16-000066EXE Whitney Brown vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, March 22, 2016.

Summary: Petitioner failed to show by clear and convincing evidence that she was rehabilitated, or that the agency abused its discretion in denying application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHITNEY BROWN,

Petitioner,

vs. Case No. 1 6 - 0066 EXE

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 March 1, 2016, at video teleconferencing sites in

Orlando a nd Tallahassee, Florida.

APPEARANCES

For Petitioner : Whitney Brown, pro se

719 East 8th Street

Sanford , Florida 32771 - 2019

For Respondent : Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 No rth Kentucky Street

Lakeland, F lorida 33801 - 4906

Andrew F. Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 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

action to deny Petitioner's request for an exemption from

disqualification from employment would constitute an abuse of

discretion.

PRELIMINARY STATEMENT

By letter dated December 16, 2015 , the Agency for Persons

with Disabilities (Agency) advised Petitioner that her request

for an exemption from disqualification from employment had been

denied based on the results of a background screening report

finalized on Octo ber 6, 2015 . Petitioner timely requested a

hearing to contest th e agency action, and the matter was

referred to DOAH to conduct 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 evid ence.

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 ag ency responsible for

regulating the employment of persons in positions of trust for

which Petitioner seeks to qualify.

2. The Agency's clients are a vulnerable population,

consisting of those individuals whose developmental disabilities

include intellec tual disability, autism, spina bifida, Prader -

Willi Syndrome, cerebral palsy, and/or Down Syndrome. They

often have severe deficits in their abilities to complete self -

care tasks and communicate their wants and needs. Also, they

are at a heightened risk of abuse, neglect, and exploitation

because of developmental disabilities. Therefore, employment as

a direct service provider to Agency clients is regarded as a

position of special trust.

3 . Petitioner is a 27 - year - old fe male who seeks to qualify

for emp loyment with Trust and Hope, a service provider regulated

by the Agency. To work in a p osition of special trust , an

individual must undergo a background screening . Petitioner's

screening identified a history of criminal offenses, including a

disqualifyin g offense in 2009. Accordingly, on July 29, 2015,

Petitioner filed a request for exemption from disqualification,

which triggered th e instant proceeding . See Resp. Ex. D.

4 . Before a decision was made by the Agency , Petitioner's

request for an exemption was reviewed by a Department of

Children and Families (DCF) screener who compiled a 46 - page

report entitled "Exemption Review" dated October 6, 201 5 . See

Resp . Ex . B. The packet of information contains Petitioner ' s

Request for Exemption, Exemption Quest ionnaire, various criminal

records, and letters from 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 Director in making her decision. Th e report was

first given to the Deputy Regional Operations Manager in

Orlando , who review ed it and then ma de a preliminary

recommendation to deny the application .

5 . In a letter dated December 16, 2015, the Agency's

Director notified Petitioner that in light of information that

led to her disqualification, her exemption request was denied.

The letter advised Petitioner that this decision was based upon

Petitioner's failure to "submit clear and convincing evidence of

[her] rehabilitation." Resp. Ex. C.

6 . The disqualifying offense occurred on January 17, 2009,

when Petitioner , then 20 years of age, was arrested in Sanford,

Florida, for B urglary with A ssault and B attery, a violation of

section 810.0 2 (2)(a), Florida Statutes, and A ggravated B attery,

a v iolation of section 784.045. Both offenses are felonies and

constitute disqualifying offenses under section 435.0 4 (2) . On

April 13, 2009, a n I nformation was filed by the State Attorney

charging Petitioner with B urglary of D welling with an A ssault

and B at tery . The other charge was not prosecuted.

7 . On August 12, 200 9 , Petitioner pled nolo contendere to

B urglary of a S tructure. The court withheld adjudication,

placed her on probation for 24 months, and imposed a number of

conditions that applied durin g the probationary period ,

including a prohibition against having contact with the victim

due to the nature of the crime . She later received a

Certificate of Eligibility to Petition for a Seal or Expunge

Order from the Florida Department of law Enforcemen t to seal the

charges. Petitioner contends that because she successfully

completed probation, and the arrest has been sealed, it should

not be considered.

8 . After her August 2009 conviction, Petitioner was

arrested for a number of offenses. On July 3, 2009, she was

arrested for Aggravated Battery Using a Deadly Weapon (a knife) ,

but no information was filed. On July 12, 2012, Petitioner was

arrested for Neglect Child without Great Harm, but no

information was filed. On December 21, 2013, she was arres ted

for Battery Domestic Violence , but no information was filed. In

addition, she has a string of traffic violations beginning in

May 2012 and continuing through July 2014. The driving record

of a caregiver is relevant because she may be asked to transpo rt

a client in a motor vehicle.

9. At hearing, Petitioner acknowledged that she was

arrested on multiple occasions after the disqualifying offense ,

but contended that because she was n ever prosecuted for those

crimes , they should not be considered . Howev er, in determining

whether an individual has demonstrated rehabilitation , the

Agency may also consider whether the applicant , after the

conviction for the disqualifying offense, has been "arrested for

or convicted of another crime, even if that crime is no t a

disqualifying offense." § 435.07(3)(b), Fla. Stat. Th erefore,

the Agency may consider subsequent arrests, even if they are not

prosecuted. At the same time, it consider s "the history of the

[applicant] since the incident , or any other evidence or

ci rcumstances indicating that the [applicant] will not present a

danger if employment or continued employment is allowed ."

§ 435.07(3)(a), Fla. Stat.

10 . Petitioner is currently working in the telemarketing

field. The Exemption Report indicates tha t she worked as a

patient care tech with John Knox Village Center from 2011 to

2013 and as an assistant manager at a Dunkin Donuts store from

2008 until 2010. Prior to that, she was employed for three

years as a bank teller at a bank in Sanford. Petition er

received an Associate Degree in Science in Medical Assisting

from Southern Technical College in June 2011 and is currently

enrolled in classes to earn a degree in psychology. In 2006,

she was certified by Homestead Job Corp s Center in Phlebotomy,

EKG, Vitals, Patient Care, and Medical Terminology .

1 1 . Through testimony by its Deputy Operations Manager for

the Orlando office, the Agency explained its rationale for

denying the application. As explained above, t he Agency

regulates direct care providers who are at a higher risk of

abuse than others, and who are most vulnerable. Because m any

clients are unable to adequately communicate if they are hurt or

abused, the Agency requires that workers must be trustworthy and

have a background to ensure that cli ents are treated properly.

Although Petitioner had only one disqualifying offense, and all

other arrests were not prosecuted, in making its decision, the

Agency considered Petitioner's pattern of conduct since 2009 and

her multiple arrests.

1 2 . The Ex emp tion Questionnaire requires an applicant to

give a detailed version of the events underlying the

disqualifying offense in 2009 . The Agency considered

Petitioner's explanation to be extremely brief and substantially

different from the police report . It si mply stated that her

"best friend [Ms. Meadows] and [Ms. Meadows'] boyfriend

[Mr. Herring] got into an altercation b/c he got caught

cheating. I got brought into it for him not to get arrested she

changed and put it all on me, thus me going to jail. (This is

the only charges that I have obtained.)" Resp. Ex. A., p. 003.

At hearing, Petitioner acknowledged that after arriving at

Mr. Herring's apartment , Petitioner began arguing with him and

then struck him in the head with a table leg , causing an injury

to Mr. Herring. The victim then pressed charges against

Petitioner. Although Petitioner indicated in the Exemption

Questionnaire that no one had ever suffered any "real harm" from

her actions, she acknowledged at hearing that Mr. Herring

suffered an injury to his head during the incident . Police

reports indicate that on two other occasions, individuals

suffered physical harm due to her aggressive behavior.

1 3 . The Exemption Questionnaire also requires an applicant

to provide a detailed explanatio n of any subsequent arrests ,

even for non - disqualifying offenses . Petitioner's explanation

of subsequent arrests in 2010, 2012 , and 2013 , which were not

prosecuted, are also very brief , and they omit facts found in

the police reports. See Resp. Ex. A, pp . 3 - 4. The Agency's

characterization of her explanations as "half - truths" and

"incomplete" is a fair one .

14. Petitioner denied that there were stressors in her

life at the time of the disqualifying offense. Other than

stating that she was in the wron g place at the wrong time , she

was falsely accused, or she was "child minded," Petitioner did

not express re morse or take responsibility for any of her

actions . She has not received counseling for any of her past

behaviors. Finally, in her Questionnaire, she denied any drug

or alcohol history or use. This statement conflicts with a DCF

report dated October 17, 2011, which revealed that Petitioner

tested positive for Tetrahydrocannabinol (THC). Petitioner did

not dispute this report.

15. Petitioner pre sented the testimony of three witnesses .

All testified that she "is a good person." Despite having

knowledge of Petitioner's entire criminal record, one witness

described her as a "peaceful person," but qualified that she was

always peaceful with him.

16 . Given Petitioner's lack of specificity regarding her

criminal offenses, her lack of accountability, and the pattern

of conduct since her disqualifying offense, there is less than

clear and convincing evidence of rehabilitation.

CONCLUSIONS OF LAW

1 7 . P etitioner's application for an exemption from

disqualification is subject 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 b y 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 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 circumstanc es

indicating that the employee will not

present a danger if employment or continued

employment is allowed.

1 8 . 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 proceeding 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

chapte r 120. The standard of review by the

administrative law judge is whether the

agency's intended action is an abuse of

discretion.

1 9 . Because Petitioner has one disqualifying offense , s he

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

de fined in statutes, unless and until s he obtains an exemption

from disqualification by meeting the above - quoted standards in

section 435.07.

20 . Petitioner is to be commended for wanting to help

others as a direct service provider with Trust and Hope. For

the reasons previously found, however, she has failed to set

forth clear and convincing evidence of her rehabilitation. Even

assuming 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

the Director abused her discretion when passing on Petitioner'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] woul d take the view adopted by the [a gency head ] . "

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

2 1 . Given the serious nature of the disqualifying offense,

the conflicting information about th at arrest, a lack of

accountability, and the patter n of Petitioner's conduct since

the disqualifying offense, the Director's determination denying

Petitioner's request for an exemption was not unreasonable, and

it is not a decision that no reasonable person would adopt.

Therefore, n o abuse of discretion w as 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 Directo r.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Persons with Disabilities

e nter a final order denying Petitioner's application for an

exemption from disqualification.

DONE AND ENTERE D this 22nd day of March , 201 6 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

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 22nd day of March , 201 6 .

COPIES FURNISHED:

David M. De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahas see, Florida 32399 - 0950

(eServed)

Whitney Brown

719 East 8th Street

Sanford , Florida 32771 - 2019

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Street

Lakeland, Florida 33801 - 4906

(eServed)

Andrew F. La ngenbach, Esquire

Agency for Persons with Disabilities

400 West Robinson Street , Suite S 430

Orlando, Florida 32801 - 1764

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Flo rida 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 exceptio ns within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.