The Issue The issue is whether The Department of Financial Services properly imposed a Stop Work Order and Amended Order of Penalty Assessment pursuant to the requirements of Chapter 440, Florida Statutes.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida. Respondent Clark Green, d/b/a/ Clark W. Green Painting, is a sole proprietor located in Jacksonville, Florida, and is engaged in the business of painting, which is a construction activity. Katina Johnson is an investigator employed by the Division. Her duties include investigating businesses to ensure that the employers in the state are in compliance with the requirements of the workers' compensation law and related rules. On February 22, 2005, Ms. Johnson visited a job site in the Northside subdivision in Jacksonville, Florida, and observed two workers coming out of a new construction home. The two workers appeared to have been painting, as they had paint on their clothes, arms, and hands. This visit was a random site check. Ms. Johnson interviewed the two workers, Tikos Johnson and Ricky Reed. As a result of that interview, Ms. Johnson contacted Mr. Clark Green. Shortly thereafter, the file was transferred to another investigator, Donald Bowman. Mr. Bowman checked the database in the Coverage and Compliance Automated System and found no proof of coverage for Mr. Green. Mr. Bowman did find in the records of the Division that Mr. Green had an exemption as a sole proprietor, but that it had expired December 31, 1999. After conferring with his supervisor, Mr. Bowman issued a Stop-Work Order and Order of Penalty Assessment to Respondent on February 25, 2005, along with a request for business records for the purpose of calculating a penalty for lack of coverage. Respondent did not produce business records as requested. On March 22, 2005, Mr. Bowman issued an Amended Order of Penalty Assessment to Respondent for $126,393.87. Attached to the Amended Order of Penalty Assessment is a penalty worksheet with a list of names under the heading, "Employee Name," listing the names of Tikos Johnson, Rickey Reed, and Mr. Green. The amount of the penalty was imputed using the Florida average weekly wage that was in effect at the time of the issuance of the stop-work order. Through imputation of payroll for the purported employees, the Department calculated a penalty for the time period of February 25, 2002 through February 25, 2005. Mr. Bowman assigned a class code to the type of work performed by Respondent utilizing the SCOPES manual, multiplied the approved manual rate with the imputed payroll per one hundred dollars, then multiplied all by 1.5. Penalties are calculated by determining the premium amount the employer would have paid based on his or her Florida payroll and multiplying by a factor of 1.5. The payroll was imputed back to October 1, 2003. For the period prior to October 1, 2003, Mr. Bowman assessed a penalty of $100 per day for each calendar day of noncompliance. Mr. Bowman also requested business records from Engle Homes, which had subcontracted with Respondent to provide services at the work site investigated by the Division, in an effort to determine whether Respondent was actually performing services for Engle Homes. While he eventually received records from Engle Homes, Mr. Bowman did not use them in his calculation of the penalty, as they were not received directly from Respondent and were received more than 45 days after his request. On April 21, 2006, a second Amended Order of Penalty Assessment was issued reducing the amount of the penalty to $80,931.29. This reduction in penalty was the result of the Department's removing Tikos Johnson and Rickey Reed from the penalty calculation, as they had been served stop-work orders and had separate penalty assessments assessed to them. Respondent's Exemption On or about November 28, 1996, Respondent was issued a "Construction Industry Certificate of Exemption from Florida Workers' Compensation Law" card. The exemption card bears no expiration date. At the time Respondent received his exemption card, such exemptions were valid "until the sole proprietor . . . revokes his exemption." Section 440.05(3), Florida Statutes (1995). Consequently, the exemptions issued at that time were considered "lifetime" exemptions. Gregory Mills is a Senior Management Analyst I Supervisor. His duties are to supervise and manage the exemption process for the Division. He has been in this position for over two years and prior to this position was employed by the Division as a workers' compensation investigator. He was an investigator, and therefore not in charge of the exemption process, at the time the law changed in 1999. There is a memorandum in evidence entitled "Notice of Change to Exemption Process" dated October 9, 1998. The memorandum is addressed to "Holders of BCM-204s (Construction Industry Exemptions). The stated purpose of this memorandum is to advise holders of construction industry exemptions of recent changes in the laws which affected the exemption holder's rights and responsibilities. The Notice contained the following language in bold print: EFFECTIVE JANUARY 1, 1999: construction industry exemptions issued after 1/1/99 will expire two years after the effective date of the exemption. A construction industry exemption issued prior to 1/1/99 (BCM-204) will expire on the last day of the birth month of the exemption holder in the year 1999. The Notice also compared the then current process with the process after January 1, 1999, advising exemption holders that their exemptions would expire in 1999 on the last day of the birth month of the exemption holder, and that exemptions issued after January 1, 1999, would expire every two years. Mr. Mills believes that this letter was mailed to all exemption holders, including Respondent, in October 1998 to their addresses of record. However, because the Division's record retention policy is to retain documents for five years, and because Mr. Mills was not in charge of exemptions at the time of the law change, he cannot say with complete certainty that a copy of this notice was mailed to Mr. Green. Mr. Green insists that he did not receive a copy of this notice and that had he received it, he would have complied. Mr. Green's testimony in this regard is accepted as credible. Whether the Division mailed a copy of the notice to Respondent or not, Mr. Green did not receive it. Further, since the date of this notice and the change in the law, Mr. Green presented his exemption card to general contractors for whom he performed painting work. The general contractors all accepted his card.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Division of Workers' Compensation enter a Final Order affirming the Amended Order of Penalty Assessment issued April 17, 2006, and the Stop Work Order issued to Respondent on February 25, 2005. DONE AND ENTERED this 2nd day of November, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 2nd day of November, 2006.
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from a disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s application for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Mr. Mack is a 36-year-old male who desires to return to work for Allshouse Supported Living Services, Inc. (Allshouse), as a direct service provider to APD clients with developmental disabilities. Allshouse provides community-based services to APD clients with developmental disabilities. Mr. Mack was employed by Allshouse from October 2009 through October 2014. When Mr. Mack began working for Allshouse, he was licensed by the Department of Health, Board of Nursing, as a certified nurse assistant (CNA), and he provided home health care to APD clients pursuant to his CNA license. More recently, Mr. Mack worked for Allshouse as a supported living coach. On October 23, 2014, Mr. Mack completed an affidavit of good moral character for Allshouse. The affidavit--an APD form-- identifies disqualifying offenses pursuant to the employment screening laws in chapter 435, Florida Statutes, and instructs employees to select one of three responses to sign: that the employee has no disqualifying offenses, and therefore, meets the good moral character standard; that the employee’s record “may contain one or more” disqualifying offenses; or that the employee is a licensed physician, licensed nurse, or other professional licensed by the Department of Health and that the employee will be providing services within the scope of his or her licensed practice. Mr. Mack signed the option acknowledging that his “record may contain one or more” of the enumerated disqualifying offenses. In 2014, Mr. Mack was no longer licensed as a CNA, and was working for Allshouse as a supported living coach.2/ Based on Mr. Mack’s disclosure, the Department of Children and Families (DCF) conducted a Level II background screening. Criminal history record checks were performed at the state, national, and local levels. These record checks would identify records related to any criminal offenses, whether disqualifying offenses or not. The results would show arrests that did not culminate in charged criminal offenses, as well as arrests leading to charges and the ultimate disposition of those charges. The screening results for Mr. Mack showed one criminal offense in the state records; the same criminal offense was also shown in the local law enforcement agency’s records. No other criminal history of any kind was reported. The records show that 13 years ago, on October 29, 2002, Mr. Mack was arrested and charged with grand theft, a third degree felony, pursuant to section 812.014(2)(c)1., Florida Statutes (2002). The case was disposed of on October 16, 2003, when the Circuit Court for the Sixth Judicial Circuit in Pinellas County accepted Mr. Mack’s guilty plea to the single charge. The court withheld adjudication, imposed a two-year term of probation, ordered payment of $750.00 as restitution, imposed a $50.00 fine, and assessed $400.00 in court costs. Mr. Mack’s 2002 offense to which he pled guilty is a disqualifying offense pursuant to section 435.04(2), Florida Statutes.3/ By letter dated October 30, 2014, DCF informed Mr. Mack that he was ineligible for continued employment with Allshouse because of the 2002 disqualifying offense. Mr. Mack was informed that he could seek an exemption from disqualification, which would be granted if clear and convincing evidence was presented to DCF “to support a reasonable belief that a person is of good moral character and that the individual does not present a danger to the safety or well being of children or the developmentally disabled.” DCF sent a similar letter on October 28, 2014, to inform Allshouse that Mr. Mack was not eligible for continued employment unless and until he applied for an exemption and proved his rehabilitation to DCF.4/ In response to these letters, Mr. Mack’s employment with Allshouse was immediately terminated. The Exemption Application, After Remaining Court Costs Were Paid Upon receipt of the DCF letter, Mr. Mack immediately took steps to apply for an exemption. On November 4, 2014, he sent a letter requesting the necessary forms and instructions to Sandra Wesley with the DCF background screening unit in Tampa. However, on November 24, 2014, Ms. Wesley responded that DCF had located court records indicating that Mr. Mack still owed some costs, fines, and/or fees imposed for his 2002 offense. Ms. Wesley informed Mr. Mack that he was not eligible to apply for an exemption until he paid the balance and provided proof of payment. At hearing, Mr. Mack credibly testified that he believed he had paid all court-ordered costs, fines, or fees that were due, because when the court granted a motion for early termination of his probation in late 2004, the court also entered an order waiving outstanding court costs and fees. Mr. Mack’s testimony was credible, and his belief that he had previously satisfied all court-imposed monetary conditions was reasonable. The court docket contains the following entry on October 14, 2004: “Outstanding cos [presumably, costs] fees waived $390.00.” Apparently, Mr. Mack owed more than $390.00 due to a separate assessment to pay fees to the public defender, so that “waived” may have really meant “partially waived.” Nonetheless, despite his reasonable belief that he had satisfied all monetary conditions more than a decade earlier, as soon as Mr. Mack was informed by DCF that he may still owe some court costs, fines, and/or fees, he went to the courthouse and paid the amount that he was told was still due. The court clerk issued a Satisfaction of Judgment–Fine/Cost, providing that the balance due for the court-imposed “fine and/or costs” in connection with the 2002 offense was “paid and satisfied in full on December 1, 2014.” Mr. Mack immediately provided proof of payment to Ms. Wesley. Ms. Wesley accepted the proof and mailed the exemption application forms and checklist to Mr. Mack for him to complete and return to her. Mr. Mack completed the exemption application forms and provided all additional information suggested by the instructions and checklist. While Mr. Mack provided all information called for by the Agency’s application forms, more evidence was presented at hearing bearing on the issue of whether Petitioner is rehabilitated from his disqualifying offense, such that Petitioner poses no danger to APD clients if he is allowed to return to work as a direct service provider. Evidence of Rehabilitation As described in the exemption statute, section 435.07, evidence of rehabilitation begins with consideration of the disqualifying offense itself: the circumstances surrounding the disqualifying offense, the time period that has elapsed since the offense; and the nature of the harm caused to the victim. Mr. Mack provided a detailed explanation of the circumstances surrounding his single 2002 disqualifying offense. He explained that he was approached by two men from his neighborhood, whom he knew by the nicknames they used. They propositioned him with an offer of a free cell phone, if they could use his address for delivery of a box of several cell phones. Mr. Mack agreed. At the time, he was 22 or 23 years old; the two men were older. Mr. Mack was young and naïve, focusing only on the chance to obtain a free cell phone, which was not easy to get or common among his peers at that time. After many weeks, a box containing five cell phones arrived at Mr. Mack’s address. He contacted the two men, who picked up the phones, leaving one for Mr. Mack as promised. For just over one month, Mr. Mack enjoyed the use of the cell phone and cellular service. Then, on October 29, 2002, a detective from the sheriff’s office appeared at his door with a phone company investigator. He let them in, answered all of their questions about the cell phone, and gave the cell phone to the detective. He was arrested and charged with theft of all five cell phones and the related cellular service, with a total value between $300.00 and $5,000.00. Based on the value range, the charge was grand theft, a third degree felony. At the time of his arrest, Mr. Mack was too ashamed to tell his family and ask for help. Instead, he accepted a public defender, and followed advice to put the incident behind him by pleading guilty. And Mr. Mack freely admits that he was guilty, insofar as he knowingly received the cell phone shipment and used the cellular service. He was oblivious to suspect circumstances, ignoring alarms sounding the classic warning that if a deal sounds too good to be true, it probably is. He expressed sincere remorse for his wrongdoing. As he said, he was young, naïve, and stupid. It is difficult to argue with that characterization. Petitioner’s explanation of the circumstances and his genuine remorse for his actions were credible and are credited.5/ With regard to the nature of harm to the victim, the Agency’s exemption application form frames the issue this way: “Degree of harm to any victim or property [permanent or temporary], damage or injuries.” This reasonably invites a response that differentiates between harm to persons and property damage, and between permanent and temporary injuries or damage. Mr. Mack’s application provided this response: “No property was damaged and no physical bodily harm took place.” This was a reasonable and accurate response. Consideration of the nature or degree of harm necessarily requires an assessment of the relative seriousness of the consequences. Considered that way, Mr. Mack’s criminal offense 13 years ago caused relatively inconsequential harm to any victim or property, which was remediable and remedied by court-ordered restitution. Mr. Mack deprived the cell phone companies of the value of his use of a cell phone for just over one month, when Mr. Mack gave the undamaged cell phone to the detective. To compensate for that temporary property loss, Mr. Mack paid restitution of $750.00. The relevant considerations as to the disqualifying offense itself provide strong evidence of Petitioner’s rehabilitation: the circumstances credibly explained by Petitioner; Petitioner’s sincere regret for his wrongdoing; the inconsequential degree of harm to any victim or property; and the substantial length of time--13 years--since the offense. Beyond the factors related to the disqualifying offense itself, evidence of rehabilitation may be in the form of the history of the applicant since the incident and any other evidence or circumstances indicating that the applicant will not present a danger if continued employment is allowed. Since 2002, as a young but maturing adult, Mr. Mack has worked hard to right his path, earn a living through meaningful work that goes beyond just earning a paycheck, and serve those in need by volunteering through his church and in the community. As confirmed by the criminal history record checks, Mr. Mack’s history since the disqualifying offense is notable by the absence of any criminal matters. Mr. Mack has not been arrested, much less charged or convicted, of a crime, whether disqualifying or otherwise. Mr. Mack’s pristine criminal history record since 2002 is proof that he learned his lesson from his one transgression. Mr. Mack provided evidence, in his application and at hearing, that not only has he avoided criminal incidents since 2002, but he has also worked hard to better himself and further his education and skills. He received his CNA license and an exemption from disqualification from the Department of Health, Board of Nursing, in 2009, allowing him to be employed in a position providing services within the scope of his CNA license. The exemption was issued to Mr. Mack pursuant to the same exemption statute as is at issue here, based on the same standard of clear and convincing proof of rehabilitation from the 2002 disqualifying offense. Since 2009, Petitioner has dedicated his work hours as well as significant personal time to providing care to developmentally disabled persons. He provided documentation of his relevant training and certifications since 2009, in such areas as professional crisis management, CPR and AED basic life support for healthcare providers, heartsaver first aid, supported living coaching, and HIPAA patient privacy and security. Petitioner holds an APD medication administration assistance validation certificate, issued on October 22, 2014. Mr. Mack has a secure, positive family base. He testified that he comes from a large, loving family that finds great strength from each other and from their strong faith. His grandparents are the “rock” of the family that they started when they married 70 years ago. They are both disabled, which is why Mr. Mack developed a passion for working with persons with disabilities. At hearing, Mr. Mack presented compelling testimony of witnesses who were able to attest to the exemplary care Mr. Mack provided to developmentally disabled APD clients as an Allshouse employee from October 2009 to October 2014. For the entire five-year period when Mr. Mack was an Allshouse employee, he was assigned to provide in-home care, first as a home health aide and then as a supported living coach, to Jean and Michael Murvine. The Murvines are a married couple. They are APD clients with developmental disabilities, who are able to live independently in their home as long as they can count on substantial in-home services. Michael is more independent than Jean; he is able to work at a Publix grocery store as long as he can count on a caretaker who will stay with Jean, because she requires supervision and assistance at all times. Among other conditions, Jean is diabetic and is recovering from stomach cancer and related surgery. She requires assistance and supervision of her blood sugar monitoring and insulin shots. At great effort, the Murvines came to the hearing so that each of them could voice their strong support for, and belief in, Mr. Mack, who was such a great caretaker for them until he was terminated. At times, their disabilities served to impede the clear expression of their words, but there was no impeding the strong emotion and conviction in their testimony. Michael Murvine emphasized that he is only able to work at Publix if he can rely on good care being provided to Jean. When Mr. Mack was her caretaker, Mr. Murvine knew his wife was well-taken care of: “She was safe with him.” Since Mr. Mack has left, however, Mr. Murvine is concerned about his wife’s safety. She has ended up in the hospital because Mr. Mack’s replacements have not been good; Mr. Murvine does not trust them like he trusted Mr. Mack. Mr. Mack “is so good, we want him back.” Jean Murvine confirmed the quality of care provided by Mr. Mack over the five-year period. She was firm in her conviction that Mr. Mack would never harm them, because he has their best interests at heart. When asked how her care had been since Mr. Mack had left work, her distress was evident; she got choked up, saying that it was different without him, and adding, simply, “We want him back.” As part of his job, Mr. Mack would often drive the Murvines to appointments. The Murvines both described how safe they always felt as passengers being transported by Mr. Mack, whom they described as a very careful driver. As Mr. Murvine put it, Mr. Mack is “a very safe driver, not one of those crazy drivers.” Mr. Mack gave of himself to the Murvines, going far beyond what was required of him as a direct service provider. He did things for the Murvines on his own personal time and/or using his own resources. He drove the Murvines from Largo to Brandon, east of Tampa, to visit Michael’s two brothers, one of whom is disabled and essentially homebound. Mr. Mack also drove the Murvines to Orlando so that Michael could attend a Publix awards banquet at which he was receiving an employee award. Mr. Mack volunteered his own time to do this. Michael Murvine’s brothers, Rick and Bud Murvine, also testified on Mr. Mack’s behalf, to add their perspectives on the extraordinary care provided by Mr. Mack to Michael and Jean, as well as Mr. Mack’s loving generosity, beyond just doing the job. Rick described Mr. Mack as “an amazing man,” who was very attentive and patient with Michael and Jean, and obviously cared for their safety. Rick has seen a marked contrast between how Michael and Jean have fared when Mr. Mack was caring for them and now, without Mr. Mack. He echoed Jean and Michael’s testimony that Mr. Mack was the only caretaker who took good care of them, and that the others who have replaced Mr. Mack have not provided the same quality of care or dedication. Rick Murvine has no doubt as to Mr. Mack’s good moral character. He trusts Mr. Mack so completely that he would give Mr. Mack the keys to his house. It is so clear to him that Mr. Mack presents no danger to developmentally disabled persons, he finds it a travesty that this proceeding is needed to answer that question. Bud Murvine also spoke highly of the exceptional care he has seen Mr. Mack give to Jean and Michael. He knows from his observations that Mr. Mack poses no danger to developmentally disabled persons. Bud has absolutely no doubt as to Mr. Mack’s good moral character; he would trust him with his life. Mr. Mack has given selflessly to the Murvine family, and in so doing, has shown his good moral character and the positive contributions he has to offer developmentally disabled persons. Bud Murvine offered a touching story demonstrating how Mr. Mack has given of himself, beyond just doing the job, to enrich the lives of this disabled couple. Mr. Mack orchestrated a celebration in a park for Jean and Michael Murvine to renew their wedding vows. Mr. Mack drove the Murvines to the area, set up decorations at the park, helped Jean and Michael dress up, and brought them to the park where they renewed their vows before family and friends. Bud Murvine concluded, with emotion, that what Mr. Mack did for them that day “was really cool.” Mr. Mack’s exceptional care of the Murvines was echoed by Charlene Clark, a physical therapy assistant who works with developmentally disabled adults and elderly persons. Over a four-year period, Ms. Clark got to know Mr. Mack and observe him while they were both providing services to the Murvine couple. Ms. Clark was effusive in describing the “incredible care” she observed Mr. Mack providing to the Murvines. Ms. Clark found Mr. Mack to be very knowledgeable about the Murvines’ care needs and very concerned about their welfare. She described Mr. Mack as a very encouraging and positive caregiver, which “is so rare.” She was adamant in expressing her view that he would never harm the Murvines or other developmentally disabled clients. Instead, it was “just the opposite.” The only harm she has observed comes from the Murvines no longer having Mr. Mack as their caretaker. Ms. Clark offered compelling, credible testimony regarding the harmful trickle-down effects of Mr. Mack becoming ineligible to continue working for Allshouse assigned to the Murvines. She has observed a noticeable decline, both physically and emotionally, by both Murvines since Mr. Mack is no longer their caretaker. Ms. Clark described the revolving door of replacement caretakers, none of whom are as good as Mr. Mack was with the Murvines. Ms. Clark was also effusive in describing Mr. Mack’s good moral character. She described Mr. Mack as generous of spirit, loving, caring, honest, reliable, and trustworthy. She has no doubts about his good moral character, “not one.” She trusts him so completely that she would trust him to care for her six-year-old grandchild. As a direct care provider herself, Ms. Clark understands the background screening process and the need for this exemption proceeding. She wrote a letter of support for his application, but her testimony added a great deal of texture, detail, and heart that do not come through on paper. She strongly believes that discontinuing Mr. Mack’s service to APD clients with developmental disabilities is a great loss to clients he served and could serve, if allowed, and that the developmentally disabled APD clients deserve better. In addition to Mr. Mack’s exemplary service to developmentally disabled persons while working as an Allshouse employee, Mr. Mack has shown his dedication to serving needy persons of all kinds and putting their needs before his own. Information was provided in his application regarding his community volunteer work. At hearing, he elaborated and updated the application information. Mr. Mack contributes many hours each week to a variety of volunteer activities, both at his church where he helps feed homeless persons and works with youth, and also at the Union Academy Cultural Center of Tarpon Springs where he assists with after-school programs for children and feeding the elderly. He is currently working with other individuals to set up a meals-on- wheels-type program for homeless people who cannot take advantage of traditional meals-on-wheels programs, because they have no home to receive meal deliveries. Mr. Mack’s dedication to helping needy persons of all kinds, and particularly those who are dependent and in need of support because of disabilities, was confirmed by Nathaniel Crawford, Jr., Mr. Mack’s uncle and the only family member to testify. A very articulate gentleman, Mr. Crawford retired from the air force, and is now a college instructor and a pastor at Oak Hill Church of God in Christ (Oak Hill). He has observed Mr. Mack’s contributions at Oak Hill, where Mr. Mack serves as a choir director and assists with a variety of church activities and programs. Mr. Crawford has observed Mr. Mack gravitating towards young, adult, and elderly persons with disabilities to assist them and has seen that he is very qualified and very caring. Mr. Crawford described Mr. Mack’s dedication to caring for developmentally disabled persons as “his ministry.” Mr. Crawford strongly believes from his observations that Mr. Mack presents no danger to these vulnerable people. Mr. Crawford was very emphatic, and credibly so, that he was saying these things not because Mr. Mack is his nephew, but because he observes the strong need for more persons like Mr. Mack dedicated to these human services, and feels strongly that it is a great loss to the developmentally disabled population to be deprived of Mr. Mack’s extraordinary care. More generally, Mr. Crawford attested to Mr. Mack’s good moral character, describing him as a fine young man who is unselfish and very giving of his time and resources. The only problem Mr. Crawford identified is that sometimes Mr. Mack is too nice--he is very caring and sacrifices for others instead of for himself. Mr. Crawford trusts Mr. Mack completely; he would trust him with his property and with the church’s property. The Agency’s Review and Stated Concerns In reviewing exemption applications, the Agency has limited resources to conduct investigations. The Agency did not interview Mr. Mack, any APD clients for whom he provided care while employed at Allshouse, or other caregivers who had observed Mr. Mack while he was providing services. The Agency employs DCF to conduct a fact-finding investigation and issue an Exemption Fact Finding report, which is used by APD in its review of the exemption request. The DCF Exemption Fact Finding report corroborates the testimony at hearing. First, the report confirmed that the only criminal offense of any kind--disqualifying or non-disqualifying--in Mr. Mack’s background was the 2002 offense discussed above. With regard to the “degree of harm to any victim, any permanent or temporary damage or injuries” the DCF fact-finding report found: “No permanent damage or temporary damage[.]” With regard to whether Mr. Mack had shown “[r]emorse [and had] accept[ed] responsibility for [his] actions,” the DCF report responded: “Yes.” After the DCF investigation and report, Mr. Mack’s exemption request file went to the Agency’s Suncoast regional office for review and recommendation. The operations manager, Jeff Smith, recommended denial because of a few concerns. Mr. Smith did not testify at hearing; however, he is the only member of the “review team” named in the APD Exemption Review Report-Routing Sheet, and his summary on that sheet is the only indication of the rationale for the Agency’s initial action. Mr. Smith expressed concern with whether Mr. Mack was responsible, apparently inferring a lack of responsibility from the fact that DCF found some unpaid court costs, fines, or fees still due in 2014. Mr. Smith did not have the benefit of Mr. Mack’s hearing testimony, which refutes any such inference. As found above, Mr. Mack reasonably believed he did not owe any additional costs, fines, or fees. He reasonably believed that he had paid all court-imposed monetary amounts that had not been waived more than a decade ago. When told otherwise by DCF, he immediately paid the remaining balance. As credibly explained by Mr. Mack, this misunderstanding does not call into question whether Mr. Mack is responsible. In contrast, the hearing testimony of six witnesses speaking on Mr. Mack’s behalf provided direct and persuasive evidence establishing beyond any doubt that Mr. Mack is very responsible. Mr. Smith also considered Mr. Mack’s record of non- criminal traffic infractions. Based on the record of traffic infractions, Mr. Smith expressed concern for the safety of APD clients who would be transported by Mr. Mack if he is allowed to work as a supported living coach. Mr. Mack was not asked to address civil traffic infractions in his application, so his first chance to address the Agency’s concern was at the hearing. Mr. Mack admittedly has a good number of civil traffic infractions on his driving record. However, none of the infractions involve a charged criminal violation.6/ None of the infractions involve injuries (or worse) to passengers or others. None of the infractions involve drugs or alcohol use, such as DUI; Mr. Mack does not use drugs, and only occasionally drinks alcohol socially. The Agency’s generalized safety concern based solely on the paper record of past traffic infractions was refuted by the specific, credible, and persuasive testimony of Mr. Mack and of actual APD clients with developmental disabilities who were regularly transported by Mr. Mack over a five-year period. Mr. Mack credibly testified that he has never been stopped for a moving violation of any kind when he was driving with a passenger in the vehicle with him. Mr. Mack has never been cited for a traffic infraction while transporting an APD client (or any other passenger). None of the traffic infractions in Mr. Mack’s record posed a safety risk to any passenger. And none of the traffic infractions in Mr. Mack’s record posed a safety risk to an APD client. To the contrary, the Murvines both testified convincingly that they found Mr. Mack to be a very safe, careful driver, and they always felt very safe with Mr. Mack when he was transporting them, which he did regularly and without adverse incident. Mr. Mack acknowledged his past record of traffic infractions, which he regrets. He has made a concerted effort to eliminate the traffic infractions that he used to occasionally commit when driving alone. The evidence shows that his efforts have paid off, as he has not been found to have committed any traffic infraction in over three years. The clear, convincing, and credible testimony of Mr. Mack and of the APD clients whom he actually transported is credited. This testimony provides specific, persuasive, direct evidence that Mr. Mack does not pose a safety risk when transporting APD clients, which is far more persuasive than the general inference drawn from Mr. Mack’s paper record of traffic infractions. The more persuasive, direct evidence establishes that Mr. Mack has always driven cautiously, carefully, safely, and without adverse incident when transporting APD clients with developmental disabilities, and he does not pose a safety risk to those APD clients whom he might transport in the future. Besides the two concerns expressed in Mr. Smith’s summary, no other rationale was offered for the Agency’s initial action. The Agency’s two witnesses did not participate in the formulation of that initial decision. Ms. Mott testified that Jeff Smith is her supervisor, and he conducted a review to formulate his recommendation; she has no personal knowledge of how he conducted his review. Ms. McDaniel testified that she received the file from the regional office, and her role was to present the application and related documents to an exemption committee in Tallahassee, but not to formulate a recommendation or offer an opinion. She did not identify the exemption committee members involved with Mr. Mack’s application, and none are identified on the Routing Sheet. No committee member testified. There is no documentation of an exemption committee or of its recommendation. Ms. McDaniel testified that the entire file was provided to APD Director Palmer with two draft letters: one stating that the request is approved, and one stating that the request is denied. The director signed the latter. No evidence was offered to prove that in formulating its intended action, the Agency considered the exemption from disqualification issued to Mr. Mack in 2009 by the Department of Health based on the same 2002 disqualifying offense. Ultimate Findings of Fact Mr. Mack has proven by clear and convincing evidence that he is rehabilitated from the single disqualifying offense he committed in 2002. The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony summarized above overwhelmingly established that Mr. Mack poses no danger to APD clients, including children and persons with developmental disabilities, if he is allowed to resume employment as a direct service provider. The few concerns expressed by the Agency in formulating its intended action, without the benefit of the hearing testimony, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s application for an exemption from disqualification from employment. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2015.
The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These 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 APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD 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 finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of February, 2017.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. The ARC of Martin County, Inc. (the ARC), is a service provider for the Agency. Ms. Ford applied with the ARC to become an after-school counselor, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Ms. Ford admitted in her exemption request paperwork and her testimony at hearing, summarized below. On September 30, 2011, Ms. Ford entered a plea of guilty to forgery, driving on a suspended license, and providing a false name to law enforcement, for events that took place on April 9, 2010. Forgery, a felony of the third degree, is a disqualifying offense for employment in a position of trust. She was ordered to pay court fees and costs, and was put on probation for a period of 18 months for that offense. In her responses in the Exemption Questionnaire, Ms. Ford gave few details as to the events surrounding the disqualifying offense itself. She stated only that she was a witness to an accident on March 20, 2011, almost a year after the forgery incident, and, after identifying herself to the police, was arrested on an outstanding warrant from Martin County for the forgery charge. Ms. Ford wrote in her own words:2/ The forgery was do to traffic when I was pulled over and I gave my sister name to the officer. The officer then allowed me to go to go. I didn't know I had a warrant for Martin County until the night of the crash. In response to inquiries concerning another arrest for driving with a suspended license and providing a false name to a law enforcement officer while being arrested or detained a couple of months later on May 9, 2011, Ms. Ford wrote: I was on my to work and I was running late so I then was doing over milage and I was pulled over and gave officer a other name, cause I didn't want to be late for work. At hearing, in response to inquiries concerning her arrest for shoplifting on January 22, 2013, Ms. Ford acknowledged shoplifting a medical device for her daughter from Wal-Mart. Ms. Ford completed all confinement, supervision, and nonmonetary conditions imposed by the court for her disqualifying offense by March 29, 2013. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region of the Agency. He has served in his current position for three years and has been employed with the Agency for seventeen years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior criminal conduct or dishonesty very carefully. In her written submission to the Agency, Ms. Ford did not recognize that she caused any harm or injury to any victim. However, at hearing, she admitted that she caused injury to her sister when she provided and signed her sister's name to law enforcement after being detained or arrested on more than one occasion. Ms. Ford submitted three identically worded "form" character reference letters to the Agency, stating generally that she is a responsible, reliable, and honest person. The letters do not indicate the employment status or positions of the individuals signing the references. Ms. Ford further stated that she was remorseful. In her Exemption Questionnaire, Ms. Ford wrote: Yes my remorse is I accepting made bad choose in my life and I accept full responsibility for the actions that I made. I want to move forward and put the pass behind me so I can make a better future for me and my kids. Ms. Ford seems sincere in her desire to assist vulnerable persons and asks for a chance to work with them to demonstrate that she is rehabilitated. However, the statute requires that rehabilitation be shown first; only then may an exemption for disqualification be granted. While Ms. Ford stated that she is rehabilitated, she offered little evidence to clearly demonstrate that. She completed a home health aide course in 2012, but has not participated in other counseling or coursework since the disqualifying offense. Ms. Ford's recent work history includes employment as an administrative assistant with Florida Community Health Centers, Inc., from October 8, 2014, to October 5, 2015, and employment as a mental health technician with Sandy Pines Residential Treatment Center from July 18, 2008, to January 7, 2014. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was over five years ago. However, Ms. Ford's history since her disqualifying offense includes more to reflect incidents and does not contain sufficient positive indications of rehabilitation. Ms. Ford failed to prove by clear and convincing evidence that she is rehabilitated and that she will not present a danger if she is exempted from her disqualification from employment in a position of trust.
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 Ms. Jennifer Ford's application for exemption from disqualification. DONE AND ENTERED this 11th day of October, 2016, 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 October, 2016.
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 29, 2004, the Amended Order of Penalty Assessment issued on October 14, 2004, the second Amended Order of Penalty Assessment issued on January 20, 2005, and the 3rd Amended Order of Penalty Assessment issued on August 25, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit C“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from Bill Veczko, d/b/a Bill’s Painting, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the second Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 29, 2004, the Department of Financial Services, Division of _ Workers’ Compensation (hereinafter “Department”), issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 04-590-D1 to Bill Veczko, d/b/a Bill’s Painting. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On September 29, 2004, the Stop-Work Order and Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 14, 2004, the Department issued an Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment assessed a total penalty of $30,844.10 against Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was. advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On May 27, 2010, the Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On January 20, 2005, the Department issued a second Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment assessed a total penalty of $104,044.10 against Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 6. On May 27, 2010, the second Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On June 8, 2010, Bill Veczko, d/b/a Bill’s Painting filed a petition for administrative review (“Petition”) with the Department. Pursuant to Sections 120.54(5)(b) and 120.569(2), Florida Statutes, the Department carefully reviewed the Petition to determine if it was in substantial compliance with Rule 28-106.2015, Florida Administrative Code. A copy of the Petition is attached hereto as “Exhibit D”. 8. After reviewing the Petition, the Department determined that the Petition was not in substantial compliance with the requirements of 28-106.2015, Florida Administrative Code, in that the Petition did not contain a statement identifying the material facts in dispute, or a statement indicating that there were no material facts in dispute. Accordingly, on June 24, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice. In the Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice, Bill Veczko, d/b/a Bill’s Painting was given an opportunity to file, within 21 days, an amended petition curing the defects in the original Petition. 9. On August 9, 2010, Bill Veczko, d/b/a Bill’s Painting filed an amended petition for administrative review (“Amended Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7312. A copy of the Amended Petition is attached hereto as “Exhibit E”. 10. On August 25, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 3rd Amended Order of Penalty Assessment. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $103,958.56 against Bill Veczko, d/b/a Bill’s Painting. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. On August 25, 2010, Administrative Law Judge W. D. Watkins entered an Order Granting Motion to Amend Order of Penalty Assessment. 12. On October 12, 2010, Bill Veczko informed the Department that Bill Veczko, d/b/a Bill’s Painting did not wish to proceed to an administrative hearing in DOAH Case No. 10- 7312. 13. On October 12, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge W. D. Watkins entered an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G”.
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)