16-000067EXE Kristi Taylor vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, March 24, 2016.

Summary: Petitioner failed to prove by clear and convincing evidence her rehabilitation from the disqualifying offense, or that the Agency's intended action was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTI TAYLOR ,

Petitioner,

vs. Case No. 16 - 0067

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case on

February 19, 2016 , via video teleconference sites in Tallahassee

and Jacksonville , Florida, before Suzanne Van Wyk, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Kri sti Taylor , pro se

1605 West 12th Street

Jacksonville, Florida 32209

For Respondent: Melissa E. Dinwoodie , Esquire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville , Florida 32224

STATEMENT OF THE ISS UE

W hether the Agency Ós intended action to deny PetitionerÓs

application for exemption from disqualification from employ ment

is an abuse of the AgencyÓs discretion.

PRELIMINARY STATEMENT

By letter dated November 13, 2015 , the Agency for Persons

with Di sabilities (Ð Agency Ñ or ÐRespondentÑ) issued its notice

of agency action by which it informed Petitioner that her

request for exemption from disqualification was denied. As a

result, Petitioner was determined to be Ðnot e ligible to be

employed, licensed o r registered in positions having direct

contact with children or developmentally disabled people served

in programs regulated by Ñ the Agency. In the letter, the Agency

reported its determination that Petitioner had Ðnot submitted

clear and convincing evid ence of [her] rehabilitation.Ñ

On January 6, 2016 , Petitioner filed her Request for

Administrative Hearing with the Agency (Request) . In her

Request, Petitioner disputed the Agency Ós determination that she

had not proven her rehabilitation. On S eptemb er 15, 2016 , the

Agency referred the case to the Division of Administrative

Hearings for a formal administrative hearing. A Notice of

Hearing scheduling the final hearing for February 19, 2016 , was

entered, and the hearing commenced as scheduled.

At the final hearing, Petitioner testified on her own

behalf, and introduced PetitionerÓs Exhibits P1, P2, and P3,

which were admitted into evidence .

Respondent presented the testimony of Leslie Richards , the

AgencyÓs Regional Operations Manager . RespondentÓs E xhibit s R1

through R4 were admitted into evidence .

The proceedings were recorded, but the parties did not

order a transcript thereof. The parties timely filed P roposed

R ecommended O rder s , which ha ve been considered in prepar ing this

Recommended Order.

FINDINGS OF FACT

Background

1 . Petitioner is a 37 - year - old female residing in

Jacksonville , Florida. She desires to work as a Medicaid waiver

provider, an independent solo provider of community - based

services to the AgencyÓs clients with developmental

di sabilities.

2 . On October 12, 2009, the Agency granted Petitioner an

exemption from disqualification from employment for an offense

of g rand thef t committed on December 28, 2001 .

3 . Between 2004 and 2009, Petitioner was a service

provider for Agency cli ents both in a group home setting and as

a solo provider of community - based services.

4 . On July 14, 2011, the Florida Department of Children

and Families issued Petitioner a notice that she was ineligible

for continued employment in a position of special trust working

with children or the developmentally disabled based on a felony

offense of aggravated assault committed on December 30, 2010.

The Disqualifying Offense

5 . On December 30, 2010, Petitioner was driving by her

boyfriendÓs home and noticed a v ehicle backing out of his

driveway. Petitioner knew the vehicle belonged to another

woman, Ms. Stevens.

6 . Petitioner called her boyfriend on his cellular phone,

confirmed he was in the car, and began conversing with him.

Petitioner and her boyfrie nd engaged in a series of calls with

each other over the next few minutes while she followed

Ms. StevensÓ vehicle .

7 . Petitioner wante d the driver of the car to pull off the

road so she could talk to her boyfriend in person. Petitioner

pulled her vehicl e alongside Ms. StevensÓ vehicle. The

situation escalated. The vehicles were traveling on a parallel

path o n a two - lane road in a residential subdivision.

8 . In her anger , Petitioner threw a n open soda can through

the rear window of Ms. StevensÓ vehicl e .

9 . Finally, PetitionerÓs vehicle struck Ms. StevensÓ

vehicle. Shortly thereafter, both vehicles pulled off the road.

PetitionerÓs boyfriend exited the vehicle, but Ms. Stevens took

off and returned with a law enforcement officer.

10 . The police re port notes approximately $700 in damage

to the two vehicles.

11 . During the entire incident, PetitionerÓs two minor

children were back seat passengers in PetitionerÓs vehicle.

12 . Following an investigation, the police determined

Petitioner was the pri mary aggressor . Petitioner was charged

with one count of aggravat ed battery with a deadly weapon, and

one count of criminal mischief and reckless driving. Petitioner

served two days in jail.

13 . Petitioner pled nolo contendere to both charges,

adjudi cation was withheld, and Petitioner was placed on

12 monthsÓ probation, ordered to complete 75 hours of community

service, attend anger management training, and pay fines and

fees amounting to $1,068.

14 . Petitioner attended a one - day anger management cla ss

through the Salvation Army in 2011.

15 . Petitioner was released from probation on May 3, 2012 .

Employment Following the Disqualifying Offense

16 . Petitioner worked as an executive housekeeper for a

Hilton Garden Inn in Jacksonville from June 2012 to

N ovember 2013.

17 . Petitioner worked briefly as a manager at a Subway

restaurant between March and October 2014.

18 . In November 2014 , Petitioner began employment as a

manager at a Burger King restaurant in Jacksonville, where she

remained employed on the date of hearing .

Subsequent Criminal History

19 . Petitioner has had no disqualifying offense since the

2011 aggravated battery offense.

20 . Petitioner was cited for three traffic infractions

between 2011 and 2013. One of the infractions was a crimina l

charge of driving without a valid driverÓs license. The other

two citations were for speeding and failing to yield the right -

of - way.

PetitionerÓs Exemption Request

21 . PetitionerÓs exemption package was slim . In addition

to the exemption questionnai re, in which she provided little

information regarding herself, Petitioner submitted a one - page

narrative letter and two very brief character reference letters.

22 . On the questionnaire, Petitioner reported no damage to

any persons or property from the d isqualifying offense .

Further, Petitioner reported no stressors in her life at the

time of the offense. As to her current stressors, Petitioner

reported none , and listed her family, church, and herself as her

current support system.

23 . Petitioner repo rted no counseling other than the one -

day anger management class completed in 2011.

24 . Petitioner listed no educational achievements or

training.

25 . As for accepting responsibility for her actions,

Petitioner wrote, ÐI feel very remorse [sic] for my actions and

I take full responsibility for them.Ñ

26 . One of the character reference letters was from a co -

worker (perhaps even someone under her supervision) and did not

identify the name of the employer or dates she worked with

P etitioner. The letter described Petitioner as Ðdependable and

committed to do her bestÑ as well as Ðproficient in all cores of

her profession.Ñ The author further described Petitioner as a

Christian who is very involved with her church and youth

ministry, and who is considered a good and loving mother.

27 . The author of the second character reference letter

did not identify her relationship to Petitioner, but indicated

that she had known Petitioner for six years . She described

Petitioner as Ðdependable and committed to the c ommunity as a

youth leader and big sister to the children of her church.Ñ

Further, she wrote, Ð[Petitioner] is a compassionate and loving

person, but above all she is a Christian who loves her children

and her church.Ñ

28 . In her personal statement, Pet itioner described the

events surrounding the disqualifying offense as follows:

I was involved with a young man at the time

of this incidence [sic] . What happen [sic]

on that day was this young man had been

calling my phone all day and we passed each

other on the street in the same neighborhood

and I followed him. We both at this time

kept calling each others [sic] phone back to

back. After a few blocks both cars came to

a stop. Neither of us got out of the car.

Each of us pulled off the same time and o ur

cars bumped each other. After a few more

blocks we stopped again. He got out of the

car from the passenger side. I then realize

[sic] that he was not the driver. A few

minutes later the car came back. An off

duty police officer with JSO wrote me a

ticket for reckless driving, operating a

vehicle with no insurance and criminal

mischief. Mean while [sic] two more

officers with JSO arrived on the scene and

one of the officers decided to arrest me and

charged me with aggravated assault with a

deadly we apon (with no intent to kill).

29 . Petitioner offered nothing else related to the

disqualifying offense .

30 . PetitionerÓs narrative does not reveal an

understanding of the seriousness of her offense or offer any

explanation for her behavior. Nor does t he narrative back up

her statement s on the questionnaire that she feels remorse and

has accepted responsibility for her actions.

31 . In formulating its decision to deny PetitionerÓs

request for exemption, the Agency considered the following

factors to be significant:

• PetitionerÓs disqualifying offense occurred just a

year after having been granted an exemption from a

prior disqualifying offense of grand theft.

• The offense demonstrated a lack of good judgement

and decisionmaking.

• Petitioner was the primary aggressor.

• PetitionerÓs children were in the car at the time of

the incident.

• Petitioner was 32 years old at the time of the

incident.

• Petitioner report ed no life stressors at the time of

the disqualifying offense and no significant changes

in her life subsequently.

• Petitioner was not forthcoming in her application

about the damage to the vehicles incurred during the

incident.

• PetitionerÓs driving record raises a concern with

her ability to safely transport Agency clients.

32 . The Agency also consi dered that PetitionerÓs character

references were not from past or current employers, that they

revealed very little about the relationship between the author

and Petitioner, and that they did not acknowledge the

disqualifying offense or offer any indicati on of changes in

PetitionerÓs life.

Final Hearing

33 . PetitionerÓs attitude at hearing was defensive.

Petitioner took issue with the description of events surrounding

the disqualifying offense noted in the police report .

Petitioner particularly stresse d that the vehicles were stopped,

rather than traveling down the one - lane road side by side, when

she threw the soda can into Ms. StevensÓ vehicle. Petitioner

denied that she intentionally struck Ms. StevensÓ vehicle, but

rather insisted that the vehicles ÐbumpedÑ as they were both

pulling off the road at the same time.

34 . Petitioner offered no witnesses on her behalf.

35 . Petitioner introduced one additional character

reference letter from Reverend Charles G. Skinner, Pastor, Twin

Springs Missionary Baptist Church. Pastor Skinner stated that

he had pastored Petitioner for 10 years and had witnessed

Ðspiritual maturityÑ in her life. In the letter, Pastor Skinner

described Petitioner as an active member of the church, a devout

Christian and mother Ðwi th an humbling nature ex hibiting a

thirst for erudition.Ñ

36 . Petitioner did not demonstrate her humble nature at

the hearing. Petitioner was defensive, argumentative, and spent

her time pointing out Ð inaccuracies Ñ in the police report.

37 . Petitioner has no understanding of the seriousness of

her offense, and was ÐbaffledÑ that the charge included a

reference to a deadly weapon when she had no weapon at the time .

Petitioner downplayed the event, testifying that the whole

incident took maybe 8 to 10 m inutes, and that the vehicles were

traveling slowly, perhaps 15 to 20 miles per hour.

38 . Petitioner acknowledged that her children were in the

vehicle at the time of the incident, but insisted they were not

in danger and that she would never do anything to put her

children in danger.

39 . Throughout the hearing, Petitioner emphasized she had

no idea Ms. Stevens was driving the vehicle in which her

boyfriend was riding , until the vehicles pulled off the roadway .

Apparently Petitioner believed that the fac ts were more

favorable to her if it was only her boyfriend she was trying to

run off the road, rather than her boyfriend and Ðthe other

woman.Ñ Petitioner failed to appreciate that no matter who was

driving the vehicle, PetitionerÓs actions put them at ri sk.

CONCLUSIONS OF LAW

40 . 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) ,

Florida Statutes (2015 ) . 1 /

41 . Section 435.04, Florida S tatutes, provides, in

pertinent part, that:

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

screened pursuant to this section must

undergo security background investigations

as a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks

t hrough local law enforcement agencies.

* * *

( 2 ) The security background investigations

under this section must ensure that no

person subject to th i s s ection . . . ha ve

been found guilty of, regardless of

adjudication, or entered a plea of nolo

contend ere or guilty to, any offense

prohibited under any of the following

provisions of state law or similar law of

another jurisdiction .

* * *

(i ) Chapter 784, relating to assault,

battery, and culpable negligence, if the

offense was a felony .

42 . The Ag ency based its disqualification of Petitioner on

her 2010 nolo contendere plea t o aggravated battery with a

deadly weapon.

43 . Section 435.07 establishes a process by which persons

with criminal offenses in their backgrounds , that would

disqualify them f rom acting in a position of special trust

working 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 disqualification 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) (a) The head of the appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the

exemption has completed or been l awfully

released from confinement, supervision, or

sanction for the disqualifying felony;

* * *

(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 empl oyee 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

prese nt a danger if employment or continued

employment is allowed.

* * *

(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 decision is an abuse of

discretion.

44 . An exemption from a statute enacted to protect the

public welfare is strictly construed against the person claiming

the exemption. Heburn v. Dep't of Child. & Fam s . , 77 2 So. 2d

561 (Fla. 1st DCA 2000).

45 . 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 exerci sed by

a trial judge is not, however, without

limitation . . . . [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 "whether any reasonable person" could take the position

under review).

46 . The Agency has a heighte ned interest in ensuring that

the vulnerable population being protected by chapter 435, i.e.,

developmentally disabled children and adults , is not abused,

neglected, or exploited . In light of that mission, the

legislature has imposed a heavy burden on tho se seeking approval

to serve this vulnerable population when they have disqualifying

events in their past.

47 . The statutorily - enumerated factors to be considered by

the Agency in evaluating an exemption application are the

details surrounding the disqual ifying offense , the nature of the

harm caused , the history of the employee since the incident , and

the time period that has elapsed since the incident.

§ 435.07(3)(a), Fla. Stat.

48 . The details of the disqualifying offense demonstrate

PetitionerÓs ina bility to control her anger and an indifference

to the risk of harm Petitioner imposed on her children, the

occupants of the other vehicle, and the public traveling on the

same roadways.

49 . Petitioner paid only lip service to the idea s of

expressing remo rse and taking responsibility for her actions.

Neither her live testimony nor her written narrative

accompanying her exemption request reflected any remorse for her

actions . Petitioner downplayed the incident and tried to

minimize the damage. At hearing , Petitioner failed to take

responsibility for hitting Ms. StevensÓ vehicle during the

incident, insisting that the vehicles simply Ðbumped.Ñ

50 . The minimum three years have elapsed since

PetitionerÓs disqualifying offense, and she has not proven any

ste ps toward rehabilitation. She has not sought any counseling

for anger management or impulse control other than the one day

class at the Salvation Army in 2010. Meanwhile, PetitionerÓs

driving record reveals both moving and criminal violations

exhibiting poor decision making, impulsiveness, and a disregard

for the rules. Petitioner offered no explanation for any of the

traffic offenses .

51 . The undersigned concludes , based on the totality of

the circumstances , that the Agency Ós intended denial of

Peti tionerÓs requested exemption does not constitute an abuse of

discretion .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

Petitioner Ós request for an exemption from disq ualification.

DONE AND ENTERED this 24th day of March , 201 6 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 24th day of March , 2016 .

ENDNOTE

1 / Unless otherwise noted herein, all references to the Florida

Statutes are to the 2015 version.

COPIES FURNISHED :

Melissa E. Dinwoodie, Esquire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville, Florida 32224

(eServed)

Kristi Taylor

1605 West 12th Street

Jacksonville, Florida 3 2209

David De La Paz, Agency Clerk

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, Flo rida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Dis a bilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.