15-003456 Johnnie Porter vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, September 2, 2015.

Summary: Petitioner was rehabilitated from the disqualifying offense of domestic battery which occurred 28 years prior to her application for an exemption under chapter 435, and it would constitute an abuse of discretion for the APD to deny her application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNIE PORTER,

Petitioner,

vs. Case No. 15 - 3456EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

As noticed, a f inal admi nistrative hearing was conducted

in this case pursuant to sections 120.569 and 120.57(1), Florida

Statutes, before Robert L. Kilbride, an Administrative Law Judge

of the Division of Administrative Hearings (DOAH) . The hearing

was held on August 12, 2015, by video teleconference at sites in

Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Johnnie Mae Porter , pro se

1077 Northwest 46th Street

Miami, Florida 33127

For Respondent: Tomea A. Sippio - Smith, Esquire

Agency for Persons with Disabilities

401 Northwest 2nd Avenue , Suite S811

Miami, Florida 33128

STATEMENT OF THE ISSUE S

The issue s in this case are : (1) whether Petitioner,

Johnnie Porter, has been rehab ilitated from h er disqualifying

offense, and , if so, (2) whether the intended action to deny

Petitioner ' s exemption request pursuant to section 435.07(3),

Florida Statutes (2014), 1/ would constitute an abuse of discretion

by the Agency.

PRELIMINARY STATEME NT

In a letter dated March 18, 2015 , Respondent, Agency for

Persons with Disabilities ( " APD " or " Agency " ), notified

Petitioner that her request for an exemption from

disqualification from employment was denied. Dissatisfied

with the decision, Petitioner t imely requested a formal

administrative hearing pursuant to sections 120.569 and

120.57(1) . Subsequently, the Agency referred the matter to DOAH

to assign an A dministrative L aw J udge to conduct the final

hearing.

A final hearing was held before the unders igned by video

teleconference on August 12, 20 15, with both parties present.

Petitioner testified on her own behalf and called no other

witnesses . The Agency presented the testimony of Evelyn Alvarez ,

the Agency ' s Regional Operations Manager for the Sout h Florida

office. The Agency ' s Composite Exhibit s A through D were

admitted into evidence without objection . The Agency ' s E xhibit E

(not previously provided , but reviewed by Petitioner during a

recess ) was also admitted without objection . The Agency ' s

r equest to l ate - file Exhibit E was granted. At the hearing, the

undersigned granted Respondent ' s request for official recognition

of the following sections of the Florida Statutes: 393.0655,

435.04, 784.03, 435.07 , and 741.28.

A transcript of the final he aring was not ordered. The

Agency timely submitted a P roposed Recommended O rder (PRO).

Petit i oner did not submit a timely post - hearing submission or

PRO . The Agency ' s submission was given due consideration in the

preparation of this Recommended Order.

F INDING S OF FACT

Based on the evidence adduced at the hearing, and the record

as a whole, the following material F indings of F act are made :

1. Petitioner is a 66 - year - old female seeking to qualify,

pursuant to section 435.07, Florida Statutes, for employme nt in a

position of trust as a direct service provider for the care of

physical ly or mentally disabled adults or children . This

position requires the successful completion of a Level 2

background screening as set forth in section 435.04.

2. The Agency is the state agency responsible for licensing

and regulating the employment of per sons in positions of trust .

Specifically, the mission of the Agency is to serve and protect

the vulnerable population, including children or adults with

developmental disabili ties .

3. Petitioner was background screened by APD since she

applied for a position of special trust as a direct service

provider of APD.

4. T his background screening revealed that Petitioner had a

misdemeanor battery conviction in 1987. It was clear fr om the

Agency ' s denial letter of March 18, 2015 , that this conviction

was relied on by the Agen cy as the disqualifying offense under

section 435.0 4 .

5. From the testimony of the Agency ' s witness, Evelyn

Alvarez , it appeared that the Agency may also have c onsidered

Petitioner ' s two (2) DUI convictions in 1976 and 1982 as part of

its deliberations. ( T he undersigned notes that since the se

convictions pre - dated the battery in 1987, they cannot be

considered. See § 435.07 (3 ) ( b) , Fla. Stat. Likewise, the

unde rsigned is required to exclude them from consideration . )

6 . On or about November 13, 1987, Petitioner entered a plea

of no contest to the disqualify ing criminal offense of simple

battery, a misdemeanor. The battery was disqualifying because it

was commit ted against her husband , Robert Porter , thus appearing

to v iolate section 835. 04(3) , Florida Statutes , as an offense

constituting " domestic violence ." For this offense, adjudication

was withheld , and Petitioner was fined and required to pay court

costs.

7. The Agency's Exhibit B, at pages 14 and 15, contained

Petitioner ' s Arrest Affidavit from the 1987 b attery incident and

also included a second page entitled " Records Copy Back Page . "

This sheet noted si gns of injury described as a " S wolle n right

eye. Bruise on back ." When asked, Ms. Alvarez did not know who

su ffered these sig ns of physical injury ( whether it was the

husband , Mr. Porter , or Petitioner / the wife, Ms. Porter ) . It

should be noted that b oth the husband and Petitioner were

arrested for batt ery arising out of the same incident in

November 1987.

8. Petitioner testified that she was the one who suffered

" back bruising " and that her husband, Mr. Porter , suffered no

physical injuries of any nature during the altercation. Further,

Petit i oner tes tified she did not recall having any swelling of

her eye.

9. In the face of this somewhat imprecise testimony and in

light of the fact that the " Records Copy Back Page " sheet

describing these physical injuries was attached as the back page

of Petitioner ' s arrest affidavit , the undersigned finds that it

was Petitioner who r eceived the described physical i njuries

during this altercation in 1987 .

10. A s a part of its deliberations, the Agency noted that

Petitioner did not articulate any " stressors " related t o the 1987

b attery incident . Petitioner advised that her current stressor

is staying healthy. Friends are her support system. She lives

alone in her home. See Ex . A, p g. 6 .

11. Testimony from the APD witness indicated that

Petitioner expressed " remors e for her actions " for the 1 987

incident , said she had " no other problems since then , " was " sorry

the incident happened , " and felt that it was an " isolated event . "

Petitioner contends she accepts responsibility for her actions

and is remorseful . My obser vations of Petitioner during the

hearing confirmed these statements.

1 2 . Both before and after the 1987 battery incident,

Petitioner enrolled i n community college classes at Miami - Dade

Community College in the late 1980 ' s and early 1990 ' s and

completed 57 of the 60 hours needed to obtain an associates of

arts degree.

1 3 . The testimonial and documentary evidence reveal ed that

Petitioner has had no other criminal arrests or convictions since

1987 and has led a productive and industrious life since then.

Fu rther, several of her jobs have been assisting and caring for

d evelopmentally disabled adult s and children.

1 4 . During her case - in - chief , Petitioner testified that the

1987 battery i nvolve d her husband , Mr. Porter , and that she

initiated the call to the p olice. Sh e testified that she hit him

with her purse in the presence of the responding off icers. The

A rrest A ffidavit at Ex hibit B, page 14 , seems to belie her

testimony that she only used her purse . The Arrest Affidavit

says she struck Mr. Porter in th e chest, he then struck her back ,

and she came back at Mr. Porter after they were separated by the

officers , and he was moved into the living room. There is no

mention of a purse, but the use of a purse was not ruled out.

1 5 . Ms. Porter testified that sh e and Mr. Porter remained

happily married 18 more years , until they were divorced in 2005.

She r aised several generations of children and grandchildren

after the 1987 battery incident.

1 6 . S ince 1987 , Ms. Porter has held various jobs caring for

or assist ing physically and mentally disabled clients , including

positions at MACtown , Inc. ; The Village South , Inc. ; Faye Clarke

New Horizon ; and Family Health Center , Inc.

1 7 . During r ebuttal, t he Agency raised , and it was

undisputed , that while at MAC town , Inc ., there was an incident on

March 10, 2004 , in which Petitioner was investigated for verbal ly

abus ing two (2) developmentally disabled adults. The

investigative r eport ( Exhibit E , " Report " ) , which was late - filed

by the A gency, was read by the undersigned.

18. In summary, the R eport indicates that t w o (2) clients

at MAC town , Inc. , a male and a female, reported that Petitioner

told one of them to " S it his crippled a _ _ down . " The other

client reported that during the same exchange , Petitioner told

her " F _ _ _ you , " which caused her to become upset.

19. In S ection IV of the R eport , it was noted that there

were no signs of physical abuse. An independent witness heard

the male client speaking very loudly saying that if you continue

to curse at me like that , " he will show then who he is . "

20. The Report revealed that w hen questioned by the

investigator, Petitioner said that she ha d had problems with the

ma le client in the past and that during this particular incident

he was being disobedient and not following her instructions. In

the Report, Petitioner also explained that she found the two (2)

clients in an isolated area of the dining room , holding hands.

They had been boyfriend and girlfriend before. She told them

both to leave the isolated area and to joi n the others.

21. The ma le client told her that he would not leave the

area , and the female victim responded similarly . S he told the

male client that since he was cripple d and was in an isolated

area , that if he fell , no one would know and he would not b e able

to get up. She denied that she ever ridiculed any of the

clients.

22. Section IV of the R eport indicates that Petitioner

" would " be given a three - day suspension followed by counseling.

However, Petitioner testified at the hearing that the internal

investigation concluded without any discipline and she was paid

back for her suspended time . Curiously, there was no conclusive

imposition of a penalty expressly stated in the Report.

23. Section V of the Report , entitled Statement , indicated

that there were " some indicators " of verbal abuse since the staff

overhear d the male client telling Petitioner to stop cursing. In

Section VII of the Report , entitled Decision, the R eport

concluded that the final risk level was low.

24. Insofar as this case is con cerned, t here was

testimony that the APD d irector considered this Report in her

deliberations . The undersigned finds that the Report is not a

model of clarity , and as worded , it is difficult to see what

significant v alue the 2004 R eport offers regarding t he issue of

rehabilitation , one way or the other . 2/

25 . The good character, compassion , and work ethic of

Petitioner was attested to in eight (8) different letters of

reference admitted by the Agency, spanning a period from 2001 -

2015 , all of which supplem ented Petitioner ' s testimony and my

observations during the final hearing .

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

435.07(3), Florida Statutes (2015) .

2 7 . Individuals, such as Petitioner, who are seeking to

work in a position having direct contact with vulnerable children

or adults served by programs administered by Respondent are

required to undergo a Lev el 2 backgro und screening. § 402.305,

Fla. Stat .

2 8 . Pursuant to section 435. 04(3) , t he purpose of the

background screening is to:

(3) [E] nsure that no person subject to this

section has been found guilty, regardless of

ad judication, or entered a plea of nolo

conte ndere or guilty to, any offense that

constitutes dom estic violence as defined in

s. 741.28, whether such a c t was committed in

this state or in another jurisdiction.

2 9 . Further, s ection 741.28 (2) , Florida Statutes, defines

domestic violence as follows:

" D omestic violence " means any assault,

aggravated assault, battery, aggravated

battery, sexual assault, sexual battery,

stalking, aggravated stalking, kidnapping,

false imprisonment, or any criminal offense

resulting in physical injury or death of one

family or household member by another family

or household member.

3 0 . Individuals who have disqualifying offenses may

request, as Petitioner has done here, an exemption from

disqualification from the head of the appropriate agency .

§ 435.07(1), Fla. Sta t.

31 . Pursuant to section 435.07(1) (a)2 . , the agency head may

grant to any employee otherwise disqualified from employment an

exemption from disqualification for misdemeanors prohibited under

any of the statutes cited in c hapter 435 , if the applicant has

completed or been lawfully released from confinement,

supervision, or non - monetary condition imposed by the court. In

this case, Petitioner successfully completed all conditions

imposed by the court.

32 . To be eligible for an exemption, Petitioner must

demonstrate by clear and convincing evidence that she should not

be disqualified from employment. § 435.07(3 (a), Fla. Stat.; J.D.

v. Fla. Dep ' t of Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1st

DCA 2013)( " the ultimate issue of fact to be determined in a

proceeding under section 435.07 is whether the applicant has

demonstrated rehabilitation by clear and convincing evidence. " ).

33 . More specifically, Petitioner has the burden of setting

forth clear and convincing evidence of:

rehabilitation, including, bu t 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.

§ 435.07(3) ( a), Fla. Stat.

34 . The " clear and convincing evidence " standard requires

that the evidence be found 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. Clear and convincing

evidence is an " intermediate standa rd, " " requir[ing] more proof

than a ' preponderance of the evidence ' but less than ' beyond and

to the exclusion of a reasonable doubt. ' " In re: Graziano , 696

So. 2d 744, 753 (Fla. 1997 ). 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); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

35 . Pursuant to sec tion 435.07, even if rehabilitation is

shown, the applicant is only eligible for an exemption, not

entitled to one. Respondent retains discretion to deny the

exemption, provided its decision does not constitute an abuse of

discretion. J.D. v. Fla. Dep ' t of Child. & Fams. , supra .

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

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

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

unreasonable, which is another way of saying that di scretion is

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

adopted . . . . " See also Kareff v. Kareff , 943 So. 2d 890, 893

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

discretion standard, the test is whether " any reasonable per son "

would take the position under review) .

37 . Significantly , and since administrative hearings under

c hapter 120 are " de novo , " this abuse of discretion should be

judged and based on all the evidence adduced during the hearing

before the A dministrative L aw J udge . § 120.571(1)(k) , Fla. Stat .

T his analysis may, therefore, include facts and observations no t

previously considered by the Ag ency. Further, i f the purpose of

the c hapter 120 administrative hearing is to ferret out all the

relevant facts and al low the " affected parties an opportunity to

change the agency ' s mind , " th e n , logically, it should be the

facts and observations adduced at the final hearing that carry

the day , and upon which any final action by the Agency is

measured. See J.D. v. Fla. De p ' t of Child . & Fams . , 114 So. 3d

1127 ( Fla. 1st DCA 2013), citing with approval Couch Const. Co.

v. Dep ' t of Transp. , 361 S o. 2d 172 ( Fla. 1st DCA 1978) . See

also Caber Sys . , Inc. v. Dep ' t of Gen . Servs . , 530 So. 2d 325 ,

334 HN5 ( Fla. 1st DCA 1988) .

F ACT ORS TO BE CONSIDERED UNDER SECTION 435.07(3)

Circumstances Surrounding the Criminal Incident

3 8 . Under this fa ctor , the actions by Petitioner in 1987

should be viewed in a n objective and realistic context. For

instance, Petitioner was the one who called the police when she

became involved in a domestic altercation with her husband .

During the domestic disturbance , self - defense appears to have

played a role and may explain , in part, her actions that day .

She had a bruised back and a swollen eye. The hus band had no

injuries. By contrast, this did not involve an unprovoked attack

by Petitioner on a helpless or vulnerable third party or violent

behavior in a public place . The undersigned conclude s that this

factor weighs heavily in favor of Petitioner .

Ti me Period that has Elapsed Since the Incident

39 . The intervening period of 28 years, without any other

criminal incidents or arrests , is alone , a n exceptionally

compelling factor that warrants a reconsideration of the intended

action. Petitioner should be given considerable credit for

avoiding any arrests or other trouble with the law over such a

long period of time - Î 28 years . With this much time having

elapsed since the 1987 incident, Canakaris leaves the undersigned

with a firm conviction that it woul d be unreasonable not to

conclude that Petitioner has been sufficiently rehabilitated.

Nature of the Harm Caused to the Victim

4 0 . Based on the credible evidence presented, there was no

physical harm to the husband. This was supported by the

documentary evidence submitted by the Agency. 3/

History of the Employee Since the Incident

4 1 . The evidence showed that Petitioner has pursued a

productive and industrious life since the incident 28 years ago.

There have been no other criminal arrests or convictions since

then. There was no evidence offered to suggest that she

reasonably poses a risk to vulnerable adults. To the contrary,

her raising of several children and grandchildren , and her faith

based and school volunteer activities are commendable and

notew orthy.

Any Other Evidence or Circumstances Indicating that the Employee

will not Present a Danger

4 2 . My observations of Petitioner at the hearing, her

attitude and remorsefulness , as well as the eight (8) letters of

reference that supplemented her testi mony , indicate that it is

unlikely that she will present a danger to vulnerable adults or

children if she is employed in a position of special trust .

4 3 . Based on the totality of evidence th e undersigned

credited at the hearing, it is conclude d that Petit i oner, Johnnie

Mae Porter, has shown by clear and convincing evidence that she

is sufficiently rehabilitated . § 435.07(3 (a) , Fla. Stat .

4 4 . While it may not have been an abuse of discretion

for the Agency to initially deny Petitioner's request for

an exe mption, in light of the evidence developed at the final

hearing , the undersigned is firmly convinced that it would

constitute an abuse of discretion for the Agency to deny

her request for an exemption f rom disqualification under

section 435.07(3) (c) and th e standard enunciated in Canakaris ,

supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities reconsider its previous denial and enter a f inal

o rder on Petitioner ' s application granting her request for an

exemption from disqualification.

DONE AND ENTERED this 2nd day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

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 2nd day of September , 20 15 .

ENDNOTE S

1/ References to Florida Statutes are to the 2014 version, unless

otherwise indicated.

2/ The undersigned notes that no witnesses were called to provide

any details of the MACtown , Inc. , incident in 2004 or the

preparation of the Report. Further, what may have more probative

value is that when Petitioner left MACtown , Inc., she was

provided with a letter of recommendation from the organization's

d irector, Mr. Tonge.

3/ "For Simple Battery to be a disqualifying offense, it must be

shown that the victim of the spousal abuse suffered "physical

injury." § 741.28, Fla. Stat. The evidence at hearing failed to

show that the battery on Mr. Porter, for which Petitioner was

charged, resulted in "physical injury" to the "other" family

member. A s a result, there is a serious question in my mind

whether this particular battery qualifies as a disqualifying

offense in the first instance.

COPIES FURNISHED:

Tomea A. Sippio - Smith, Esquire

Agency for Persons with Disabilities

Suite S811

401 Northwest 2nd Avenue

Miami, Florida 33128

(eServed)

Johnnie Mae Porter

1077 Northwest 46th Street

Miami, Florida 33127

David Martin De La Paz, Agency Clerk

Agency for Person with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServ ed)

Richard Ditschler, General Counsel

Agency for Person with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Person with Disabilities

4030 Esplanade Way, Suite 380

T allahassee, 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 wi th the agency that

will issue the Final Order in this case.