14-005549 Falesia Rawls vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, March 9, 2015.

Summary: Petitioner proved rehabilitation by clear and convincing evidence. Evidence adduced at final hearing was not available to the agency in formulating its initial decision to deny Petitioner's request for exemption. Recommended agency grant the exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FALESIA RAWLS ,

Petitioner,

vs. Case No. 14 - 5549

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing in this case was held on

January 30, 2015 , in Ocala , Florida , before Suzanne Van Wyk, an

Administrative Law Judge appointed by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Fale s ia Rawls , pro s e

1629 Northwest 3 rd Street

Ocala, F lorida 34475

For Respondent: Michael Suave , Esquire

Agency for Persons with Disabilities

400 West Robinson Street, Suite S - 430

Orlando, Florida 32801

STATEMENT OF THE ISSUE

W hether the Agency Ós intended action to deny Petitioner Ós

application for exempt ion from disqualification from employment

is an abuse of discretion, pursuant to s ection 435.07, Florida

S tatutes (201 4 ). 1 /

PRELIMINARY STATEMENT

By letter dated October 20 , 2014, th e Agency for Persons

with Disabilities ( Agency or Respondent) issued its notice of

agency action , by which it informed Petitioner that her request

for exemption from disqualification was denied. As a result,

Petitioner was determined to be Ðnot eligible t o be employed,

licensed, or registered in positions having direct contact with

children or developmentally disabled people served in programs

regulated by the Agency for Persons with Disabilities .Ñ

On November 12 , 2014, Petitioner filed a request for

ad ministrative hearing to contest the Agency Ós intended action.

The Agency referred the case to the Division of Administrative

Hearings on November 24 , 2014. A final hearing was scheduled

for J anuary 30 , 2015, in Ocala , Florida, and the hearing

commenced a s scheduled.

At the final hearing, Petitioner testified on her own

behalf and offered the testimony of Steven Westgate, Kathleen

Bellamy, Tamara Gunsby, Shaquila Green, and Jena Woodyard .

Petitioner also introduced into evidence a letter from Fronessia

W ilson, who was unable to attend the hearing in person.

Respondent offered the testimony of Clarence Lewis, Resp ondentÓs

Central Region Operations Manager. RespondentÓs exhibits A

through F were admitted in evidence.

The proceedings were recorded, but th e parties did not

order a transcript thereof. The parties timely filed Proposed

Recommended Order s, which have been considered by the

undersigned in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner desires to return to work as Human Resources

Director for Eagle Medical Services (Eagle Medical) , a direct -

service provider to clients in FloridaÓs Medicaid Waiver Program

for the D evelopmentally D isabled .

2. Petitioner was hired by Eagle Medical in 2007 as an

office assistant performing secretarial duties, but was promoted

to Human Resources Director in 2009. Petitioner left Eagle

Medical in 2011.

3 . Petitioner has a lengthy criminal history.

4 . In 1991, Petitioner pled guilty to prostitution , and

was sentenced to 60 days in the Marion County jail. Petitioner

was 29 years old at the time of the conviction.

5 . In 2006, at age 44, Petitioner pled guilty to Petit

Theft with Two or More Prior Convictions (a felony) , and was

sentenced to serve one year and one day in the Department of

Corr ections, to be served concurrently with any active sentence

being served at the time.

6 . Between the 1991 prostitution conviction and the 2006

petit t heft conviction, Petitioner had a number of convictions

for non - disqualifying offenses . In 2000, Petit ioner was

arrested twice for driving with a suspended or revoked license.

In 2005, Petitioner was again arrested twice for driving with a

suspended or revoked license , and on three charges of petit

theft. In 2006, Petitioner was charged with petit theft

(retail), as well as resisting detainment by a retail merchant.

In this interim period, Petitioner was sentenced to serve 420

days in the Marion County jail and pay at least $ 1,200 in court

costs and fines.

7 . PetitionerÓs 2006 sentence required her to p erform 20

hours of community service, complet e a ShoplifterÓs Anonymous

course, and serve 12 months on probation through Salvation Army

Corrections.

8 . Petitioner served her time in the Lowell State

Correctional Facility from November 29, 2006, to July 20 , 2007.

However, Petitioner did not satisfy all conditions of the

judgment until March 31, 2011.

9 . Petitioner testified, credibly, that her significant

criminal history began after the tragic death of her t wo

children, ages one and three , in 1985 . Peti tioner turned to

alcohol and drugs, including crack cocaine, to dull the pain of

her loss, rather than dealing with it through professional grief

counseling and treatment. Petitioner testified that she Ðwanted

to dieÑ during this period in her life. Peti tioner supported

her habit through retail theft , after a single failed attempt at

prostituting herself.

10 . Clarence Lewis , the agencyÓs Central Region Operations

Manager, testified that the main reasons the Agency is denying

PetitionerÓs request for exem ption are (1) the lengthy history

of PetitionerÓs criminal activity , and (2) a lack of detail in

PetitionerÓs application regarding her post - conviction

treatment, education , training, and work history.

11 . PetitionerÓs exemption questionnaire is not deta iled.

In the questionnaire, Petitioner stated generally that, during

her incarceration, she Ðutilized available resources to obtain

rehabilitation for emotional, psychological & substance abuse.Ñ

With regard to her work history for the past three years,

Petitioner listed a number of employers withou t details on the

type of work or length of employment. With regard to her

education and training, Petitioner listed four institutions

without dates of attendance or dates she completed the noted

certificate or license. Petitioner stated that she received

counseling Ðon the insideÑ through many programs, but mainly

credits her faith for her true reform.

12 . Petitioner Ós exemption packet and testimony received

at the final hearing establish ed PetitionerÓs purs uit of

treatment, education, and training, both during and after her

confinement , as well as her subsequent community involvement and

work history.

1 3 . In 2006, Petitioner completed a Ð Christian 12 Step

Recovery Course , Ñ a ten - week Personal Development L ife

M anagement Skills Course, and an Anger Management class.

14 . Petitioner was baptized while incarcerated in February

2007 , and completed a PeacemakersÓ class, a bible study on

ÐBreaking Strongholds and Bondages,Ñ and a discipleship class

through the fa cility chaplain in March and April 2007.

PetitionerÓs testimony regarding her faith was sincere,

credible, and convincing.

15 . Petitioner received six months of psychiatric

treatment while incarcerated. In June 2007, Petitioner

completed an Anger Resolu tion Seminar Ðfocusing on identifying

the causes of anger and how to successfully resolve them.Ñ She

also completed 72 hours of transition training in July 2007

prior to her release.

1 6 . Upon her release, Petitioner enrolled in Alcoholics

Anonymous and Narcotics Anonymous and attended meetings for

approximately two years. Petitioner testified that she still

regularly attends meetings with an organization known as 12

Steps with the Bible.

1 7 . In April 2008, Petitioner completed a Targeted

Aggression Con trol Training program administered by Professional

Education Services, Inc.

1 8 . In August 2009, Petitioner completed a specific

behavior training program focused on responding to target

behaviors and providing replacement behaviors.

1 9 . Jena Woodyard i s the owner of Eagle Medical, which

provides both onsite educational services and Adult Day

Treatment (ADT) to persons with disabilities.

20 . Ms. Woodyard hired Petitioner as an office assistant

in September 2007 . Petitioner completed a battery of trai ning

programs in October 2007, including Introduction to

Developmental Disabilities, Person - Centered Service Delivery,

Consumer Choice and HIPA, Health and Safety,

Abuse/Neglect/Exploitation, and Zero Tolerance.

21 . Shortly after hiring Petitioner, Ms. Wo odyard promoted

Petitioner to Director of ADT . Ms. Woodyard testified,

credibly, that she chose to promote Petitioner to a position of

direct service to clients because of PetitionerÓs compassion

with and dedication to the clients , her acumen as a coordin ator

of services, and her dedication to the agency Ós success and

complian ce with all requirements.

22 . Petitioner applied for an exemption from

disqualification in 2008. She was denied because she did not

meet the statutory prerequisites , which require a n applicant to

pay all court - ordered fees and wait three years from the date he

or she is released from confinement or supervision prior to

applying for an exemption. See § 435.07(1)(a) and (b), Fla.

Stat.

23 . Despite PetitionerÓs failure to obtain an ex emption

from disqualification, Ms. Woodyard retained Petitioner as an

employee at Eagle Medical. However, in 2009, she moved

Petitioner to the position of Human Resources Director .

PetitionerÓs office was located in an administrative area of the

offices separated from the classrooms and ADT areas.

24 . In early 2011, Eagle Management rented a building

adjacent to the main building and moved PetitionerÓs office to

the adjacent building.

25 . Ms. Woodyard terminated PetitionerÓs employment in

2011 only out of concern for the agencyÓs compliance with state

regulations. Ms. Woodyard desires to re - employ Petitio ner as

Human Resources Director. I f Petitioner obtains an exemption,

Ms. Woodyard would like to hire Petitioner in a direct - service

position.

26 . Kat hleen Bellamy is an employee of Eagle Medical and

worked with Petitioner from 2009 to 2011. Ms. Bellamy testified

that Petitioner is extremely compassionate and caters to the

clientsÓ best interests in coordinating services.

27 . Courtnee Colson submitted a letter of reference to the

Agency which is included in PetitionerÓs exemption packet.

Ms. Colson was a lso PetitionerÓs co - worker at Eagle Medical. In

her letter, Ms. Colson extoll ed PetitionerÓs leadership skills,

explaining that Petitioner had oversi ght of 70 employees and

disabled adults.

28 . Sandra Woodson is another of PetitionerÓs former co -

worker s at Eagle Medical, and submitted a letter of reference on

PetitionerÓs behalf. Ms. Woodson began work ing with Petitioner

in 2007 and described her as prompt, eager to learn, and quick

to master new job tasks.

29 . Ms. Woodson also rented a home to Petitioner for over

three years, beginning in 2009. In h er letter, Ms. Woodson

described Petitioner as responsible (always paid her rent on

time) , and welcom e d by the neighbors .

30 . Petitioner supervised Shaquila Green at Eagle Medical.

Ms. Green testified that she valued PetitionerÓs advice and

guidance, and described Petitioner as exceptionally hardworking.

Ms. Green was aware of PetitionerÓs criminal bac kground and

testified Petitioner uses her past experiences to help others

and keep them from choosing the Ð wrong path. Ñ

31 . In addition to working with Petitioner, Ms. Green has

observed Petitioner, and participated with her, in volunteer

work through P etitionerÓs church. Ms. Green is impressed with

PetitionerÓs strong desire to help other people.

32 . Petitioner is a lay minister in her church. She is

active in a number of community service programs through the

church, including the DATA program, whic h provides re - entry

services to persons released from correction al institutions , and

an outreach program facilitating alternatives for youth whose

parents are incarcerated .

33 . PetitionerÓs primary community service project is

coordinat ing services to re sidents of the Parkside Gardens

Apartments, a low - income housing development. Petitioner

spearheads the churchÓs services to that community, including

teaching employment skills, coordinating after school programs,

organizing job fairs, preparing and serv ing weekly meals, and

providing HIV education and counseling, among others.

34 . Steven Westgate is a community volunteer who met

Petitioner through various charitable activities. He has

volunteered with Petitioner in providing and serving meals to

the re sidents at Parkside Garden s . Mr. Westgate has known

Petitioner for approximately twelve years, and describe d her as

reliable, honest, and trustworthy.

35 . Ms. Woodyard testified that her company Ðpicked upÑ

Parkside Garden s , which the undersigned infer s to mean the

agency began serving qualified residents of that property. 2 / Ms.

Woodyard was impressed with PetitionerÓs dedication and Ð found

the resources Ñ to pay Petitioner for her service to the

residents and made her Program Director of what Ms. Woody ard

termed Ðthe community sideÑ of the business. Petitioner worked

in this capacity in 2010 and 2011.

36 . Petitioner obtained her GED on January 13, 2011.

37 . Petitioner received her Nursing Assistant

certification from the Department of Education on A pril 15,

2014. Petitioner completed a one - year training course in

bloodborne pathogens, infection control , and HIV in August 2014.

38 . Petitioner became a volunteer with the Department of

Corrections in September 2014.

39 . Petitioner has no criminal h istory subsequent to her

2006 disqualifying offense.

40 . After l eaving Eagle Management in September 2011,

P etitioner obtained seasonal work at HarveyÓs Grove s packing

holiday gift baskets.

41 . In 2012 - 2013, Petitioner worked part - time as an agent

for Telecom Services, and on the production line at Signature

Brands Cake Factory.

42 . In January 2015, Petitioner began working as Office

Manager for Ardelle Moving and Delivery. On the date of the

hearing, Petitioner was providing human resource services for

her brotherÓs new business, WingKing, the grand opening of which

was planned shortly after the hearing date. Petitioner was

working closely with a local workforce agency to employ some

qualified former felons at the establishment.

43 . At the final h earing, Petitioner made no excuse s for

her past criminal activities , and frankly accept ed full

responsibility for her actions . Petitioner expressed genuine

remorse for her past. PetitionerÓs testimony was credible and

convincing. PetitionerÓs personal i nsight is remarkable; she

has dealt with her demons and turned her sorrow into a guiding

light for others.

44 . In her exemption packet, Petitioner did not include

letters of recommendation from Ms. Woodyard, Ms. Green,

Ms. Bellamy, or Mr. Westgate. Thus , the Agency did not have the

testimony of those individuals when it made its initial decision

to deny PetitionerÓs request for exemption. The undersigned

finds that the Agency would have been better served with the

information provided by those witnesses .

45 . The witnesses, PetitionerÓs testimony, and

PetitionerÓs exemption packet , together , provide great detail

regarding PetitionerÓs pursuit of counseling, education,

training, community service, and employment subsequent to her

disqualifying offense in 2006.

46 . Eight years have elapsed since PetitionerÓs most

recent disqualifying offense, during which time Petitioner has

had a clean record, recovered from the loss of her children,

sought treatment for drug and alcohol abuse, proven herself an

invalua ble employee, and dedicated her time to serving others in

the community.

47 . Mr. Lewis testified that the population served by the

Agency is extremely vulnerable, including some clients who

cannot speak or fend for themselves. Mr. Lewis represented that

Petitioner poses a risk to this population due to her lengthy

criminal history and no indication that she has sought

counseling for impulse control.

48 . To the contrary, the undersigned finds Petitioner

presents no danger to the vulnerable adult populat ion served by

the Agency.

49 . Petitioner has proven by clear and convincing evidence

that she is rehabilitated from her disqualifying offenses.

CONCLUSIONS OF LAW

50 . The Division of Administrative Hearings has

jurisdiction over the parties and the su bject matter of this

case pursuant to s ections 120.57(1) and 435.07(3)(c), Florida

Statutes.

51 . Pursuant to s ection 393.0655 , Florida Statutes,

providers of direct services to persons with developmental

disabilities are required to meet level 2 employmen t screening

standards .

52 . Level 2 employment screening standards set forth in

s ection 435.04(2 ) provide that a person who h as entered a plea

of nolo conte ndere or guilty to charges of prostitution and

felony theft, as has Petitioner, is disqualified from being a

direct service provider to persons with developmental

disabilities.

53 . The head of the Agency for Persons with Disabilities

may grant an exemption from disqualification if the applicant

for exemption has completed or been lawfully released from

confinement, supervision, or sanction imposed for a

disqualifying offense. Petitioner met all conditions to apply

for an exemption.

54 . In order to receive an exemption, Petitioner has the

burden of proving , by clear and convincing evidence , that she is

rehabilitated. See J.D. v. DepÓt of Child . & Fam s . , 114 So. 3d

1127, 1131 (Fla. 1st DCA 2013)(ÐThe ultimate issue of fact to be

determined in a proceeding under section 435.07 is whether the

applicant has demonstrated rehabilitation by clear and

convinci ng evidence.Ñ) .

55 . The prohibition from employment in positions of trust

of individuals convicted of disqualifying offenses under s ection

435.04 is intended to protect the public welfare, and the

statute must be strictly construed against the person clai ming

exemption. Heburn v. DepÓt of Child. & Fams. , 772 So. 2d 561,

563 (Fla . 1st DCA 2000).

56 . The clear and convincing standard of proof has been

described by the Florida Supreme Court , as follows :

Clear and convincing evidence requires that

evidence m ust 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 facts in

issue . The evidence must be of such weight

th at it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

a llegations sought to be established.

In re Davey , 645 So. 2d 398, 404 ( F la. 1994)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla . 4th DCA 1983) ) .

57 . Under s ection 435.07(3 )( a), evidence of rehabilitation

may include, but is not limited to, the circumstances

surrounding the criminal incident for which an exemption is

sought, the time period that has elapsed since the incident, th e

nature of the harm caused to the victim, and the history of the

applicant since the incident, or any other evidence or

circumstances indicating that the employee will not present a

danger if employment or continued employment is allowed.

58 . Pursuant t o s ection 435.07(3 )( c), Ðthe standard of

review by an ALJ is whether the agencyÓs intended action is an

abuse of discretion .Ñ

59 . FloridaÓs First District Court of Appeal has reasoned

that, Ðalthough the ultimat e legal issue to be determined by the

AL J in a proceeding under section 435.07(3)(c) is whether the

agency headÓs intended action was an Òabuse of discretion,Ó the

ALJ is to evaluate that question based on the facts determined

from the evidence presented at a de novo chapter 120 hearing.Ñ

J.D. v. DepÓt of Child . & Fam s . , 114 So. 3d 1127, 1131 (Fla. 1st

DCA 2013).

60 . In the case at hand, the chapter 120 hearing produced

substantial evidence which was not available to the Agency in

formulating its decision to deny PetitionerÓs exemption request .

Notably, the evidence addressed the AgencyÓs stated concerns

with PetitionerÓs application, including lack of detail

regarding PetitionerÓs treatment for behavioral issues, drug and

alcohol abuse, and PetitionerÓs work history subsequent to the

most rec ent disqualifying offense.

61 . The undersigned concludes that RespondentÓs intended

decision to deny Petitioner Ós exemption request would constitute

an abuse of discretion. The Agency is not bound by this

conclusion. However, if the Agency rejects this conclusion, it

must, in its final order, Ðstate with particularity its reasons

for rejecting or modifying such conclusion of law . . . and make

a finding that its substituted conclusion of law . . . is as or

more reasonable tha n that which was rejected or modified.Ñ J.D.

v. DepÓt of Child. & Fams. , 114 So. 3d at 1133 (quoting section

120.57(1)(l) ).

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

Law, it is RECOMMENDED that a final order be entered granting

PetitionerÓs request for exemption from disqualification .

DONE AND ENTERED this 9th day of March , 2015, in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March , 2015 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 201 4 version, which was in effect

when Petitioner applied for exemption from disqualification.

2/ The record does not establish the date on which Eagle Medica l

began serving residents of Parkside Gardens or the duration of

said service.

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Michael Sauve, Esq uire

Agency for Persons with Disabilities

400 West Robinson Street , Suite S - 430

Orlando, Florida 32801

(eServed)

Falesia Wilson Rawls

1629 Northwest 3rd Street

Ocala, Florida 34475

David De La Paz, Agency Clerk

Agency for Persons with 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)

Richard D. Tritschler, General Counsel

Ag ency 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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.