15-004875EXE Lashae Thomas vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, December 7, 2015.

Summary: Petitioner failed to establish that agency abused its discretion in denying her request for an exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LASHAE THOMAS,

Petitioner,

vs. Case No. 1 5 - 4875EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

This matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge , D . R.

Alexander, on November 19, 2 01 5 , at video teleconferencing sites

in Lakeland a nd Tallahassee, Florida.

APPEARANCES

For Petitioner : La S hae Thomas, pro s e

3217 Julia Court

Lakeland, Florida 3 3810 - 5510

For Respondent : Michael Sauve , Esquire

Agency for Persons with Disabilities

400 West Robinson Street , Suite 430

Orlando, F lorida 32801 - 1764

STATEMENT OF THE ISSUE S

The issue s are whether Petitioner has shown, by clear and

convincing evidence, that sh e is rehabilitated from h er

disqualifying offense, and if so, whether Respondent's intended

actio n to deny Petitioner's request for an exemption from

disqualification from employment would constitute an abuse of

discretion.

PRELIMINARY STATEMENT

By letter dated July 27, 2015 , the Agency for Persons with

Disabilities (Agency) advised Petitioner that he r request for an

exemption from disqualification from employment had been denied

based on a background screening performed on January 15, 2015 .

Petitioner timely requested a hearing to contest th e agency

action, and the matter was referred to DOAH to cond uct a formal

hearing.

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

presented three witnesses . The Agency presented the testimony

of one witness. Respondent's Exhibits A th rough E were accepted

in evidence.

A transcript of the heari ng was not prepared. Proposed

f indings of f act and c onclusions of l aw were filed by the

Agency, and they have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Agency is the state agency responsible for

regulating the emplo yment of persons in positions of trust for

which Petitioner seeks to qualify.

2. Petitioner is a 3 8 - year - old fe male who seeks to qualify

for employment in a position of special trust with Success for

All of Florida, Inc., a service provider regulated by the

Agency . Because she wishes to work as a direct service

provider, Petitioner was required to undergo a background

screening . The results of that screening identified a history

of criminal offenses, including a d isqualifying offense in 2003 .

Accordin gly, Petitioner filed a request for exemption from

disqualification, which triggered th e instant proceeding .

3 . In a letter dated July 27, 201 5 , the Agency's Director,

Barbara Palmer, notified Petitioner that after reviewing all

information that led to he r disqualification, her exemption

request was denied. The letter advised Petitioner that th is

decision was based upon Petitioner's failure to "submit clear

and convincing evidence of [her] rehabilitation." Resp. Ex. C .

4. Before Director Palmer made h er decision, Petitioner's

request for an exemption was reviewed by a Department of

Children and Families screener who compiled a 34 - page report

entitled "Exemption Review" dated June 10 , 201 5 . See Resp .

Ex . B. The packet of information contains Petitio nerÓs Request

for Exemption, Exemption Questionnaire, various criminal

records, and two character references. The Exemption Review did

not make a recommendation one way or the other, but simply

compiled all relevant information that would assist the Direc tor

in making her decision. The report was first given to the

Agency Regional Operations Manager in Orlando , who review ed it

and then ma de a preliminary recommendation to the Director.

5 . In 2003, Petitioner had a disqualifying offense , G rand

T heft, a third - degree felony, which automatically disqualified

her from employment in a position of special trust. A round the

same time, she committed a second - degree misdemeanor,

Trespassing in a Structure or Conveyance , a non - disqualifying

offense . Both offen se s occurred at a JC Penn e y store in

Lakeland. Petitioner pled guilty to both offenses and was

adjudicated guilty. For the felony conviction, s he was placed

on probation for 25 months, given credit for time served in

jail, and ordered to pay various fine s and costs. Petitioner

was then 26 years old.

6. Petitioner's account of her disqualifying offense

differs in several respects from the account memorialized in the

Lakeland Police Department reports and is inconsistent with her

plea of guilty. In her Exemption Questionnaire, she stated that

the criminal offense was actually committed by her younger

sister and not her. She wrote that "I didn't tell on my sister

because she was only 16 at the time so I took the charge for

her." Resp. Ex. A, p. 3. This version of events was never

pr esented to the court. At hearing, she also stated that she

pled no contest to the crime, but court records indicate she

pled guilty.

7 . In January 2004, w hile on probation for the Grand Theft

charge, Petitioner violated her probation by committing a non -

disqualifying offense and was sentenced to 60 days in jail.

8 . In November 2005, Petitioner violated her probation a

second time by testing positive for cocaine during a

probationary drug screening. The record is unclear if

Petitioner served any jail time for this violation.

9 . In September 2012, or approximately three years ago,

Petitioner committed the non - disqualifying offense of Use or

Possession of Drug Paraphernalia, a first - degree misdemeanor.

She pled nolo cont endere , was adjudicated guilty , placed on

probation f or 12 months , and ordered to pay various fines and

costs. At hear ing, Petitioner blamed her cousin for the arrest

and stated that she was unaware her purse contained drug

paraphernalia (a straw and coca ine residue) , as she had not used

cocaine since 2005 . In any event, she stated that her drug of

choice was previously ecstasy and not cocaine , and admitted that

she had used that drug while working at Success for All in

Florida, Inc., from 2001 until arou nd 2005.

10 . B etween 2006 and 2014, Petitioner was employed as a

warehouse worker by Publix . A long with five other workers, she

was terminated by Publix in 2014 for improperly accepting

damaged merchandise from a co - worker. There is no record of any

emp loyment since that time.

1 1 . Petitioner blamed her criminal arrests on stress in

her life, mainly due to a lack of family support and raising two

children as a single parent, and being just "plain stupid" while

she was young. She expressed remorse for he r mistakes and now

wishes to help others as a direct service provider. Three

witnesses testified on Petitioner's behalf . They de scribed her

as being a good worker, a caring individual, dependable, and

very determined to improve her life.

1 2 . The Agenc y's rationale for denying the application is

Petitioner's failure to take responsibility for her actions,

that is, blaming her arrests on other s , and a failure to provide

a truthful and full account of the circumstances surrounding her

disqualifying offens e . The Agency also expressed concerns over

Petitioner's lack of specificity regarding her criminal

background, and the short period of time (three years) since her

latest arrest, albeit for a non - disqualifying offense . Finally,

t he Agency noted that Peti tioner has never had counseling , she

lacks any specialized training , and there is no record of

employment since being terminated by Publix more than a year

ago.

CONCLUSIONS OF LAW

1 3 . Petitioner's application for an exemption from

disqualification is subj ect to the following standards in

section 435.07(3)(a), Florida Statutes (201 5 ) :

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

disqua lified 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 the

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 employmen t or continued

employment is allowed.

1 4 . The Agency considered Petitioner's request for

exemption and issued a notice of intended denial, which is the

subject of Petitioner's request for an administrative hearing .

The standard of review in this proceed ing is specified in

section 435.07(3)(c) , which provides:

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 whet her the

agency's intended action is an abuse of

discretion.

1 5 . Because Petitioner has one disqualifying offense , s he

is disqualified from serving in a position of special trust, as

defined in statutes, unless and until s he obtains an exemption

from disq ualification by meeting the above - quoted standards in

section 435.07.

1 6 . Petitioner is to be commended for wanting to turn her

life around and help others as a direct service provider with

her former employer, Success for All of Florida, Inc. Even

assum ing , however, that Petitioner has demonstrated

rehabilitation and is eligible for an exemption, in considering

the Agency's action of denying h er exemption request, the

standard o f review is whether Director Palmer abused her

discretion when passing on Pet itioner's request. The "abuse of

discretion" is highly deferential. See, e.g. , E.R. Squibb &

Sons v. Farnes , 697 So. 2d 825, 826 (Fla. 1997). An agency head

abuses her discretion within the meaning of section 435.07 when

an intended action under review is "arbitrary, fanciful, or

unreasonable, w hich is another way of saying that discretion is

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

adopted by the [a gency head ] . " Canakaris v. Canakaris ,

382 So. 2d 1197 , 1203 ( Fla. 19 80).

1 7 . Given the serious nature of the disqualifying offense,

the conflicting information about th at arrest, a lack of

accountability, and no employment record since 2014, the

Director's determination denying Petitioner's request for an

exemption was not unreaso nable, and it is not a decision that no

reasonable person would adopt. Therefore, n o abuse of

discretion was shown. The undersigned notes, however, that

section 435.07 does not preclude Petitioner from filing another

request for exemption sometime in the future, which might

include additional evidence of rehabilitation not previously

considered by the Director.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Persons with Disabilities

e n ter a final order denying Petitioner's application for an

exemption from disqualification.

DONE AND ENTERED this 7th day of December , 201 5 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearing s

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 7th day of December , 2015.

COPIES FURNISHED:

David M. De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

LaShae Thomas

3217 Julia Court

Lakeland , Florida 3 3810 - 5510

Michael Sauve , Esquire

Agency for Persons with D isabilities

400 West Robinson Street , Suite 430

Orlando, Florida 32801 - 1764

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, 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 of the date of this Recomm ended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.