16-001006EXE Shamika Williams vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, May 31, 2016.

Summary: Evidence did not demonstrate that Petitioner has rehabilitated herself. Denial of exemption appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAMIKA WILLIAMS

Petitioner ,

vs. Case No. 1 6 - 1006 EXE

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this matter

before the Division o f Administrative Hearing s duly - designated

Administrative Law Judge Diane Cleavinge r on April 14, 2016 , in

Tallahassee , Florida.

APPEARANCES

For Petitioner: Shamika Williams

91 Henry Drive

Gretna, Florida 32332

F or Respondent: Tracie Hardin, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner should

be granted an exemption from employment disqualification.

PRELIMINARY STATEMENT

On February 6, 2016 , Petitioner received a l etter from the

Agency for Persons with Disabilities ( Department, A gency or

Respondent) that her request for exemption from disqualification

from employment had been denied based upon the lack of clear and

convincing evidence of rehabilitation since conviction of a

disqualifying offense for domestic violence . Petitioner

disagreed with the DepartmentÓs denial and filed a Request for

Administrative Hearing . Thereafter, t he matter was referred to

the Division of Administrative Hear ings for hearing .

At hear ing, Petitioner testified in her own behalf. She

did not offer any exhibits into evidence. Respondent presented

the testimony of one witness and introduced six exhibits into

evidence.

After the hearing, Respondent file d a Propose d Recommended

Order on May 4, 2016 . Petitioner did not file a p ropose d

recommended o rder .

FINDINGS OF FACT

1. The Agency for Persons with Disabilities provides

services to disabled clients. As part of its responsibilities ,

the Ag ency oversees the background screening process of

caregivers , as well as any exemptions should a caregiver be

disqualified by his or her background . Towards that end, t he

A gencyÓs primary concern in considering requests for exemption

is the health and safety of the clients served by the A gency.

2 . Petitioner applied for an exemption from

disqualifica tion pursuant to section 435.07 , Florida Statutes

(2015) . The application included two letters of recommendation

regarding PetitionerÓs ch aracter. Those letters were from

people who knew Petitioner in the community or around town , but

were neither detailed nor informative about the extent of their

knowledge, the length of time the writers had known Petitioner ,

or any rehabilitation efforts by Petitioner. Additionally, the

application for exemption i ncluded Petitioner's explanation of

the events surrounding her multiple criminal convictions . In

her explanation and at hearing, Petitioner admitted her criminal

history but attempted to blame the other parties involved in the

events that led to the police being summoned. Although she

claimed remorse in her application, Petitioner did not appear

particularly remorseful about her criminal p ast .

3 . Ms. Lynne Daw received and r eviewed PetitionerÓs

exemption application packet prepared by the Department of

Children and Families . The exemption pa cket contained the

application; the requestorÓs cri minal history; information and

questionnaires from the applicant ; education al background and

references; any documents that the app licant wished to submit on

his or her behalf, as well as information that the background

screening office had obtained , suc h as Florida Department of Law

E nforcement reports ; and other law enforcement documents.

Ms. Daw testified to the steps followed and individuals who

reviewed PetitionerÓs request for an exemption. The evidence

showed that the Department complied with its review process and

ultimately determined to deny PetitionerÓs request for an

exemption from disqualification .

4 . Petitioner began her criminal activity on January 1 1 ,

2009 , when at a local bar in Gretna, she engaged in a verbal

altercation with her Ðlive - in Ñ boyfriend who was also the father

of her son . The alter cation caused both to be escorted from the

bar , where the affray continued in the parking lot with the

police eventually being summoned. During the altercation ,

Petitioner attempted to pepper spray the boyfriend by reach ing

around the police officer who was between them with a can of

pepper spray in her hand . Petitioner was arrested and entered a

plea of nolo conten dere to domestic assault , a second - degree

misdemeanor, on January 28 , 2009. The plea was accepted by the

court. Adjudication was withheld and a fine of $200.00 was

imposed. From the court record s , Petitioner completed t he terms

of her sentence in 2009 when she paid the fine. Petitioner

attributed the altercation to the bad break - up she and her

boyfriend were going through at the time or had just gone

through.

5. The co nviction for d omestic violence wa s the only

disqualifying offense in regards to Level 2 background

screening. However, around February 15, 2013, Petitioner was

intoxicated at a local bar Ðsc reaming at the top of her lungsÑ

and threatening to discharge a weapon . The police were again

summoned to the bar. Petitioner continued to engage in a verbal

altercation with another woman over some past love interest and

threw her keys at her. She was arrested, placed in handcuffs,

slipped out of them and continued to yell. Ultimately, she was

charged with diso rderly conduct and resisting an officer without

v iolence .

6. Petitioner entered a plea of no lo contendere to the

charge of disorderly c onduct. The court accepted the plea,

withheld adjudication and imposed a fine. From the court

records , Petitioner has made payments on the imposed fine, but

has not paid the fine in full and has not completed her

sentence. At hearing, Petitioner blamed the incident on the

other women and indicated that somehow such behavior was less

serious because the people involved all knew each other. More

troubling is that Petitioner denied using and/or misusing

alcohol in her application for exemption when her record clearly

demonstrates that she does use alcohol to the point that it has

led t o at least one criminal conviction .

7 . The evidence showed that Petitioner , who was 35 at the

time of hearing, was 32 years of age at the time of her last

conviction , three years ago , and 28 at the time of her

disqualifying domestic violence conviction, seven years ago .

She currently works as a security officer and holds a

certificate as a certified nursing assistant. Evidence showed

that she has not received any exemption s from disqualification

for these professions. Although Petit i oner claims that sh e now

only goes home to take care of her three children, t he evidence

did not demonstrate that she has removed her self from the rowdy

drinking and bar life s he has lived in the past .

8 . In this case, t he good character of Peti tioner was not

attested to by character witnesses , who knew the Petitioner on

both a personal and professional level. As indicated, t he two

reference letters were not helpful on the issue of character or

rehabilitation .

9 . As noted, the evidence showed that PetitionerÓs

d isqualifying crime occurred seven years ago. However, the

evidence was insufficient to demonstrate that, since her

conviction, s he has rehabilitated herself to the extent she has

either controlled her use of al cohol or her anger . To her

credit, Petitione r is taking care of her young disabled

daughter. But, such evidence covering only a short period of

time does not on these facts constitute cle ar and convincing

evidence of rehabilitation. Given these facts, th e denial of

the exemption is consistent with and supported by the evidence

adduced at the hearing . T he Department did not abuse its

discretion in denying an exemption to Petitioner. As such, the

PetitionerÓs request for an exemption from di squalification

should be denied .

CONCLUSIONS OF LAW

1 0 . T he Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (201 5 ).

11 . Section 110.1127(3)(a), Florida Statutes, provides

that "[a]ll positions in programs providing care to children,

the developmentally disabled, or vulnerable adults for 15 hours

or more per week . . . are deemed to be persons and positions of

special trust or responsibility, and require employment

screening pursuant to chapter 435, using the level 2 standards

set forth in that chapter."

12 . Section 435.04 provides in relevant part as follows:

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

screened pursuant t o 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 Enf orcem e nt, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

* * *

(2) The security background investigations

under this section must ensure that no

person 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 entered a plea of nolo contendere or

guilty to, or have been adjud icated

delinquent and the record has not been

sealed or expunged for, any offense

prohibited under any of the following

provisions of state law or simi lar law of

another jurisdiction . . . ;

13 . Under the "level 2 standards" for screening set forth

in c hapter 435, individuals , such as Petitioner, who have been

convicted of domestic violence offenses specified in section

435.04 are di squalified from working in "positions of special

trust or responsibility." § 435.04 ( 3 ), Fla. Stat. However, the

statutes allow that the Agency may grant exemptions from

employment disqualific ation. § 435.07(1), Fla. Stat. (2015 ).

14 . In this case, Petitioner is seeking an exemption from

disqualification from holding a position of trust.

15 . The procedure for such exemption is set forth in

section 435.07, which states in pertinent part:

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

to grant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidence that the employee should

no t 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 i s 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.

(b) The agency may consider as part of its

deliberations of the employeeÓs

rehabilitation the fact that the employee

has, subsequent to the conviction for the

disqualifying offense for which the

exemption is being sought, been arrested for

or convicted of another crime, even if that

crime is not a disqualifying offense.

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 12 0. The standard of review by the

administra tive law judge is whether the

agencyÓs intended action is an abuse of

discretion.

16 . An applicant seeking an exemption under section

435.07 must demonstrate to the agency head that the conditions

prescribed b y the statute to obtain an exemption have been met.

In interpreting the statute to ascertain exactly what the

precise contours and extent of these conditions are, any

reasonable doubt must be resolved against the applicant. See

Heburn v. Dep't of Child. & Fam s . , 7 72 So. 2d 561, 563 (Fla. 1st

DCA 2000)("[Because it allows] [a]n exemption from a statute,

enacted to protect the public welfare, [section 435.07] is

strictly construed against the person claiming the exemption.").

17 . To be eligible for an exe mption, Petitioner must

demonstrate by clea r and convincing evidence that s he 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)("the 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.").

18 . The "clear and convincing evidence" standard require s

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 witnesses must be lacking

in confusion as to the facts in issue. Clear and convincing

eviden ce is an "intermediate standard," "requir[ing] more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re: Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The evidence must be of such

weight tha t 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 DC A 1983) ; see also In re Adoption of Baby E. A.W. ,

658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be

clear and convincing] must be s ufficient to convince the

trier - of - fact without hesitancy."). "Although this standard of

proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous." Westinghouse

Elec. Corp., Inc. v. Shuler Bros . , 590 So. 2d 986, 989 (Fla. 1st

DCA 1991).

19 . Pursuant to section 435.07, even if rehabilitation is

shown, the applicant is only eligible for an exemption, not

entitled to one. Respondent retains d iscretion to deny the

exemption provided its decision does not constitute an abuse of

discretion. J.D. v. Fla. Dep't of Child. & Fams. , supra .

20 . 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 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 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).

21 . Significantly, and since administrative hearings under

chapter 120 are "de novo," this abuse of discretion should be

judged and based on all the evidence adduced during the hearing

before the Administrative Law Judge. § 120.571(1)(k), Fla.

Stat. This analysis may, therefore, include facts and

observations no t previously considered by the a gency. Further,

if the purpose of the chapter 120 administrative hearing is to

ferret out all the relev ant 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 a gency is measured. See J.D. v. Fla. Dep't of

Child. & Fams. , 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).

22 . To even be considered for an exemption under section

435.07, an applicant who is disqualified as a result of

disqualifying offenses , must show, as a threshold matter that ,

for felonies, Ð three years have elapsed since [he or she] has

completed or been law fully released from confinement,

supervision, or sanction for [each] disqualifying offenses ; or,

for misdemeanors, the applicant has completed or been lawfully

released from confinement, supervision, or sanction for [each]

d isqualifying offenses . Ñ § 435.0 1(1)(a) and (b) .

23 . In addition to showing that the waiting period

prescribed by subsection (1)(a) and (b) of th e statute has

expired, a d isqualified a pplicant must also provide clear and

convincing evidence of his or her "rehabilitation," as that term

is described in the statute. This is a "heavy burden."

Cf. Fla. Bd. of Bar Exam'rs re J.J. T. , 761 So. 2d 1094,

1096 (Fla. 2000)("[D]isbarment alone is disqualifying unless

[the applicant] can show clear and convincing evidence of

rehabilitation and disb arred attorneys should be readmitted only

if they can meet this heavy burden.")(citation and internal

quotation marks omitted).

24 . In this case, Petitioner has passed the waiting period

established for exemption eligibility under the s tatute.

However, b ased on the total ity of evidence , Petitioner has not

shown by clea r and convincing evidence that s he is

rehabilitated. § 435.07(3(a), Fla. Stat. Given that Petitioner

has not demonstrate d by clea r and convincing evidence that s he

has been rehabilitated, the A gencyÓs denial of an exemption from

disqualification from employment should be upheld .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of L aw, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order denying Petitioner an exemption

from employment disqualification.

DONE AND ENTERED this 31st day of May , 201 6 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 31st day of May , 201 6 .

COPIES FURNISHED :

Shamika Williams

91 Henry Drive

Gretna, Florida 32332

Tracie Hardin , Esquire

Agency for Persons w ith Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, 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 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.