15-002424 Larry Woods vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, September 4, 2015.

Summary: Petitioner failed to prove rehabilitation where he misrepresented facts and failed to acknowledge recent battery and agency denial of exemption under section 435.07, Florida Statutes, is not an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY WOODS,

Petitioner,

vs. Case No. 15 - 2424EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 22 , 201 5 , a duly - noticed video teleconference

hearing was held at locations in Miami and Tallahassee , Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry Woods , pro se

5520 Northwest 52nd Circle

Coconut Creek, Florida 33073

For Respondent: Tomea A. Sippio - Smith , Esquire

Agency for Persons with Disabilities

401 Northwest 2nd Avenue , Suite S811

Miami, Florida 3 3128

ST ATEMENT OF THE ISSUE

The issue is whether Petitioner should be exempt from

disqualification from employment in a position of trust,

pursuant to section 435.07, Florida Statutes (201 4 ) . 1/

PRELIMINARY STATEMENT

In a letter signed by the d irector of the Agency for

Pers ons with Disabilities (Respondent or the Agency ) , dated

March 18, 201 5 , Petitioner was notified that h is request for

exemption from disqualification from employment was denied,

based upon the seriousness of the offenses and the Agency Ós

determination that Petitioner had fail ed to demonstrate

rehabilitation. On April 9 , 201 5 , Petitioner requested a formal

hearing. On April 29, 2015 , Respondent referred the matter to

the Division of Administrative Hearings for assignment of an

A dministrative L aw J udge to conduct the final hearing.

A t hearing, Respondent presented the testimony of

Ms. Evelyn Alvarez , r egional o perations m anager for the Southern

Region at the Agency . RespondentÓs E xhibit s A through D were

received into evidence without objection. Petitioner testified

on h is own behalf , offered the testimony of his wife, and

offered no exhibits.

The proceeding was transcribed, but neither party ordered a

copy of the t ranscript. The parties were advised that proposed

recommended orders must be rece ived by August 3, 2015.

Respondent timely filed a p roposed r ecommended o rder , which w as

considered in the preparation of this Recommended Order .

FINDINGS OF FACT

Based on the competent evidence presented at hearing, the

following f indings of f act are made:

1 . Respondent is the state agency which supports persons

with autism, intellectual disability, cerebral palsy, Down

syndrome, Prader - Willi syndrome, spina bifida, and simila r

developmental disabilities. Respondent contracts with direct

servi ce prov iders and is responsible for regulating the

employment of persons serving in positions of trust with these

providers .

2. Alliance Community and Employment Services (Alliance)

was under contract with the Agency . P ersons employed at

Alliance in positions of trust were required to complete level 2

background screening.

3. On June 5, 2014, Petitioner was given a background

screen as a result of his employment with Alliance, where he was

beginning work as an employment consultant.

4 . In respons e to inquiries concerning his arrest on

June 5 , 1992, in Broward County, Florida, for possession of

cocaine , Petitioner stated:

I was stopped by the police for a rolling

stop violation at a stop sign. T he officer

searched my car and found some drug

paraphernalia. I was charged with a

misdemeanor. After further testing of the

paraphernalia, the charge was upgraded to

possession of cocaine. This happen ed in

07/1992, twenty - two years ago.

5 . Petitioner testified at hearing that he did not plead

Ðnolo contendereÑ to the charge of possession of cocaine, but

only to possession of drug paraphernalia . T his testimony is

rejected as not credible , however . The allegations in the

i nformation that was before th e Circuit Court of the Seventeenth

Judicial Circuit in and for Broward County clearly indicate not

only the misdemeanor charge of possession of drug paraphernalia

in violation of section 893.147(1), Florida Statutes, but also

possession of cocaine, contrar y to section 893.03(2)(a)4. The

i nformation is endorsed with the note that Petitioner Ðpleaded

nolo open court.Ñ Court documents similarly indicate that

adjudication was withheld on both counts on September 11, 1992.

The Court Status form also shows tha t at arraignment , Petitioner

pled nolo contendere to Count I, possession of cocaine, as well

as Count II, possession of drug paraphernalia. Finally, the

Order of Probation, also dated September 11, 1992 , and signed

by the Circuit Court Judge shows a plea of nolo contendere to

both counts, and this document was also signed by Petitioner.

6 . Petitioner pled nolo contendere to the felony offense

of possession of the controlled substance of cocaine on

September 11, 19 92 .

7 . Petitioner state d : ÐThe status is all clear with the

court system. Everything they asked me to do, I did. Ñ There

was no evidence at hearing contrary to this assertion. A letter

dated October 16, 2014, from the Florida Department of

Corrections indicates that based upon computer information,

Petitioner completed his probation on August 26, 1994. Many

more than three years have elapsed since Petitioner completed or

was la wfully released from confinement, supervision, or non -

monetary condition imposed for his disqualifying felony offense .

8 . In response to inquiries concerning an arrest for

battery on November 18, 2011, Petitioner stated:

My wife and I had an argument that started

in the house and ended outside in front of

the neighbors. T he police were called and I

was arrested.

This response only indicated there was an ÐargumentÑ and did not

explain or describe any battery. In response to a question

about the degree of harm to any victim, he stated that Ðthere

was no harm at all . Ñ

9. A letter dat ed June 8, 2012, was sent from t he Agency

for Health Care Administration to Petitioner informing him that

Petitioner was granted an exemption from disqualification from

employment in a position of trust. Although the letter was not

sent until June 8, 2012, it did not take into account

P etitionerÓs arrest for battery, because the letter was based

upon background screening completed on May 7, 2011.

10 . Ms. Evelyn Alvarez is the regional operations m anager

for the Southern Region in the Agency, who has been employed

with the Agency for 11 years and with the State of Florida for

26 years . She testified that in her review of PetitionerÓs

request for exemption, she concluded that Petitioner had

misrepresented the facts of the November 2011 battery. She

conclude d t hat there were indications of substance abuse and

injury to his wife.

11 . In his request for exemption, Petitioner admitted that

ÐI used to go drinking with the fellows quite often. I donÓt do

that as often as I used to.Ñ With regard to drug and alcohol

involvement, Petitioner answered:

None

Drinking -- age 15

Marij. -- age 15

Cocaine -- age 33/2005 stopped

have a drink occasionally

socially

holidays

12 . PetitionerÓs wife, R.W., did not testify as to the

specific events surrounding PetitionerÓs November 18, 2011 ,

arrest. When testifying generally about the incident, she

stated that Petitioner Ðlost it,Ñ that she does not Ðcondone

abuse,Ñ and that Ðwe got through itÑ and have Ðmoved on.Ñ She

testified that nothing like it had happened before and nothing

has happe ned since.

13 . A ÐReporting Officer NarrativeÑ describing th ose

events indicated that the arresting officer, Ðobserved and

photographed [R.W.Ós] injuries which included a large scratch on

her right eye and dark red marks on her forehead.Ñ 2/ This seems

directly contrary to PetitionerÓs statement that there was Ðno

harm at allÑ caused by the incident. The officerÓs observations

are credited.

14 . At hearing, Petitioner testified only that the events

of November 18th were Ðone incidentÑ that Ðgot out of hand.Ñ

15 . Documents submitted by Petitioner to Respondent in

support of his request for exemption included his b achelorÓs

d egree in b usiness a dministration from 1983, a Certificate of

Completion for the 2011 OSHA B loodborne Pathogens Quiz, a

Certificate of Completion of an Interview Workshop in 2014, a

Certificate of Completion of the Professional Placement Network

in 2014, a Certificate of Completion of a Resume Workshop in

2014, a Certificate of Suc c essful Complet ion of Best Practices

in Supported Employment in 2014, and a Certificate of Completion

of a Social Networking Workshop in 2014 . He also submitted a

Letter of Recommendation.

16 . Passage of time is a factor to be considered in

determining rehabilitation, and t he disqualifying offense was

many years ago . PetitionerÓs history since that offense is

largely unremarkable, except for the November 2011 incident

resulting in his arrest for battery. It is troubling that

Petitioner did not acknowledge that a battery took place or

testify as to exactly what occurred in this fairly recent

incident. He did not address the role, if any, that use of

alcohol or other drugs might have played in this incident, or

throughout his life . It is found t hat in stating th at the

November 2011 incident did not cause any harm at all, Petitioner

misrepresented the facts. It is also difficult to understand

PetitionerÓs failure to acknowledge that he pleaded guilty to

both possession of cocaine and paraphernali a . While Petitioner

presented some evidence of rehabilitation, that evidence did not

clear ly and convincing ly show that he is rehabilitated .

17 . Petitioner failed to prove that he is rehabilitated

and that he will not present a danger if he is exempted from his

disqualification from employment in a position of trust.

C ONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.57(1) and 435.07(3)(c), Flori da

Statutes (2015) .

1 9 . PetitionerÓs disqualification limits the employment

opportunities that are available to him. He will be unable to

work at Alliance Communit y and Employments Services, Inc., or

other facility in a position of trust , unless an exemption is

granted. Petitioner has demonstrated standing to maintain this

proceeding.

20 . Level 2 employment screening standards set forth in

section 435.04(2)( ss ) provide that a person who has pled nolo

contendere to a felony offense under chapter 8 93 , relating to

drug abuse prevention and control , is disqualified from

employment in a possession of trust.

21 . In 199 2 , Petitioner ple d nolo contendere to possession

of the controlled substance of cocaine . Cocaine is listed as

a schedule II drug under section 893.03(2) (a)4. Under

section 893.13(6)(a), possession of cocaine is a third - degree

felony. PetitionerÓs plea of nolo contendere to the third -

degree felony of possession of cocaine disqualifies Petitioner

from employment in a position of trust .

22 . Under section 435.07(1), the head of the Agency may

grant exemption from disqualification, if at least three years

have elapsed since the applicant for exemption has completed or

been lawfully released from confinement, supervision, or non -

monetary condition imposed for a disqualifying felony offense.

Petitioner meets this requirement and is eligible for

consideration for such an exemption.

23 . In order to receive an exemption, the applicant

has the burden of proving that he is rehabilitated. Under

section 435.07(3), Petitioner must prove rehabilitation by

clear and convincing eviden ce.

24 . The prohibition from employment in positions of trust

of individuals convicted of disqualifying offenses is intended

to protect the public welfare, and the statute must be strictly

construed against the person claiming exemption. Heburn v.

Dep't of Child. & Fams. , 772 So. 2d 561, 563 (Fla. 1st DCA

2000) .

25 . The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evidence requires that

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 facts in 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 hesi tancy, as to the

truth of the allegations sought to be

established.

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

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

26 . Under section 435.07(3)(a), evidence of rehabilitation

may incl ude, 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, the

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

applicant since the i ncident, or any other evidence or

circumstances indicating that the employee will not present a

danger if employment or continued employment is allowed.

27 . Section 435.07(3)(c) provides Ð t he decision of the

head of an agency regarding an exemption may b e contested

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.Ñ

28 . Although the statutory language prescrib es a Ðstandard

of review , Ñ i t also provides that the review is of the agency's

Ð intended Ñ action and makes applicable the " hearing procedures

set forth in c hapter 120," which call for the issuance of a

recommended order back to the agency head for final agen cy

action.

2 9. The statute thus combines elements of a de novo

evidentiary hearing with elements of review of earlier action.

While providing for consideration of new evidence, t he statute

requires that some deference be given to the agencyÓs intended

action. The recommended order must contain a legal conclusion

as to whether the agency head's intended action to deny the

exemption constitutes an "abuse of discretion.Ñ J.D. v. Fla.

Dep't of Child. & Fam s. , 1 14 So. 3d 1127, 1131 (Fla. 1st DCA

2013)( ultimate legal issue to be determined by ALJ is whether

the agency head's intended action was an "abuse of discretion"

based on facts as determined from the evidence presented at a de

novo chapter 120 hearing) .

30 . In Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla.

1980), the C ourt noted that, "[d]iscretion, in this sense, is

abused when the . . . action is arbitrary, fanciful, or

unreasonable, which is another way of saying that discretion is

abused only where no reasonable [person] would take the view

adopted." See also Karef f v. Kareff , 943 So. 2d 890, 893 (Fla.

4th DCA 2006) (holding that pursuant to the abuse of discretion

standard, the test is whether Ðany reasonable person" would take

the position under review).

31 . While he provided some evidence of rehabilitation,

Peti tioner failed to prove by clear and convincing evidence that

he is rehabilitated or that he will not present a danger if he

is exempted from his disqualification from employment in a

position of trust.

32 . Under the facts determined here, a reasonable per son

could conclu de that Petitioner should not be granted an

exemption from disqualification . The Agency Ós determination to

deny Petitioner an exemption from his disqualification does not

constit ute an abuse of discretion.

RECOMMENDATION

Based up 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 Petitioner's

application for exemption from disqualification .

DONE AND ENTERED this 4th day of September, 2015, i n

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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

t his 4th day of September, 2015.

ENDNOTE S

1 / All statutory references are to the 201 4 Florida Statutes,

except as otherwise indicated. Petitioner's applica tion is

governed by the law in effect at the time the final order is

issued. See Ag . for Health Care Admin. v. Mt . Sinai Med. Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997)(agency must apply law in

effect at the time it makes its final decision). Chapter 2015 -

79, Laws of Florida, effective July 1, 2015, amended the

definition of Ðspecified agencyÑ in section 435.02(5), but this

amendment ha d no effect on th is case.

2/ Other portions of the report , containing statements made by

PetitionerÓs wife as to what happened in the altercation , were

not Ðmatters observedÑ pursuant to a duty imposed by law within

the meaning of section 90.803(8), Florida Statutes, and were not

sufficient in themselves to support a findin g of fact.

COPIES FURNISHED:

Barbara Palmer, Executive Director

Agency for Person with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

40 30 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David Martin De La Paz, Agency Clerk

Agency for Person with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

(eServed)

Tomea A. Sippio - Smith, Esquire

Agency for Persons with Disabilities

401 Northwest 2nd Avenue, Suite S811

Miami, Florida 33128

(eServed)

Larry Woods

5520 Northwest 52nd Circle

Coconut Creek, Florida 33073

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.