15-007199EXE Rosita Martin vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, July 27, 2016.

Summary: Petitioner failed to prove by clear and convincing evidence that she had been rehabilitated from multiple property-related felonies and a domestic battery conviction, or that it would be an abuse of discretion to deny her exemption request.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSITA MARTIN,

Petitioner,

vs. Case No. 15 - 7199EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard befor e Robert L. Kilbride, an

Administrative Law Judge of the Division of Administrative

Hearings, via video teleconference on March 28 and April 29,

2016, in Tallahassee and Miami - Dade County, Florida.

APPEARANCES

For Petitioner: Jamison Jessup , Qualified Rep resentative

557 Noremac Avenue

Deltona, Florida 32738

For Respondent: Elaine Marquardt Asad, Esquire

Agency for Persons with Disabilit i es

401 Northwest Second Avenue, Suite S - 811

Miami, Florida 33129

STATEMENT OF THE ISSUE S

The issues in this case are : (1) whether Petitioner has

been rehabilitated from her disqualifying offense (s); and, if so,

(2) whether the intended action to deny Petitioner ' s exemption

request purs uant to section 435.07(3), Florida Statutes (2015) , 1/

would constitute an abuse of discretion by Respondent .

PRELIMINARY STATEMENT

In a letter dated November 13, 2015 , Respondent, Agency for

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

Petitione r , Rosita Martin, that her request for an exemption from

disqualification from employment was denied. Dissatisfied with

the decision, Petitioner timely requested a formal administrative

hearing pursuant to sections 120.569 and 120.57(1) , Florida

Statutes .

Subsequently, APD referred the matter to the Division of

Administrative Hearings to assign an A dministrative L aw J udge to

conduct the final hearing.

A final hearing was held before the undersigned by video

teleconference on March 28 and April 29, 2016. P etitioner

testified on her own behalf and also called Darnisha Johnson and

Molita Cunningham to testify. She offered Exhibits 1 through 10 ,

which were stipulated to by APD and admitted into evidence. APD

presented the testimony of Evelyn Alvarez, the Age ncy ' s r egional

o perations m anager for the Southern Region of Florida. The

Agency ' s Composite Exhibits 1 through 10 have been admitted into

evidence, excluding page 26 of E xhibit 2.

The one - volume Transcript of th e portion of the hearing held

on April 29, 2016, was filed with the Clerk of the Division of

Administrative Hearings on June 10, 2016 . The one - volume

Transcript of th e portion of the hearing held on March 28, 2016,

was filed with the Clerk of the Division of Administrative

hearings on June 16, 201 6. The Agency timely submitted a

P roposed Recommended Order ( " PRO " ) . After granting an agreed

extension of time, Petitioner submitted a timely PRO as well.

Both submissions were given due consideration in the preparation

of this Recommended Order.

FINDI NG 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 was a 52 - year - old female who sought to

qualify, pursuant to section 435.07, for employment in a position

o f trust as a direct service provider for physically or mentally

disabled adults or children. This position requires the

successful completion of a Level 2 background screening . See

§ 435.04 , Fla. Stat .

2. A PD is the state agency responsible for licensin g and

regulating the employment of persons in positions of trust.

Specifically, the mission of the Agency includes serving and

protecting the vulnerable population, including children or

adults with developmental disabilities.

3. In conformance with the statute , Petitioner was screened

by APD since she applied for a position of special trust as a

direct service provider of APD.

4. The screening revealed , and the parties stipulated at

the hearing, that Pe titioner was convicted of t he following

disqualifyi ng offense s:

(1) Theft by Shoplifting -- Felony -- 1987

(2) Theft by Shoplifting -- Felony -- 1987

(3) Forgery (4 counts) -- Felonies -- 1993

(4) Theft by Shoplifting -- Felony -- 1993

(5) Battery - Family Violence -- Misdemeanor --

1996

(6) Forgery -- Felony -- 1998

Th e stipulation also included the fact that 17 years have elapsed

since the last disqualifying offense was committed.

5. The screening revealed, and the parties also stipulated

at the hearing, that Petitioner was arrested or convicted of the

following non - d isqualifying offenses:

(1) Simple Battery -- Misdemeanor -- arrested --

dismissed -- 1987

(2) Theft by Conversion -- convicted -- 1993

(3) Driving Under the Influence -- convicted --

1994

(4) Criminal Trespass -- Misdemeanor --

convicted -- 2000

The stipulation also inc luded the fact that 15 years have elapsed

since the last non - disqualifying arrest or conviction was

committed .

Rosita Martin

6. At the time of the hearing , P etitioner was unemployed.

She had last been employed at Martin ' s Group Home as a caregiver

of vul nerable children who had disabilities or behavioral

problems.

7. Her duties included giving out medicines, assisting

clients with bathing, and taking kids on outings and to church.

She also helped to cook.

8. She explained that most of her convictions o ccurred

during a period of her life when she was in an abusive marriage

and suffered from depression. She acknowledged that , during that

time period , she was abusing drugs (cocaine) and alcohol.

9. During that same period of time , she admitted that she

h ad purchased and also possessed marijuana.

10. She explained that her battery conviction in 1996

related to a domestic dispute with her husband. She called the

police , and they took them both to jail. Although she sa id she

was defending herself, she adm itted that she had been convicted

and found guilty of battery.

1 1. P etitioner testified that she is a " good girl now . "

She attends church every Sunday and " left her problems with

drug s . " She got sick and tired and " told God to take it away

from me and h e did . "

1 2 . P etitioner testified that she has not used any type of

illegal drugs for 20 years.

1 3 . Her sister operates four group homes for children with

disabilities. Petitioner worked at one of the homes , and her

sister wrote her a letter of support i n this case.

1 4 . The evidence was undisputed that she received

" excellent " evaluations while at Martin Group Home. Currently,

she lives with her daughter , and a granddaughter who is two years

old.

1 5 . As a result of one of Petitioner ' s various felony

co nvictions , she testified that she was ordered to attend in -

house drug treatment at the Willingway Hospital in Statesboro,

Georgia. Upon questioning by the undersigned , Petitioner

stated that she was in rehabilitation at the hospital for " like

6 months " ba ck in the 1990 ' s. 2 /

1 6 . The various letters of support and reference provided

by P etitioner came from her relatives. These included her sister

and father.

1 7 . The record reflects that P etitioner attended and

successfully completed numerous training cour ses (e.g. medicine

administration, CPR training, blood borne pathogens, HIV

safeguards, etc.) that related to the caretaker work she

performs. 3 /

18. Other than two certificates for domestic violence

training in 2011 and 2012, the other training and educat ional

completion certificates did not relate to treatment or counseling

programs related to her drug use, alcohol use, psychological

counseling , or financial training - Î the personal issues she

struggled with in her past when the disqualifying events took

pl ace.

1 9 . The evidence reflected that she had numerous and

chronic driving violations, pertaining primarily to failing to

pay road tolls. She claimed that all of these toll violations

occurred when her daughter was driving her car. 4 /

20. On cross - examina tion, P etitioner conceded that she

failed to provide a detailed version of the facts or a full

explanation for each criminal offense listed on her exemption

form. 5 /

2 1. Petitioner claimed that she was " new at this " and did

n o t understand the details she w as supposed to provide.

2 2 . For the criminal offenses involving theft of property ,

she claimed on the form , and testified , that there was " no harm "

to the victim. Again, she claimed some confusion and stated that

she thought that they were talking about harm in the " violent "

sense.

2 3 . She was also cross - examined about the six - month drug

treatment program that she testified she had attended at

Willingway Hospital . She was asked why she did not provide that

information to the Agency in the exemption form or provide the

agency with a copy of a completion certificate.

24. Inexplicably, she was unable to provide a satisfactory

explanation during the hearing for why she did not disclose the

drug treatment program on the exemption questionnaire. She

claimed that since the court had ordered her into treatment , she

did not think it was necessary to specifically list or describe

it.

2 5 . She was asked why she was not able to provide a letter

of recommendation from her church pastor. She did not provide an

adequ ate explanation and simply stated that she attends church

but is not a church member, that she just goes to church there

every Sunday.

2 6 . She worked briefly at a company called Best Walks of

Life. Her supervisor was her son, Mr. Walker. No details were

provided concerning what she did there.

2 7 . She acknowledged that m uch of her criminal activity

arose from or w as related to problems with monetary or financial

issues ; yet , she conceded that she had not taken any financial

courses or other classes to ob tain financial or budgeting

training or counseling .

2 8 . After working for her sister at Martin Group Home , she

has not made any attempts to work in any other places or group

homes since leaving.

Darnisha Johnson

2 9 . P etitioner is her mother. The witness is 24 years old

and lives with her daughter at her mother ' s house. She testified

that her mother i s " a great person today. She ' s great. " She

also stated that her mother i s a " much better person " then when

she was involved in criminal activity. 6 / She a lso felt that her

mother is not using any drugs now.

30 . She acknowledged that she has a car, but that it i s in

her mother ' s name. In the context of who pays the bills today

and supports her financially, she characterized her mother ' s role

as being her " support system . "

31 . She also admitted that any failures to pay tolls while

driving the vehicle registered in her mother ' s name were her

responsibility.

Molita Cunningham

3 2. She is a friend of P etitioner ' s. She works as a

certified nursing assistant an d is certified as such with the

State of Florida.

3 3 . She has known P etitioner for a little over three years

and met her at a Family Dollar store. She wrote a letter of

support for P etitioner.

3 4 . She was not aware of any facts to suggest that

P etitione r was engaged in criminal activity, drug abuse , or abus e

of her clients in any manner.

3 5 . She acknowledged she had a background similar to

P etitioner ' s. She was " out there in the streets " and is a

convicted felon.

3 6 . Other than being a general charact er witness, the

witness offered no substantive evidence touching upon

P etitioner ' s rehabilitation from the disqualifying offenses.

Evelyn Alvarez

3 7 . Ms. Alvarez is employed with the Agency as the regional

operations manager for the Southern Region. 7 /

3 8 . She obtained a master ' s degree in public administration

from Florida International University in 2000.

3 9 . APD serves individuals that have specific developmental

disabilities. The disabilities include intellectual

disabilities, autism, cerebral palsy, spina bifida , and the like.

40 . Her role in this case was to review the background

information gathered by both the D epartment of Children and

Families and APD on Petitioner. After her review, the package of

information was sent to an exemption committe e. That committee

then independently reviewed the exemption package and made its

own recommendation to the Director of APD. Before deciding on

the exemption request, the Director reviewed both Ms. Alvarez ' s

recommendation and the recommendation of the ex emption committee.

41 . She correctly acknowledged that the applicant for an

exemption from disqualification must prove rehabilitation by

clear and convincing evidence. She also correctly noted that the

A gency should consider the circumstances of the disq ualifying

offense(s), the nature of the harm caused to any victims

involved, the history of the employee since the incident and any

other evidence indicating that the employee will not present a

danger to the vulnerable or disabled adults or children they

serve.

42 . APD was concerned that P etitioner failed to follow

directions and provide the details for each disqualifying

criminal event. 8 / Also, Ms. Alvarez was concerned that

Petitioner ' s failure to acknowledge that someone was " harmed " by

the theft or f orgery crimes ignores that there were victims

involved , and the response fails to show an acceptance of

responsibility for the crime (s) .

43. Ms. Alvarez testified that the Agency has no idea what

happened with each of the disqualifying events, or of any

c ircumstances that were happening at the time that would allow

APD to understand why Petitioner would commit the offenses, and

that there was no acknowledg ment of any harm to any victim s .

4 4 . In the opinion of Ms. Alvarez, the training

certificates provide d by P etitioner were not persuasive evidence

of rehabilitation. More specifically, they were only indicative

of employment training and did not include anything in terms of

addressing P etitioner ' s substance abuse issues, her inability to

manage her financ es , or her involvement in acts of domestic

violence. In APD ' s opinion, the lack of any treatment or

professional counseling for those issues militated against a

finding of rehabilitation.

4 5 . Likewise, P etitioner did not describe her alleged six -

month , i n - house drug rehabilitation program in the exemption

application, nor was there any certificate of completion of drug

treatment provided.

46 . APD concluded that P etitioner used poor judgment during

a n incident when she invit ed her friend, Ms. Cunningham, to spend

a day on the job at Martin Group Home with Petitioner ' s disabled

and vulnerable children. APD felt that this was a breach of

client confidentiality, HIPAA rights , and may have put some of

the children at risk around a visitor who did not have a

b ackground check or clearance to be at the facility.

47 . There were no professional references or letters of

support offered by P etitioner from past employers (other than

from group homes involving her relative). Likewise, there were

no letters attesting to her good moral character from her church

or other faith - based relationships she may have established.

48. Ms. Alvarez testified that the reason the Agency wants

letters of reference from individuals who do not have a conflict

of interest is to show her character. Examples of letters of

reference would be from a pastor or from an organization where

someone ha d volunteered .

49. T he letters provided by Petitioner, while useful, did

not reflect an impartial view of her character. 9 / The Agency

determined that it had no basis of reference for the character of

Petitioner due to her failure to provide more impartial

references. 1 0 /

5 0 . In Ms. Alvarez ' s opinion, after reviewing the completed

application, P etitioner had not provided any evidence, and APD

had no knowledge, to support a finding of rehabilitation.

Furthermore, APD did not have any knowledge of any financial

planning or budgeting courses that P etitioner may have taken to

show rehabilitation in the area of her finances.

51. APD considered it signif icant during its review that

P etitioner had been c harged with driving while license suspended

( " DWLS " ) (a criminal traffic offense) in 2012 and again in 2013,

less than two years before the application. (Both DWLS offenses

were subsequently dismissed.)

52 . Respondent ' s Exhibit 9, P etitioner ' s F lorida

C omprehensive Case Information System driving record , reflects in

excess of 20 failures to pay required highway tolls in a two - year

period from 2012 to 2013. 1 1 /

53. Petitioner did not provide any explanation for her

driver's license problems to the Agency at the time of her

Exemption Application. The Agency had no knowledge of the facts

and circumstances surrounding the DWLS citations.

54. Ms. Alvarez testified that traffic offenses and driving

habits are i mportant consideration s , since direct service

providers are often required to transport persons with

developmental disabilities

55 . In essence, APD concluded that P etitioner had fallen

short of her burden of showing rehabilitation by clear and

convincing evidence.

CONCLUSIONS OF LAW

56 . 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.

57 . 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 Level 2 background screening. § 402.305,

Fla. Stat.

58 . Pursuant to section 435.04(2) :

The security background investigations 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 entere d 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:

* * *

(cc) Chapter 812, relating to theft,

robbery, and related crimes, if the offense

is a felony.

59 . Additionally, pursuant to section 435.04(3) , the

purpose of the background screening is to:

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

section has be en found guilty, 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.

60 . S ection 74 1.28(2) , Florida Statutes, defines domestic

violence as follows:

" Domestic violence " means any assault,

aggravated assault, battery, aggravated

battery, sexual assault, sexual battery,

stalking, aggravated stalking, kidnapping,

false imprisonment, or any c riminal offense

resulting in physical injury or death of one

family or household member by another family

or household member .

61 . Individuals who have disqualifying offenses may

request, as Petitioner has done, an exemption from

disqualification from th e head of the appropriate agency.

§ 435.07(1), Fla. Stat.

62 . 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 criminal convictions cited in

c hapter 435, if the applicant has completed or been lawfully

released from confinement, supervision, or nonmonetary condition s

imposed by the court. 1 2 /

63 . The core issue to be resolved in any exemption case

under c hapter 435 is straightforward and outlined in t he statute.

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. 1s t DCA

2013)( " [T] he 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. " ).

64 . More specifically, Petitioner has the burden of

demonstrating clear and convincing evidence of her rehabilitation

from the felony conviction (s) :

[I] ncluding, 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 evidence or

circumstances indicating that the employee

will not present a danger if employment or

continued employment is allowed.

See generally § 435.07(3)(a), Fla. Stat. 1 3 /

65 . 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 witnes ses must be lacking

in confusion as to the facts in issue. Importantly, 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 e stablished. In re Davey ,

645 So. 2d 398, 404 (Fla. 1994); S lomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

66 . Pursuant to section 435.07, even if the core issue of

rehabilitation is proven , the applicant only becomes " eligible "

for an exemp tion, 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 .

67. As the First District Court of Appeals further

explained i n Heburn v. State , 772 So. 2d 561 , 563 (Fla. 1 st DCA

2000):

In section 435.07, the legislature has not

provided for an exemption as a matter of

right, but has delegated to the Department

the broad discretion to grant an exemption.

Subsection (1) of sectio n 435.07 provides

that " the appropriate licensing agency may

grant to any employee otherwise disqualified

from employment an exemption from

disqualification. . . . "

An exemption from a statute, enacted to

protect the public welfare, is strictly

construed against the person claiming the

exemption, and the Department was not

required to grant Heburn any benefits under

the exemption. See State v. Nourse , 340 So.

2d 966, 969 (Fla. 3d DCA 1976). The

discretion accorded the agency in this case

is analogous to, but perhaps even broader

than, the discretion accorded a licensing

agency determining the physical fitness of

applicants to engage in a business or

occupation potentially injurious to the

public welfare. Cf. Astral Liquors v. Dep ' t

of Business Regulation , 463 So. 2d 1130 (Fla.

1985) (agency exercises broad discretionary

authority on the question of whether to

transfer liquor license when entitlement is a

privilege rather than a right).

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

1980), th e 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 discretion is

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

adopted. " See also Ka reff 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 " would take

the position under review) .

69 . Since an administrative hearing under c hapter 120 is a

" de novo " review , th e abuse of discretion should be judged based

on the evidence adduced during the hearing before the

undersigned. § 120.571(1)(k) , Fla. Stat . This analysis may,

therefore, include facts and observations not previously

considered by th e Agency.

70. Further more , if the purpose of a c hapter 120

administrative hearing is to ferret out all the relevant facts

and allow the " affected parties an opportunity to change the

agency ' s mind, " then, 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. Dep ' t of Child . & Fams . , 114 So. 3d at 1132 , citing with

approval Couch Const. Co. v. Dep ' t of Transp . , 361 So. 2d 172

(Fla. 1st DCA 1978). See also Caber Sys . , Inc. v. Dep ' t of Gen .

Servs . , 530 So. 2d 325, 334 n. 5 (Fla. 1st DCA 1988) .

7 1. After determining the relevant facts at the hearing,

the A dministrative L aw J udge should disturb an a gency ' s intended

decision to deny a reques ted exemption only if there is clear and

convincing evidence that such a denial would constitute an abuse

of discretion. § 435.07(3)(c) , Fla. Stat. ( " The decision of the

head of an agency regarding an exemption may be contested through

the hearing procedu res set forth in chapter 120. The standard of

review by the A dministrative L aw J udge is whether the agency ' s

intended action is an abuse of discretion . " ) . Cf. Goin v. Comm ' n

on Ethics , 658 So. 2d 1 131, 1138 (Fla. 1st DCA 1995)(U nder the

usual A dministrat ive P rocedure A ct structure, a hearing officer

must reach ultimate findings of fact . ).

72. After an administrative final hearing is conducted and

a r ecommended o rder is issued, the agency head is then able to

base the final decision as to whether or not a n exemption should

be granted on facts and observations determined through

procedures satisfying the right to a hearing afforded by the

Administrative Procedure Act.

FACTORS TO BE CONSIDERED UNDER SECTION 435.07(3) (a)

7 3 . The statute outlines a broad rang e of non - exclusive

factors that the Agency may consider as a part of the lithmus

test for rehabilitation. That section provides:

(3)(a) In order for the head of an agency to

grant an exemption to any employee, the employee

must demonstrate by clear and c onvincing

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

evidence or circumstances indicating that the

employee will not present a danger if employment

or continued employment is allowed.

In considering those factors, the undersigned finds as

follows.

Circumstances Surrounding the Criminal Incident(s)

7 4 . As previously noted, Petitioner offered l ittle, if any,

details or evidence in her exemption questionnaire or at the

hearing, to explain the circumstances surrounding any of the

disqualifying criminal offenses. Therefore, this factor weighs

in favor of Respondent.

Time Period that has Elapsed Si nce the Incident

7 5 . The intervening period of 1 7 years since the

disqualifying offenses is a significant period of time and weighs

in favor of Petitioner.

Nature of the Harm Caused to the Victim

7 6 . Other than general inferences that can be drawn due to

the nature of he r crimes, t here was no evidence to describe the

type or extent of harm to any victims. However, Petitioner ' s

faulty assumption that property - related crimes do not involve

" harm " to a victim is useful in gaug ing her level of recovery ,

and rehabilitation. This factor tends to undermine a finding of

rehabilitation by her , and weighs in favor of Respondent.

History of the Employee Since the Incident

7 7 . Since the disqualifying incident s of the 1980s and

1990s , there is evidence that P etitio ner has been involved in

other alcohol - related offenses (DUI) and a physical altercation

( s imple battery arrest). Also concerning is her DWLS status in

2012 and 2013 and her chronic and unabated toll violations (20)

in the last few years , which reveal, r egrettably, a disregard for

the law and poor judgment by not correcting the problem. Also

noteworthy is that Petitioner has not provided any compelling or

truly objective evidence of support from third parties or former

employers (other than relatives), h er church pastor from Florida

or Georgia , or other volunteer or charitable organizations. This

facto r weighs in favor of Respondent and leaves lingering doubts

in the mind of the undersigned about her character and

rehabilitation.

Any Other Evidence or Ci rcumstances Indicating that the Employee

W ill N ot Present a Danger

7 8 . The re was some evidence presented by Petitioner

regarding the " absence " of any observations by family and friends

regarding current drug use or criminal activity by Petitioner.

Yet, the quantum and quality of evidence presented by Petitioner

on this point simply did not rise to the level of clearly and

convincingly persuading the undersigned that Petitioner had been

rehabilitated and would not present a danger to the vulnerable

and di sabled children she would serve.

7 9 . Based on the totality of evidence that the undersigned

credited at the hearing, the undersigned conclude s that

Petitioner failed to show by clear and convincing evidence that

she is sufficiently rehabilitated from the diverse and numerous

disqualifying offenses . § 435.07(3 ) (a) , Fla. Stat .

80 . Furthermore, in light of the evidence developed and the

undersigned ' s observations at the final hearing, it would not

constitute an abuse of discretion for the Agency to implemen t its

intended decision to deny her request for an exemption f rom

disqualification under section 435.07(3)(c) . This conclusion is

further supported by the test enunciated by the Florida Supreme

Court in Canakaris , supra .

8 1 . In conclusion, t he Agency ' s p reliminary decision to

deny Petitioner ' s request for an exemption was not un reasonable

and not outside the range of discretion delegated to the Agency.

Heburn , supra . After careful consideration of all the evidence

adduced at the hearing, as well as the documents submitted, and

applying the law and factors outlined in the statute, the re was

nothing presented that compels or convinces the undersigned to

recommend otherwise.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities confirm its previous intended denial and enter a

f inal o rder denying Petitioner ' s application for an exemption

from disqualification.

DONE AND ENTERED this 2 7 th day of July , 2016 , 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 2 7 th day of July , 2016 .

ENDNOTE S

1/ References to the Florida Statutes are to the 2015 version,

unless otherwise indicated.

2 / There was no documentation prov ided by P etitioner to verify

her drug treatment and rehab ilitation program. She claims

that the hospital is closed , and she was unable to get any

documentation. Notably, P etitioner also did not specifically

mention or attempt to describe this drug treatm ent and

rehab ilitation program in her exemption request filed with APD.

3 / She appears to be qualified and adequately trained for the

position she held at Martin Group Homes.

4 / The undersigned finds this explanation unpersuasive. The

vehicle belongs to her, and she is accountable for its use by

others. There was no reasonable explanation provided as to why

toll violations were not promptly paid, the car taken away from

her daughter , or the problem corrected with a Sunpass. This

questionable behavior also resulted in several suspensions of

Petitioner ' s driver ' s license.

5 / The exemption questionnaire emphasized on the first page that

" [f] or EACH disqualifying criminal offense appearing on your

record, please write a DETAILED version of the events; p lease be

specific. Attach extra pages as needed [.] "

6 / The witness would have been one or two years old at the time

of several of the offenses in the 1990s; so, it is difficult to

attach much weight to this comment.

7 / Petitioner ' s qualified represent ative ( " QR " ) objected to

portions of t his witness ' s testimony and moved to strike it. The

QR claimed it violated the rule of sequestration since she may

have reviewed the T ranscript of the first hearing, including

Petitioner ' s direct testimony. That obje ction is overruled and

the undersigned has given her testimony the weight it deserves.

The undersigned notes that the QR and counsel were both informed

by the undersigned at the March 28, 2016, hearing that the

corporate representative, who was absent, co uld review the

T ranscript from the first hearing before the start of the second

hearing. Further, there was no objection or exception taken to

this ruling by Petitioner ' s QR when it was made . See Mar. 28,

2016, Tr., p. 13, line 17.

8 / The undersigned c oncurs that this tends to show a lack of

interest and/or acceptance of responsibility for the criminal

offense.

9 / Petitioner ' s collection of letters of reference, Resp ondent ' s

Exhibit 6, were from family members, employees at the place of

her employment (not supervisors) , and a friend.

1 0 / No additional letters were provided during the hearing other

than those already considered by the Agency.

1 1 / Whether these incidences involved her driving , her vehicle ,

or her daughter driving her vehicle, the und ersigned concludes

that this chronic accumulation of road toll violations tend to

show a disregard of the law by Peti tioner. She could have , an d

should have , corrected this problem, but instead chose to ignore

it. This behavior tends to undermine her arg ument that she has

been rehabilitated.

1 2 / In this case, Petitioner has been released from any

supervision.

1 3 / The undersigned concludes that these details and

circumstances were not adequately presented during the course of

these proceedings. This, in turn, prevented APD, and the

undersigned, from assessing or comparing Petitioner ' s current

" station in life " against the backdrop of what had occurred, what

prompted the criminal conduct , or other relevant circumstances.

COPIES FURNISHED:

Elaine Marq uardt Asad, Esquire

Agency for Persons with Disabilities

401 Northwest Second Avenue , Suite S - 811

Miami, Florida 33129

(eServed)

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

(eServed)

Hilda Fluriach, Esquire

Agency for Person with Disabilit ies

401 Northwest Second Avenue , Suite S - 811

Miami, Florida 33128

(eServed)

David De Lapaz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counse l

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 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.