16-000661EXE Joanne Dawson vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, April 28, 2016.

Summary: Petitioner did not prove by clear and convincing evidence that she was rehabilitated from a 2003 felony conviction for battery on an emergency medical care provider, and it was not an abuse of discretion for the agency to deny her request for exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANNE DAWSON,

Petitioner,

vs. Case No. 16 - 0661EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final administrative he aring was conducted in this case

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

(2015) , 1/ before Robert L. Kilbride, an Administrative Law Judge

("ALJ") of the Division of Administrative Hearings ( " DOAH " ), on

March 21, 2016. The final hearin g was conducted by video

teleconference at sites in West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner: JoAnne Dawson, pro se

3001 Boston Avenue

Fort Pierce, Florida 34947

For Respondent: Llamilys Mar ia Bello, Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard, Suite 305

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE S

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

been rehabilitated from her disqualifying offense in 2003, and ,

if so, (2) whether the intended action to deny Petitioner ' s

exemption request pursuant to section 435.07(3), Florida

Statutes , would constitute an abuse of discretion by the a gency.

PRELIMI NARY STATEMENT

In a letter dated January 15, 2016, Respondent, Agency for

Persons with Disabilities ( " Respondent " or " A PD " ), notified

Petitioner , JoAnne Dawson, that her request for an exemption from

disqualification from employment was denied. Dissatisfi ed with

the decision, Petitioner timely requested a formal administrative

hearing pursuant to sections 120.569 and 120.57(1).

Subsequently, Respondent referred the matter to DOAH to

assign an A LJ to conduct the final hearing.

A final hearing was held befor e the undersigned by video

teleconference on March 21, 2016, with both parties present.

Petitioner testified on her own behalf and also called her

husband, Mason McBride, to testify. She offered some additional

letters of support marked as Petitioner ' s E xhibit A. Respondent

presented the testimony of Jerry Driscoll, A PD ' s r egional

o perations m anager for the Southeast Region of Florida.

Respondent ' s Composite Exhibits A through H were admitted into

evidence without objection. At the hearing, the undersi gned

granted Respondent ' s request for official recognition of

section 435.07 and related provisions.

A T ranscript of the final hearing was filed with the Clerk

of DOAH on April 8, 2016 . Respondent timely submitted a P roposed

Recommended Order. Petitioner submitted a timely post - hearing

letter. Both submissions were given due consideration in the

preparation of this Recommended Order.

FINDING S OF FACT

Based on the evidence adduced at the hearing, and the record

as a whole, the following material findings of fact are made:

1. Petitioner is a 47 - year - old female seeking to qualify,

pursuant to section 435.07 , for employment in a position of trust

as a direct service provider for the care of physically or

mentally disabled adults or children. This position r equires the

successful completion of a Level 2 background screening as set

forth in section 435.04.

2. APD is the state agency responsible for licensing and

regulating the employment of persons in positions of trust.

Specifically, the mission of APD incl udes serving and protecting

the vulnerable population, including children or adults with

developmental disabilities.

3. 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 that , in January 2003, Petitioner

committed the disqualifying offense of b attery on an e mergency

m edical c are p rovider, a third - degree felony. Petitioner was

35 years old at the time of this offense. She pled nolo

contendere , and adjudication o f guilt was withheld.

5. On August 5, 2003 , she was placed on 24 months of

probation and was ordered to pay applicable court fines and

costs.

6 . On September 21, 2004 , the c ourt issued an order of

m odification of p robation adding the following conditions to her

probation: 24 days in the county jail with credit time served of

24 days, probation conditions to remain in effect, and an

additional fine of $65.00 , p ublic d efender f ee.

7 . Petitioner ' s account of the disqualifying charge of

Battery on an Emerge ncy Medical Care Provider as reported on the

Exemption Questionnaire is that she was falsely accused and that,

in fact, it was the attending hospital nurse that mistreated her

and hit her with a thermometer three times. Petitioner alleged

in her account, and maintained at hearing, that she was falsely

accused of this crime and that her account of the facts was

ignored by the p olice officers who arrested her. Petitioner

admits she was taking medicine for anxiety and depression and

went to the hospital beca use she was suffering from an anxiety

attac k at home and was hoping to get a prescription for more

med ications .

8 . From the testimony of A PD ' s witness, Jerry Driscoll, it

appeared that APD also properly considered the following arrests

and convictions whi ch occurred subsequent to the 2003 felony

conviction:

a. Domestic v iolence/ b attery arrest 2008 -- c ase dismissed .

b. Violation of felony probation in 2004 -- s entenced to

24 days in the county jail.

9 . APD also considered an arrest in 1987 for possession of

co caine and marijuana (dismissed), a misdemeanor conviction in

1989 for petty theft, as well as multiple civil traffic

infractions and a driving while license suspended conviction

predating 2003. 2/

10. Driscoll testified that Petitioner ' s application , wh ich

he reviewed, together with all of the court records submitted by

Petitioner , was submitted on September 30, 2015.

11. The arrest in 2008 pertained to a physical altercation

and fight that P etitioner had with her father ' s neighbor. That

incident did n ot result in a separate criminal charge or

conviction, and the case was nolle prossed or dismissed.

12. Driscoll was concerned, however, that on Petitioner's

exemption application , she represented that there were " no

injuries " to the victims of any acts o f violence by her. 3/

13. Regarding the arrest and conviction s that occurred

prior to 2003 and an arrest in 2008, Driscoll testified that he

did not believe that P etitioner ever accepted responsibility for

those inciden t s. For instance, regarding the dome stic battery

arrest in 2008, Petitioner only admitted that she " touched " her

daughter on the forehead, whereas her daughter indicated that she

was slapped several times in the face by P etitioner.

14. Driscoll also found it problematic that Petitioner is

n ot currently employed and, apparently, has not diligently

pursued any employment for several years.

15. He also noted that despite her certificate of

completion of domestic violence training in 1998, she ignored

this training and was subsequently arrested or convicted for

multiple violent acts.

16. During his review, Driscoll considered three letters of

reference from friends, but found it significant that there were

no letters of reference from any current or former employers.

17. The Department of Chil dren and Famil ies , a separate

state agency, initially reviewed P etitioner ' s application and

also concluded that she was not sufficiently rehabilitated f r om

the 2003 felony.

18. Driscoll concluded his testimony by stating several

reasons why he had recomme nded a denial of her request for an

exemption:

a . Petitioner's criminal history, including a felony

conviction for striking an emergency medical care provider.

b . Petitioner's aggressive behavior towards others

including incidents, arrests , and convictio ns both before and

after 2003.

c . P etitioner did not appear to take responsibility for any

of the criminal conduct, including the convictions. Rather, she

shifted the blame to other parties involved. 4/

d . Driscoll concluded that Petitioner had not prove n

rehabilitation and that it was significant that several domestic

violence incidents occurred after she had been trained and taught

how to avoid domestic violence.

e . Driscoll also felt denial of Petitioner's exemption was

warranted since the people she would be serving were very

disabled and vulnerable.

f . Driscoll was very concerned that these multiple

inciden t s of domestic violence created a " red flag " to him.

g . Driscoll did not believe that she possessed the amount

of patience and caring required t o care for the disabled and

vulnerable population.

19. Petitioner has three biological children and a step -

daughter.

20. She obtained a high school diploma from Westwood High

School in St. Lucie County , Florida .

21. She testified that Willis Rolle wante d her to work as a

home health aide for his disabled son. 5 /

22. Petitioner testified that she had worked eight years

for Family Health Preservation in the 1990s as a home health

aide. Inexplicably, however, this information was not provided

in her exempt ion application, nor was any independent evidence or

records provided from that company.

23 . Petitioner testified at length about a ten - year period

of time, from 1991 - 2001, during which she endured lots of

struggles and stressors in her life. Those strug gles dealt

primarily with a wayward daughter and a substance abuse problem

her husband was suffering from during that period. 6 /

24 . After prompting by the undersigned, Petitioner cited

the following reasons why she felt that she had been

rehabilitated :

a . She i s not on depression medication anymore.

b . Her husband is clean and recovered from his substance

abuse problem.

c . Her daughter now has her own place to live.

d . Essentially, the " stressors " in her life have been gone

for approximately ten years.

e . She is more relaxed now because she has fewer

responsibilities and can focus.

2 5 . Mason McBride, Petitioner's husband, characterized her

as a loving and caring person who insisted on taking care of her

elderly father to avoid his placement in a nursi ng home. McBride

emphasized that she lovingly cares for other family members as

well.

CONCLUSIONS OF LAW

26 . DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to sections 120.569, 120.57(1),

and 435.07(3).

27. Individ uals, 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.

28. Pursu ant to section 435.04(2):

(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,

regardle ss of adjudication, or entered 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

anoth er jurisdiction:

* * *

(i) Chapter 784, relating to assault,

battery, and culpable negligence, if the

offense was a felony.

2 9 . Individuals who have disqualifying offenses may request,

as Petitioner has done, an exemption from disqualification from

the head of the appropriate agency. § 435.07(1), Fla. Stat.

30 . 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 i n

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

released from confinement, supervision, or nonmonetary condition s

imposed by the court. In this case, Petitioner has been released

from her supervision. 7 /

31 . 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. 1st

DCA 2013)( " T he ultimate issue of fact to b e determined in a

proceeding under section 435.07 is whether the applicant has

demonstrated rehabilitation by clear and convincing evidence . " ).

32 . More specifically, Petitioner has the burden of setting

forth clear and convincing evidence of her rehabili tation from the

felony conviction:

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 th e 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.

§ 435.07(3)(a), Fla. Stat.

33 . The " clear and convincing evidenc e " standard requires

that the evidence be found credible, the facts to which the

witnesses testify be distinctly remembered, the testimony be

precise and explicit, and the witnesses be lacking in confusion as

to the facts in issue. Importantly, the eviden ce 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 established. In re Davey , 645 So. 2d

398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

34 . Pursuant to section 435.07, even if rehabilitation is

shown, the applicant is only " eligible " for an exemption, 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. , 114 So. 3d

at 1127.

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

1980), the court noted that, " [d]iscretion, in this sense, is

abused when the . . . action is arb itrary, 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 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 "

would take the position under review) .

3 6 . Since this administrative hearing under c hapter 120 was

" de novo , " this abuse of discretion should be judged and based on

all the evid ence adduced during the hearing before the

undersigned. § 120.57(1)(k) , Fla. Stat . This analysis may,

therefore, include facts and observations not previously

considered by Respondent . Further, if the purpose of the

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 Respondent is measured. See

J.D. , 114 So. 3d at 1127 , 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) .

3 7 . Afte r determining the relevant facts at the hearing, the

ALJ is then required, pursuant to section 435.07(3)(c), to

determine whether the agency ' s intended action is an abuse of

discretion. This analysis necessarily involves both the

applicant's professed reh abilitation and the basis for denial of

the exemption request by the agency. The ALJ should only disturb

th e denial if no reasonable person could take the agency ' s

position in light of the determined facts. Cf. Goin v. Comm ' n on

Ethics , 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995)(under the usual

A dministrative Procedure A ct structure, hearing officer must reach

ultimate findings of fact). Under this structure, the agency head

is then able to base the final decision as to whether or not an

exemption should be granted on facts and observations determined

through procedures satisfying the right to a hearing afforded by

the Administrative Procedure Act.

THE FACTORS TO BE CONSIDERED UNDER SECTION 435.07(3)

Circumstances Surrounding the Criminal Incident

3 8 . Und er this factor, the actions by Petitioner in 2003 at

the hospital should be viewed objectively and take into account

why she was there and her state of mind at the time. Since she

was hospitalized and confined to a hospital bed due to an anxiety

attack at home, the true circumstances surrounding her altercation

with the emergency medical care provider are difficult to discern

or sort out. Petitioner says she did not hit the nurse. There

was no testimony or statement from the victim. Nonetheless, upon

ad vice of counsel, she entered a plea to the felony and thereby

acknowledged that she improperly struck or touched the nurse,

albeit under circumstances where the judge felt it was appropriate

to withhold adjudication of guilt. However , on balance, this

fac tor weighs slightly in favor of the agency, if for no other

reason than she entered a plea to the disqualifying felony.

Time Period that H as Elapsed Since the Incident

3 9 . The intervening period of approximately 12 years is a

significant period of time an d weighs in favor of Petitioner.

Nature of the Harm Caused to the Victim

4 0 . There was no evidence or statement from the victim to

describe the type or extent of injuries to the emergency medical

care provider. Therefore, in the absence of any evidence, some

weight is given to this factor in Petitioner's favor .

History of the Employee Since the Incident

41 . Since the incident in 2003, there is evidence that

P etitioner has acted in a violent manner on at least two (2)

occasions. Her probation was violate d in August 2004 for fighting

with a neighbor who was bitten by P etitioner ( P etitioner claims

she bit the woman in self - defense). Additionally, there was

evidence of a heated altercation with her daughter in 2008, which

involved the daughter being slapped several times by P etitioner.

These multiple and repeated instances of aggression and violence

are troubling , and this factor weighs heavily in favor of a

finding that she has not been rehabilitated. 8 /

Any Other Evidence or Circumstances Indicating that the

Employee will N ot Present a Danger

42 . Respondent ' s conclusion that Petitioner has not accepted

full responsibility for her actions before and after 2003 and

tends to shift the blame to others, raises legitimate concerns

that she could present a dang er to or be incapable of handling

disabled or vulnerable children or adults in her care.

43 . Based on the totality of evidence that the undersigned

credited at the hearing, it is conclude d that Petitioner has

failed to show by clear and convincing evidenc e that she is

sufficiently rehabilitated. § 435.07(3 ) (a) , Fla. Stat.

44 . 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 Respondent to deny

Petiti oner's request for an exemption from disqualification under

section 435.07(3)(c), and the standard enunciated in Canakaris ,

supra.

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 denial and enter a f inal o rder

denying Petitioner ' s application for an exemption from

disqualification.

DONE AND ENTERED this 28th day of April , 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 28th day of April , 2016 .

ENDNOTE S

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

otherwise indicated.

2/ The undersigned concludes that the criminal arrests and

convictions predating 2003 an d the civil traffic infractions

subsequent to 2003 should not have been considered. Section

435.07(3)(b) expressly limits the consideration to "crimes"

occurring "subsequent to" the conviction for the disqualifying

offense. Likewise, civil traffic offens es are not "crimes" and

should not be considered.

3/ This was contradicted by Petitioner's own testimony at the

hearing and her written statement that she did, in fact, bite the

neighbor.

4/ The undersigned's observations of Petitioner's demeanor and

m annerisms at the hearing reinforce those concerns.

5 / Rolle did not testify and in his unsigned letter dated

February 5, 2016, there were no details of what type of position

he was holding open for her. There were several other general

letters of recomm endation from individuals who were not called to

testify.

6 / The relevance of that information, while unfortunate, was

limited and did not help the undersigned to understand whether or

not she had been rehabilitated since 2003.

7 / The undersigned notes , however, that she violated her court

probation in 2004.

8 / As Driscoll put it, this aggressive behavior raises "red

flags."

COPIES FURNISHED:

JoAnne Dawson

3001 Boston Avenue

Fort Pierce, Florida 34947

Llamilys Maria Bello, Esquire

Agency for Pers ons with Disabilities

201 West Broward Boulevard , Suite 305

Fort Lauderdale, Florida 33301

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D. Tritschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 323 99 - 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 i ssue the Final Order in this case.