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 is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in Administrative Complaint, as amended? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above. Only twice during the period of his employment has he been disciplined- - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/ On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1993.
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact The Agency Action Petitioner seeks an exemption from disqualification to allow her to serve as a direct care service provider for One Mainstream, a direct services provider for developmentally disabled clients. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and charged with serving and protecting children or adults with developmental disabilities. Vulnerable populations served by APD include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down’s syndrome. Some of APD’s clients are incapable of expressing their needs, or unable to express whether something is wrong. As part of the application process for employment as a direct services provider with One Mainstream, Petitioner was subject to a routine pre-employment background screening pursuant to section 435.04. The screening revealed the existence of two disqualifying criminal incidents (resulting in three charged offenses) in Petitioner’s past. The offenses were described in the Joint Prehearing Stipulations as follows: In April 1998, Petitioner committed her first disqualifying offense, Domestic Violence Battery, a first degree misdemeanor. Petitioner failed to appear before the court and an arrest warrant was issued. Subsequently, Petitioner pled nolo contendere to the offense and adjudication was withheld. Petitioner was approximately thirty-four years old at the time of this offense. Petitioner was ordered to pay various court costs/fines. In January 2002, Petitioner contemporaneously committed her second and third disqualifying offenses, two counts of Domestic Violence Battery, first degree misdemeanors. Petitioner failed to appear before the court and an arrest warrant was issued. Petitioner contends there was no physical violence involved in these offenses. Petitioner pled guilty to the offenses and was adjudicated guilty. Petitioner was approximately thirty-seven and nine months old at the time of this offense. Petitioner was ordered to serve thirty days in the county jail and pay various court costs/fines. As a result of the background screening results, Respondent determined that Petitioner was disqualified from further employment in a position of special trust with children or the developmentally disabled. On February 16, 2015, Petitioner filed her Request for Exemption. All such requests are made to the Department of Children and Families, which conducts the initial background investigation. The file was assigned to Beatriz Blanco, DCF’s central region background screening coordinator. By July 10, 2015, the request for exemption had been assigned to Respondent. Daniella Jones, APD’s state office exemption background screening coordinator, requested additional information regarding Petitioner’s drug counseling and anger management courses. The record is not clear as to which items contained in Respondent’s Exemption Review file, if any, were submitted in response to Ms. Jones’ request. Among the items submitted by Petitioner in support of her Request for Exemption were a completed employment history record; information related to her having obtained a certified nursing assistant license; and six letters of recommendation. The Exemption Review file also included Petitioner’s written explanation of the disqualifying offenses and subsequent non- disqualifying incident1/; and copies of law enforcement, prosecution, and court documents related to the disqualifying offenses, a subsequent non-disqualifying incident, and three prior non-disqualifying incidents. Petitioner responded to the best of her ability to each request for information. Among the factors identified by Mr. Lewis as bases for the recommendation of denial of the exemption by staff was the perception that Petitioner’s answers to questions about her past conduct were “immature,” that she did not take responsibility for some of the past incidents, and that she did not show sufficient remorse for those incidents. The exemption request was ultimately provided by APD staff to the director of APD, who entered the notice of denial on August 27, 2015. Petitioner’s Background Petitioner grew up in a tough neighborhood in Brooklyn, New York. Her parents were hard drinkers, and she was raised in an environment in which the use of alcohol was accepted. By the time she was 17 years of age, Petitioner was a drinker and a “brawler.” Over the years, Petitioner’s issues with alcohol led her into drunken choices that resulted in the brushes with law enforcement and the criminal justice system described herein. Petitioner readily acknowledged that she had been an alcoholic during the times when she committed the disqualifying offenses. The Disqualifying Offenses 1998 Disqualifying Offense On or about April 18, 1998, Petitioner was told by a friend that her husband was staying with a girlfriend at an apartment in a nearby town. Petitioner “had some drinks” and went to the apartment to confront her husband. She burst in on the husband and his girlfriend unannounced and became embroiled in a brawl. The police were called. By the time the police officer arrived, Petitioner was gone. The police report,2/ which was based on the statements of the husband and his girlfriend, indicated that Petitioner threw a conch shell at the husband, striking him in the head, whereupon she left the apartment, returning to throw a boot at the husband which missed and broke a clock. Since Petitioner was not on the scene, and based on Petitioner’s testimony described herein, an inference is drawn that the husband and girlfriend painted as exculpatory a picture as possible, omitting anything that could cast any blame on the husband for the incident. Petitioner testified that the altercation was not nearly as one-sided as portrayed in the hearsay police report, with the husband holding her down and choking her at one point. She denied throwing the conch shell, but admitted throwing the boot and breaking the clock. Although the evidence suggests that Petitioner may indeed have thrown the shell, the evidence also supports that the husband was more than a passive victim. Petitioner was arrested for “domestic violence (simple).” She pled nolo contendere to Battery (Domestic Violence), a first-degree misdemeanor. Adjudication of guilt was withheld, and Petitioner was ordered to pay $620 in court costs. 2002 Disqualifying Offense On or about January 23, 2002, Petitioner was involved in an altercation with her boyfriend, in which her sister was involved. Petitioner was, according to the police report, “intoxicated and [ ] belligerent.” Petitioner had earlier received an inheritance from her mother, which she used to buy a house in Tampa, Florida. Her boyfriend moved in with her. The money soon ran out. Nonetheless, the boyfriend would not get a job, would not contribute to expenses, and would not move out. Petitioner and the boyfriend got into an altercation when she tried to evict him, during which Petitioner hit him with a frozen porterhouse steak. Petitioner indicated that she selected that as her weapon of choice, since he was eating all of her steaks but not paying for them. Petitioner was unclear as to the involvement of her sister, Geraldine Dreviak née Schubert, who also lived in Petitioner’s house, but denied that her sister was injured during the fracas. Petitioner introduced a letter from Ms. Dreviak in which Ms. Dreviak confirmed the boyfriend’s indolence, described her participation in requests that he leave, and substantiated Petitioner’s testimony that Ms. Dreviak was not injured. No objection was raised as to the authenticity of the letter, though it was noted that the letter was hearsay. The letter was admitted, and is used in this proceeding “for the purpose of supplementing or explaining other evidence.” § 120.57(1)(c), Fla. Stat. Thus, the evidence supports a finding that Ms. Dreviak suffered no physical injury in the altercation between Petitioner and her boyfriend. As a result of the altercation, Petitioner was arrested for “simple battery.” She pled guilty to Battery (Domestic Violence), a first-degree misdemeanor. Petitioner was sentenced to 30 days in jail, with credit for time served, and assessed $678 in court costs and liens. Petitioner completed or was lawfully released from all nonmonetary sanctions imposed by the courts, and all fees and costs related to the two disqualifying offenses were paid. Other Non-Disqualifying Offenses Properly Considered Offense In September 2002, Petitioner was arrested in New York with several other persons for Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor. The controlled substance was cocaine. Petitioner contended she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. She testified that she just wanted to be done with the incident, and failed to appreciate the effect it would have in her later life. Petitioner was sentenced to time served and her license was suspended for six months. The incident was not only a singular and isolated event of its kind, but was Petitioner’s last involvement with law enforcement. Improperly Considered Offenses As set forth in the Joint Prehearing Stipulations, Petitioner was involved in the following non-disqualifying offenses: In September 1983, Petitioner committed the offense of Disorderly Conduct. Petitioner was convicted for this offense and adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately nineteen years and five months old at the time of this offense. In October 1988, Petitioner committed the offense of Criminal Possession of Stolen Property. Petitioner contends she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately twenty-four years and six months old at the time of this offense. In December 1994, Petitioner committed the offense of Criminal Mischief with Reckless Property Damage. Petitioner pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately thirty years and eight months old at the time of this offense. Respondent considered it to be significant that Petitioner was unable to provide information regarding non- disqualifying incidents3/ despite the fact that she had no control over New York City’s records retention policy. Mr. Lewis noted that it would have been to the benefit of Petitioner to have provided records of those non-disqualifying offenses since, without those records, Respondent could not fully review that information. In denying the exemption, Respondent considered the information in totality, including the non-disqualifying offenses committed from 1983 through 1994. Petitioner’s failure to provide a “detailed explanation” of those offenses was a factor in Respondent’s decision. Section 435.07(3)(b) plainly provides that: The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. (emphasis added). Considering evidence of non-disqualifying crimes committed prior to the disqualifying offenses exceeded the powers and duties granted by the Legislature. Thus, Respondent’s consideration of non-disqualifying offenses that occurred prior to the conviction for the disqualifying offenses was error. Evidence of Rehabilitation Petitioner’s last disqualifying offense occurred on January 23, 2002. Petitioner’s last involvement with law enforcement of any kind occurred in September 2002. Petitioner has no arrests or involvement with law enforcement of any kind since then. At some point, the passage of time itself is evidence of rehabilitation. While by no means dispositive, the passage of almost 14 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner showed contrition and remorse for the disqualifying offenses. Petitioner has been married since 2008 to a man that she describes as supportive. Thus, the stresses of the abusive relationships that led to her disqualifying offenses have been alleviated. Petitioner initially provided letters from six persons who were acquainted with Petitioner, two of whom testified at the final hearing. The letters were sincere, left the impression that they were written by persons with knowledge of Petitioner’s present character, and were consistent with and corroborated by the testimony of witnesses at the hearing. When Petitioner filed her Request for Administrative Hearing, she provided letters of support from four additional persons who knew Petitioner, one of whom testified at the final hearing. As with the previous letters, the letters were sincere, and fully consistent with the witness testimony taken during the hearing. Petitioner has been licensed as a certified nursing assistant, though the date of her licensure was not specified. She has not been able to practice under her license due to the issues that are the subject of this proceeding. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was when she was a drinker. Petitioner’s Work History The Employment History Record form that is part of the Request for Exemption requests “employment history for the last three years.” Petitioner provided an employment history that indicated employment from May 11, 2011, to the date of the filing of the Request for Exemption. During that period, Petitioner was employed to perform custodial duties at the First Baptist Church of Weeki Wachee Acres, and worked as a cook for functions held at the church. Her work ethic and performance was, and is, exemplary. In addition to the foregoing, Petitioner has attended to the needs of Billy Bowling on a volunteer basis for the past five or six years. Mr. Bowling, who is 49 years of age, is significantly developmentally disabled. At the hearing, he displayed obvious affection for Petitioner. Mr. Bowling’s mother, Patsy Bowling Anderson, testified that, at one time, the family employed a licensed direct service provider who was unacceptably rude, and upset Mr. Bowling. Since then, Petitioner is the only person outside of her family that Mrs. Anderson allows to care for Mr. Bowling. Mrs. Anderson testified that she had complete trust that Petitioner would do nothing that would result in harm to her son. Her testimony was substantiated by that of Major Anderson. The testimony of the Bowling/Anderson family was credible and compelling, and is accepted as convincing evidence of Petitioner’s rehabilitation. In addition to her care for Billy Bowling, Major Anderson and Mrs. Anderson testified that Petitioner, on her own time and without compensation, provides care and assistance to elderly neighbors, and to children at their church, all without incident. Their testimony is credited, and is accepted as further evidence of Petitioner’s rehabilitation. Additional Clear and Convincing Evidence of Rehabilitation Mr. Lewis testified that when disqualifying offenses involve violence, Respondent looks for evidence of anger management counseling. The information provided to the APD director suggested that Petitioner had undergone no anger management courses that would mitigate the possibility of a recurrence of the incidents that occurred in 1998 and 2002. The lack of such evidence was, in this case, a significant factor in the recommendation of denial to the director. Although the evidence of counseling in the Exemption Review file was spotty, the evidence adduced at hearing from Petitioner and Mrs. Anderson was convincing that Petitioner is an active, and successful, participant in Alcoholics Anonymous. Petitioner acts as a sponsor for others and on occasion, has taken it on herself to conduct meetings when group leaders have failed to appear. She has been sober for more than ten years. Since both of Petitioner’s disqualifying offenses were largely fueled by alcohol, ongoing participation in Alcoholics Anonymous is a more appropriate and effective means of rehabilitation than a class in “anger management.” Petitioner has been fortunate to find herself in what, by all accounts, is an embracing and supportive community. The individuals testifying on her behalf expressed their firm conviction that Petitioner had turned her life around, with Mrs. Anderson, who has known Petitioner for 14 years, characterizing the change as “remarkable.” None of the witnesses could identify any reason to suggest that Petitioner would not be able to provide capable and safe services to children and developmentally disabled persons. Ultimate Findings of Fact Petitioner meets the objective criteria for an exemption from disqualification established in section 435.07(1). When the decision was made to deny the exemption, it appears that APD staff provided the director with information as to non-disqualifying offenses that occurred prior to the disqualifying offenses. It is not known how, or whether, that impermissible information may have colored the director’s decision. Nonetheless, an evaluation of Petitioner’s suitability for an exemption should be made without consideration of those earlier events. The credible testimony and evidence in this case established, clearly and convincingly, that Petitioner has been rehabilitated from her disqualifying offenses, and that she currently presents no danger to the vulnerable population served by Respondent if she is allowed to be employed as a direct service provider. The concerns expressed by Respondent in formulating its intended action, without the benefit of the hearing testimony, particularly those regarding her lack of “anger management” classes and her lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities approving Petitioner, Catherine Schubert Rivera’s, request for an exemption from disqualification. DONE AND ENTERED this 10th day of November, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2015.
Findings Of Fact At all times relevant hereto Respondent was licensed by the Florida Real Estate Commission as a real estate broker. On August 7, 1982, Respondent was arrested on his property in Manatee County at a marijuana patch growing thereon. He was taken into custody, handcuffed, and placed in a Sheriff's Department vehicle for transportation into Bradenton for booking. Upon arrival at the sally port at the booking office and jail, Respondent was removed from the car. While the sequence of events that occurred was not explicated at the hearing, in Respondent's words "things got out of hand." Respondent testified the Deputy Sheriff tried to "break my arms while removing him from the vehicle, then "overreacted" and drew his pistol. As he emerged from the car, one of Respondent's handcuffs came off, Respondent seized the deputy's gun and ran away. Respondent surrendered himself to authorities the following day and the gun was returned by his attorney a few days later. Respondent was charged and tried on three counts involving manufacture, use, or intent to use, and possession of marijuana; grand theft of the pistol taken from the Deputy Sheriff; aggravated assault; and escape from confinement. He pleaded nolo contendere to all counts except aggravated assault, to which he pleaded and was found not guilty. Adjudication of guilt was withheld on the three marijuana counts (Counts I, II, and III) and on the grand theft count (Count IV), and Respondent was sentenced to ten days' confinement on work release program on Counts I, II, III, and IV, and was fined $1,000 and placed on probation for three years on Count IV. He was found guilty of escape from confinement and was sentenced to 11-1/2 months in the County Jail work release program and placed on three years probation to run concurrently with the probation in Count IV. Respondent has lived in Manatee County all his life and his parents are long-time residents. He has been licensed as a real estate broker for seven years and was a salesman before becoming a broker. The psychotherapist to whom Respondent was referred for counseling after his arrest testified that he met with Respondent for counseling for more than 100 hours and that he administered standards tests to Respondent to determine emotional stability and personality traits. This witness opined that Respondent is of moral standards without psychiatric problems or personality disorders, and that he is a church-going man. This witness did not consider the stealing of the deputy's firearm to be an immoral act, but considered the growing of marijuana to be a moral offense.
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 30th day of June, 2005.
The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's national origin.
Findings Of Fact It is not disputed that Mr. Arugu is a Nigerian resident in the United States, that he held the position of Treatment Counselor with the BSO, that he was discharged subsequent to being charged criminally of certain violent acts, or that BSO refused to rehire him after he was found not guilty of those charges. The BSO is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Mr. Arugu was hired as a substance abuse treatment counselor by Broward County, Florida, for its drug court program, in November 1989. He worked as a mental health specialist for the Broward County Drug Court. The position, with Mr. Arugu as the incumbent, was transferred to the BSO on October 1, 1999. A mental health specialist provides guidance to individuals or groups of persons who abuse legal and illegal substances and provides, among other things, anger management advice. Mr. Arugu's supervisor was Kristina Gulick. Her title was Director of the Department of Community Control. She assumed this position in 2001. Her immediate supervisor is Colonel Wimberly and his immediate supervisor is Sheriff Ken Jenne. Mr. Arugu began working for Ms. Gulick in 2002. Teddy Meisel is the assistant director of the Department of Community Control and reports to Ms. Gulick. He has known Mr. Arugu since 1997. He learned that Mr. Arugu had been arrested sometime after June 20, 2003. Subsequent to October 24, 2003, he reviewed an investigation into the activities of Mr. Arugu and as a result, decided he should be terminated. Although Mr. Meisel was aware that Mr. Arugu was a Nigerian, that fact did not enter into his decision to recommend that he be terminated. He discussed his recommendation with Ms. Gulick, who agreed, and forwarded a recommendation of dismissal to Colonel Wimberly. Ultimately, Sheriff Jenne signed off on the dismissal. The investigation reviewed by Mr. Meisel, Ms. Gulick, and Colonel Wimberly was prepared by Sergeant Wilfred Medina of the BSO's Office of Professional Compliance. He opened the investigation on June 21, 2003, and completed it on October 24, 2003. Sergeant Medina interviewed Mr. Arugu on September 21, 2003, in connection with his arrest by the Plantation Police Department (PPD) on June 20, 2003. The PPD had charged him with two counts of battery on a law enforcement officer, resisting arrest with violence and resisting arrest without violence. A review of the probable cause affidavit prepared by the arresting officers revealed that two PPD officers responded to a domestic disturbance complaint made by Lauretta Arugu, the estranged wife of Mr. Arugu. When the officers arrived at Ms. Arugu's residence, Mr. Arugu struck them repeatedly. The officers used pepper spray to gain control of him and thereafter arrested him. Based on this information, Mr. Arugu was suspended from his employment without pay. He was ordered to report to the Office of Professional Compliance on June 23, 2003, so that he could meet with Lieutenant Arndt of that office, and with Sergeant Medina. During that meeting Mr. Arugu provided the officers with a hand-written letter that was completely different from the version of events provided by the arresting officers. Mr. Arugu asserted that the arresting officers brutalized him. On June 25, 2003, Sergeant Medina learned that Mr. Arugu had been arrested by the Sunrise Police Department (SPD) on September 14, 1997. A report prepared by SPD indicated that on that date two SPD officers observed Mr. Arugu selling shoes from the trunk of his automobile at the Sawgrass Mall. He was arrested for operating a business without a license. After being placed in a patrol car, he exited the vehicle and attacked two SPD officers. Although it is a violation of the Broward County Code of Ethics Manual to fail to report an arrest to one's supervisor, a policy about which Mr. Arugu was aware, he did not inform Mr. Meisel of his arrest by SPD. During the interview, Mr. Arugu did not inform Sergeant Medina of his arrest in 1997 by SPD for the offense of battery on a law enforcement officer. He stated that he had no criminal record and denied ever having been arrested prior to the June 20, 2003, arrest. Sergeant Medina concluded that Mr. Arugu was not a truthful person. During Sergeant Medina's interview, Mr. Arugu made no claim that he was the victim of prejudice based on his national origin or any other status. On July 11, 2003, pursuant to Ms. Arugu's petition, a permanent restraining order was served on Mr. Arugu. The restraining order forbade him from being in the presence of Ms. Arugu or contacting her. Mr. Arugu nevertheless called Ms. Arugu's home and left messages on her answering machine. This was reported to the judge, who issued the order. On October 14, 2003, the judge, who issued the order, found that Mr. Arugu had indeed violated the order and admonished him, but did not incarcerate him. In Mr. Arugu's Employment Complaint of Discrimination, Mr. Arugu specifically alleged that Roy Vrchota, Assistant Inspector General told him, while his criminal case was pending, that he would be reinstated if he was found not guilty at the end of the criminal case addressing the June 30, 2003, incident. Mr. Vrchota testified under oath that he never told Mr. Arugu that he would be reinstated. Upon consideration of all of the facts and circumstances of this case, it is found as a fact that Mr. Vrchota did not tell him that. Mr. Vrchota was the person who discovered the previous arrest by SPD. Mr. Vrchota does not believe that Mr. Arugu is a truthful person. Mr. Arugu never made any allegations to him with regard to being a victim of prejudice. He did not learn that Mr. Arugu was a Nigerian until he was deposed in this case. On September 12, 2003, Mr. Arugu was found not guilty of charges addressing the June 30, 2003, incident. On September 29, 2003, Mr. Arugu sent the BSO a letter asking to be reinstated. In a letter dated December 23, 2003, Mr. Arugu was informed that he was not going to be reinstated. The fact that Mr. Arugu was a Nigerian was not taken into consideration by those in the decision-making process. Mr. Arugu's conduct was contrary to BSO standards and that is why he was discharged.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of October, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 8th day of October, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Odiator Arugu, Esquire The Florida Law Firm, PLC 1990 West Fairbanks Avenue Winter Park, Florida 32789 Harry O. Boreth, Esquire Glasser, Boreth & Kleppin 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue On or about August 16, 1996, Petitioner, Betty Osborne, was notified by Respondent, the Department of Children and Family Services, that she was disqualified from employment in a position of special trust. The disqualification was based on the results of Petitioner's criminal screening. Petitioner challenged this eligibility status and requested an exemption from disqualification. On August 20, 1996, the Department's Exemption Review Committee met and, after reviewing the Petitioner's record, denied her request for an exemption from disqualification. Petitioner filed a timely request for formal hearing and this proceeding followed. At the final hearing, Petitioner testified on her own behalf and offered no exhibits into evidence. Respondent presented one witness, George H. Seibert, Background Screening Coordinator, Department of Children and Family Services. Respondent offered and had admitted into evidence five exhibits. The proceeding was recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law.
Findings Of Fact Petitioner applied for a license as a child care provider in 1993 in an effort to qualify to open her own day care facility. Based on a criminal screening of Respondent, the Department of Children and Family Services (Depatment), determined that Petitioner was disqualified from employment in a position of special trust or responsibility, and thus was ineligible to work or volunteer in child care programs. Pursuant to Petitioner's request for an exemption from disqualification, the Department convened the Exemption Review Committee (Committee) to consider the requested exemption. The Committee reviewed Petitioner's record relating to her August 19, 1993, plea of nolo contendere to one count of grand theft. On or about January 7, 1993, Petitioner was charged with grand theft. The incident giving rise to the denial of the request for exemption occurred during the course of Petitioner's employment as a supervisor with the Pinellas County Tax Collector's Office. The allegation was that Petitioner had misappropriated $20,000 or more collected by that office for fishing licenses for her personal use or with the intent to deprive the State of Florida of a right to the property or benefit therefrom. On or about August 19, 1993, Petitioner completed a Plea Form on which she indicated that she would plead nolo contendere to one count of grand theft. Paragraph Five of the Plea Form expressly stated that "No one has pressured or forced me to enter this plea.", and that "No one has promised me anything to get me to enter this plea. . . ." Nevertheless, the form noted that Petitioner had an understanding that as a result of the plea, she would serve fifteen (15) years probation; pay $300.00 in court costs; and pay $56,404.00 in restitution. Both Petitioner and her attorney signed the Plea Form. On or about August 19, 1993, an Order of Probation (Order) was entered noting that the "Defendant being present with counsel: entered a plea of nolo contendere to the offense of grand theft". The Order withheld an adjudication of guilt; placed Petitioner on fifteen (15) months of probation; and required payment of $300.00 in court costs and $56,404.00 in restitution. The amount of restitution was reduced to $27,501.00 by an order issued on January 26, 1994. As of August 20, 1996, the date of the Department Exemption Review and hearing, Petitioner had twelve years of probation remaining to be served. Also, as of that date, Petitioner had paid only $300.00 in restitution. If Petitioner had made restitution payments as scheduled, she would have paid $7,100.00 as of August 1996. At the time of this hearing, Petiitoner had made no additional restitution payments. At hearing, Petitioner presented no evidence of rehabilitation. Several letters of recommendation written by friends on Petitioner's behalf indicate that she is (1) active in her church; works well with children and others; and has a love for children. However, none of these letters reflect that Petitioner has worked in a responsible position or has been engaged in activities that demonstrate rehabilitation since she entered a plea of nolo contendere to grand theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Children and Family Services, enter a Final Order denying Petitioner, Betty Osborne, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility. DONE and ENTERED this 28th day of March, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. COPIES FURNISHED: Ms. Betty Osborne 4149 38th Street South St. Petersburg, Florida 33711 Kathleen Harvey, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 34648-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
