15-004459EXE Judy Ann Henny vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, November 3, 2015.

Summary: Petitioner failed to prove by clear and convincing evidence that she should be granted an exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDY ANN HENNY,

Petitioner,

vs. Case No. 15 - 4459EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was conducted in this

case on October 9 , 2015 , in Jacksonville , Florida, before

Administrative Law Judge R. Bruce McKibben , of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Judy Ann Henny

Apartment 78

8024 Souths ide Boulevard

Jacksonville, Florida 32256

For Respondent: Melissa E. Dinwoodie , Esq uire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville, Florida 322 24

STATEMENT OF THE ISSUE

The issue in this case is whe ther Respondent , Agency for

Persons with Disabilities ( APD or the Agency) , abused its

discretion in denying Petitioner's request for exemption from

disqualification for employment , and, if so, whether

Petitioner proved rehabilitation by clear and convincin g

evidence.

PRELIMINARY STATEMENT

By letter dated July 27 , 2015 , the Agency notified

Petitioner that h er request for an exemption from

disqualification had been denied. Petitioner timely filed a

Request for Administrative Hearing , which was forwarded to t he

Division of Administrative Hearings (DOAH) and assigned to the

undersigned Administrative Law Judge. By agreement of the

parties and O rder of the undersigned , the hearing was held at

the place and date set forth above.

At the final hearing, Petitioner testified on h er own

behalf and did not offer any documentary evidence for

consideration . The Agency called one witness , Leslie

Richards, regional operations manager . The Agency 's E xhibits

A through D were admitted into evidence without objection .

The parties did not order a transcript of the final

hearing . The parties were given 10 days from the date of

final hearing , i.e., until October 19, 2015, to submit

p roposed r ecommended o rders (PROs) . Neither party timely

filed a PRO .

FINDINGS OF FACT

1. P etitioner is an African American woman in her mid -

40 Ós who resides in Jacksonville, Florida. She has lived in

Florida for about two years; moving from her prior home in New

York City, N ew Y ork . While in New Yor k, Petitioner worked for

the Business Integr ity Commission from June 2006 until

February 2011 . She listed her duties for that entity as

ÐPatrol NYCÓs public markets for violations: parking, dumping

and licenses. Ñ

2. While working for the Business Integrity Commission,

Petitioner was dealing with personal medical issues, including

an overactive thyroid. That condition was treated with

radiation from 2007 until 2009. T hose treatments were

discontinued before the problem was completely resolved .

3. Due to her medical issues , Petitioner would becom e

very ill ; sometimes to the extent that she could not even

walk. She had to take off many days from work because of her

illness. When she ran out of vacation and sick days,

Petitioner made the unfortunate decision to utilize

physicians Ó work excuses fro m prior absences, altering them to

appear as if they were current. It was an act of desperation

on the part of Petitioner, who could not afford to lose her

job and her benefits.

4. When the Business Integrity Commission became aware

that Petitioner had c ommitted this fraud, they terminated her

employment. (It would be unseemly for an Integrity c ommission

to tolerate unethical behavior by its employees.)

5. PetitionerÓs employer reported her deceit to the

police and Petitioner was charged with violation of New York

PL 175.30, Offering a False Instrument for Filing in the

Second Degree. Under New York law, the charge was a

misdemeanor. Petitioner pled guilty to the crime, was fined

$200 , and had to provide 10 days of community service.

Petitioner satisf ied the penalty completely.

6. When she moved to Florida, Petitioner was hired as a

direct care worker by a company known as Empowerment Program,

Inc. Her responsibilities were to assist disabled adults with

daily care; including food, bath s and clothing . When she

applied for the job she did not disclose her arrest and

conviction because it was a misdemeanor in New York and she

reasonably believed it did not meet the requirements of a

disqualifying event in Florida.

7. Shortly after commencing work at Em powerment Program,

her employer initiated a background check which uncovered the

incident in New York. The employer contacted APD who made the

decision that the New York conviction fell under a Florida

statute which would consider the violation a felony .

Petitioner was thus deemed ineligible to work with the

disabled adults served by her employer.

8. Petitioner waited the requisite three - year period and

sought an exemption from her disqualification so that she

could continue working. Meanwhile, she ac cepted part - time

work at a warehouse in order to remain employed pending her

exemption request .

9. The Agency maintains that PL 175.30, the New York

statute, is comparable to sections 831.01 and 831 .02, Florida

Statutes. A review of the elements of each of the three

statutes is necessary in order to ascertain whether Petitioner

is guilty of a disqualifying offense.

10. PL 175.30 states:

A person is guilty of offering a false

instrument for filing in the second degree

when, knowing that a written instrument

contains a false statement or false

information, he offers or presents it to a

public office or public servant with the

knowledge or belief that it will be filed

with, registered or recorded in or otherwise

become a part of the records of such public

offi ce or public servant. Offering a false

instrument for filing in the second degree

is a class A misdemeanor.

11. Section 831.01 states:

Forgery. Whoever falsely makes, alters,

forges or counterfeits a public record, or a

certificate, return or attestation of any

clerk or register of a court, public

register , n ot ary public, town clerk or any

public officer, in relation to a matter

wherein such certificate, return or

attestation may be received as a legal

proof; or a charter, deed, will testament,

bond, or wr iting obligatory, letter of

attorney, policy of insurance, bill of

lading, bill of exchange or promissor y note,

or an order, acquittal , or discharge for

money or othe r property, or an accept ance of

a bill of exchange or p romi ssory note fo r

the payment of m oney, or any receipt for

money, goods or other property, or any

passage ticket, pass or other evidence of

transportation issued by a common carrier,

with intent to injure or defraud any person,

shall be guilty of a felony of the third

degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

12. Section 831.02 states:

Uttering forged instruments. Whoever utters

and publishes as true a false, forged or

altered record, deed, instrument or other

writing mentioned in s. 831.01 knowing the

same to be false, altered, forged or

counterfeited, with intent to injure or

defraud any person, shall be guilty of a

felony of the third degree, punishable as

provided in s. 775.082, s. 775.083, or s.

775.084.

13. PetitionerÓs conviction under New York law was

specifically for submitting a false document to a public

office or public servant, i.e., the Business Integrity

Commission, her employer. Had she not been working for a

public entity, some other statute than PL 175.30 may have come

into play. There is n o evidence in the record concerning what

law may have applied, but that is not relevant to the findings

herein .

14. Looking at the allegedly comparable Florida statutes

deemed by the Agency to be relevant, the Forgery statute

addresses the alteration of a public record . The doctorsÓ

notes that Petitioner altered would not fit into that

category. The statute also lists a number of kinds of

documents which, if offered with intent to injure or defraud,

could constitute forgery. PhysiciansÓ notes are not i ncluded

in the list of documents.

15. The Uttering Forged Instrument statute states that

publishing as true any altered record to any person with

intent to injure of defraud constitutes uttering. Petitioner

readily admitted that she used falsified doctor sÓ orders to

obtain additional days of paid leave . The Business Integrity

Commission would fall under the term Ðany person.Ñ

16. Petitioner nonetheless showed by clear and

convincing evidence that her alleged disqualifying event

occurred at least three years prior to her request for an

exemption.

17. Petitioner showed by clear and convincing evidence

that the circumstances surrounding the event were such that

she was desperate, battling a serious ill ness, and under

extreme stress. In response, she mad e a very bad decision,

her first criminal action in her life.

18. Petitioner showed by clear and convincing evidence

that the only harm to the victim (the City of New York) was

the financial impact on the Business Integrity Commission

caused by Petition er being paid for days she did not work.

19. Petitioner also proved (although the evidence fell

short of clear and convincing ) that since the time of the

incident, she has continued to be gainfully employed and has

sought to improve her life.

20. Petitio ner also proved by clear and convincing

evidence that she is sorry for the illegal action she took and

that she knows her behavior was not socially acceptable.

21. The Agency considered all of PetitionerÓs evidence

but decided, based upon the relatively short time since the

last disqualifying event, plus the fact that Petitioner

provided no current employment references, and that Petitioner

had not been eng aged in any volunteer or social work, that

Petitioner had not learned from her mistake and no exempt ion

was warranted. The Agency was concerned that Petitioner could

be working with individuals who had finances which, if

misused, could result in serious consequences to the

individuals. That Petitioner had been found guilty of

altering documents was a g reat cause of concern to the Agency.

Petitioner said she would be happy not to have direct contact

with her patientsÓ financial documents, but there was no

testimony from her perspective employer to corroborate

PetitionerÓs statement.

22. Petitioner did not rebut the AgencyÓs findings,

except that she did show some remorse for her actions and

seemed to have learned a lesson from her mistakes. Otherwise,

the AgencyÓs findings are reasonable and within its realm of

discretion.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding pursuant to s ections 120.569 and 120.57(1),

Florida Statutes. Unless stated otherwise herein, all

references to Florida Statutes shall be to the 201 5

codification.

24. In the present case, Petitioner was found guilty of

violating a law in the State of New York that had to do with

offering a false instrument . (See PL 175.30 , New York.) The

crime - - a misdemeanor in New York - - is reasona bl y akin to

s ection , 831.02 , entitled , Uttering Forged I nstruments. A

conviction under t he Florida uttering statute would be deemed

a felony.

25. Section 435.04, Florida Statutes, provides in

relevant part as follows:

( 1) (a) All employees required by l aw to

be screened pursuant to this section must

undergo security background investigations

as a condition of employment and continued

employment, which includes, but need not

be limited to, fingerprinting for

statewide criminal history records checks

throu gh the Department of Law Enforcement,

and national criminal history records

checks through the Federal Bureau of

Investigation, and may include local

criminal records checks through local law

enforcement agencies.

* * *

(2) The security background inves tigations

under this section must ensure that no

persons subject to the provisions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guilty to, or have been adjudicated

delinquent and the record has not been

sealed or expunged for, any offense

prohibited under any of the following

provisions of state law or similar law of

another jurisdiction :

* * *

(k) Section 831.01, relating to fo rgery.

(l) Section 831.02, relating to uttering

forged instruments.

* * *

(3) The security background

investigations under this section must

ensure that no person subject to this

section has been found guilty of,

regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense that constitutes domestic violence

as defined in s. 741.28, whether such act

was committed in this state or in another

jurisdiction.

26. An applicant who has been denied employment as a

result of findin gs from a background screening may seek an

exemption from disqualification.

27. The procedure is set forth in section 435.07, which

states in pertinent part:

(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

burden 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

eviden ce 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 employeeÓs

rehabilitation the fact that the employee

has, subsequ ent 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 exempt ion may be 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.

28. The Agency was justified in considering a New Yor k

misdemeanor as a disqualifying event because there is a

similar statute in Florida that would deem the violati on a

felony. The existence of section 831.02 would substantiate

the finding that Petitioner was guilty of a disqualifying

crime .

29. The Agenc y considered all of PetitionerÓs evidence

as to whether she had been rehabilitated since the commission

of her misdemeanor in New York. Taking all the evidence in

whole, the Agency deemed it insufficient to warrant an

exemption from disqualification. It must , therefore , be

determined whether the Agency abused its discretion in making

that decision.

30. The standard of review for abuse of discretion is

essentially the "reasonableness" test. Discretion is abused

"when the judicial action is arbitrary, fa nciful, or

unreasonable" and "[i]f 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

abuse of discretion." See Canakaris v. Canakaris , 382 So. 2d

1197, 1203 (Fla. 1980); 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

person" could take the position under review).

31. Petitioner was found gu ilty of a disqualifying

offense. Her attempt to prove rehabilitation from that

offense was lacking. There is insufficient evidence in the

record that the Agency abused its discretion in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered by Respondent,

Agency for Persons with Disabilities , finding that the

A gency Ós decision to deem Petitioner , Judy Ann Henny,

disqualified from working wi th children or adults with

dev elopmental disabilities was proper .

DONE AND ENT ERED this 3rd day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 3rd day of November , 201 5 .

COPIES FURNISHED :

Melissa E. Din woodie, Esquire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville, Florida 32224

(eServed)

Judy Ann Henny

Apartment 78

8024 Southside Boulevard

Jacksonville, Florida 32256

David De La Paz, Agency Clerk

Agency for Persons with Disa bilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, 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, 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 with the

agency that will issue the Final Order in this case.