote the check to Publix on October 3, 2005. Petitioner was 21 years old, caring for her seven-year- old, four-year-old, and infant children, and her husband was incarcerated. Petitioner testified, both in her questionnaire and at final hearing, that she wrote the check knowing she did not have the money to cover it because she needed food for her children and diapers for the baby. On February 20, 2012, Petitioner was charged with leaving the scene of a traffic accident. On March 15, 2012, Petitioner was adjudicated guilty and placed on six months’ probation, ordered to complete an eight-hour driver improvement course, and pay court costs and fines in the amount of $416. Petitioner was released from probation on August 14, 2012, having satisfied all probation conditions. Petitioner was 28 years old at the time of the incident. Petitioner was driving with a friend as a passenger, when she crashed her car in a ditch. Petitioner left her car in the ditch and contacted another friend to give them a ride home. The following day, the police came to her home and charged her with leaving the scene of an accident. Petitioner testified that she left the scene because she had no insurance, and that it was late and dark. No evidence was introduced to support a finding that any other vehicle was involved in the accident, or that the accident resulted in any property damage or injury. Educational and Employment History Petitioner graduated from high school in 2002. Petitioner completed the educational requirements to become a Certified Nursing Assistant (CNA) at Lake City Community College in 2004. However, Petitioner has not passed the written state board exam to become certified. Petitioner lists no employment history prior to 2011, although there is some evidence that she worked as a caregiver at a “cluster home” in Lake City in 2005. Petitioner worked as a caregiver in a group home known as “Open Heart” from January 2011 to October 2014. Petitioner was subsequently employed as a housekeeper with Holiday Inn in Lake City from February to November 2015. Petitioner left Holiday Inn to become a caregiver at CARC in November 2015. As noted previously, subsequent to Petitioner’s disqualification, she has been employed at a nursing home facility. Subsequent Personal History Petitioner divorced her first husband in 2014 and he is now deceased. Petitioner has full custody of all three of her children and has taken on the responsibility of her 19-year-old daughter’s two children, as well as her seven-year-old niece. In April 2015, Petitioner married her current husband Octavius, who is a 13-year employee of Red Lobster. Petitioner is active in her church where she sings in the choir, attends Tuesday night bible study and Wednesday night worship, and has her niece involved in a praise dance for children program on Saturdays. One of Petitioner’s sons is disabled. Petitioner reports that both sons play football and that she is, or has been, a team mom for the football team. Petitioner’s Exemption Request Petitioner’s exemption questionnaire is bereft of details. Most questions are answered in just a few words or are answered as “not applicable.”4/ Petitioner expresses remorse for her disqualifying and non-disqualifying offenses. However, it is not entirely clear that Petitioner understands the ramifications of her forgery offense, since she indicated there was no harm done by her passing of a forged check. Petitioner submitted five personal letters of reference with her exemption application. One is from one of her sons, another from a friend at church, and the remaining letters are from former co-workers at care-giving agencies. Each attests to her compassion for disabled persons and her sincerity in the care of those persons. Petitioner did not submit any letter of reference from a current or former employer or another individual in a position of authority. Petitioner did not offer any witness testimony or additional letters of reference at the final hearing. Ultimate Facts Petitioner’s recent employment history evidences her work ethic and emphasizes a passion for serving persons with disabilities. Petitioner’s personal references support a finding that she is committed to family and community, and has a heart for service. However, Petitioner’s disqualifying offense, and at least one of the subsequent non-disqualifying offenses, involves attempts to attain money to care for her family when times were tough. Petitioner’s failure to describe any stressors in her life at the time, and to clearly distinguish her circumstances at present, substantiates the Agency’s reticence to allow Petitioner to work with the most vulnerable clients. Petitioner has more dependents at present than she did when the disqualifying offenses occurred. The record contains few details of how her situation differs today from the past.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 11th day of July, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2017.
