The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 32-year-old male who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 120-page report entitled "Exemption Review" dated November 17, 2014. See Resp. Ex. B. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below: May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld; April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld; May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation; June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation; January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims. However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains from a victim's neck.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 17th day of June, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2015.
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005. Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016. On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training. The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date. The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him. Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly. The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo. Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door. Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information. After Deputy Brewster went to the vehicle, Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime. At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest. After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity. Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process. Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth. No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.
The Issue The issue in this case is whether it would be an abuse of discretion to deny Petitioner's request for exemption from employment disqualification.
Findings Of Fact Petitioner is seeking employment with the Lake County Board of County Commissioners, in a service provider function that is regulated by the Agency. As a prospective direct service provider, Petitioner was required to comply with background screening requirements. The Agency's clients are a vulnerable population, consisting of persons with the following statutorily defined developmental disabilities: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. § 393.063(12), Fla. Stat. Without the Agency's services, these clients would otherwise require institutionalization. The Agency's clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. Such clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider to the Agency’s clients is considered a position of special trust. The Agency is responsible for regulating the employment of direct service providers in positions of special trust such as that sought by Petitioner. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks undertaken by direct service providers for individuals with disabilities are of a social, personal needs, and/or financial nature. The background screening unit of the Department of Children and Families (“DCF”) performs background screenings for the Agency. Petitioner received notification from DCF, via letter dated January 8, 2016, of her disqualification from employment due to her criminal history. The specific disqualifying offense listed in the letter was aggravated battery with a weapon, in violation of section 784.045, Florida Statutes, a second degree felony. Because Petitioner’s screening indicated a disqualifying offense, Petitioner was required to seek an exemption from disqualification in order to proceed with her application to work as a direct service provider. On or about February 26, 2016, Petitioner submitted to DCF a Request for Exemption form, a completed Exemption Questionnaire form, various criminal records, character references, and other documents in support of granting of exemption from employment disqualification. DCF subsequently forwarded these materials to the Agency for review. The Agency began its exemption review by considering Petitioner's disqualifying offense. In June 1988, Petitioner committed the disqualifying offense of aggravated battery with a weapon. The police report of the incident stated that Petitioner stabbed her husband in the shoulder with a knife during an argument. The stab wound was serious enough to require treatment at the hospital and a subsequent visit to a specialist. On her Exemption Questionnaire form, Petitioner indicated that her husband suffered permanent scarring from the wound. An arrest affidavit for probable cause was issued by the Leesburg Police Department. Petitioner later pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to thirty-six (36) months of probation, payment of fines, court costs, mental health counseling, and a drug and alcohol program. Petitioner successfully completed her probation on August 29, 1991. In the Exemption Questionnaire form, Petitioner set forth her version of the circumstances involved in the disqualifying offense: At 21 years of age, I was dealing with regular occurrences of mental distress within the home, such as emotional, mental, verbal and physical abuse by my ex-husband. On the day of this offense, my ex-husband entered our home in a rageful [sic] manner. Fear gripped me. He began to argue. He also went into the closet, pulling out a motorcycle chain. He began to strike me with it. After running outside, my ex- husband chased me with his belt off, hitting me with the belt buckle. A girl scout’s knife was already in my hand. He continued to hit me with the belt buckle, swinging his arm. As I turned around in self-defense, my ex-husband was struck with the girl scout’s knife. Realizing what happened, I began to cry frantically, (my concern was to get medical attention for him), apologizing and begging for forgiveness. Petitioner’s record indicates no other criminal offenses of any kind, whether disqualifying or non- disqualifying. The Exemption Questionnaire form requires applicants to describe the degree of harm to any victim of their disqualifying offenses. Petitioner wrote, “Thanks be unto God, my ex-husband sustained non-life threatening injuries with permanent scarring.” The Exemption Questionnaire form requires applicants to describe any stressors in their lives at the time of the disqualifying incident and at present. Petitioner wrote that there were stressors in her life at the time of the disqualifying incident. She did not elaborate, but in answer to another question she wrote that at age 21 she “had begun to abuse chemical substances.” She stated that her drug use was short-lived and that she ceased it permanently after the stabbing incident. Regarding whether there are any current stressors in her life, Petitioner wrote that she is "practising [sic] unhealthy habits." Again, Petitioner did not elaborate as to the nature of these unhealthy habits, but at the hearing she explained that she was referencing overeating and not exercising. Petitioner wrote that she is single and lives with her mother, and that her community activities include her family, women's group, church, art workshops, poetry and prose writing, and volunteering for the community development center when needed. The Exemption Questionnaire form asks for an applicant's prior three years' work history and an explanation of any job changes. Petitioner’s employment record indicated she had driven a school bus for several years. Petitioner provided the following explanation for changing jobs: "changed careers from transportation to medical industry to procure an immense financial gain. Have also decided to strive above and beyond my comfort zones to secure a position of my dreams." The Exemption Questionnaire form requires the applicant to list his or her educational history and any specialized training. Petitioner listed the following: Office Support Technology, specializing in Professional Leadership Development; Master Security Officer, specializing in Basic Supervisor, Leadership, & Advanced Manager; Patient Care Technician, specializing in Pharmacy Aide, EKG Aide and Unit Secretary/Coordinator; and Private Investigation, specializing in Legal Assistant & Fraud Insurance. Petitioner listed no specific institution for these certifications or specializations, but other documents submitted by Petitioner indicate that the Office Support Technology and Patient Care Technician courses were provided by Lake Technical College in 1996-97 and 1999, respectively; the Master Security Officer certification was provided by Barton MSO in 2003; and the Private Investigator diploma was received from City College in 2011. In response to the Exemption Questionnaire form’s requirement that the applicant document any history of counseling, Petitioner wrote that she received mental health counseling in 1988 and anger management counseling in 2007. Finally, under the heading “Remorse/accept responsibility,” the Exemption Questionnaire form requires the applicant to document any relevant information related to the acceptance of responsibility for his or her offenses. Petitioner wrote as follows: The harm done to my ex-husband caused me to feel very awful. Because of the forgiveness from my trespasses, the acceptance of the offense towards my ex-husband subsided day by day. Taking responsibility for my actions made me realize that I must become a better person and live a better life by improving myself so that I would someday become a productive citizen and asset to society and my family. Petitioner listed the following specific employment record: CareMinders Home Care, February 2015 to August 2015 (certified nurse assistant); Interim Healthcare, December 2014 to June 2015 (certified nurse assistant); Lake County School Board, October 2005 to August 2013 (school bus driver). In support of her exemption request, Petitioner also submitted a copy of a “Lake County Head Start Parent of the Year” award she received in 1999, a copy of an “International Poet of Merit” award she received in 2000, and reference letters from previous employers and longtime friends. Petitioner’s friends described her as hard-working, compassionate, respectful, and considerate. By letter dated September 26, 2016, the Director of the Agency informed Petitioner that her request for an exemption from disqualification had been denied “based on a Background Screening that was performed on 1/07/2016 . . . . The Agency considered all available information that led to your disqualification, as well as all information provided by you regarding your disqualification. The Agency has denied your request for an exemption because you have not submitted clear and convincing evidence of your rehabilitation.” The Director’s letter informed Petitioner of her right to request an administrative hearing to dispute the Agency’s proposed action. Petitioner timely filed a Request for Administrative Hearing. At the hearing, the Agency presented the testimony of Michael Sauvé, the Agency’s Deputy Regional Operations Manager for the Central Region. Mr. Sauvé testified that the Agency had reviewed all of the documentation submitted by Petitioner in response to the Exemption Questionnaire, as well as additional documents she submitted with her Request for Administrative Hearing. These additional documents included an exemption from disqualification, dated March 26, 2013, granted by the Department of Health, Board of Nursing; and a letter of disqualification from employment from the Agency for Health Care Administration, dated December 30, 2015. Mr. Sauvé testified that in reviewing exemption requests, the Agency considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and any other evidence indicating that the applicant will not present a danger to a vulnerable population if the exemption is granted. Mr. Sauvé also stated that the Agency seeks consistency in the applicant's account of events in his or her Exemption Questionnaire, and considers the passage of time since the disqualifying incident, whether or not the applicant accepts responsibility for his or her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Mr. Sauvé testified that the Agency noted marked inconsistencies between Petitioner's account of her disqualifying offense and the statements found in the police report. However, the police report of the incident consists of hearsay within hearsay, i.e., the responding officer’s narrative of events as told to him by the involved parties. The police report may not be relied upon in this tribunal for the truth of the matters asserted therein. It is of no use in establishing that Petitioner’s version of events is untruthful or minimizes the seriousness of the incident. In any event, the inconsistencies noted by the Agency were relatively minor critiques of Petitioner’s written narrative. For example, Petitioner stated in her Exemption Questionnaire that she ran outside as her husband chased her and hit her with his belt buckle and that she already had a Girl Scout knife in her hand. She offered no explanation as to how or why the knife came to be in her hand. Given that she freely admitted to stabbing her husband, Petitioner’s failure to detail exactly when she picked up the knife, as he hit her with a motorcycle chain and a belt buckle, seems of little importance. Mr. Sauvé testified that the Agency was also concerned that Petitioner appeared to minimize the seriousness of the incident when she wrote that her husband suffered “non-life threatening injuries with permanent scarring.” Mr. Sauvé contrasted Petitioner’s statement with the police report stating that the victim was “stabbed deep enough that he had to go to [the hospital] for treatment and then to have a specialist work on him due to the seriousness of the cut.” The cut was on the back of the victim’s shoulder and in no account was the incident described as “life threatening.” Petitioner’s description may have lacked detail but was more or less consistent with the police report. Mr. Sauvé testified that the Agency examined Petitioner’s driving record and found three speeding tickets. Such violations are a concern to the Agency because individuals who are granted exemptions could be called upon to transport clients. The Agency must be confident that these clients will be transported safely. More than her written statements, Petitioner’s testimony caused the undersigned to share the Agency’s concern about Petitioner minimizing her disqualifying offense. She seemed much more concerned with explaining the speeding tickets than in expanding upon her brief written statement regarding aggravated battery with a weapon. Petitioner simply read aloud her written statement about stabbing her husband, then launched into a detailed discussion of her speeding tickets. Also, Petitioner could not recall whether her driver’s license had ever been suspended. When confronted with documentation that it had, Petitioner stated that her license had never been suspended “for cause.” None of this testimony was helpful in establishing Petitioner’s unvarnished veracity or her appreciation of the seriousness of her disqualifying offense. Mr. Sauvé testified that the Agency had a concern with Petitioner’s statement that she had changed careers to the medical field to "procure an immense financial gain." Mr. Sauvé noted that it is not unreasonable for a person to seek a decent income, but that it is highly unusual and somewhat disconcerting for a person to enter the field of serving persons with disabilities with the idea of “immense financial gain.” Mr. Sauvé’s concern on this point was well taken. In another case, the undersigned might be inclined to find that the applicant had merely chosen an unartful way to express her hope of bettering her station in life, but Petitioner presents herself as the professional author of two books. She may be presumed to understand the form of the thoughts she puts to paper. Petitioner said nothing at the final hearing to allay the concern Mr. Suave expressed about her stated motivation for entering the field. Mr. Sauvé also discussed three DCF reports involving Petitioner in allegations of abuse. The first report, dated 1989, involved a verified finding of sexual battery against Petitioner's then-husband. According to the report, a relative told the investigator that the husband had a history as a sexual perpetrator. The report stated that Petitioner allowed access to her daughter and that the husband had fondled the child. The report stated that Petitioner had been made aware of what happened but chose to forgive the husband. She remained in the home with him, allowing continued access to the child. DCF cited Petitioner for failure to protect her child. The husband was subsequently arrested and charged with sexual battery. Petitioner testified that her actions should be viewed in light of the fact that she herself was an abuse victim. She stated that she took steps to protect her children as soon as she learned her husband was abusing them. Petitioner presented the testimony of her daughter, Candace Chatman, who stated that she was the child victim identified in the 1989 DCF report. Ms. Chatman testified that, contrary to the report, her mother did not know about the abuse when it was occurring. She stated that she was eight years old and was living with her grandmother at the time of the abuse, which she recalled occurring only once. Ms. Chatman stated that she did not tell her mother about the abuse; rather, she told another child at school about it. Ms. Chatman’s testimony was credible. The second DCF report, dated 1996, involved allegations that Petitioner hit her daughter in the head, resulting in migraine headaches. According to the report, the daughter stated that Petitioner "does hit her in the head" and once threw a bowl at her, hitting her in the face. DCF rendered findings of “some indicators” for the maltreatments of beatings, physical injury, and family violence that threatens a child, though the report assessed the risk as “low” because of the presence of family members to monitor the situation. Neither Petitioner nor Ms. Chatman directly addressed the 1996 report in their testimony. The hearsay report may not be relied upon for the truth of the matters asserted therein, but the undersigned is entitled to take notice of Petitioner’s silence as to the very serious allegation made in the report. Mr. Sauvé discussed the final DCF report, dated 2002. This incident pertained to an allegation involving Petitioner's sons, who were then aged 13 and 8. The older boy had been sexually abused by Petitioner’s spouse, and was now believed to be sexually “acting out” with his younger brother. The DCF report states that Petitioner denied any knowledge of an incident between the boys, and that Petitioner alternatively admitted and then denied having knowledge of the older boy’s prior molestation. Child services authorities advised Petitioner to separate the boys at any time they might be unsupervised. The younger child started going to his grandmother’s house after school, where he stayed until Petitioner picked him up on her way home from work. At the hearing, Petitioner testified that she had never seen the 2002 DCF report. She first denied that any abuse was occurring in her home in 2002, then stated that she had not been aware of anything untoward. Petitioner denied any knowledge that her older son had been molested by her husband. She testified that her admission to the authorities that molestation had occurred “was a way to get him counseling” because of the way he had been acting out in school. During cross-examination, Petitioner denied knowing why child services advised her to separate the boys. She stated that she did not ask why. The authorities simply told her that everything would be all right if she separated them and so she complied. Petitioner’s testimony as to the 2002 DCF report cannot be credited. This finding is not based on any contradiction between Petitioner’s testimony and the facts as stated in the hearsay DCF report; rather, it is based on the inherent lack of credibility in Petitioner’s statements. Especially problematic is her claim that she did not even ask the authorities why her sons should be kept apart. Petitioner’s unwillingness to admit any knowledge of, or even curiosity as to what the authorities alleged was happening in her home, raises serious concerns as to her character and judgment. Petitioner’s overall presentation tended to undermine her case. As noted above, she seemed unduly preoccupied with traffic tickets as opposed to the far more serious matters that concerned the Agency. Her testimony was rambling, discursive, and argumentative. The undersigned could not help but note that Ms. Chatman often interjected comments, sotto voce, in an effort to keep her mother on point during her testimony. As the hearing progressed, Petitioner became increasingly angry at the Agency for failing to recognize her “compassion.” Petitioner’s initial burden is to demonstrate, by clear and convincing evidence, that she is entitled to an exemption. The “clear and convincing” standard requires evidence sufficient “to convince the trier of fact without any hesitancy.” In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051, 116 S. Ct. 719, 133 L. Ed. 2d 672 (1996). Petitioner’s presentation clearly failed to rise to this standard. Petitioner appears to have turned her life around somewhat after a history of abuse, but she failed to convince either the Agency or the undersigned that she is sufficiently rehabilitated to be trusted to work with persons who are vulnerable and highly susceptible to abuse, neglect, and exploitation due to their developmental disabilities. In light of all the evidence presented at the hearing, it cannot be found that the Agency abused its discretion in denying Petitioner's request for an exemption. Taken in its entirety, the evidence supports the Agency's determination that the evidence of Petitioner's rehabilitation was insufficient.
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 the request of Petitioner for exemption from employment disqualification. DONE AND ENTERED this 27th day of February, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2017. COPIES FURNISHED: Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Sonya Nicole Samuels 496 Goss Avenue Leesburg, Florida 34748 (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 An Administrative Complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, by failing to disclose on his licensure application that on August 9, 1993, he had pled nolo contendere to passing a worthless check. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Since approximately July 1, 1996, and at all times relevant, Respondent Donald J. Berry has been licensed as a real estate salesperson pursuant to Chapter 475, Florida Statute. He was born in England on April 4, 1966. The application for licensure which Mr. Berry submitted to the Department of Business and Professional Regulation (DBPR), Division of Real Estate, and which he signed and acknowledged on April 18, 1996, includes these pertinent parts: 9. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including a sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. . . . AFFIDAVIT OF APPLICANT The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s) (he) is the person so applying, that (s) (he) has carefully read the application, answers, and the attached statements, if any, and that all succeeding answers and statements are true and correct, and are as complete as his/her knowledge, information and record of permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives by him/her in response to inquiries concerning his/her qualifications. (Petitioner's Exhibit No. 1.) Before he completed and signed the application, Mr. Berry called the Division of Real Estate and told them that the documentation he had was an arrest report. He understood from the staff-person's response that he could write information on the application and enclose what he had. He then checked "yes" in response to question no. 9, and wrote on the application form, "Driving with a suspended driving license." He also, so he thought, enclosed a copy of the arrest warrant from when he was stopped for traffic charges and was found to have an outstanding capias for "obtaining property for worthless check." Sometime later after he submitted his application, someone from the Division of Real Estate called to tell him that he needed the disposition report on the charges. He contacted the clerk of court's office and a staff-person from there called the Division of Real Estate. The Division then obtained records from the Orange County Court that Mr. Berry had pled "no contest" to the worthless check charge and was fined $115, with adjudication withheld. Later, Mr. Berry was told by an investigator from the Division of Real Estate that there was no record that an arrest report had been attached to his application. The only testimony in this proceeding was from Mr. Berry. He explained that he had tried, in good faith, to respond accurately to question no. 9. He did not have any documentation on the arrest for driving with a suspended license and had only a copy of his arrest report for the 1993 worthless check charge. He thought he included the information being sought and was not trying to hide anything. As he explained, he knew the agency had his social security number and could check up on him. He did not write anything about the worthless check on his application form because he had the separate paper (the arrest report) describing that charge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the agency enter its final order dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate Suite N 308 Hurston Building, North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772 Donald J. Berry, pro se 2901 Dickens Circle Kissimmee, Florida 34747 Lynda L. Goodgame, General counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent Clifford Rocha was, at all times material to this proceeding, employed as a security officer by Dade Federal Security. He was hired on October 16, 1989, and worked for Dade Federal Security on a part-time basis until sometime after the incident from which this proceeding arises. As a general rule, all employees of Dade Federal Security, as part of the company's policy and procedures, are required to sign a copy of the written rules applicable to the security officer job in the presence of their supervisor to acknowledge they have read them. As part of that procedure each employee receives a copy of the rules. Usually this happens at time of hire. The written work rules include the following statement: "Any employee who abandons his or her assignment location without advising his or her supervisor and the company will be determined to be terminated on the spot." Aleli Puig, the owner and manager of Dade Federal Security, did not remember ever discussing the work rules with Mr. Rocha and could not remember ever telling Mr. Rocha that he was never to leave his post. As a general rule, security officers employed by Dade Federal Security are instructed that when they see a crime committed in their presence to first call 911 and then to call Dade Federal Security and ask for a supervisor. The owner and manager of Dade Federal Security in her thirteen years in the security industry has never told her security officer employees that they were to leave their posts to chase down a suspected criminal. The written rules described above were first placed in effect at some time after the Respondent was hired. There is no persuasive evidence in this case that the Respondent was ever provided a copy of the written rules. Similarly, there is no persuasive evidence that the Respondent was otherwise advised about any of the work rules mentioned above. 6/ On December 16, 1992, the Respondent was assigned to work as a security officer at a shopping center located near the intersection of Bird Road (which is also Southwest 42nd Street) and 128th Avenue. While on duty in that capacity in the early morning hours, the Respondent observed two suspects who appeared to have stolen a six-pack of beer from a convenience store located in the shopping mall where the Respondent was working. The two suspects left the shopping mall in an automobile. The Respondent followed the two suspects in his own automobile, on which he had placed a flashing yellow light. Approximately 20 blocks from the shopping mall there was an automobile accident involving the Respondent's automobile and the automobile containing the two suspects. 7/ Shortly thereafter, the police were called and the two suspects were arrested. The office of Dade Federal Security was also called and Gangerico Cruz, who was the Respondent's supervisor, went to the scene of the accident. At the scene of the accident Supervisor Cruz spoke with the Respondent about what had happened. Among other things, the Respondent told his supervisor that he was pleased that he had been able to detain the suspects. Later when the Respondent spoke to the owner of Dade Federal Security he told the owner she should be proud of him for detaining the suspects. The Respondent suffered a broken leg in the automobile accident and was unable to work for an unspecified period of time. After his leg healed the Respondent continued to work for Dade Federal Security for an unspecified period of time. His employment was eventually terminated as a result of a later incident during which he was accused of sleeping while on duty.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 14th day of March 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March 1995.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
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.
