16-001384EXE Jessica Alex vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, August 18, 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

JESSICA ALEX,

Petitioner,

vs. Case No. 16 - 1384EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this 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 July 20, 2016, by video

teleconference sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Jessica Alex , pro se

2615 Corsini Lane

Kissimmee, Florida 34746

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons with 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 is rehabilitated from

her disqualifying offense; and, if so, whether RespondentÓs

denial of PetitionerÓs request for an exemption from

disqualification constitutes an abuse of discretion.

PRELIMINARY STATEMENT

Respondent, Agency for Persons with Disabilities (the

ÐAgencyÑ), by corr espondence dated February 4, 2016, notified

Petitioner, Jessica Alex (ÐPetitionerÑ), that it denied her

request for an exemption from disqualification pursuant to

section 435.07, Florida Statutes.

Petitioner timely requested an administrative hearing

chall enging the AgencyÓs decision. The Agency referred the

matter to the Division of Administrative Hearings (ÐDOAHÑ) to

conduct a hearing pursuant to sections 120.569 and 120.57(1).

The final hearing was conducted on July 20, 2016.

Petitioner testified on he r own behalf and presented the

testimony of Leroy Youmans. The Agency presented the testimony

of Michael Sauvé , D eputy R egional O perations M anager . Agency

Exhibits 1 through 6 were admitted into evidence.

A court reporter recorded the final hearing. Nei ther party

ordered a transcript. Both parties filed post - hearing submittals

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner seeks employment as a direct service provider

for persons with developmental disabi lities. Petitioner desires

to work with Central Florida Group Homes , a residential service

provider the Agency regulates.

2. The Agency is the state agency responsible for

regulating the employment of direct service providers. See

§§ 110.1127(2)(c)1 . a nd 393.0655(1), Fl a. Stat. A Ðdirect

service providerÑ is a person who has direct contact with and

provides services to Agency clients. See § 393.063(11), Fla.

Stat.

3. Agency clients are a vulnerable population consisting of

those persons who are eligi ble for services and support for

developmental disabilities. See § 393.063, Fla. Stat. Agency

clients often have severe deficits in their ability to complete

self - care tasks and communicate their needs and wants. Without

Agency services, these clients w ould require institutionalization.

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

exploitation, and neglect because of their developmental

disabilities and inability to self - preserve. Consequently,

employment as a direct service provider is regarde d as a position

of special trust.

5. 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. The Agency relies on

the Department of Children and Families, Background Screening Unit

(the ÐDepartmentÑ) , to initially receive and screen requests for

exemption from individuals seeking employmen t as direct service

providers.

6. On or around September 15, 2015, Petitioner submitted a

Request for Exemptio n including an Exemption Questionnaire,

various criminal records, character references, and other

supporting documentation (the ÐExemption PacketÑ) to the

Department. The Department forwarded PetitionerÓs Exemption

Packet to the Agency for review.

7. Pet itioner's background screening revealed a criminal

offense. In September 2005, Petitioner committed the

disqualifying offense of Failure to Return Leased Property, a

felony of the third degree in violation of section 812.155(3),

Fl orida Stat ute (2005). P etitioner pled guilty to the crime. The

court withheld adjudication. Petitioner was given a suspended

jail sentence conditioned upon payment of fines and court costs.

8. At the final hearing, the Agency also produ ced evidence

of three Ðnon - disqualifying offensesÑ Petitioner committed

subsequent to her 2005 disqualifying offense. These non -

disqualifying offenses include: an arrest for simple battery in

June 2008 (a violation of section 784.03, Florida Stat ute (2008)) ;

an arrest for criminal mischief in August 2008 (a violation of

section 806.13, Florida Stat ute (2008)) ; and an arrest in Virginia

in June 2010 for fraudulently attempting to sell a car without

written consen t of the owner (a violation of s ection 18 - 2.115,

Code of Virginia, which is similar to section 818.01, Florida

Statutes (2010), disposing of personal property under lien).

9. In accordance with section 435.04(2), PetitionerÓs

guilty plea to a felony in violation of section 812.155(3)

disqualified her from working as a direct service prov ider for

persons with developmental disabilities. Consequently, in order

to be employed in such a capacity, Petitioner submitted to the

Agency her request for exemption from her disqualifying offense

as provided in section 435.07.

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

notifying Petitioner that it denied her Request for Exemption.

The Agency denied PetitionerÓs application because it did not

believe she submitted clear and convincing evidence of her

rehabili tation.

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

behalf. Petitioner stated that she has a passion for helping

people with special needs. She believes her calling is to help

people. Petitioner expressed her desire to open a group home for

disabled individuals.

12. Rega rding her 2005 disqualifying offense, Petitioner

testified that this crime involved furniture she had rented from a

company called Color Tyme. Petitioner asserted that she paid the

furniture off early. Color Tyme, however, never updated its

computer syst em to credit her account. Petitioner explained that

because of her busy work schedule, she had difficulty finding time

to settle the dispute with the store. Before she could contact

the store to discuss the account, a store manager had forwarded

the matt er to the state attorney for charges. According to

Petitioner, she resolved the issue directly with Color Tyme, and

the store did not want to press charges. However, the state

attorney had already issued a warrant for her arrest. Therefore,

it was too l ate to stop the criminal proceedings. Consequently,

Petitioner pled guilty to the charge because she was afraid of

jeopardizing her job, and the judge advised her the offense would

not Ðshow on her record or hinder [her] in the future.Ñ

13. At the final hearing, the Agency produced two previous

requests for exemption that Petitioner submitted in 2006 and 2013.

The Agency pointed out that Petitioner presented slightly varying

accounts of the circumstances surrounding her failure to return

leased property. In the 2006 application, Petitioner wrote that

the situation was a Ðbig misunderstanding.Ñ Petitioner stated

that she was behind in her payments due to a bad car accident.

Petitioner contacted Color Tyme and made arrangements to pay the

remaining amoun t due. However, by the time she presented her

payment to Color Tyme, the store had already referred her account

to the State Attorney's Office, and the arrest warrant had been

issued.

14. In her 2013 Request for Exemption, Petitioner wrote that

she had a lready paid for the furniture in full prior to Color Tyme

forwarding the ma tter to the state attorney.

15. Regarding her non - disqualifying offenses, Petitioner

explained that her 2008 arrest for battery resulted from an

argument with her (future) husband, Leroy Youmans. At the time of

the incident, Petitioner and Mr. Youmans were not married.

However, she was pregnant with their first child , which made her

more emotional. The argument escalated to the point where

Petitioner asked Mr. Youmans to leave he r home. The two briefly

tussled over the keys to PetitionerÓs car. Mr. Youmans prevailed

and drove away. Petitioner pursued him in her other car. At some

point, law enforcement corralled the two vehicles and confronted

Petitioner and Mr. Youmans. The police report indicated that the

officer observed Ða lump on the left side of [Mr. YoumansÓ]

forehead.Ñ Petitioner was arrested and charged with simple

battery. The State Attorney's Office, however, did not prosecute

Petitioner because the victim (Mr. Yo umans) did not wish to

cooperate with the prosecution.

16. At the final hearing, Petitioner disputed the police

reportÓs statement that she had injured Mr. Youmans. Petitioner

explained that Mr. Youmans might have been harmed at his work the

night before when he was required to Ðtake downÑ an individual.

Alternatively, Petitioner expressed that her husband's head is

Ðjust shaped like that. . . . He just has a funny - shaped head.

It looks like he has a lump on it.Ñ

17. At the final hearing, Mr. Youmans testified on

PetitionerÓs behalf. Mr. Youmans conceded that he and Petitioner

had a heated exchange that night, and she was acting Ðwild.Ñ

However, he asserted that she did not cause the bump on his head.

Mr. Youmans agreed with Petitioner that his head is naturally

Ðlumpy.Ñ On the other hand, he relayed that Petitioner did

accidently scratch his face above his eyebrow with the car keys ,

which drew blood.

18. Regarding her 2008 criminal mischief arrest, Petitioner

stated that she was falsely accused of slashing a womanÓs tires.

Petitioner explained that she did not get along with the other

woman. The woman, together with a co - worker, contacted the police

and fabricated a story that Petitioner was seen vandalizing the

woman's car. The witness identifi ed Petitioner as the perpetrator

in a photo line - up at the police station. Petitioner was arrested

and charged with criminal mischief. Petitioner denied any

involvement. She asserted that she was not present when the car

was damaged, and the woman and t he witness were lying. The State

Attorney did not proceed with prosecution due to Ðwitness

problems.Ñ

19. Regarding the 2010 arrest in Virginia for fraudulent

sale of a vehicle, Petitioner explained that when she was living

in Virginia, she purchased a c ar at a Ðbuy here, pay hereÑ car

dealership. Several months later, she decided to move back to

Florida and take the car with her. Following her move, Petitioner

fell behind on her payments, and the dealership was upset that she

had taken the car out of t he state. A warrant was issued for her

arrest for allegedly attempting to sell a vehicle without the

lienholderÓs consent. She stated that she contacted the

dealership and made arrangements to return the car to Virginia and

then turn herself in. Petitio ner was arrested, but the charges

were subsequently dropped.

20. In expressing that she has rehabilitated from her

disqualifying offense, Petitioner represented that she takes full

responsibility for her past and is trying to move forward.

Petitioner ass erted that her crime did not harm or injur e any

victims, and she has never abused anyone in her care.

Furthermore, she has had no involvement wi th law enforcement since

2010.

21. Petitioner also testified that there are no current

stressors in her life. Petitioner has not voluntarily sought

counselling because no court has ordered her to obtain

counselling, and she does not feel like she needs it. Instead,

she relies on her family and her faith for guidance and support.

Petitioner and her husband parti cipate in ongoing pastoral

counseling. In addition, a s a wife and a mother, she feels

responsible for being a positive role model. Petitioner has had a

stable work history since her disqualifying offense.

22. Mr. Youmans also proclaimed that Petitioner has grown

since her criminal offenses. He declared that PetitionerÓs true

character is not what is reflected in the criminal paperwork.

Petitioner is very trustworthy, and her heart is pure.

23. Petitioner provided two letters of reference attesting

to h er good character. The letters were written by persons who

have known Petitioner for several years. The letters described

Petitioner as dedicated, depe ndable, hardworking, and kind.

24. At the final hearing, the Agency presented the

testimony of Michael Sauv é , Deputy Regional Operations Manager

for the Central Region. Mr. Sauvé oversees all services to

persons with developmental disabilities in his jurisdiction.

Mr. SauvÓs responsibilities include reviewing all requests for

exemption from disqualifyi ng offenses submitted in his region.

Mr. Sauvé personally reviewed Peti tionerÓs Request for Exemption.

25. Mr. Sauvé described the Agency's process for reviewing

exemption requests. The Agency examines the disqualifying

offense, the circumstances surrou nding the offense, the nature of

the harm caused to any victim, the applicantÓs history since the

incident, and the passage of time since the disqualifying

incident. In addition, the Agency considers whether the applicant

accepts responsibility for the cr iminal offense, whether the

applicant expresses remorse, and any other evidence indicating

that the applicant will not present a danger if employment is

allowed.

26. Mr. Sauvé explained that many tasks direct service

providers offer Agency clients involve financial, medical, and

social necessities. Most Agency clients do not have a voice.

Consequently, direct service providers must not exhibit a

propensity toward anger and must be extremely aware of their

responsibilities. Therefore, the Agency must ens ure that direct

service providers are detail - oriented and trustworthy. When

considering a request for an exemption, the Agency weighs the

benefit of the prospective employee against the risk of

endangerment to its clients.

27. Regarding PetitionerÓs appl ication, Mr. Sauvé testified

that the Agency distrusted Petitioner's expression of remorse.

Mr. Sauv also opined that PetitionerÓs acceptance of

responsibility for her criminal history did not appear genuine as

she minimized any wrongdoing and redirected the blame elsewhere.

In addition to PetitionerÓs 2015 Exemption Packet, the Agency

reviewed PetitionerÓs statements from her prior request for

exemptions submitted to the Agency in 2006 and 2013. As detailed

above, the Agency noted several inconsistenci es in Petitioner's

multiple descriptions of the circumstances surrounding her failure

to return the leased property. Specifically, Mr. Sauvé commented

that while PetitionerÓs accounts in 2013 and 2015 appear somewhat

similar, the 2006 account (the account most contemporaneous to the

event) differed from both. In 2006, Petitioner wrote that she had

not paid for the furniture prior to the time the store referred

the matter to the S tate A ttorney. She also indicated that a car

accident and her temporary unem ployment caused her to fall behind

in her payments. Further, Petitioner explained that the payment

issue was a Ðbig misunderstanding.Ñ In 2013 and 2015, Petitioner

indicated that the storeÓs mistake caused the dispute.

Consequently, Mr. Sauvé was concer ned with whether Petitio ner was

being fully truthful.

28. Mr. Sauvé also commented that just because Florida and

Virginia authorities decided not to prosecute Petitioner for her

three non - disqualifying offenses did not mean that Petitioner was

innocent of the alleged crimes. Petitioner's repeated run - ins

with law enforcement reflected a pattern of poor judgment and a

propensity toward angry reactions. Further, the inconsistencies

in PetitionerÓs descriptions of the circumstances surrounding the

criminal offenses were troubling. To grant an exemption request,

the Agency must consider all factors that might place Agency

clients at risk. In PetitionerÓs case, Mr. Sauv questioned

PetitionerÓs character, honesty, trustworthiness, and fitness to

provide serv ices to the vulnerable individuals for which the

Agency is responsible.

29. In addition to the criminal offense information, the

Agency also examined PetitionerÓs driving record. Mr. Sauv

advised that a direct service provider will often be tasked to

tr ansport clients. Mr. Sauvé noted that Petitioner's driving

record reflects a number of moving and non - moving violations since

the disqualifying offense. He commented that this record also

shows a pattern of questionable judgment by Petitioner.

30. Upon careful consideration of the evidence in the

record, the undersigned finds that Petitioner has not

demonstrated, by clear and convincing evidence, that she is

rehabilitated from her disqualifying offense. While Petitioner

has not been convicted of any cri mes since 2005, her repeated

encounters with law enforcement and the justice system 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 de velopmental

disabilities. Despite the fact that PetitionerÓs disqualifying

and non - disqualifying offenses did not involve abuse or harm to

another person, they do demonstrate a failure to exercise good

judgment and responsibil ity that cannot be discounted .

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

has not met her burden of demonstrating that she has

rehabilitated from her past disqualifying offense or proven that

the Agency should grant her request for exemption from

disqualification unde r sections 393.0655 and 435.07.

CONCLUSIONS OF LAW

32. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to sections 120.569,

120.57(1), a nd 393.0655(4) , Florida Statutes .

33. To be employed as a direct service prov ider for persons

with developmental disabilities, Petitioner must comply with

certain background screening requirements. As explained in

section 393.0655:

(1) MINIMUM STANDARDS. Ï The agency shall

require level 2 employment screening pursuant

to chapter 4 35 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, in cluding volunteers, who provide

care or services, who have access to a

clientÓs living areas, or who have access to

a clientÓs funds or personal property.

Background screening shall include employment

history checks as provided in s. 435.03(1)

and local c riminal records checks through

local law enforcement agencies.

* * *

(2) EXEMPTIONS FROM DISQUALIFICATION. Ï The

agency may grant exemptions from

disqualification from working with children

or adults with developmental disabilities

only as provide d in s. 435.07.

34. Section 435.04 establishes the level 2 screening

standard and states, in pertinent part:

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

screened pursuant to this section must

undergo security background investigations as

a condition of e mployment 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 o f 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 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 another jurisdiction:

* * *

(cc) Chapter 812, relating to theft,

robbery, and related crimes, if the offense

is a felony.

35. PetitionerÓs criminal history includes a plea of guilty

to a charge of failure to return leased property, a third - degree

felony in violation of section 812.155(3). Accordingly,

PetitionerÓs 2005 criminal offense is a Ðdisqualifying offenseÑ

that 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.

36. Pursuan t to section 435.07(1)(a)1., Petitioner is

eligible to seek an exemption from disqualification Ðfor which

at least 3 years have elapsed since the applicant for the

exemption has completed or been lawfully released from

confinement, supervision, or nonmone tary condition imposed by the

court 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 states th at 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 ex emptions 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 appropri ate 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 from

con finement, supervision, or nonmonetary

condition imposed by the court for the

disqualifying felony[.]

* * *

For the purposes of this subsection, the term

ÐfeloniesÑ means both felonies prohibited

under any of the statutes cited in this

chapter 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 disqualified fro m 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 pe riod 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 contin ued 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 120. The standard of rev iew by the

administrative law judge is whether the

agencyÓs intended action is an abuse of

discretion.

37. In reviewing a request for exemption from

disqualification, the Administrative Law Judge (ÐALJÑ) is charged

with making the factual determination w hether, based on the

evidence adduced in a de novo hearing conducted pursuant to

section 120.57(1), the Petitioner has shown rehabilitation by

clear and convincing evidence. See § 435.07(3)(a), Fla. Stat.

38. Clear and convincing evidence is a heightened standard

that requires more 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

mus t be precise and explicit and the witnesses must be lacking in

confusion as to the facts at 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).

39. If the ALJ finds that Petitioner has met her burden of

proving rehabilitation by clear and convincing evidence, the A LJ

also determines whether the A gency he adÓs intended action to deny

Petitioner'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. S tat.

40. 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. 1980); 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 n ot unreasonable and, thu s, not an abuse of

discretion.

41. In determining the ultimate legal issue of whether the

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

evaluate that question based on the facts determined from the

evidence prese nted at the de novo, chapter 120 hearing. 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 agency's review is

circumscribed by t he standards in section 120.57(1)(l). J.D. v.

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

42. As discussed above, the undersigned determines that

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

convincing evidence, that she is rehabi litated from her 2005

disqualifying offense for failure to return leased property .

Based on her testimony at the final hearing, Petitioner appears

genuine in her attempt to move forward with her life. The

undersigned also acknowledges how PetitionerÓs re peated attempts

to obtain an exemption reveal her desire and passion to help those

in need.

43. However, for evidence of rehabilitation to rise to the

level of clear and convincing, one would expect to see how

Petitioner has taken steps to address and cor rect the behavior

that led to her disqualifying offense. In this case, however,

instead of staying away from the court system, Petitioner has

repeatedly found herself arrested and contesting criminal

allegations. Consequently, Petitioner did not set fort h

sufficient evidence to create in the mind of the undersigned a

firm belief, without hesitancy, that the Agency should allow her

to be employed as a direct service provider.

44. It is further determined, based on the record evidence,

that a Ðreasonable p ersonÑ 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 agency head is to

consider matters such as Ð 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 evidenc e 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 applicant has been

arrested for another crime su bsequent 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.

45. The Agency recognized that Petitioner was not convicted

for the three non - disqualifying offenses following her 2005

felony plea. (The charges were dropped in each case.)

Section 435.07(3)(b), however, specifically authorizes the agency

head to take into account arrests (without convictions) in

deliberating whether an appl icant is rehabilitated. This

provision indicates that the Agency may consider the

circumstances surrounding the arrests in determining whether the

applicant would present a danger if employed in a position of

special trust.

46. The Agency testified that PetitionerÓs repeated

encounters with law enforcement caused it to doubt PetitionerÓs

judgment and general fitness for providing services and support

for Agency clients. The undersigned finds that a Ðreasonable

personÑ could take the AgencyÓs position tha t Petitioner has not

shown sufficient rehabilitation to alleviate the AgencyÓs

concerns for the possible risk she may pose to those vulnerable

individuals the Agency serves .

47. Therefore, the AgencyÓs conclusion that Petitioner has

not achieved sufficien t rehabilitation 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 disqu alification 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 dis qualification from employment.

DONE AND ENTERED this 18 th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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 18 th day of August , 2016 .

ENDNOTE

1/ All s tat utory references are to the 2016 Florida Statutes,

unless otherwise noted .

COPIES FURNISHED:

Jessica Alex

2615 Corsini Lane

Kissimmee, Florida 34746

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33 801

(eServed)

David De Lap az, 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 su bmit 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.