15-001893 Ericka Collington vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, July 14, 2015.

Summary: Petitioner failed to establish entitlement to the exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICKA COLLINGTON,

Petitioner,

vs. Case No. 15 - 1893EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 19, 2015, an administrative hearing in this case was

held by video teleconference in Orlando and Tallahassee, Florida,

before William F. Quattlebaum, Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Petitioner, pro se

Apartment 515

5500 Clarcona Pointe Way

Orlando, Florida 32810

For Respondent: Michael Sauve, Esquire

Agency for Persons with Disabilities

Suite S - 430

400 West Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner should be

granted an exemption from employment disqualification, pursuant

to section 435.07, Florida Statutes (2014).

PRELIMINARY STATEMENT

By letter dated March 13, 2015, the Agency for Persons with

Disabilities (Respondent) notified the Petitioner that her

request for exemption from disqualification had been denied. The

Petitioner requested an administ rative hearing to dispute the

denial of the exemption. On April 8, 2015, the Respondent

submitted the hearing request to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on h er own behalf.

The Respondent presented the testimony of one witness and had

Exhibits A through E admitted into evidence.

No transcript of the hearing was filed. The Respondent

filed a Proposed Recommended Order that has been reviewed in the

preparatio n of this Recommended Order.

FINDING S OF FACT

1. The Petitioner is seeking employment as a direct service

provider in a Ðposition of special trustÑ with disabled persons.

2. The Respondent is the state agency responsible for

making disqualification and exemption determinations related to

persons seeking such employment.

3. A person seeking employment in a Ðposition of special

trustÑ is subjected by law to a background screening process. A

person who has committed one of a specified group of criminal

offenses is disqualified from the employment. A disqualified

person has the opportunity to seek an exemption from the

disqualification.

4. The Petitioner's background screening revealed that, in

2002, the Petitioner was charged in Seminole County, Flo rida,

with fraudulent use of a credit card, a third - degree felony

violation of sections 817.61 and 817.67(2) , Florida Statutes

(2014) .

5. Pursuant to section 393.0655(5)(j) , Florida Statutes

(2014) , violations of section 817.61 are disqualifying offense s. 1/

6. The Petitioner entered a plea of guilty, and was placed

on probation for five years, ordered to complete 50 hours of

community service, and required to make restitution in the amount

of $2,416.20 to ÐPeopleÓs First BankÑ in Panama City, Flori da.

7. The sentencing order prohibited the Petitioner from

Ðwork[ing] where you have unsupervised access to cash, equipment

or merchandise of othersÑ and prohibited the Petitioner from

entering the premises of a Burger King. Adjudication was

withheld.

8. In the RespondentÓs request for exemption, the

Respondent stated that she had been shopping in a clothing store

with someone else who was using a credit card. In the exemption

request, the Respondent wrote Ð[a]t the time, I honestly didnÓt

know that this was not her mom (sic) card as thatÓs what she told

me before going to the store.Ñ The Respondent insinuated that

she was arrested because she had been observed with the person

using the card.

9. At the time of the offense, the Petitioner was empl oyed

at a Burger King, where, on at least one occasion, she worked the

drive - thr u window. A customer who came through the drive - thr u

window accidently left a credit card. The Petitioner took the

credit card and used it to make various purchases.

10. Ac cording to the arrest report, the customer realized

at some point that she was not in possession of the credit card,

and that charges were appearing on her account. She reported the

issue to law enforcement authorities, who, after an

investigation, determ ined that the Petitioner had the credit card

and was using it, at which time she was arrested. At all time s

material, the Petitioner was aware of the source of the credit

card, and knew that it was not hers.

11. In the request to the Respondent for an exemption from

employment disqualification, the Petitioner set forth a false

statement of the circumstances surrounding her arrest.

12. The background screening also revealed two non -

disqualifying offenses that occurred subsequent to the 2002

disqualify ing offense. In 2004, the Petitioner entered a plea of

nolo contendere to, and was adjudicated guilty of, a charge of

petty theft , apparently related to a shoplifting incident at a

T.J. Maxx department store. In 2006, the Petitioner was charged

with a Ðf ailure to appearÑ violation related to the sentence

imposed for the petty theft.

13. In addition to the criminal offenses referenced herein,

the Petitioner has been involved in a number of minor traffic

offenses identified in the exhibits presented by th e Respondent,

but the offenses were relatively insignificant.

14. The Petitioner has a high school diploma, and is

gainfully employed. She was described as a good employee in

several letters of recommendation submitted to the Respondent

with her reques t for exemption, which were included in the

exhibits admitted at the request of the Respondent.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding.

§§ 120.569 and 120.57, Fla. Stat.

16. The Petitioner has applied for an exemption from

disqualification under the provisions of section 435.07, which

state , in relevant part , as follows:

Exemptions from disqualification. -- Unless

otherwise provided by law, the provisions of

thi s 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.

* * *

(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 burd en

of setting forth clear and convincing evidence

of rehabilitation, including, but not limited

to, the circumstances 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

circumstances 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 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.

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agency 's intended action is an abuse of

discretion. (emphasis added).

17. Chapter 435 was enacted to protect the public welfare.

The law does not provide for a requested exemption to be granted

as a matter of right to an otherwise disqualified individual. In

Heburn v. Department of Children and Families , 772 So. 2d 561, 563

(Fla. 1st DCA 2000), the court wrote as follows:

In section 435.07, the legislature has not

provided for an exemption as a matter of

right, but has delegated to the Department the

broa d discretion to grant an exemption.

Subsection (1) of section 435.07 provides that

"the appropriate licensing agency may grant

to any employee otherwise disqualified from

employment an exemption from

disqualification."

* * *

An exemption from a st atute, enacted to

protect the public welfare, is strictly

construed against the person claiming the

exemption, and the Department was not required

to grant . . . any benefits under the

exemption.

18. An abuse of discretion by a trial court has been

des cribed as where the discretionary act is "arbitrary, fanciful,

or unreasonable . . . . If reasonable [people] could differ as

to the propriety of the action taken by the trial court, then the

action is not unreasonable and there can be no finding of an

ab use of discretion." Canakaris v. Canakaris , 382 So. 2d 1197,

1203 (Fla. 1980). See also Kareff v. Kareff , 943 So. 2d 890, 893

(Fla. 4th DCA 2006), holding that the test in determining whether

discretion has been abused is whether "any reasonable person"

would take the position under review.

19. The Petitioner has failed to establish that she is

entitled to exemption from disqualification or that the

Respondent's denial of the Petitioner's request for exemption

constitutes an abuse of the Respondent's d iscretion.

20. In 2002, the Petitioner committed a third - degree felony

involving fraudulent use of a credit card, a disqualifying

offense. Other than two non - disqualifying offenses, the last of

which occurred nine years ago, the Petitioner has apparent ly had

no other significant interactions with law enforcement

authorities.

21. However, in 2015, after learning that the credit card

fraud could disqualify her from the employment she sought, the

Petitioner sought to minimize her involvement in the offe nse by

shifting blame to another person and suggesting that she was

merely a bystander to the crime. The PetitionerÓs story was

unsupported by the evidence or by the charges to which the

Petitioner pled guilty.

22. The position of special trust sought by the Petitioner

would provide unsupervised access to the personal property of the

disabled clients in her care. In this case, the request for

exemption included a clear attempt to misinform the Respondent.

The attempt to deceive the Respondent as to th e circumstances

surrounding the fraudulent use of a credit card is sufficient, on

its own, to warrant denial of the request for exemption. In this

case, the Respondent's denial of the request for exemption is not

an abuse of the Respondent's discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order denying the Petitioner's request

for an exemption from disqualification.

DONE AND ENTERED thi s 14th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 14th day of July , 2015 .

ENDNOTE

1/ The RespondentÓs Proposed Recommended Order incorrectly cites

section 435.04(2)( j) , Florida Statutes (2014) , as the legal

authority for classifying the PetitionerÓs offense as a

disqualifying offense.

COPIES FURNISHED:

Ericka Collington

Ap artmen t 515

5500 Clarcona Pointe Way

Orlando, Florida 32810

Michael Sauve, Esquire

Agency f or Persons with Disabilities

Suite S - 430

400 West Robinson Street

Orlando, Florida 32801

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D itscheler, General Counsel

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, Flo rida 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 tha t

will issue the Final Order in this case.