16-001312EXE Roxanna Marchan vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, June 17, 2016.

Summary: Petitioner failed to show that she was rehabilitated by clear and convincing evidence. Further, the Agency did not abuse its discretion when denying Petitioner's request for exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROXANNA MARCHAN,

Petitioner,

vs. Case No. 16 - 1312EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in th is matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on May 16, 2016, by video

teleconference at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Roxanna Marchan

241 San Carlos Boulevard , No. 22

Fort Myers Beach, Florida 33931

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons wit h Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE S

The issues in this matter are whether Petitioner has shown,

by clear and convincing evidence, that she i s rehabilitated from

her disqualifying offense , and, if so, whether RespondentÓs

action to deny Petitioner's request for exemption from

disqualification constitutes an abuse of discretion.

PRELIMINARY STATEMENT

On June 28, 2015, Petitioner, Roxanna Marchan

(ÐPetitionerÑ), applied for a Request for Exemption from

disqualification from Respondent, Agency for Persons with

Disabilities (the ÐAgencyÑ).

By correspondence , dated February 4, 2016, the Agency

notified Petitioner that it denied her Request for Exempt ion

pursuant to sec tion 435.07, Florida Statutes.

On March 1, 2016, Petitioner timely requested an

administrative hearing to challenge the AgencyÓs action. On

March 9, 2016, the Agency referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ ) and requested assignment to an

Administrative Law Judge (ÐALJÑ) to conduct an evidentiary

hearing pursuant to sections 120.569 and 120.57(1).

The final hearing was held on May 16, 2016. Petitioner

testified on her own behalf. Petitioner submitted Exhib its 1

and 2 , which were admitted into evidence. The Agency presented

t he testimony of Jeff r e y Smith, regional operations m anager for

the Agency. Agency Exhibits 1 through 4 were admitted into

evidence without objection.

A court reporter recorded the fin al hearing. However, the

parties did not order a transcript.

At the close of the hearing, the parties were advised of the

ten - day timeframe following the final hearing for filing post -

hearing submittals. Both parties submitted post - hearing

submittals whi ch were duly considered in preparing of this

Recommended Order.

FINDING S OF FACT

1. Petitioner seeks employment as a direct service provider

for persons with developmental disabilities. Petitioner desires

to work with Project Choice, LLC, a service provi der the Agency

regulates.

2. The Agency is the state agency responsible for

regulating the employment of persons in positions of special

trust as direct service providers. See § 393.0655(1), Fla. Stat.

A Ðdirect service providerÑ is a person who has dir ect contact

with and provides services to an Agency client. See

§ 393.063(11), Fla. Stat.

3. The Agency's clients are a vulnerable population

consisting of those persons who are eligible for services and

support for developmental disabilities. See § 39 3.063, Fla.

Stat. Agency clients often have severe deficits in their ability

to complete self - care tasks and communicate their wants and

needs. Agency clients are at a heightened risk of abuse,

exploitation, and neglect because of their developmental

dis abilities and inability to self - preserve. Consequently,

employment as a direct service provider is regarded as a position

of special trust.

4. The Agency relies on the Department of Children and

Families, Background Screening Unit (the ÐDepartmentÑ) , to

initially receive and screen requests for exemption from

disqualification from individuals seeking employmen t as direct

service providers.

5. On June 28, 2015, Petitioner submitted a Request for

Exemption, with attachments, to the Department. The Departm ent

subsequently forwarded PetitionerÓs application to the Agency for

review.

6. To qualify as a direct service provider, Petitioner must

comply with the employment screening requirement established in

chapter 435. See § 393.0655(1), Fla. Stat. Petition er's

background screening revealed a criminal offense. In September

1978, Petitioner was arrested for felony possession of marijuana

in the State of Texas. Petitioner pled guilty and was given a

suspended sentence. The court deferred adjudication of gui lt and

placed Petitioner on two years of probation.

7. At the final hearing, the Agency also p roduced evidence

of several non - disqualifying criminal offenses Petitioner

committed subsequent to her 1978 drug arrest. Petitioner was

arrested for or convicte d of the following crimes: 1) a

misdemeanor conviction for P ossession of M arijuana in 2005 ;

2) Bail Jumping and Failure to Appear in 2008 ; 3) Bail Jumpin g

and Failure to Appear in 2010; and 4) Failure to Appear in 2013.

8. In accordance with section 435 .04(2), PetitionerÓs

criminal misconduct, as a Ðdisqualifying offense,Ñ disqualified

her from working as a direct service provider for persons with

developmental disabilities. Consequently, in order to be

employed in such a capacity, Petitioner was requir ed to seek an

exemption from disqualification from the Agency. Therefore,

Petitioner submitted to the Agency a Request for Exemption from

her disqualifying offenses as provided in section 435.07.

9. On February 4, 2016, the Agency issued a letter

notifyi ng Petitioner that it denied her Request for Exemption.

The Agency denied PetitionerÓs application because it did not

believe Petitioner submitted clear and convincing e vidence of her

rehabilitation.

10. At the final hearing, Petitioner testified on her own

behalf. Petitioner expressed her desire to work as a caregiver

for disabled persons. Petitioner described herself as a giving,

helpful, and responsible person. Petitioner further explained

that she is seeking a change in her career in light of her r ecent

health challenges. She is also the sole supporter of her family.

Petitioner believes that a job as a health care assistant for

persons with developmental disabilities will allow her to take

care of her family , as well as accommodate her physical

li mitations.

11. Regarding her disqualifying offense, Petitioner

explained that her 1978 felony arrest for marijuana possession

occurred when she was only 19 years old. She explained that she

had little life experience after growing up in a small town, and

she had just started college in Houston. Her boyfriend asked her

to carry a suitcase for him in her car on a drive back to

college. Unfortunately for Petitioner, a state trooper stopped

her car for speeding. Even more unfortunately for Petitioner,

the state trooper searched her trunk. The state trooper found

her boyfriendÓs suitcase. And, inside it, the state trooper

found marijuana. Petitioner claimed that she had no knowledge of

the contents of her boyfriendÓs suitcase. Despite her lack of

knowled ge, Petitioner pled guilty to the charge.

12. Regarding her four non - disqualifying offenses,

Petitioner explained that her 2005 conviction for marijuana

possession also involved a car trip near Houston. She disclosed

that a friend asked her to carry some Christmas presents in her

car. In a lamentable case of déjà vu, a state trooper stopped

her car for speeding. The state trooper searched her trunk. The

state trooper found her friendÓs Christmas presents. And, inside

a present, the state trooper found marijuana. Once again,

Petitioner stated that she had no knowledge of the contents of

her friendÓs presents. Despite her lack of knowledge, Petitio ner

pled guilty to the charge.

13. Regarding the multiple bail jumping and failure to

appear convictions, Petitioner explained that she had problems

knowing when her court dates were scheduled.

14. In expressing that she has rehabilitated from her

disqualifying offense, Petitioner asserts that she has moved past

her criminal misconduct, and her record is now clear. She has

satisfied all fees, fines, and sentences from her criminal

charges. Petitioner stated that she has learned not to expose

herself to these bad situations. Furthermore, her crimes did not

result in harm to any vic tims or property.

15. Pet itioner testified that there are no present

stressors in her life, and she relies on her faith for inner

guidance and strength. Petitioner has had a stable work history

for the past six years. Petitioner also represented that she has

taken several Agency training courses in order to become better

prepared to work with disabled persons. Additionally, at the

final hearing, Petitioner produced evidence that s he voluntarily

attended a faith - based, alcohol rehabilitation program in 2006.

She sought assist fr om the rehabilitation program based on her

concerns with her alcohol consumption. Petitioner asserted that

the rehabilitation program was very helpful and successful.

16. Petitioner also provided four letters of reference

attesting to her good character. The letters were written by

various individuals, including some in notable positions, who

have known Petitioner for several years. The letters describe

Petitioner as hard - w orking, caring, and nurturing.

17. At the final hearing, the Agency presented t h e

testimony of Jeffrey Smith, r egional o perations m anager for the

Suncoast Region. Mr. Smith oversees all services to persons with

developmental disabilities in his jurisdiction. Mr. SmithÓs

responsibilities include reviewing requests for exemptio n from

disqualifying offenses.

18. Mr. Smith explained that the Agency serves vulnerable

individuals who are highly susceptible to abuse, exploitation,

and neglect due to their developmental disabilities. Many of the

tasks direct service providers offer Agency clients involve

financial, personal, and/or social necessities. Therefore, the

Agency must ensure that direct service providers are detail -

oriented and trustworthy. When considering a request for an

exemption, the Agency must weigh the benefit against th e risk of

endangerment to its clients.

19. Mr. Smith described the AgencyÓs process when reviewing

a request for exemption from disqualification. Mr. Smith relayed

that the Agency considers the disqualifying offense itself, the

circumstances surrounding the offense, the nature of any harm

caused to a victim, the history of the employee since the

incident and, finally, any other evidence indicating that the

individual will present a da nger if employment is allowed.

20. Specifically regarding PetitionerÓs application,

Mr. Smith explained that the Agency reviewed all of the

documentation Petitioner provided in her Request for Exemption ,

including the various records documenting Petitioner's criminal

history, her work experience, and her character reference

letters. In addition to her criminal records, the Agency

reviewed PetitionerÓs driving record. Mr. Smith advised that a

direct service provider will often be tasked to transport

clients. Mr. Smith noted that Petitioner's driving record

included several traffic related violations. He commented that

these records show a pattern of questi onable judgment by

Petitioner.

21. Mr. Smith further testified that the Agency considered

PetitionerÓs evidence of rehabilitation, including PetitionerÓs

statements submi tted with her Request for Exemption and the

letters of recommendation supporting her application.

22. Mr. Smith explained that, based on its review, the

Agency determined that Petitioner's criminal history indicates a

pattern of poor judgment and a lack o f acceptance of full

responsibility for her actions. PetitionerÓs repeated

involvement with the criminal court system reflects a lack of

remorse for her misconduct. In addition, the Agency found that

Petitioner failed to disclose the full and complete de tails of

her criminal offenses in her application. Mr. Smith testified

that inconsistencies in PetitionerÓs Exemption Questionnaire,

including her unreported attendance at the alcohol reh abilitation

program, called her truthfulness into question . Finally ,

Mr. Smith was concerned about the nature of PetitionerÓs offenses

(disqualifying and non - disqualifying) , as well their close

proximity in time with PetitionerÓs application.

23. Upon careful consideration of the record evidence, the

undersigned finds t hat Petitioner did not demonstrate, by clear

and convincing evidence, that she is rehabilitated from her

disqualifying offense from 1978. While Petitioner has made

commendable strides to change her life, her repeated criminal

proceedings since 1978 raise serious concerns, and some

hesitancy, in finding that she has sufficiently established that

she should be employed in a position of special trust with

persons with developmental disabilities. Despite the fact that

Petitioner's disqualifying and non - disqua lifying offenses did not

result in harm to another, they do demonstrate a failure to

exercise good judgment and responsibil ity that cannot be

discounted.

24. Therefore, based on the evidence set forth, Petitioner

has not met her burden of demonstrating th at she has

rehabilitated from her past disqualifying offense or proven that

the Agency should grant her request for exemption from

disqualification under sections 393.0655 and 435.07.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the parties to and su bject

matter of this proceeding pursuant to sections 120.569,

120.57(1), and 393.0655(4), Florida Statutes.

26. To be employed as a direct service provider for persons

with developmental disabilities, Petitioner must comply with

certain background screeni ng requirements. As explained in

section 393.0655:

(1) MINIMUM STANDARDS. Ï The agency shall

require level 2 employment screening pursuant

to chapter 435 for direct service providers

who are unrelated to their clients, including

support coordinators, and managers and

supervisors of residential facilities or

comprehensive transitional education programs

licensed under this chapter and any other

person, including volunteers, who provide

care or services, who have access to a

clientÓs living areas, or who ha ve access to

a clientÓs funds or personal property.

Background screening shall include employment

history checks as provided in s. 435.03(1)

and local criminal records checks through

local law enforcement agencies.

* * *

(2) EXEMPTIONS FROM DISQ UALIFICATION. Ï The

agency may grant exemptions from

disqualification from working with children

or adults with developmental disabilities

only as provided in s. 435.07.

27. Section 435.04 establishes the level 2 screening

standard and states, in pertine nt part:

(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 stat ewide

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 through

local law enforcement agencies.

* * *

(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 adj udication,

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 another jurisd iction:

* * *

(ss) Chapter 893, relating to drug abuse

prevention and control, only if the offense

was a felony or if any other person involved

in the offense was a minor.

28. PetitionerÓs criminal history includes a plea of guilty

to a charge of felony drug possession in violation of the Texas

Con trolled Substance Act of 1970, section 4.12. This offense is

similar to chapter 893 relating to drug abuse prevention and

control. Accordingly, PetitionerÓs criminal offense from 1978 is

a Ðdisquali fying offenseÑ which prevents her from working as a

direct service provider. Therefore, if Petitioner desires to

work with children or adults with developmental disabilities, she

must seek an exemption from her disqualifying offense from the

Agency under section 435.07. See § 393.0655 (2), Fla. Stat.

29. Pursuant to section 435.07(1)(a), Petitioner is

eligible to seek an exemption from disqualification Ðfor which at

least 3 years have elapsed since the applicant has completed or

been lawfully released fro m confinement, supervision, or sanction

for the disqualifying felony.Ñ An individual seeking an

exemption Ðmust demonstrate by clear and convincing evidence that

the employee should not be disqualified from employment.Ñ

Section 435.07(3)(a) further state s that the individual bears

Ðthe burden of setting forth clear and convincing evidence of

rehabilitation.Ñ Section 43 5.07 states, in pertinent part:

Exemptions from disqualification. Ï Unless

otherwise provided by law, the provisions of

this section 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 ap propriate 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 lawfully released fr om

confinement, supervision, or nonmonetary

condition imposed by the court for the

disqualifying felony[.]

* * *

For the purposes of this subsection, the term

"felonies" means both felonies prohibited

under any of the statutes cited in this

chapt er or under similar statutes of other

jurisdictions.

* * *

(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

not be disqualifi ed 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 t ime 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 employee's

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 120. The standard of review by the

administrative law judge is whether the

agency's intended action is an abuse of

discretion.

30. In reviewing a request for exemption from

disqualification, the ALJ is charged with making the factual

determination whether, based on the ev idence adduced in a de novo

hearing conducted purs uant to section 120.57(1), P etitioner has

shown rehabilitation by clear and convincing evidence. See

§ 435.07(3)(a), Fla. Stat.

31. Clear and convincing evidence is a heightened standard

that requires mo re proof than a mere preponderance of the

evidence. Clear and convincing evidence requires that the

evidence Ðmust be found to be 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. 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 established.Ñ In re Davey , 645 So. 2d

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

(Fla. 4th DCA 1983).

32. If the ALJ finds that P etitioner has met her burden of

proving rehabilitation by clear and convincing evidence, the ALJ

also det ermines whether the A gency headÓs intended action to deny

P etitioner's request for exemption constitutes an abuse of

discretion. J.D. v. Dep't of Child. and Fams. , 114 So. 3d 1127,

1132 (Fla. 1st DCA 201 3); § 435.07(3)(c), Fla. Stat.

33. An agency abuses its discretion Ðwhen 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.Ñ Canakaris v. Canakaris ,

382 So. 2d 1197, 1203 (Fla. 19 80); See also J.D. v. Dep't of

Child. and Fams. , 114 So. 3d at 1130 (stating that under the

abuse of discretion standard, Ð[i]f reasonable men could differ

as to the propriety of the action taken by the [lower tribunal],

then the action is not unreasonable and there can be no finding

of an abuse of discretion.Ñ) Therefore, if reasonable persons

could differ as to the appropriateness of the AgencyÓs decision

to deny Petitioner's request for an exemption, the AgencyÓs

decision is not unreasonable and, thus, not an abuse of

discreti on.

34. In determining the ultimate legal issue of whether the

agency head's action was an Ðabuse of discretion,Ñ the ALJ Ð is to

evaluate that question based on the facts determined from the

evidence presen ted at the de novo chapte r 120 hearing. Ñ J.D. v.

Dep't of Child. and Fams. , 114 So. 3d at 1132, 1133. However,

even if the ALJ determines that the agency head's proposed action

constitutes an abuse of discretion, the agency is not bound by

the ALJ's determination, although the a gency's review is

circumscribed by the standards in section 120.57(1)(l). Id.

35. As discussed above, the undersigned determines that

Petitioner did not meet her burden of proving, by clear and

convincing evidence, that she is rehabilitated from her 1978

disqualifying offense for felony possession of marijuana. Based

on her testimony at the final hearing, Petitioner appears genuine

in her endeavor to turn her life around. Petitioner recognizes

that she needs to address her past misconduct. She also

vol untarily sought counseling to ward off potential alcohol abuse

issues. Petitioner is also to be commended for her efforts to

increase her knowledge of Agency - related matters and clientele

through training. However, the evidence Petitioner produced to

est ablish her rehabilitation did not rise to the level of clear

and convincing in order for the undersigned to conclude, without

hesitancy, that the Agency should allow her to be employed as a

direct service provider.

36. It is further determined, based on t he record evidence,

that a Ðreasonable personÑ could have reached the AgencyÓs

conclusion that PetitionerÓs Request for Exemption should be

denied. In determining whether an applicant has set forth clear

and convincing evidence of rehabilitation, the agen cy head is to

consider matters such as Ðthe 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.Ñ £ 435.07(3)(a), Fla. Stat.

In addition, the agency head may consider whether the applica nt

has been arrested for or convicted of another crime subsequent to

the conviction for the disqualifying offense for which the

exemption is being sought, even if the new crime is not a

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

37. The Agency ack nowledges that Petitioner has initiated

steps to rehabilitate her life. The Agency also recognizes

PetitionerÓs sincere interest in becoming a home health care

assistant for those with disabilities. However, while Petitioner

has not committed another dis qualifying offense since her 1978

felony drug possession, she has engaged in repeated instances of

unlawful behavior. Although Petitioner claims that these

incidents were unknowing or unintentional, a Ðreasonable personÑ

could take the AgencyÓs position t hat Petitioner has not shown

sufficient responsibility to alleviate the AgencyÓs concerns for

the risk she may pose to those vulnerable indi viduals the Agency

serves.

38. Therefore, the AgencyÓs conclusion that Petitioner has

not achieved sufficient rehab ilitation is not unreasonable, and

the AgencyÓs action in denying PetitionerÓs request for exemption

from disqualification does not constitute an abuse of discretion.

Accordingly, the AgencyÓs denial of Petitioner's request for

exemption from disqualifica tion should be upheld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Persons with

Disabilities, enter a final order denying Petitioner's request

for an exemption from disqualifi cation from employment.

DONE AND ENTERED this 17 th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 17 th day of June , 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2016),

unless otherwise noted.

COPIES FURNISHED:

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

(eServed)

Roxanna Marchan

19241 San Carlos Boulevard , No. 22

Fort M yers Beach, Florida 33931

(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

Agenc y for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agenc y for Persons with Disabilities

4030 Espla nade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties 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.