15-002261 Marcus Downes vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, September 1, 2015.

Summary: Petitioner did not prove rehabilitation by clear & convincing evidence or denying exemption from disqualification was abuse of discretion. Youth at time of offense & incident free life after were helpful. Minimizing offense & responsibility were not.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS DOWNES,

Petitioner,

vs. Case No. 15 - 2261EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) heard this case on

July 28, 2015 , by video teleconference in Tallahassee and

Orlando, Florida.

APPEARANCES

For Petitioner: Paula Coffman, Esquire

Post Office Box 561229

Orlando, Florida 32856 - 1229

For Respondent: Michael Sauve, Esquire

Agency for Persons with Disabilities

400 West Robinson Street , Suite S - 430

Orlando, Florida 32801 - 1736

STATEMENT OF THE ISSUE

Did Petitioner, Marcus Downes, prove by clear and convincing

evidence of rehabilitation that it is an abuse of discretion to

deny his request for an exemption , as allowed by section 435.07,

Florida Statu t es (201 5 ) , 1/ from disqualification due to a criminal

offense , from working with children and other vulnerable

ind ividuals ?

PRELIMINARY STATEMENT

By letter dated March 12, 2015 , Respondent, Agency for

Persons with Disabilities (Agency) , denied Mr. Downes ' request

for an exemption from disqualification from working with

vulnerable individuals because of a criminal off ense . He

requested a hearing to challenge the denial. On June 30, 2015 ,

the Agency referred the matter to DOAH to conduct the requested

hearing. After one agreed continuance , the hearing was scheduled

for July 28, 2015 .

Mr. Downes testified on his own b ehalf. He also presented

testimony from Joel Bolden, Paula Carr, Jabril Downes, and

Stephanie Miller. His E xhibits A through J were accepted in

evidence.

The Agency presented testimony from Clarence Lewis. Agency

Exhibits A through E were accepted into evidence.

The parties did not order a transcript. Each party timely

filed a proposed recommended order , which has been considered in

preparation of this R ecommended O rder.

FINDING S OF FACT

1. Mr. Downes seeks employment with Independent Living

Services , LLC (Independent Living). His aunt, Stephanie Miller,

and his mother are partners in Independent Living. It provides

services to people with disabilities , including cerebral palsy,

bipolar illness, and dual - diagnosed individuals. The services

include supported living, coaching, companion services, and

personal supports. Independent Living serves about 15

individuals in their homes. Some of the consumers are not

verbal. Independent Living does not currently serve minors . B ut

it could. The individua ls are v ulnerable adult s as defined by

section 415.102(28) , Florida Statutes . Independent Living

receives compensation through the Florida Medicaid Waiver program

administered by the Agency.

2. If employed by Independent Living, Mr. Downes would

pro vide companion and personal support services to persons with

disabilities. He has been providing similar services through a

privately paid arm of Independent Living. For instance, for the

past two years , Mr. Downes has provided Paula Carr light

housekeep ing, shopping services, and transportation. Ms. Carr is

a dialysis patient and has cancer. She likes Mr. Downes and is

satisfied with his service.

3. If employed by Independent Living, Mr. Downes would be

alone with Independent Living Ós consumers at tim es.

4. Mr. Downes ' employment with Independent Living would be

a position of trust as a direct service provider to individuals

with disabilities. The position requires satisfaction of

background screening requirements. People with identified

criminal o ffenses are disqualified from working in positions

serving vulnerable adults , unless exempted from the

disqualification.

5. On December 1, 2008, Mr. Downes entered a plea of " n o

c ontest " to a charge of traveling to meet a minor for an unlawful

sexual act after use of a computer online or internet service, a

violation of section 847.0135(4)(a), Florida Statutes (2008).

This is a disqualifying offense. § 435.04(2) , Fla. Stat.

6. The court imposed a sentence of one day in the Orange

County Jail , with credi t for one day served , and withheld

adjudication. The court also sentenced Mr. Downes to five years

supervised probation, with leave to move for early termination

after one - half of the term was completed and all conditions of

probation had been satisfied.

7. The conditions required a sexual evaluation and

completion of any recommended treatment. They also limited

Mr. DownesÓ u se of the internet to use for work and school

purposes.

8. The required sexual evaluation did not result in a

recommendation f or treatment.

9. On April 14, 2011, as permitted by the sentence,

Mr. Downes moved, without opposition from the State, for early

termination of his probation. The court granted the motion.

10. When Mr. Downes entered his plea, the offense did not

trigg er registration requirements for sexual offenders and sexual

predators. The State and Mr. Downes did not intend for

Mr. Downes to plea to an offense that required registration.

11. In 2009 , the Legislature amended the law to require

registration for viol ators of section 847.0135(4), Fl orida

Stat utes (2008). In September 2009, the court granted a

stipulated motion to relieve Mr. Downes from the requirement for

sexual offender registration.

12. The charge against Mr. Downes resulted from his actions

in Ja nuary 2008. Mr. Downes was 18 at the time and a recent high

school graduate. He was a student at Valencia Community College.

13. Mr. Downes, using the name FSUPlayer56, engaged in

conversation in an American On Line chat room with an individual

named Ap rilgurly407.

14. In an exchange of messages with Mr. Downes,

Aprilgurly407 advised that she was 14 years old. They exchanged

photographs. Mr. Downes observed " damn ur sexy 4 14. "

Aprilgurly407 was an undercover detective. Mr. Downes began

sending se xually charged messages , including asking if

Aprilgurly407 liked sex, if she was a virgin , if she " ever did

oral, " and if she would " do " him. He proposed coming over to see

her . B ut he did not go that evening.

1 5. The two chatted again on March 4, 2008. Mr. Downes

proposed coming to her house for sex. They then communicated by

text about timing and location. Deputy s heriffs arrested

Mr. Downes when he arrived at the agreed location. Mr. Downes

was remorseful and wrote a letter of apology to the mothe r of

Aprilgurly407 before the deputies advised him that the pers o n was

a detective. The criminal proceedings described above followed.

16. Mr. Downes was admittedly young. He has not been

charged with criminal offenses or other misdeeds since the one

ar rest in 2008.

17. In the exemption process and in the hearing, Mr. Downes

minimized the offense, attributing it to youthful indiscretion

and near entrapment by the detective. He evaded accepting

responsibility.

18. Mr. Downes ' statement , in support of his exemption

request and his hearing request , sa id he never knew the age of

Aprilgurly407. E xcerpts of the chat room transcripts show

different. After reviewing the transcript s during the hearing,

Mr. Downes said that he did not remember the January exchange

when he chatted with Aprilgurly407 in March. He says he has a

poor memory.

19. Mr. Downes says that he wanted to maintain a " not

guilty " plea , but his lawyer talked him into the " no contest "

plea. He also says the undercover detective was ver y persistent

about meetinganscript excerpts do not support this

assertion. But there are no transcripts of separate text

messages between Mr. Downes and the detective.

CONCLUSIONS OF LAW

2 0 . The Division of Administrative Hearings has

jurisdiction o ver the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes (2015) .

2 1 . Mr. Downes seeks employment serving vulnerable persons

which requires h im to successfully complete a background

screening under section 435.04 , Florida Statutes (Level 2).

2 2 . Mr. Downes seeks an exemption from disqualification

under section 435.07. The parties agree d that Mr. Downes is

eligible to seek an exemption.

2 3 . Section 435.07(3)(a) states that individuals seekin g an

exemption " must demonstrate by clear and convincing evidence that

the employee should not be disqualified from employment. " It

goes on to state that employees bear " the burden of setting forth

clear and convincing evidence of rehabilitation. "

2 4 . Clear and convincing evidence must be credible. The

memories of witnesses must be clear and not confused. The

evidence must produce a firm belief that the truth of allegations

has been established. Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983). Evidence that conflicts with other evidence

must be clear and convincing. The trier of fact must resolve

conflicts in the evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) ,

658 So. 2d 961, 967 (Fla. 1995).

2 5 . The Agency ' s decision must be accepted unless

Mr. Downes proved rehabilitation by clear and convincing evidence

and that denial of the exemption would be an abuse of discretion.

J.D. v. Dep ' t of Child. & Fams. , 114 So. 3d 1127 (Fla. 1st DCA

2013). The abuse of discretion review standard is b asically a

review for reasonableness. Canakaris v. Canakaris , 382 So. 2d

1197, 1203 (Fla. 1980).

2 6 . In explaining the standard, the Florida Supreme Court

said:

We cite with favor the following statement of

the test for review of a judge ' s

discretiona ry power:

Discretion, in this sense, is abused when the

judicial action is arbitrary, fanciful, or

unreasonable, which is another way of saying

that discretion is abused only where no

reasonable man would take the view adopted by

the trial court. If reas onable men could

differ as to the propriety of the action

taken by the trial court, then it cannot be

said that the trial court abused its

discretion.

Delno v. Market Street Railway Company ,

124 F.2d 965, 967 (9th Cir. 1942).

Id.

2 7 . Section 435.07 (3) ( a) provides that evidence of

rehabilitation includes , but is not limited to :

t he 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 vi ctim, 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.

2 8 . Mr. Downes refuses to acknowledge that his offen se is

one that has a victim. His history does not reflect subsequent

offenses or poor choices. But it also does not reflect any

unusual efforts to rehabilitate or redeem himself. The factor

that weighs most heavily against Mr. Downes is his lack of

remo rse and efforts to justify or minimize his conduct.

29. Mr. Downes relies upon K.L.S. v. Dep artment of Children

and Family Serv ices , 974 So. 2d 1106 (Fla. 1 st DCA 2007) , as a

similar case that requires granting an exemption. There are

significant differe nces between that case and this case . The

statute is different. The 2005 version of section 435.07 was

applied in K.L.S. It did not have the abuse of discretion

standard now imposed. In 2005 , the standard established by

section 435.07 was:

In order for a licensing department 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 suf ficient 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 t he history of the employee since

the incident, or any other evidence or

circumstances indicating that the employee

will not present a danger if continued

employment is allowed. The decision of the

licensing department regarding an exemption

may be contest ed through the hearing

procedures set forth in chapter 120.

30. The facts here differ , too. Twenty - two witnesses

testified to the rehabilitation of K. L .S. The evidence

established K.L.S. had become a role model minister in prison and

was active in his community working to help young people. There

is no similar evidence here.

3 1 . The clear and convincing evidence does show that

Mr. Downes was young and that this offense is an isolated

incident. T he Agency c ould reasonably choose to conclude that

the circumstances surrounding Mr. Downes ' criminal incident and

his incident - free life since then support granting an exemption.

But clear and convincing evidence does not prove rehabilitation.

And the evidence does not support concluding that denial of an

e xemption is arbitrary, fanciful, or unreasonable.

3 2 . Mr. Downes has not carried his burden of proving

rehabilitation by clear and convincing evidence and proving that

denying an exemption is an abuse of discretion.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Persons with

Disabilities , enter its final order denying the request for an

exemption from disqualification submitted by Petitioner,

Marcus Downes .

DONE AND ENTERED this 1st day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 1st day of September , 2015 .

ENDNOTE

1/ All statutory references are to Florida Statutes (201 5 ),

unless otherw ise noted.

COPIES FURNISHED:

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

403 0 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Michael Sauve, Esquire

Agency for Persons w i th Disabilities

Suite S - 430

400 West Robinson Street

Orlando, Florida 32801 - 1736

(eServed)

Paula Coffman, Esquire

Post Office Box 561229

Orlando, Florida 328 56 - 1229

(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.