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 Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether the Respondent committed an act of violence or used force on any person except in the lawful protection of one's self or another from physical harm and, therefore, should have his license renewal as a Class "D" Security Officer denied pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact The Petitioner, Michael S. Snow, was at all times relevant to these proceedings a licensed Class "D" Security Officer. The Respondent is the agency that licenses and regulates security officers pursuant to Chapter 493, Florida Statutes. On or about April 12, 2003, the Petitioner filed an application to renew his license as a Class "D" Security Officer. The Respondent advised the Petitioner by letter of its intent to deny his application; the Petitioner requested a hearing; and these proceedings ensued. Subsequently, the Respondent amended its letter of denial, and the letter of August 14, 2003, (Second Amended Administrative Denial of License), constitutes the charging document. That letter states that the application is denied because of the applicant's failure to qualify under Section 493.6118(1)(j), Florida Statutes, because the applicant committed an act of violence or used force on another person that was not for the lawful protection of himself or another. At the hearing, Union County Deputy Sheriff Terry Cranford was called to testify. Deputy Cranford identified an affidavit that he had prepared on November 24, 2002, in relation to an investigation in which the Petitioner was the alleged perpetrator of abuse of an 18-month old child. The affidavit, Respondent's Exhibit numbered 1, was prepared by the deputy after he had interviewed various witnesses in the case; however, the deputy did not observe any of the alleged conduct. The deputy did observe the child on November 22, 2002, during the course of his investigation. The alleged incident, which involved the Petitioner striking the child in the face, took place on November 21, 2002, some 24 hours earlier. The deputy did not mention in his affidavit any injuries he observed. The deputy did not testify at hearing to any injuries to the child. The deputy stated that the child was too young to provide any information on the incident. The deputy's investigative focus at the time he prepared the affidavit was on the mother of the child and another relative. He did not interview the Petitioner. All the information that he obtained about the Petitioner's involvement was through the Child Protective Investigator, Ms. Joiner. The Respondent called Janice Joiner, an investigator with the Department of Children and Family Services (DCFS), who testified regarding her investigation of the incident. Like the deputy, above, Ms Joiner did not observe the incident. It is clear from her testimony and that of the child's mother, that the child's natural father reported the incident. He picked up the child from the daycare on the afternoon of November 21, 2002, and raised questions about the red handprint on the child's face. As a result of the investigation, DCFS initiated a dependency action, which precluded with the right of the child's mother to have custody of the child during the investigation, legal proceedings, and subsequent mediation between attorneys representing the child's mother and father. As a result of the investigation initiated by the child's father, his ex-wife, the child's mother, had to agree to end her relationship with the Petitioner. Ms. Joiner testified regarding what the Petitioner told her. He admitted he struck the child while putting the child in his car seat, when the child grabbed his uniform epaulet and would not let go. Ms. Joiner opined that this was abusive, and stated that the doctor who examined the child said it was abusive. Ms. Joiner did not state upon what information she based this opinion. She mentioned the handprint she saw on the day following the incident, which she described as faint. The Petitioner entered pretrial intervention on the charges brought against him, and successfully completed the program which called for him, to among other things, attend parenting and anger management classes. He was never tried; has never plead or been found guilt of any offense related to this incident; and his civil rights were never affected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Class D Security Officer's license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 20th day of May, 2004. COPIES FURNISHED: Michael S. Snow Post Office Box 1131 MacClenny, Florida 32063 Michael T. McGuckin, Esquire Assistant General Counsel Department of Agriculture and Consumer Services Division of Licensing Post Office Box 6687 Tallahassee, Florida 32314-6687 Brenda D. Hyatt, Bureau Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32314-6687 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32314-6687
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue Whether Petitioner is entitled to an exemption from employment disqualification upon clear and convincing evidence of good moral character.
Findings Of Fact On May 6, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 22, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 29, 1983, Petitioner was arrested for a probation violation. On July 15, 1983, Petitioner was arrested for obtaining property in return for a worthless check. On June 28, 1985, Petitioner was arrested for fraud--insufficient funds check. On May 14, 1990, Petitioner was arrested for fraud--insufficient funds check. Arrests have no significance for statutory disqualification purposes. On September 6, 1983, Petitioner pled guilty to three counts of passing worthless checks. Adjudication of guilt was withheld. He was ordered to pay $150.00 in court costs. (Case #83-1051-CF-A). On August 2, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. Adjudication of guilt and imposition of sentence were withheld. Petitioner was ordered to pay court costs in the amount of $147.50. (Case #83-395-CF). On May 25, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. He was sentenced to 30 days of county probation and ordered to pay $35.00 in court costs. (Case #83-569). Petitioner entered a plea of guilty to the charge of obtaining property in return for a worthless check (a third degree felony), on June 28, 1985. Petitioner was adjudicated guilty, and sentenced to two years' imprisonment (Department of Corrections), to be followed by one year of probation. He was also ordered to pay restitution in the amount of $102.93. None of the foregoing pleas or convictions were, or are, statutorily disqualifying offenses, but at hearing Petitioner offered the incredible explanation for them that his checkbook had been stolen by drug-affected relatives who actually wrote the worthless checks. He offered no explanation why he had pled guilty to crime(s) he claimed not to have committed. In the juvenile justice system, the Alachua Regional Juvenile Detention Center (ARJDC) is the equivalent of a county jail in the adult system. Juveniles charged with delinquent acts or crimes or for whom there is sufficient probable cause to warrant their arrest and detention are housed there for a minimum of 21 days, during which time they receive a preliminary hearing and/or commitment hearing. Petitioner claimed to have been employed in this facility from October 1985 to October 1997. How it could be possible for Petitioner to have been employed at ARJDC in October 1985, when he had been sentenced in June 1985, to two years' imprisonment was never explained, but his testimony to this effect was not refuted. Also, DJJ stipulated that ARJDC had employed Petitioner from October 1985 to October 1997, and there was evidence from several witnesses that Petitioner had worked at ARJDC while the facility was administered by DJJ, after 1995. In October 1985, ARJDC was administered by the Department of Health and Rehabilitative Services (HRS), which was/is a social service agency. Sometime before October 1997, when Petitioner resigned, ARJDC began to be administered by DJJ. DJJ is a criminal justice agency created in 1994. DJJ views its mission as "reducing juvenile crime." Neither HRS nor DJJ is a law enforcement agency or a correctional agency. While employed at ARJDC, Petitioner was, in sequential order, an OPS Transporter, OPS Detention Care Worker, and a full-time, career service Detention Care Worker I. On July 12, 1995, while he was employed in career service by DJJ at ARJDC, Petitioner was arrested for "domestic battery." The circumstances of the domestic battery of July 12, 1995, are fairly classic. The woman Petitioner was then living with, LeTeju Lane, had placed several phone calls to Petitioner at his workplace. When he returned from transporting juveniles, Petitioner only got word that LeTeju had called and left no specific messages. He got permission to go home early. Petitioner found a strange car in the driveway of the home he shared with LeTeju and then listened at the back door. Having heard sounds of "sexual commotion" inside, Petitioner went to the front door, kicked it in, and observed a man having sex with LeTeju. A fight ensued between the two men when Petitioner asked the man to "get off" LeTeju. This record is silent as to any harm done by Petitioner to either LeTeju or the male interloper. On September 11, 1995, Petitioner pled nolo contendere to the offense of "domestic battery," no statute specified. Based on the statutory scheme and the documentary evidence, it appears that Petitioner pled to a first degree misdemeanor.1/ Adjudication of guilt was withheld, and Petitioner was placed on non-reporting probation for one year. Court costs were waived, but on October 16, 1995, Petitioner was ordered to pay $100.00 in restitution to LaTeju. This money was for the repair of the door Petitioner had kicked in and damaged during the domestic battery incident. Petitioner testified that he reported the circumstances of the domestic battery to his immediate DJJ supervisors even before he was released from the initial arrest and that he kept them advised of the progress of his case; that ultimately they told him that if he were not convicted of a felony, he could keep working for DJJ; and that they allowed him to keep working in his position of special trust at ARJDC until he voluntarily resigned two years later. Mr. Turner, DJJ's current IG, has been with DJJ since 1994 but only became IG sometime in 1996. He testified that in 1995, Petitioner's immediate supervisors had a duty to report the domestic battery offense to the IG's office for investigation re disqualification exemption, and they did not. Mr. Turner inferred from this information that Petitioner actually never told his superiors about the domestic battery. Petitioner continued to work for DJJ at ARJDC until October 1997, when he voluntarily resigned due to orthopedic problems with his knee. Three professional care witnesses who had worked with Petitioner at ARJDC testified. All three described Petitioner as caring, responsible, honest, effective, and the type of person who worked well with juveniles. A supervisor noted that Petitioner was truthful about his paperwork; had willingly worked overtime; and, on occasion, had voluntarily worked without pay when OPS funds ran out. None of these witnesses knew about Petitioner's criminal record. Petitioner married LaTeju Lane about three months after the domestic violence event in 1995. Thus far, it has been a successful marriage, producing two children. On November 16, 1998, the Circuit Court in and for Alachua County granted Petitioner full custody of two of his children from a prior marriage. Petitioner and LeTeju have successfully integrated these children into their household. LaTeju's child by a prior mate also resides with them. Observers describe Petitioner as a concerned and loving father and describe all the children as "well-mannered." Petitioner has three other children by his first wife. Petitioner supports all of his minor children. LaTeju described Petitioner's behavior toward her ever since their marriage as "lovely." She further described him as being nonviolent, self-controlled, and good with the children. Petitioner described himself currently as a self- controlled, civic-minded, hard-working church-going professional. Petitioner is currently employed as a lieutenant- supervisor of security guards for the Barkley Security Agency, working at Gainesville Regional Utilities. Prior to that, Petitioner worked in mortuary science at a funeral home. On February 24, 2000, Petitioner received a certificate of recognition from the Alachua County School Board for preventing a middle school student from getting on a school bus armed with a snub-nosed pistol. On other occasions, Petitioner has been publicly commended for reporting four escaped juveniles to the Putnam County Sheriff's Department and for summoning authorities to intercept a three-year-old child who had wandered onto the green spaces of I-75. On November 6, 2000, Petitioner completed the course for certification as a Class D security officer with a score of 97 out of a possible 100 points. For approximately three years, Petitioner has been qualified as a "documented source" by the Florida Department of Law Enforcement. This means that his criminal background has been checked for anything that might discourage law enforcement officials from using him for intelligence work. Even so, law enforcement agencies frequently employ minor criminals, paid informants, and potential co-defendants for the same or similar services as Petitioner performs for them. According to Kenneth Moore, Special Agent of the Florida Department of Law Enforcement; Carnell Grayer, retired Lieutenant of the Palatka Police Department; Clovis Watson, Assistant Chief of Police of Alachua, Florida; and Robert Jernigan, Chief of Police of Alachua, Florida, Petitioner has a history spanning approximately ten years of intermittent paid civilian "intelligence work" for various police departments and sheriffs' offices. In each instance, he has done whatever was asked of him in a timely manner, and all the information he has provided has checked out as true. He regularly provides information which results in arrests and clears cases. Each officer testified favorably about Petitioner's intelligence, truthfulness, and reliability. Each testified that Petitioner was "professional" and able to control his emotions and remain non-violent under stress, even when his own children were at risk. Most of the law enforcement witnesses were unaware of Petitioner's criminal record. Some were aware of it. When made aware of his criminal record, most law enforcement witnesses felt that neither Petitioner's worthless check history nor the domestic violence offense would affect their high opinion of Petitioner, but that a false statement under oath probably would prevent their trusting him. In 1999, Petitioner submitted job applications for caretaker positions with Eckerd Youth Alternatives and Marion Regional Juvenile Detention Center, and submitted an Affidavit of Good Moral Character. Both potential employers submitted background screening requests on Petitioner to DJJ's BSU. Petitioner claimed that he had told the DJJ employees who had accepted his 1999 employment applications and affidavit all about his past criminal record and offered to provide further information, and that they had told him to turn in the applications and affidavit described below and wait to see what BSU said. Without corroboration, this assertion does not excuse Petitioner from making the disclosures required by the written instructions on the affidavit and applications. The State of Florida employment application which Petitioner signed on September 17, 1999, and submitted to Marion Regional Juvenile Detention Center (R-12), indicated that Petitioner had been a "state correctional officer" with DJJ from 1985 to 1997. This representation of being a "correctional officer" is a technical impossibility, since neither DJJ nor its predecessor agency HRS operated/operates correctional facilities. (See Finding of Fact 9) Petitioner admitted under cross-examination that he had been a Detention Care Worker I when he resigned from DJJ in 1997. He explained his answer on the 1999 job application as being the result of information he had received from his former DJJ superiors while he was still working for DJJ. Petitioner also stated on the September 17, 1999, application that he had been a "Communication Officer I" with the Clay County Sheriff's Office from September 1983 to April 1984. He did, in fact, hold that position, which constituted being a dispatcher. On the job application, Petitioner also checked "yes" to the question, "Are you a current or former law enforcement officer, other employee or spouse or child of one who is exempt from public records disclosure under Section 119.07 (3)(k), Florida Statutes?" The application form explains "other employee" to include, among others, correctional officers. It does not list police dispatchers. It then refers the applicant to the named statute for further explanation. Petitioner testified that he knew that to be a "law enforcement officer," one had to be a "certified police officer," which he had never been. Petitioner testified that he had checked the "yes" for exemption from public records requests on his application because when he was a law enforcement dispatcher and when he worked for DJJ, his superiors had told him this was a way to keep the criminal element from locating his home to hurt him or his family. A section of the September 17, 1999, job application required that Petitioner reveal convictions, nolo contendere or guilty pleas, and adjudications withheld of any felonies or first degree misdemeanors. Petitioner only admitted to "worthless check in Clay County, on July 14, 1983." This date did not match any of his worthless check pleas, convictions, or adjudications withheld and gave DJJ the impression that Petitioner was admitting to only one worthless check charge. Petitioner also did not disclose his plea of nolo contendere or that adjudication had been withheld on the 1995 domestic battery charge, a first degree misdemeanor. The job application, which Petitioner signed, authorized a search of his background and clearly stated that he was aware that any omissions might disqualify him from consideration for the employment position applied-for. In conjunction with his applications for employment and his background screening packages, Petitioner completed and signed an Affidavit of Good Moral Character, dated and notarized on September 20, 1999 (R-3), in which he swore that his criminal record did not contain any disqualifying offenses. That affidavit did not require him to list his worthless bank check charges or convictions as disqualifying offenses, but it did specifically list as a disqualifying offense, "741--relating to domestic violence as defined in Sections 741.28 and 741.30 (any crime of violence against a family/household member, including assault and battery)." Petitioner's explanations of his failure to disclose the domestic battery on the affidavit were that he believed the inquiries thereon only applied to his good character after 1995; he did not read the affidavit carefully; and he assumed the affidavit was the same as the one he had signed 14 years previously. None of these explanations is worthy of belief, especially since he ultimately admitted that the old affidavit and the 1999 one did not look the same. Petitioner's assertion that he did not think he was required to disclose the domestic battery at all because he believed that it would not count against him since his former DJJ superiors had allowed him to work for two years after it occurred is not corroborated, but is credible within the confines described in the following Conclusions of Law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of February, 2001.
Findings Of Fact The Petitioner, Pamela Williams, doing business as Secure Home Management, seeks a license to operate an adult congregate living facility (ACLF) in Palatka, Florida. The Respondent is an agency of the State of Florida charged with regulating the operation and practices of adult congregate living facilities and licensure thereof, together with enforcement of licensure standards contained in Chapter 400, Part II, Florida Statutes (1981). Preliminary discussions and informal meetings between representatives of the Department and the Petitioner, Pamela Williams, occurred at various times in January 1983, during which discussions the Petitioner was advised by the Department that she was required to apply for an ACLF license in order to legally operate her business. The Petitioner took the position that the facility she operates was a transient rental facility and thus exempt from the ACLF licensing provisions contained in Chapter 400, Part II, Florida Statutes, which exemption is provided for at Section 400.404(d) of that chapter. However, as a result of these informal discussions between the parties, the Petitioner ultimately elected to apply for licensure as an ACLF and did so on January 31, 1983. After further deliberations by the Department, requests for additional information and further informal negotiations and conferences, the Respondent Department ultimately elected to deny the application for licensure and so informed the Petitioner on May 4, 1983. In essence, the reasons for the Respondent's denial of the application for licensure was the belief by the agency and its representatives that the applicant Petitioner lacked the financial ability to provide continuing adequate care to residents under authority of Section 400.414(1)(b), Florida Statutes (1981). Subsequent to the denial of licensure, the Petitioner made a number of good-faith efforts to attempt to meet the Respondent's criteria for licensing in the area of furnishing proof of financial responsibility. For instance, on April 15, 1983, just before denial of licensure, a letter from Jack Allen, a financial backer of the Petitioner, was provided to the Department promising adequate financial support. That letter was admitted as Petitioner's Exhibit 1. However, the Department nonetheless elected to deny licensure, being unsatisfied that that constituted adequate establishment of financial security for the proposed licensed institution. Following the denial of the license, the Petitioner and the Respondent continued to attempt to resolve the problem regarding establishment of financial support for the institution. The Petitioner in that regard furnished the Respondent with additional documentary evidence from Jack Allen, dated May 12, 1983, and admitted as Petitioner's Exhibit 2, in which unlimited resources were promised in order to assure that the ACLF would embark on its operations on a secure financial footing. Sometime in August 1983, in part at the behest of the Respondent, the Petitioner retained an attorney, with the result that a document establishing financial worth and responsibility for operating the facility with adequate provision for care for its residents from a financial standpoint was provided the Department, with the result that after certain other informal negotiations the license was ultimately issued on October 14, 1983, authorizing Pamela W. Williams, d/b/a Secure Home Management, to operate the subject ACLF. Prior to this licensure, the Petitioner continued to operate the facility while making good-faith attempts to meet the requirements of the Department and during which time the dispute concerning whether she needed licensure or conversely whether she came under the above-described exemption was unresolved in part between the parties. It was established through Petitioner's testimony, as well as that of Lee Darden, a representative of the Division of Aging and Adult Services of HRS, that at all times pertinent hereto, before and after licensure, the residents of the Petitioner's facility received at least adequate care and that the failure of the Petitioner to be licensed did not in any way jeopardize the health, safety or well-being of any of the Petitioner's residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that no fine be assessed and levied upon Pamela W. Williams, d/b/a Secure Home Management. DONE and ENTERED this 10th day of February, 1984, in Tallahassee, Leon County, 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 10th day of February, 1984. COPIES FURNISHED: Albert W. Whitaker, Esquire Post Office Drawer D Palatka, Florida 32078-0019 James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Building H Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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.
