15-005039EXE Catherine Schubert Rivera vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, November 10, 2015.

Summary: Petitioner proved, by clear and convincing evidence, that she was rehabilitated from her disqualifying offenses, such that a denial of an exemption from disqualification would be an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHERINE SCHUBERT RIVERA,

Petitioner,

vs. Case No. 15 - 5039EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

October 20, 2015 , in Brooksville, Florida, before E. Gary Early, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Catherine Schubert Rivera, pro se

3279 Seaview Drive

Spring Hill, F lorida 34606

For Respondent: Michael Sauve, Esquire

Agency for Persons with Disabilities

400 West Robinson Street , Suite S - 430

Orlando, F lorida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has, pursuant to

section 435.07, Florida Statutes, demonstrated by clear and

convincing evidence that she should not be disqualified from

employment in a position involving direct contact with children or

developmentally disabled persons and , thus, whether the intended

action to deny an exemption from disqualification from employment

is an abuse of the agencyÓs discretion.

PRELIMINARY STATEMENT

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

Disabilities ( ÐAPDÑ or ÐRespondentÑ) issued its notice of proposed

agency action by which it informed Catherine Schubert Rivera

(ÐPetitionerÑ) that her request for exemption from

disqualification was denied. As a result, Petitioner was

determined to be Ðnot eligible to be employed, licensed, or

registered in positions having direct contact with children or

developmentally disabled people served in programs regulated by

the Agency for Persons with Disabilities.Ñ The basis for APDÓs

determination, as alleged in its notic e of proposed agency action,

was that Petitioner Ð[had] not submitted clear and convincing

evidence of [her] rehabilitationÑ from disqualifying criminal

offenses in her past.

On September 10, 2015, Petitioner timely filed her Request

for Administrative H earing with APD. In her Request for

Administrative Hearing, Petitioner disputed APDÓs determination

that she had not proven her rehabilitation. On September 14,

2015, APD referred the case to the Division of Administrative

Hearings for a formal administr ative hearing.

A Notice of Hearing scheduling the final hearing for

October 20, 2015 , was entered. On October 15, 2015, the parties

filed their Joint Prehearing Stipulations. The stipulated facts

have been used in the preparation of this Recommended O rder.

At the final hearing, Respondent presented the testimony of

Clarence H. Lewis, APDÓs c entral r egion o perations m anager.

RespondentÓs Exhibits A through E were received in evidence.

Petitioner testified on her own behalf and presented the

testimo ny of Rev erend Raymond H. Willis, p astor of the First

Baptist C hurch of Weeki Wachee Acres; Major Ralph James Anderson,

U.S.A.F. (Ret.); Billy Bowling; and Patsy Bowling Anderson.

PetitionerÓs Exhibits A through E were received in evidence.

A transcrip t of the final hearing was not provided.

Respondent timely filed a Proposed Recommended Order, which has

been considered in the preparation of this Recommended Order.

Petitioner did not submit a post - hearing document.

References to statutes are to Flori da Statutes (2015).

FINDINGS OF FACT

The Agency Action

1. Petitioner seeks an exemption from disqualification to

allow her to serve as a direct care service provider for One

Mainstream, a direct services provider for developmentally

disabled clients.

2. APD is the state agency responsible for licensing and

regulating the employment of persons in positions of trust, and

charged with serving and protecting children or adults with

developmental disabilities. Vulnerable populations served by APD

include in dividuals with developmental and intellectual

disabilities, autism, cerebral palsy, spina bifida, Prader - Willi

syndrome, and DownÓs syndrome. Some of APDÓs clients are

incapable of expressing their needs, or unable to express whether

something is wrong.

3. As part of the application process for employment as a

direct services provider with One Mainstream, Petitioner was

subject to a routine pre - employment background screening pursuant

to section 435.04. The screening revealed the existence of two

disqu alifying criminal incidents ( resulting in three charged

offenses) in PetitionerÓs past. The offenses were described in

the Joint Prehearing Stipulations as follows:

a. In April 1998, Petitioner committed

her first disqualifying offense, Domestic

Violenc e Battery, a first degree misdemeanor.

Petitioner failed to appear before the court

and an arrest warrant was issued.

Subsequently, Petitioner pled nolo contendere

to the offense and adjudication was withheld.

Petitioner was approximately thirty - four years

old at the time of this offense. Petitioner

was ordered to pay various court costs/fines.

b. In January 2002, Petitioner

contemporaneously committed her second and

third disqualifying offenses, two counts of

Domestic Violence Battery, first degree

mi sdemeanors. Petitioner failed to appear

before the court and an arrest warrant was

issued. Petitioner contends there was no

physical violence involved in these offenses.

Petitioner pled guilty to the offenses and was

adjudicated guilty. Petitioner was

approximately thirty - seven and nine months old

at the time of this offense. Petitioner was

ordered to serve thirty days in the county

jail and pay various court costs/fines.

4. As a result of the background screening results,

Respondent determined that Petitioner was disqualified from

further employment in a position of special trust with children or

the developmentally disabled.

5. On February 16, 2015, Petitioner filed her Request for

Exemption. All such requests are made to the Department of

Child ren and Families, which conducts the initial background

investigation. The file was assigned to Beatriz Blanco, DCFÓs

c entral r egion b ackground s creening coordinator .

6. By July 10, 2015, the request for exemption had been

assigned to Respondent. Dan iella Jones, APDÓs s tate o ffice

e xemption b ackground s creening c oordinator, requested additional

information regarding PetitionerÓs drug counseling and anger

management courses. The record is not clear as to which items

contained in RespondentÓs Exemption Review file, if any, were

submitted in response to Ms. JonesÓ request.

7. Among the items submitted by Petitioner in support of her

Request for Exemption were a completed employment history record;

information related to her having obtained a certifi ed nursing

assistant license; and six letters of recommendation. The

Exemption Review file also included PetitionerÓs written

explanation of the disqualifying offenses and subsequent non -

disqualifying incident 1/ ; and copies of law enforcement,

prosecution , and court documents related to the disqualifying

offenses, a subsequent non - disqualifying incident, and three prior

non - disqualifying incidents.

8. Petitioner responded to the best of her ability to each

request for information.

9. Among the fact ors identified by Mr. Lewis as bases for

the recommendation of denial of the exemption by staff was the

perception that PetitionerÓs answers to questions about her past

conduct were Ðimmature,Ñ that she did not take responsibility for

some of the past inc idents, and that she did not show sufficient

remorse for those incidents.

10. The exemption request was ultimately provided by APD

staff to the d irector of APD, who entered the notice of denial on

August 27, 2015.

PetitionerÓs Background

11. Petition er grew up in a tough neighborhood in Brooklyn,

New York. Her parents were hard drinkers, and she was raised in

an environment in which the use of alcohol was accepted. By the

time she was 17 years of age, Petitioner was a drinker and a

Ðbrawler.Ñ

12. Over the years, PetitionerÓs issues with alcohol led her

into drunken choices that resulted in the brushes with law

enforcement and the criminal justice system described herein.

Petitioner readily acknowledged that she had been an alcoholic

during the tim es when she committed the disqualifying offenses.

The Disqualifying Offenses

1998 Disqualifying Offense

13. On or about April 18, 1998, Petitioner was told by a

friend that her husband was staying with a girlfriend at an

apartment in a nearby town . Pet itioner Ðhad some drinksÑ and went

to the apartment to confront her husband. She burst in on the

husband and his girlfriend unannounced and became embroiled in a

brawl. The police were called.

14. By the time the police officer arrived, Petitioner wa s

gone. The police report, 2/ which was based on the statements of

the husband and his girlfriend, indicated that Petitioner threw a

conch shell at the husband, striking him in the head, whereupon

she left the apartment, returning to throw a boot at the hu sband

which missed and broke a clock. Since Petitioner was not on the

scene, and based on PetitionerÓs testimony described herein, an

inference is drawn that the husband and girlfriend painted as

exculpatory a picture as possible, omitting anything that c ould

cast any blame on the husband for the incident.

15. Petitioner testified that the altercation was not nearly

as one - sided as portrayed in the hearsay police report, with the

husband holding her down and choking her at one point. She denied

throwi ng the conch shell, but admitted throwing the boot and

breaking the clock. Although the evidence suggests that

Petitioner may indeed have thrown the shell, the evidence also

supports that the husband was more than a passive victim.

16. Petitioner was arrested for Ðdomestic violence

(simple).Ñ She pled nolo contendere to Batte ry (Domestic

Violence), a first - degree misdemeanor. Adjudication of guilt was

withheld, and Petitioner was ordered to pay $620 in court costs.

2002 Disqualifying Offense

17. On or about January 23, 2002, Petitioner was involved in

an altercation with her boyfriend, in which her sister was

involved. Petitioner was, according to the police report,

Ðintoxicated and [ ] belligerent.Ñ

18. Petitioner had earlier received an inh eritance from her

mother, which she used to buy a house in Tampa, Florida. Her

boyfriend moved in with her. The money soon ran out.

Nonetheless, the boyfriend would not get a job, would not

contribute to expenses, and would not move out.

19. Petitio ner and the boyfriend got into an altercation

when she tried to evict him, during which Petitioner hit him with

a frozen porterhouse steak. Petitioner indicated that she

selected that as her weapon of choice , since he was eating all of

her steaks but not paying for them.

20. Petitioner was unclear as to the involvement of her

sister, Geraldine Dreviak née Schubert, who also lived in

PetitionerÓs house, but denied that her sister was injured during

the fracas. Petitioner introduced a letter from Ms. Dre viak in

which Ms. Dreviak confirmed the boyfriendÓs indolence, described

her participation in requests that he leave, and substantiated

PetitionerÓs testimony that Ms. Dreviak was not injured. No

objection was raised as to the authenticity of the letter, though

it was noted that the letter was hearsay. The letter was

admitted, and is used in this proceeding Ðfor the purpose of

supplementing or explaining other evidence.Ñ § 120.57(1)(c),

Fla. Stat. Thus, the evidence supports a finding that Ms. Drevia k

suffered no physical injury in the altercation between Petitioner

and her boyfriend.

21. As a result of the altercation, Petitioner was arrested

for Ðsimple battery.Ñ She pled guilty to Battery (Domestic

Violence), a first - degree misdemeanor. P etitioner was sentenced

to 30 days in jail, with credit for time served, and assessed $678

in court costs and liens.

22. Petitioner completed or was lawfully released from all

nonmonetary sanctions imposed by the courts, and all fees and

costs related to the two disqualifying offenses were paid.

Other Non - Disqualifying Offenses

Properly Considered Offense

23. In September 2002, Petitioner was arrested in New York

with several other persons for Criminal Possession of a

Controlled Substance in the S eventh Degree, a misdemeanor. The

controlled substance was cocaine. Petitioner contended she was

wrongfully accused, but pled guilty to the offense and was

adjudicated guilty. She testified that she just wanted to be

done with the incident, and failed t o appreciate the effect it

would have in her later life. Petitioner was sentenced to time

served and her license was suspended for six months. The

incident was not only a singular and isolated event of its kind,

but was PetitionerÓs last involvement with law enforcement.

Improperly Considered Offenses

24. As set forth in the Joint Prehearing Stipulations,

Petitioner was involved in the following non - disqualifying

offenses:

3. In September 1983, Petitioner committed

the offense of Disorderly Conduct. Petitioner

was convicted for this offense and adjudicated

guilty. Court records concerning this offense

were destroyed in compliance with the Criminal

Court of New York CityÓs records retention

policy. Petitioner was approximately nineteen

years and fiv e months old at the time of this

offense.

4. In October 1988, Petitioner committed the

offense of Criminal Possession of Stolen

Property. Petitioner contends she was

wrongfully accused, but pled guilty to the

offense and was adjudicated guilty. Court

records concerning this offense were destroyed

in compliance with the Criminal Court of New

York CityÓs records retention policy.

Petitioner was approximately twenty - four years

and six months old at the time of this

offense.

5. In December 1994, Petitio ner committed the

offense of Criminal Mischief with Reckless

Property Damage. Petitioner pled guilty to

the offense and was adjudicated guilty. Court

records concerning this offense were destroyed

in compliance with the Criminal Court of New

York CityÓs records retention policy.

Petitioner was approximately thirty years and

eight months old at the time of this offense.

25. Respondent considered it to be significant that

Petitioner was unable to provide information regarding non -

disqualifying incidents 3 / despite the fact that she had no control

over New York CityÓs records retention policy. Mr. Lewis noted

that it would have been to the benefit of Petitioner to have

provided records of those non - disqualifying offenses since ,

without those records , Respo ndent could not fully review that

information.

26. In denying the exemption, Respondent considered the

information in totality, including the non - disqualifying offenses

committed from 1983 through 1994. PetitionerÓs failure to provide

a Ðdetailed expl anationÑ of those offenses was a factor in

RespondentÓs decision.

27. Section 435.07(3)(b) plainly provides that:

The agency may consider as part of its

deliberations of the employeeÓs rehabilitation

the fact that the employee has, subsequent to

the co nviction 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. (emphasis added) .

28. Considering evidence of non - disqualifying crimes

c ommitted prior to the disqualifying offenses exceeded the powers

and duties granted by the Legislature. Thus, RespondentÓs

consideration of non - disqualifying offenses that occurred prior to

the conviction for the disqualifying offenses was error.

Evidenc e of Rehabilitation

29. PetitionerÓs last disqualifying offense occurred on

January 23, 2002. PetitionerÓs last involvement with law

enforcement of any kind occurred in September 2002. Petitioner

has no arrests or involvement with law enforcement of an y kind

since then.

30. At some point, the passage of time itself is evidence

of rehabilitation. While by no means dispositive, the passage of

almost 14 years since the last disqualifying offense is

substantial evidence of PetitionerÓs rehabilitation.

31. Petitioner showed contrition and remorse for the

disqualifying offenses.

32. Petitioner has been married since 2008 to a man that she

describes as supportive. Thus, the stresses of the abusive

relationships that led to her disqualifying offenses have been

alleviated.

33. Petitioner initially provided letters from six persons

who were acquainted with Petitioner, two of whom testified at the

final hearing. The letters were sincere, left the impression that

they were written by persons with knowl edge of PetitionerÓs

present character, and were consistent with and corroborated by

the testimony of witnesses at the hearing.

34. When Petitioner filed her Request for Administrative

Hearing, she provided letters of support from four additional

person s who knew Petitioner, one of whom testified at the final

hearing. As with the previous letters, the letters were sincere,

and fully consistent with the witness testimony taken during the

hearing.

35. Petitioner has been licensed as a c ertified n ursing

a ssistant, though the date of her licensure was not specified.

She has not been able to practice under her license due to the

issues that are the subject of this proceeding.

36. Petitioner testified convincingly that she has turned

her life around, and is not the same person that she was when she

was a drinker .

PetitionerÓs Work History

37. The Employment History Record form that is part of the

Request for Exemption requests Ðemployment history for the last

three years.Ñ Petitioner provided an emp loyment history that

indicated employment from May 11, 2011 , to the date of the filing

of the Request for Exemption. During that period, Petitioner was

employed to perform custodial duties at the First Baptist Church

of Weeki Wachee Acres, and worked as a cook for functions held at

the church. Her work ethic and performance was, and is ,

exemplary.

38. In addition to the foregoing, Petitioner has attended to

the needs of Billy Bowling on a volunteer basis for the past five

or six years. Mr. Bowling, who is 49 years of age, is

significantly developmentally disabled. At the hearing, he

displayed obvious affection for Petitioner. Mr. BowlingÓs mother,

Patsy Bowling Anderson, testified that, at one time, the family

employed a licensed direct service provid er who was unacceptably

rude, and upset Mr. Bowling. Since then , Petitioner is the only

person outside of her family that Mrs. Anderson allows to care for

Mr. Bowling. Mrs. Anderson testified that she had complete trust

that Petitioner would do nothing t hat would result in harm to her

son. Her testimony was substantiated by that of Major Anderson.

The testimony of the Bowling/Anderson family was credible and

compelling, and is accepted as convincing evidence of PetitionerÓs

rehabilitation.

39 . In ad dition to her care for Billy Bowling, Major

Anderson and Mrs. Anderson testified that Petitioner, on her own

time and without compensation, provides care and assistance to

elderly neighbors, and to children at their church, all without

incident. Their tes timony is credited , and is accepted as further

evidence of PetitionerÓs rehabilitation.

Additional Clear and Convincing Evidence of Rehabilitation

40 . Mr. Lewis testified that when disqualifying offenses

involve violence, Respondent looks for evidence o f anger

management counseling. T he information provided to the APD

d irector suggested that Petitioner had undergone no anger

management courses that would mitigate the possibility of a

recurrence of the incidents that occurred in 1998 and 2002. The

lack of such evidence was, in this case, a significant factor in

the recommendation of denial to the d irector.

4 1 . Although the evidence of counseling in the Exemption

Review file was spotty, the evidence adduced at hearing from

Petitioner and Mrs. Anderson was convincing that Petitioner is an

active, and successful, participant in Alcoholics Anonymous.

Petitioner acts as a sponsor for others and on occasion, has taken

it on herself to conduct meetings when group leaders have failed

to appear. She has been sober for more than ten years.

4 2 . Since both of PetitionerÓs disqualifying offenses were

largely fueled by alcohol, ongoing participation in Alcoholics

Anonymous is a more appropriate and effective means of

rehabilitation than a class in Ðanger manag ement.Ñ

43. Petitioner has been fortunate to find herself in what,

by all accounts , is an embracing and supportive community. The

individuals testifying on her behalf expressed their firm

conviction that Petitioner had turned her life around, with

Mrs. Anderson, who has known Petitioner for 14 years,

characterizing the change as Ðremarkable.Ñ None of the witnesses

could identify any reason to suggest that Petitioner would not be

able to provide capable and safe services to children and

developmentally disabled persons.

Ultimate Findings of Fact

44. Petitioner meets the objective criteria for an exemption

from disqualification established in section 435.07(1).

45. When the decision was made to deny the exemption, it

appears that APD staff provided the d irector with information as

to non - disqualifying offenses that occurred prior to the

disqualifying offenses. It is not known how, or whether, that

impermissible information may have colored the d irectorÓs

decision. Nonetheless, an evaluation of Peti tionerÓs suitability

for an exemption should be made without consideration of those

earlier events.

46. The credible testimony and evidence in this case

established, clearly and convincingly, that Petitioner has been

rehabilitated from her disqualifying offenses, and that she

currently presents no danger to the vulnerable population served

by Respondent if she is allowed to be employed as a direct service

provider. The concerns expressed by Respondent in formulating its

intended action, without the benef it of the hearing testimony,

particularly those regarding her lack of Ðanger managementÑ

classes and her lack of remorse for her actions, were effectively

refuted by the credible testimony at hearing.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has jurisdiction

over the subject matter of the proceeding and the parties thereto

pursuant to sections 120.569 and 120.57(1).

48. Section 435.04, provides, in pertinent part, that:

(1)(a) All employees required by law to be

screened pursuan t 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 through the

Department of Law E nforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(3) The security background investigations

under this se ction 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

c ommitted in this state or in another

jurisdiction.

49. The disqualification of Petitioner was based on two

disqualifying offenses, i.e., Battery (Domestic Violence) that

occurred in April 1998, and Battery ( Domestic Violence) (one

incident with two char ges) that occurred in January 2002, each of

which is a first - degree misdemeanor.

50. Section 435.07 establishes a process by which persons

with criminal offenses in their backgrounds that would disqualify

them from acting in a position of special trust w orking with

children or vulnerable adults may seek an exemption from

disqualification. That section provides:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqu alification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

(1) The head of the appropriate agency may

grant to any employee otherwise disqualified

from employment an exemption from

disqualification for:

* * *

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under

similar statutes of other jurisdictions for

which the applicant for the exemption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condi tion imposed by the court.

* * *

(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 sin ce 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 .

(b) The agency may consider as part of its

deliberations of the employeeÓs rehabilitation

the fact that the employee has, subsequent 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 exemption 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.

51. The statute must be strictly construed against the

person claiming the exemption. Heburn v. Dep't of Child. & Fam. ,

772 So. 2d 561 (Fla. 1st DCA 2000).

52. The abuse of discretion standard of review set forth in

section 435.07(3)(c) has been described as follows:

If reasonable men 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. The discretionary ruling of the

trial judge should be disturbed only when his

decision fails to satisfy this test of

reasonableness.

* * *

The discretionary power that is exercised by a

trial judge is not, however, without

lim itation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

of the judge nor in an inconsistent manner.

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 Ðwhether

any reasonable personÑ could take the position under review).

53. It is now established that:

although the ultimate legal issue to be

deter mined by the ALJ in a proceeding under

section 435.07(3)(c) is whether the agency

head's intended action was an Ðabuse of

discretion,Ñ the ALJ is to evaluate that

question based on the facts determined from

the evidence presented at a de novo chapter

120 h earing.

J.D. v. Dep't of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st

DCA 2013).

54. As found above, Petitioner proved her rehabilitation,

clearly and convincingly, with substantial evidence that was not

available to Respondent in formulating its in tended action to deny

Petitioner's exemption request. Notably, the evidence addressed

Mr. LewisÓs stated safety concern for APD clients, which had been

based on PetitionerÓs failure to undertake and complete anger

management counseling. That concern was put to rest by credible,

clear, and convincing testimony regarding PetitionerÓs involvement

with Alcoholics Anonymous. In addition, the testimony of Billy

Bowling and his family provided substantial evidence that

Petitioner poses no risk to developmentall y disabled persons as a

result of her disqualifying offenses.

55. Furthermore, the weight previously given to offenses

that occurred prior to the disqualifying offenses was misplaced,

as consideration of such prior offenses is not authorized under

sectio n 435.07(3)(b).

56. The record shows that in the almost 14 years since her

last disqualifying event, and the more than 13 years since her

last run - in with the law, Petitioner has steered clear of trouble,

and has taken meaningful steps to change her life for the better.

Her years of sobriety have removed the predominant cause of her

past troubles from her life.

57. RespondentÓs denial of the exemption was formulated

without the benefit of the compelling testimony of Petitioner's

four very credible wi tnesses, all of whom emphatically rejected

any notion that Petitioner poses any risk to children, to persons

with developmental disabilities, or to any other vulnerable

persons. To the contrary, those witnesses spoke to PetitionerÓs

Ðcaring, compassionate heart,Ñ her remarkable change since her

past improprieties, and to their firm conviction that she would be

exemplary in her care of those in need.

58. To be clear, APD has a heightened interest in ensuring

that the vulnerable population it serves is not abused, neglected,

or taken advantage of. In light of that mission, the L egislature

has justifiably imposed a heavy burden on those seeking approval

to serve those persons when they have disqualifying events in

their past.

59. Notwithstanding the fore going evidence of

rehabilitation, the record reflects that PetitionerÓs

disqualifying offenses were ones involving drunken and tumultuous

conduct. It was not an abuse of discretion for that fact to be

given significant weight. However, as set forth in th e Findings

of Fact herein, the incidents were not entirely unprovoked, with

the first the result of a confrontation with an unfaithful and

philandering husband, and the second the result of an effort to

evict an unemployed and freeloading boyfriend.

60. While it may not have been an abuse of discretion for

the Agency to initially deny Petitioner's request for an

exemption, the clear and convincing evidence adduced at the final

hearing leads the undersigned to conclude that Petitioner has

demonstrated her rehabilitation from the disqualifying offenses,

and does not currently present a danger to vulnerable clients of

APD if employment as a direct care service provider for

developmentally disabled persons is allowed. In light thereof, it

would constitute an abuse of discretion for Respondent to deny her

request for an exemption from disqualification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the Agency

for Persons with D isabilities approving Petitioner, Catherine

Schubert Rivera Ós , request for an exemption from disqualification.

DONE AND ENTERED this 10th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Admini strative 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 10th day of November , 2015 .

ENDNOTE S

1/ PetitionerÓs written explanations were offered by Respondent

in its case - in - chief. As the statements were offered by

Respondent against Petitioner, they are subject to an exception

from the hearsay rule as established in section 90.803(18),

Florida Statutes, and may be accepted as substantive evidence.

As noted by Professor Ehrhardt, Ð[t]here is no requirement under

section 90.803(18), or in the reported decisions that the

admissions be against a partyÓs i nterest . . . . An exculpatory

statement of a party is admissible against the party making the

statement under section 90.803(18).Ñ Charles W. Ehrhardt,

EhrhardtÓs Florida Evidence § 803.18, at 923 - 925 (2010 ed.).

2/ The undersigned acknowledges th at the police report admitted

in evidence includes witness statements indicating that

Petitioner threw the conch shell at her husband, Mr. Barnes,

striking him in the head. The police report is hearsay.

However, since this case is not criminal in nature, the report

falls within the public records hearsay exception in section

90.803(8) , Florida Statutes .

The public record exception is limited to Ðmatters observed

pursuant to duty imposed by law as to matters which there was a

duty to report.Ñ The offi cer who wrote the report did not

observe Petitioner throwing the shell, or engaging in any other

form of improper behavior towards her husband. Likewise, the

officer was not on the scene to observe or memorialize any

actions that the husband may have take n against Petitioner.

Records that are not based on the observations of the public

official, but Ðrely on information supplied by outside sourcesÑ

do not fall within the public records and reports exception to

the hearsay rule. Lee v. DepÓt of HRS , 698 S o. 2d 1194, 1201

(Fla. 1997); see also M.S. v. DepÓt of Child. & Fams. , 6 So. 3d

102, 104 (Fla. 4th DCA 2009) (Ðrecords of DCF could not be

admitted into evidence as a business record because the records

contained witness statements made to investigators, t he substance

of which was not within the personal knowledge of the agency

employee. On the same rationale, the records could not be

admitted as a public record under section 90.803(8).Ñ) . Thus,

although the direct observations of the officer set forth in the

report are admissible as an exception to the hearsay rule, the

hearsay - within - hearsay statements made by the alleged witness do

not fall within the hearsay exception.

The officer did observe that the husbandÓs head had

abrasions and cuts that appear ed to be consistent with having

been hit with the shell. Given those observations, it is not

unreasonable to believe that Petitioner did, in fact, throw the

shell at her husband. However, even though the report is

admissible, the determination of the wei ght to be given the

report, as is the case with all evidence, remains within the

province of the trier of fact.

Given the credible testimony of Petitioner, the undersigned

concludes that the brawl that took place at the husbandÓs

apartment, though prec ipitated by PetitionerÓs uninvited and

drunken appearance, was not the one - sided affair described in the

police report, but involved some actions by the husband against

Petitioner.

3/ Respondent argued in its Proposed Recommended Order that the

destru ction of the court records by the state of New York made it

difficult to determine whether certain of the offenses were

disqualifying offenses. However, Respondent entered into Joint

Prehearing Stipulations, among which was that Ð[i]n April 1998,

Petition er committed her first disqualifying offense , Domestic

Violence Battery, a first degree misdemeanor.Ñ (emphasis

supplied) .

It is well established that:

The primary purpose of a pretrial stipulation

is to provide the parties an opportunity to

state and simplify the issues to be

determined by the [tribunal]. To effectuate

this purpose, parties are encouraged to enter

into stipulations to limit the issues for

consideration and eliminate unnecessary

proof. Because due process rights are

implicated, a part y has a right to rely upon

the issues as framed in the pretrial

statement.

* * *

The joint stipulation of the parties is

binding on the [tribunal], and a finding by

the [tribunal] at variance with the

stipulation will be overturned. (citations

omitte d) .

Marin v. Aaron's Rent To Own , 53 So. 3d 1048, 1049 - 1050 (Fla. 1st

DCA 2010); see also Seminole Elec. Coop., Inc. v. Dep't of Envtl.

Prot. , 985 So. 2d 615, 621 (Fla. 5th DCA 2008)(As a general rule,

and absent a showing of fraud, misrepresentation or m istake,

stipulations are binding on the parties who enter them, including

administrative agencies participating in administrative

proceedings and the courts.).

Thus, by stipulation of Respondent, it is found that the

April 1998 offense was PetitionerÓs f irst disqualifying offense,

and the offenses committed in New York in 1983, 1988, and 1994

were not disqualifying offenses.

COPIES FURNISHED:

Catherine Schubert Rivera

3279 Seaview Drive

Spring Hill, Florida 34606

Michael Sauve, Esquire

Agency for Pe rsons with Disabilities

400 West Robinson Street , Suite S - 430

Orlando, Florida 32801

(eServed)

Barbara Palmer , Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D. T ritschler, General Counsel

Agency for Persons with Disabilities

4030 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)

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.