14-005130 James Walker vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, February 23, 2015.

Summary: Agency not shown to abuse its discretion when decision supported by logical and reasonable criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WALKER,

Petitioner,

vs. Case No. 14 - 5130

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final h earing was held in this case on

January 8, 2015, in Sebastian, Florida, before J. D. Parrish, an

Administrative Law Judge of the Division of Administrative

Hearings , with RespondentÓs counsel appearing by video

teleconference from Tallahassee, Florida.

APP EARANCES

For Petitioner: James Walker, pro se

5812 Pinewood Drive, Northeast

Palm Bay, Florida 32905

For Respondent: Kurt E. Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Respondent abused its discretion by denying

PetitionerÓs request for an exemption that would allow employment

in a position of special trust.

P RELIMINARY STATEMENT

On September 29, 2014, Respondent, Agency for Persons with

Disabilities (Agency or Respondent) , issued a denial of

PetitionerÓs request for exemption that would allow employment in

a position of special trust. Thereafter, Petitioner t imely filed

a request for an administrative hearing and the case was

forwarded to the Division of Administrative Hearings (DOAH) for

formal proceedings. The Agency premised the denial of

PetitionerÓs exemption request on a background screening that

review ed PetitionerÓs criminal records , as well as other

documents provided by Petitioner.

The case was scheduled for hearing in accordance with the

Response to Initial Order filed by Respondent. At the hearing ,

Petitioner testified on his own behalf and pres ented testimony

from Roderick Coney and Travis Jones. Respondent offered

testimony from Clarence Lewis, regional program manager for the

Central Region of Florida. RespondentÓs Exhibits A through E

were admitted into evidence.

A transcript of the heari ng has not been filed with DOAH.

The parties were granted ten days from the date of the hearing

within which to file proposed recommended orders. RespondentÓs

Proposed Recommended Order filed on January 20, 2015, has been

considered in the preparation of this Recommended O rder.

FINDING S OF FACT

1. Petitioner seeks employment in a position of trust.

Employment in positions of special trust requires background

screening to verify that persons do not have disqualifying

offenses that preclude their employm ent.

2. Respondent is charged with the responsibility of

verifying that persons who work in positions of trust are

appropriately credentialed or meet the criteria for an exemption

when background screening finds disqualifying offenses. In this

case , Res pondent reviewed PetitionerÓs request for an exemption

when it was determined that he was otherwise disqualified for

employment.

3. On March 3, 2000, Petitioner committed the criminal act

of solicitation for prostitution. This criminal charge was

resolve d when Petitioner entered a plea of nolo contendere, was

adjudicated guilty, and was sentenced to ten days detention and

six months of probation. Respondent found this offense to be

PetitionerÓs first disqualifying offense.

4. On January 30, 2008, Peti tioner committed the criminal

act of domestic violence. The charge was resolved when

Petitioner entered a guilty plea, and was ordered to attend anger

management classes and pay restitution, court costs, and

investigative costs. Adjudication on the plea was withheld.

Respondent determined this offense to be PetitionerÓs second

disqualifying offense.

5. Petitioner does not dispute the factual allegations

supporting the charges described in paragraphs 3 and 4.

Petitioner maintains he is of good moral cha racter and that the

incidents of his past do not define the person he is.

PetitionerÓs witnesses agree that Petitioner should be allowed to

work in a position of trust.

6. In addition to disqualifying offenses , Respondent

considered other incidents rel ated to RespondentÓs conduct.

Prior to the offenses noted above , Respondent pled guilty to

resisting arrest with violence. Subsequent to the offenses ,

Respondent incurred a number of traffic violations , including

driving without a valid license.

7. Fi nally, and of significant concern to Respondent,

Petitioner has a verified finding of child abuse. Although the

case was not prosecuted criminally, the Florida Department of

Children and Families (DCF) maintains a verified report of sexual

activity involv ing Petitioner with his minor step - child.

8. PetitionerÓs successful employment history includes work

with DevereuxÓs ChildrenÓs Hospital (from 1993 until

February 2009). Petitioner was terminated from this position due

to his domestic violence convic tion. From November 2011 to

September 2013 , Petitioner was employed by MC Assembly.

9. Petitioner resides with two sons and is head of

household.

10. Petitioner completed anger management counseling after

his conviction in 2009.

11. There is no evid ence that Petitioner uses or misuses

drugs or alcohol.

12. Petitioner expressed remorse for his behavior and

blamed the domestic violence incident on a difficult home

situation that got out of control.

13. Respondent considers driving without a license a

serious issue because persons who work in positions of special

trust may be required to transport persons with developmental

disabilities to medical appointments, educational or training

opportunities, or activities.

14. RespondentÓs clients are pers ons who are extremely

vulnerable. Many clients do not have the capacity to consent due

to limited cognitive function. Additionally, RespondentÓs

clients are at risk for abuse, neglect, and exploitation because

they may not be able to communicate and rela te incidents of

abuse, neglect or exploitation.

15. RespondentÓs clients cannot be served by persons who

exhibit violence or uncontrolled behaviors. After reviewing

PetitionerÓs record , Respondent determined that an insufficient

time has passed to assu re that Petitioner will not revert to

violent behavior if confronted with a stressful work experience.

Petitioner has not provided evidence of rehabilitation other than

the support of his friends. According to Clarence Lewis , the

stressors in PetitionerÓ s life , together with the demands of the

work environment , could put RespondentÓs clients at risk since

Petitioner has not demonstrated sufficient rehabilitation.

16. PetitionerÓs letters of reference did not document

additional efforts at rehabilitatio n. There is no evidence that

Petitioner has participated in counseling or treatment beyond the

mandated anger management class dictated by the court.

17. Persons seeking employment with vulnerable individuals

must exercise good judgment.

18. Based u pon the totality of PetitionerÓs submissions to

the Agency to support the request for an exemption, Respondent

concluded Petitioner did not establish by clear and convincing

evidence that he is rehabilitated and able to work with

RespondentÓs vulnerable po pulation.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569, 120.57, and

435.07 Fla. Stat. (2014).

20. Section 435.04, Florida Statutes , provides , in

pertinent part:

(1)(a) All employ ees required by law to be

screened pursuant to this section must

undergo security background investigations as

a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history reco rds checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(2) The s ecurity background investigations

under this section must ensure that no

persons subject to the provisions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entered a ple a of nolo contendere or

guilty to, or have been adjudicated

delinquent and the record has not been sealed

or expunged for, any offense prohibited under

any of the following provisions of state law

or similar law of another jurisdiction:

* * *

(v) Chapter 796, relating to prostitution.

* * *

(mm) Section 843.01, relating to resisting

arrest with violence.

* * *

(3) The security background investigations

under this section must ensure that no person

subject to this section ha s been found guilty

of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense that constitutes domestic violence as

defined in s. 741.28, whether such act was

committed in this state or in another

jurisdiction.

21. Se ction 435.07, Florida Statutes , provides , in part:

Unless otherwise provided by law, the

provisions of this section apply to

exemptions from disqualification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter , regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

(1)(a) The head of the appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification for:

1. Felonie s for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court for the

disqualifying felony;

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under

similar statutes of other jurisdictions for

which the applicant for the exemption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court;

3. Offenses that were felonies when

committed but that are now misdemeanors and

for which the applicant for the exemption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court; or

4. Findi ngs of delinquency. For offenses

that would be felonies if committed by an

adult and the record has not been sealed or

expunged, the exemption may not be granted

until at least 3 years have elapsed since the

applicant for the exemption has completed or

be en lawfully released from confinement,

supervision, or nonmonetary condition imposed

by the court for the disqualifying offense.

* * *

(3)(a) In order for the head of an agency to

grant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth clear and convincing

evidence of rehabilitation, including, but

not limited to, the circumstance s surrounding

the criminal incident for which an exemption

is sought, the time period that has elapsed

since the incident, the nature of the harm

caused to the victim, and the history of the

employee since the incident, or any other

evidence or circumstanc es indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

(b) The agency may consider as part of its

deliberations of the employeeÓs

rehabilitation the fact that the employee

has, subsequent to the convic tion 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.

(c) The decision of the head of an agency

regarding an exemption may be contes ted

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended action is an abuse of

discretion.

22. Pursuant to s ection 435.07(3), Florida Statutes, an

applicant for an exemption must provide clear and convincing

evidence of Ðrehabilitation.Ñ This Ðclear and convincingÑ

standard requires proof that is more than a preponderance of the

evidence but less than beyond and to the exclusion of a

reasonable doubt. For proof to be considered clear and

convincing

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the fact s

at issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re : Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983)).

23. Should the agency head determine that the applicant for

an exemption has not provided clear and convincing evidence to

establish rehabilitation, that decision may be contested pursuant

to c hapter 120, Florida Statutes. In this case , Petitioner

timely challenged the AgencyÓs decision to deny the exemption and

was afforded an administrative hearing to present evidence in

support of his case. The standard of rev iew for this case is set

forth by law: whether the agencyÓs intended action is an abuse

of discretion. Therefore, the issue for determination is whether

the agencyÓs intended action constitutes an abuse of discretion

based upon the facts determined from the evidence presented at

the hearing. Which makes PetitionerÓs burden great. See J.D. v.

Dep Ó t of Child . & Fam . , 114 So. 3rd 1127 (Fla. 1st DCA 2013).

24. In this case , Respondent articulated a concise and

well - reasoned explanation for the decision to deny PetitionerÓs

exemption application. Respondent cited PetitionerÓs

disqualifying offenses; the elapsed time since the last

occurrence of irresponsible behavior; the vulnerable population

served by the Agency; a verified report of abuse, neglect or

exp loitation maintained by DCF; and other minor concerns , such as

traffic infractions and driving without a license.

25. Based upon the facts of this case , it is concluded

Respondent did not abuse its discretion in denying PetitionerÓs

exemption.

RECOMMEND ATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency enter a final order

denying PetitionerÓs application for an exemption.

DONE AND ENTERED this 2 3rd day of February , 2015 , in

Tallahassee, Leon County, F lorida.

S

J. D. PARRISH

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 2 3rd day of February , 2015 .

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Michael Sauve, Esquire

Agency for Persons with Disabilities

Suite S - 430

400 West Robinson Street

Orlando, Florida 32801

(eServed)

James Walker

5812 Pinewood Drive Northeast

Palm Bay, Florida 32905

David De La Paz, Agency Clerk

Agency for Persons wit h Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richart Tritschler, Ge neral Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.