16-002429EXE Jamar Hall vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, September 20, 2016.

Summary: Petitioner proved by clear and convincing evidence that he is rehabilitated from the disqualifying offense and that the Agency's intended decision to deny would be an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMAR HALL,

Petitioner,

vs. Case No. 16 - 2429EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

July 19, 2016, via video teleconference with sites in Tallahassee

and Orlando, Florida, before Administrative Law Judge Suzanne Van

Wyk.

APPEARANCES

For Petitioner: Jamar Hall, pro se

142 Heather Oak Circle

Lady Lake, Florida 32159

For Respondent: Andrew Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Agency for Persons with DisabilitiesÓ (AgencyÓs)

intended action to deny PetitionerÓs application for exemption

from disqualification from employment is an abuse of the AgencyÓs

discretion.

PRELIMINARY STATEMENT

By letter dated March 30, 2016, the Agency issued its notice

of agency action by w hich it informed Petitioner that his request

for exemption from disqualification was denied. As a result,

Petitioner was determined to be Ðnot eligible to be employed,

licensed or registered in positions having direct contact with

children or developmenta lly disabled people served in programs

regulated by the Agency.Ñ In the letter, the Agency reported its

determination that Petitioner had Ðnot submitted clear and

convincing evidence of [his] rehabilitation.Ñ

On April 18, 2016, Petitioner filed a Request for

Administrative Hearing with the Agency (Request). In his

Request, Petitioner disputed the AgencyÓs determination that he

had not proven his rehabilitation. On May 2, 2016, the Agency

referred the case to the Division of Administrative Hearings,

whic h scheduled a final hearing for July 19, 2016.

The final hearing commenced as scheduled. Petitioner

testified on his own behalf, and offered the testimony of his

wife, Jasmine Hall ; his daughter, Jasharie Hall ; and his father -

in - law, Pernell Mitchell. P etitionerÓs Composite Exhibit P1 was

admitted in evidence.

Respondent presented the testimony of Michael Sauvé, the

AgencyÓs deputy regional operations manager for the central

region. RespondentÓs Exhibits A through J , M , and N were

admitted in evidence.

A one - volume Transcript of the proceedings was filed on

August 3, 2016. Respondent timely filed a Proposed Recommended

Order. Petitioner filed a letter on August 17, 2016, which is

taken as PetitionerÓs timely - filed proposed recommended order. 1/

Both p artiesÓ post - hearing submissions have been considered in

preparing this Recommended Order.

Ruling on Proffered Exhibit

At final hearing, Petitioner sought to introduce as an

exhibit an incident report, and arresting officer narrative, from

the Leesburg Po lice Department regarding a domestic disturbance

involving Petitioner in November 2008. Petitioner did not

disclose the exhibit to the Agency prior to the hearin g, pursuant

to the Order of Pre hearing Instructions, and did not have the

exhibit available fo r review by the undersigned at the hearing.

The undersigned allowed Petitioner to proffer the exhibit and

provide the undersigned with a copy within five days of the close

of the hearing.

Having reviewed the proffered exhibit, the undersigned

concludes th at the report of an incident which occurred three

years prior to the disqualifying offense is irrelevant and is not

admitted in evidence.

FINDING S OF FACT

Background

1. Petitioner is a 29 - year - old male who lives in

Leesburg, Florida, with his wife, Jasmin e Hall. Petitioner has

four daughters whom he is actively engaged in parenting. 2/

2. Petitioner is employed by a bail bond agency owned by

his father - in - law.

3. Petitioner is pursuing his bachelorÓs degree in

organizational management at Lake Sumter Sta te College and

anticipates graduating Spring 2017.

4. Petitioner is the second oldest of five children raised

by their mother, not knowing their fathers. Petitioner described

his childhood as difficult , being raised without a male role

model and in a rou gh area of town where violent crime was

prevalent .

5. Petitioner explained that he was studious, made good

grades, and worked odd jobs throughout his childhood and young

adulthood to help support the family. Despite his work ethic and

good grades, he did make some poor decisions and fe ll in with the

wrong crowd. Petitioner was exposed to violent acts in his

community. In one incident, Petitioner witnessed his best friend

being shot in the head at a nightclub.

6. Petitioner has overcome many of the hard ships he

encountered in his childhood and desires to improve the future

for himself and his children, provide for his family with a

steady full - time job, and be financially secure, rather than

living paycheck - to - paycheck as his mother did.

The Disqualifyin g Offense

7. On April 24, 2011, foll owing a visitation with his

two children at the time, Petitioner returned the children to

their motherÓs home. The details of the disqualifying offense

are in dispute, but the record supports the following findings.

8. Petitioner and the childrenÓs mother became involved in

a verbal altercation, during which Petitioner threw a can of soda

at her. The record did not clearly establish that the soda can

struck the childrenÓs mother, but did establish that soda was

spla shed on her.

9. After throwing the soda, Petitioner entered his vehicle

with the intention to leave. The childrenÓs mother followed him

and hit the driverÓs side window of PetitionerÓs vehicle, causing

the driverÓs door to close before PetitionerÓs hand was

completely inside the vehicle.

10. This angered Petitioner, who then exited the vehicle.

The victim ran away from Petitioner, who proceeded to the

victimÓs vehicle and kicked the side of her vehicle leaving a

dent in the vehicle. Petitioner then le ft the scene.

11. PetitionerÓs children, who were inside their motherÓs

home, did not witness the incident.

12. According to the police report of the incident, the

victim had no physical marking on her body, but her shirt was wet

at the shoulder consis tent with being hit with a soda can.

13. On May 11, 2011, Petitio ner pled nolo contendere to

one count of domestic battery and one count of criminal mischief

in an amount of $200 or less. Adjudication was withheld and

Petitioner was ordered to serve 12 monthsÓ probation, which terms

required him to make restitution for the property damage, attend

a battererÓs intervention course, maintain no contact with the

victim, and incur no new law violations.

14. Petitioner was granted early termination of probat ion

on November 7, 2011, having complied with all terms of the

probation.

Subsequent Criminal History

15. Petitioner has had no criminal history subsequent to

the disqualifying offense.

16. Petitioner has been cited for a number of traffic

infractions since the incident: three for speeding, one for

running a stop sign, and one for driving without a seatbelt. 3/

Petitioner was also cited for d riving without a license in

May 2014. PetitionerÓs license was in effect, but he failed to

have it on his perso n at the time of the traffic stop.

17. Petitioner has disposed of all his traffic infractions.

Subsequent Employment History

18. Petitioner has been continuously employed since the

disqualifying offense, mostly as a laborer. He has unloaded

trucks and tracked inventory for Target, cleaned the plant and

maintained machines for American Cement Company, and worked as a

day laborer for Labor Ready.

19. Petitioner began working for Angle Truss in June 2015

in truss fabrication. Angle Truss is owned by Pe titionerÓs

father - in - law, Pernell Mitchell.

20. Mr. Mitchell testified on PetitionerÓs behalf.

Mr. Mitchell was, until recently, a law enforcement officer with

the Leesburg Police Department, and served as school resource

officer and D.A.R.E. instructor at PetitionerÓs elementary

school . 4/ Mr. Mitchell has known Petitioner since Petitioner was

in the fifth grade. Mr. Mitchell has chosen to personally mentor

Petitioner, and has had significant interactions with him over

the past seven or more years.

21 . Mr. Mitchell owns a bail bonding agency . As of the

date of the hearing, Petitioner was employed at Mr. MitchellÓs

bail bond agency. Mr. Mitchell finds Petitioner trustworthy

enough to leave him in charge of the agency when Mr. Mitchell is

out of town.

22. Mr. Mitchell also owns Wings of Love, a group home and

Medicaid Waiver provider in Leesburg, Florida. Mr. Mitchell

hosts his group home clients at his personal residence for a

family dinner once each week. Petitioner and his family attend

the dinn ers, along with the clientsÓ families. Petitioner

interacts with the clients during dinner, and often plays

basketball or other games with them following dinner.

Mr. Mitchell describes Petitioner as caring, patient, and

compassionate with the clients. H e has observed that the clients

gravitate toward him because he treats them with respect.

Subsequent Education and Personal History

23. Petitioner has attained significant educational goals

and taken on many new responsibilities since the 2011 incident.

24. In 2012, Petitioner joined Citadel of Hope, a church in

Leesburg. The following year, Petitioner joined the churchÓs

security team, volunteering to guard doorways and patrol the

parking lot during services. In 2014, Petitioner joined the

churchÓs o utreach ministry, which raises funds to support

missionaries abroad and to provide food and toiletries for the

local community in need.

25. Petitioner completed an Ass ociate in Arts degree from

Lake Sumter State College in May 2014, and an Associate in

Science degree (Criminal Justice Technology) from the college in

August 2015. Petitioner continues to pursue his education, and

anticipates completing his BachelorÓs degree in organizational

management in the spring of 2017. Petitioner has continuously

m aintained his employment while in school.

26. James Cason, a librarian at the college, submitted a

character reference letter for PetitionerÓs exemption

application. Mr. Cason became familiar with Petitioner through

PetitionerÓs use of the library during 2014 and 2015. In the

letter, Mr. Cason described Petitioner as determined and having a

positive attitude. Mr. Cason was impressed with PetitionerÓs

character, his dependability, and his ability to manage his

school and work schedules.

27. In 2014, Pe titioner voluntarily took a parenting class.

After pursuing premarital counseling, Petitioner married his

wife, Jasmine Hall, in June 2015. Together, Petitioner and his

wife, along with the birth mother, are raising his four children.

PetitionerÓs Exempt ion Request

28. On his exemption questionnaire, Petitioner described

the events of the disqualifying offense as follows:

On 4/24/11, the mother of my kids and I had a

verbal disagreement as I attempted to return

my children home after my weekend visitati on.

She became irate [and] slammed the car door

on my wrist. At that point, I threw the

remainder of my soda on her. Although it was

wrong at the time I thought it was better

than physically retaliating and striking her.

I also put a small dent in her vehicle before

I left. I was subsequently arrested 15

minutes later.

29. Petitioner indicated that there were no stressors in

his life at the time of the incident, but that he Ðwas just a

little upset about having [his] wrist shut in [his] car door.Ñ

3 0. Michael Sauvé is the A gencyÓs d eputy r egional

o perations m anager for the central region. Mr. Sauvé reviewed

PetitionerÓs exemption request and made the recommendation to the

director to deny the request.

31. According to Mr. Sauvé, he recommended de nial of

PetitionerÓs exemption request because, in his application,

Petitioner was not forthcoming with the details of the offense,

minimized the offense, shifted blame to the victim, and did not

genuinely express remorse. Further, due to the number of mo ving

violations for which Petitioner has been cited since the

disqualifying offense, Mr. Sauv doubts PetitionerÓs ability to

safely transport clients.

32. Mr. Sauv questioned the veracity of PetitionerÓs

account of the disqualifying offense, particular ly with

PetitionerÓs claim that he sustained an injury to his wrist

during the altercation. He speculated that Petitioner fabricated

the injury Ðafter the factÑ to justify his a ctions on the day in

question.

33. In support of this opinion, Mr. Sauvé twic e pointed to

the fact that the police report contains no documentation of

PetitionerÓs injury. He testified that Ð[i]f there was something

in the police report that talked about the wrist, if there was

something in any of the other documents that we saw t hat

mentioned this injury to his wrist, I w ould feel a lot

differently than I do today.Ñ 5 /

34. Petitioner testified that he did report his injury to

the arresting officer, who did not include it in the report.

35. Petitioner also credibly described, in some detail, how

the injury to his wrist occurred during the altercation with the

victim.

36. The evidence does not support a finding that Petitioner

fabricated the injury.

37. Next, in Mr. SauvÓs opinion, PetitionerÓs response

that he Ðput a small d ent in her vehicleÑ was an attempt to

minimize the damage he caused to the victimÓs vehicle. Mr. Sauvé

explained, ÐThe criminal recor ds show that it -- the criminal

mischief charge was $500 in property damage. I donÓt know very

much about cars, but that se ems like it might be more than a

small dent.Ñ

38. While the arresting officer estimated the damage to the

vehicle at $500, Petitioner was actually charged with criminal

mischief in the am ount of $200 or less. No automobile repair

expert is needed to est ablish that a small dent may very well

cost at least $200 to repair.

39. Mr. SauvÓs conclusion , that PetitionerÓs response was

an attempt to minimize the damage , is inconsistent with

PetitionerÓs response to question four, in which he acknowledged

causi ng approximately $500 in property damage to the victimÓs

car. It is illogical to conclude that Petitioner was attempting

to minimize damage to the vehicle in his answer to question one,

when three questions later, Petitioner disclosed the exact amount

of vehicle damage reported on the arrest affidavit.

40. Mr. Sauv was particularly troubled by PetitionerÓs

answer to question number four, which require d the applicant to

explain the Ð[d]egree of harm to victim or property (permanent or

temporary), damage o r injuries[.]Ñ In response to that question,

Petitioner wrote, ÐThere was no harm to the victim. There was

approximately $500 worth of property damage to the victims [sic]

car that I made restitution for.Ñ

41. Mr. Sauv questioned PetitionerÓs conclusi on that there

was no harm to the victim. He explained, as follows:

If I give him the benefit of the doubt by his

statements and I go back to his account

thatÓs set f orth on page 27, question 1, it --

it doesnÓt sound to me like there w as no harm

that the [m other of his children]

encountered. She -- he took a soda and threw

it at her. When you throw something at

someone and physically injure them, whether

or not itÓs something that just leaves a

bruise or anything, thatÓs scary. 6 /

42. Apparently, Mr. Sauvé would have liked Petitioner to

state, in answer to this question, that Petitioner scared the

victim. The victim may have indeed been fearful, but the

question does not ask the applicant to speculate as to the

victimÓs state of mind at the time of the inc ident. The question

is phrased to elicit factual information from the applicant.

PetitionerÓs statement that the victim suffered no physical harm

is both factual and supported by the police officerÓs observation

at the scene that the victim had no physic al markings on her. 7 /

43. Mr. SauvÓs recommendation to deny the exemption

request was further influenced by his belief that the children

witnessed the altercation between their parents. He testified as

follows:

ItÓs especially scary when the children t hat

he just finished his visitation with were

potentially within earshot. The statements

in the police report indicate that the

ch ildren were -- they had just went [sic]

inside th e house. So if theyÓre outside -- in

my mind, was trying to envision the

circum stances. And in my mind, I saw them

outside, the children inside. I donÓt know

if they heard . I donÓt know what happened. 8 /

44. The only evidence on this issue is the arresting

officerÓs statement , as advised by the childrenÓs mother , that

the childr en went inside the house be fore the altercation took

place . There is no evidence to support a finding that the

children either witnessed or overheard the altercation between

their parents. Mr. SauvÓs speculation, or his Ðenvision[ing of]

the circumstanc es,Ñ is irrelevant. The factual circumstances

surrounding the incident are relevant, not what Mr. Sauvé saw in

his mind.

45. Finally, in Mr. SauvÓs opinion, PetitionerÓs answers

on the questionnaire do not express remorse for the disqualifying

offense.

46. In particular, Mr. Sauvé pointed to the following two

statements made by Petitio ner on the questionnaire:

(1) ÐAlthough it was wrong at the time I thought it was better

than physically retaliating and striking herÑ; and (2) ÐI regret

that I reacted during the situation as opposed to calling the

police and filing a report for the physical pain that I endured.Ñ

47. In Mr. SauvÓs opinion, the first statement was

Ðpeculiar and off puttingÑ and he was concerned that five years

after the in cident, Peti tioner would remark (in Mr. SauvÓs

words), Ðwell, I didnÓt hit her.Ñ

48 . On the one hand, PetitionerÓs statement does appear to

minimize the offense. However, it cannot be overlooked that, on

the continuum of battery offenses, throwing soda at a person

(with a force such that it leaves absolutely no physical mark) is

on the lower, or minimal, end of the scale.

49 . On the other hand, the first statement documents

PetitionerÓs awareness that he had other choices available to him

during the incident, and t hat, even during the heat of the

moment, Petitioner exercised some degree of restraint. Throwing

the soda was indeed a better choice than hitting the mother of

his children.

50 . The second statement is indeed concerning. It is

flippant and may be int erpreted to shift blame to the victim. It

is understandable how Mr. Sauvé could have been persuaded, based

solely on these two statements , that Petitioner was not sincerely

remorseful for his offense. Fortunately, the undersigned had an

advantage not aff orded the Agency -- live testimony from the

Petitioner in connection with his application.

Final Hearing

51 . At the final hearing, Petitioner exhibited none of the

flippant attitude that might be gleaned from the two statements

discussed above. Petitioner took responsibility for his actions

and admitted that he knew it was wrong to throw the soda on the

victim. In fact, Petitioner testified that he never should have

let the incident escalate and he should have avoided reacting at

all.

52 . Petitioner pre sented as a soft - spoken, intelligent, and

earnest individual, whose concern for both his family and the

developmentally - disabled community was profound and genuine. His

testimony underlined his motivation to improve his circumstances,

attain meaningful em ployment, and provide a better quality of

life for his family.

53 . Petitioner was justifiably proud of the educational

achievements he has attained since the offense. His dedication

to school was equaled by his dedication to the church and the

ministrie s with which he has chosen to volunteer.

54 . While the Agency did consider a character reference

letter from Mr. Mitchell, which was included in PetitionerÓs

application, the Agency did not have the benefit of

Mr. MitchellÓs live testimony. The letter d id not cover the

extent of the relationship between Mr. Mitchell and the

Petitioner, nor Mr. MitchellÓs dedication to mentoring Petitioner

over the last several years.

55 . Mr. MitchellÓs testimony was both credible and

compelling. He exhibited a deep un derstanding of the negative

social circumstances Petitioner has overcome, and wisdom

regarding the excellent role model Petitioner could serve for

young black men and boys. The fact that Mr. Mitchell has been,

since June 2015, PetitionerÓs father - in - law , does not diminish

the credibility of his testimony. To the contrary, the fact that

Petitioner has so recently married into Mr. MitchellÓs family is

strong evidence of the trust and confidence that has been earned

by Petitioner. Moreover, Mr. Mitchell is PetitionerÓs current

employer, a fact not evident from his character reference letter.

As an employer, Mr. Mitchell has been in a position to observe

PetitionerÓs ability to cope with stressful situations in a

business setting.

56 . Mr. MitchellÓs accoun t of PetitionerÓs interaction with

current clients at Wings of Love was also unavailable to the

Agency during formulation of its intended decision to deny. This

testimony was compelling as it underscores PetitionerÓs

compassion toward persons with develop mental disabilities, and

his demonstrated ability to deal with them respectfully.

57 . In addition, Petition er introduced in evidence

three letters of reference which were not included with h is

application.

58 . The most significant of the letters was subm itted by

Tanya Harris - Rocker. Ms. Harris - Rocker was one of PetitionerÓs

college instructors with whom he remains in contact. She

described Petitioner as bot h diligent and personable.

Ms. Harris - Rocker observed that Petitioner meets deadlines,

submits qu ality work, and puts in many hours toward his studies.

She highlighted Petitioner as an independent thinker and praised

him for his ability to separate himself from his peers who have

chosen less productive paths. Ms. Harris - Rocker attested to

Petitioner Ós goals of attaining educational achievements and

providing an exemplary role model for his children.

59 . Despite the isolated incident occurring more than five

years ago, Petitioner has a cordial relationship with the mother

of his children and they wor k cooperatively to raise their

children in a positive environment. Petitioner is determined to

give his children the stability and support of two loving,

devoted parents, an advantage he was denied.

60 . The record is devoid of evidence that Petitioner wo uld

pose a threat to residents of a group home for the

developmentally disabled.

CONCLUSIONS OF LAW

61 . The Division of Administrative Hearings has

jurisdiction over the subject matter of the proceeding, and the

parties thereto, pursuant to sections 120.5 69 and 120.57(1),

Florida Statutes (2015). 9 /

62 . Section 435.04, Florida Statutes, provides, in

pertinent part, that:

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

screened pursuant to this section must

undergo security background investigations as

a cond ition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federa l Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(3) The security background investigations

under this section must ensure that no person

subject to this section has been found guilty

of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense that constitutes domestic violence as

defined in s. 741.28, whether such act was

committed in this state or in another

jurisdiction.

63 . The Agency bas ed its disqualification of Petitioner on

his 2011 nolo contendere plea to battery.

64 . Pursuant to section 741.28(2), Florida Statutes,

PetitionerÓs battery offense constituted Ðdomestic violence.Ñ

65 . Section 435.07 establishes a process by which perso ns

with criminal offenses in their backgrounds, that would

disqualify them from acting in a position of special trust

working with children or vulnerable adults, may seek an exemption

from disqualification. That section provides:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqualification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter, regardless of whether tho se

disqualifying offenses are listed in this

chapter or other laws.

(1)(a) The head of the appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervision, or sanction for the

disqualifying felony;

* * *

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

grant an exemption to any employee, t he

employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth clear and convincing

evidence of rehabilitation, including, but

not limited to, the circumstances surrounding

the criminal incident for which an exemption

is sought, the time period that has elapsed

since the incident, the nature of the harm

caused to the victim, and the history of the

employee since the incident, or any other

evidence or circumstances indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

* * *

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedur es set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended decision is an abuse of

discretion.

66 . An exemption from a statute enacted to protect the

public welfare is strictly construed agains t the person claiming

the exemption. See Heburn v. Dep't of Child. & Fams. , 772 So. 2d

561 (Fla. 1st DCA 2000).

67 . The abuse of discretion standard of review set forth in

section 435.07(3)(c) has been described as follows:

If reasonable men could dif fer as to the

propriety of the action taken by the trial

court, then the action is not unreasonable

and there can be no finding of an abuse of

discretion. The discretionary ruling of the

trial judge should be disturbed only when his

decision fails to sati sfy this test of

reasonableness.

* * *

The discretionary power that is exercised by

a trial judge is not, however, without

limitation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

o f the judge nor in an inconsistent manner.

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980); Kareff

v. Kareff , 943 So. 2d 890, 893 (Fla. 4th DCA 2006) (holding that,

pursuant to the abuse of di scretion standard, the test is

Ð whether any reasonabl e person Ñ could take the position under

review).

68 . The statutorily - enumerated factors to be considered by

the Agency in evaluating an exemption application are the

circumstances surrounding the incident, the time period that has

elapsed since the incid ent, the nature of the harm caused to the

victim, and the history of the employee since the incident, or

Ð any other evidence or circumstances indicating that the employee

will not present a danger if employment or continued employment

is allowed. Ñ £ 435.0 7(3)(a), Fla. Stat.

69 . The circumstances surrounding the incident in question

include an emotionally - charged situation between two parents,

whose personal relationship had deteriorated, but who were

nevertheless forced to interact due to shared parenting .

Jealousy and anger were at play, and the outcome was fairly

typical -- harsh words were exchanged and both parties reacted with

some degree of violence. The evidence established that the

incident was a singular, isolated event. The evidence does not

sup port a finding that a similar circumstance would arise in the

group home environment, triggering the type of emotions that

surfaced during the incident. However, assuming those emotions

were stirred in Petitioner, he has demonstrated that he has the

self - control to react without violence .

70 . Other relevant circumstances include that the incident

was brief and the children were not witnesses. Moreover, the

nature of the harm to the victim was minor, the police report

noting that the victim Ðdid not have any physical markings on

her.Ñ

71 . In considering the factor of time, the Agency took the

position that not enough time had passed since the incident for

Petitioner to have demonstrated rehabilitation. On the contrary,

five years is significant in the ca se at hand. The passing of

five years in a personÓs 20s can bring about significant changes

and maturity. Petitioner has grown from a young, single man

of 24 , trudging throug h low - paying labor - related jobs, to a

married man of 29 with more responsible em ployment, dedicated to

the pursuit of his education and the betterment of his family.

72 . As to the last factor, Petitioner has a marked

personal, professional, and educational history since the

incident. Petitioner has been employed in a professional

bu siness, and entrusted, at times, with management of that

business. Petitioner has engaged with the substantial support

system of a church, actively participating in the ministries

thereof and volunteering his time to serve both his immediate

community and communities abroad. Petitioner has also embarked

on one of the most serious adult relationships by committing to

marriage. He is matched by his wife in dedication to raising his

children in a loving and stable environment. Finally,

PetitionerÓs educati onal achievements evidence his pursuit to

improve his life and the life of his family.

73 . Petitioner proved his rehabilitation, clearly and

convincingly, with substantial evidence that was not before the

Agency when formulating its intended action to den y PetitionerÓs

request.

74 . Having determined that Petitioner carried his burden to

establish rehabilitation, the inquiry turns to whether the

AgencyÓs intended action to deny PetitionerÓs request for

exemption constitutes an abuse of discretion. In J.D. v.

Department of Children and Families , 114 So. 3d 1127, 1132

(Fla. 1st DCA 2013), the First District Court of Appeal

established that:

[A] lthough the ultimate legal issue to be

determined by the ALJ in a proceeding under

section 435.07(3)(c) is whether t he agency

head's intended action was an Ðabuse of

discretion,Ñ the ALJ is to evaluate that

question based on the facts determined from

the evidence presented at a de novo chapter

120 hearing.

75 . Based on Mr. SauvÓs testimony at the final hearing,

the AgencyÓs intended action to deny PetitionerÓs application

appears to have been based on speculation about the circumstances

surrounding the incident and his opinion that Petitioner was

untruthful in his responses on the questionnaire. As discussed

in the Findings of Fact, Mr. SauvÓs speculation was irrelevant,

and his opinion as to PetitionerÓs veracity unfounded. Given the

facts determined at the hearing, it is unreasonable to conclude

that Petitioner would pose a threat to developmentally - di sabled

adu lts or children in a group home setting.

76 . While it may not have been an abuse of discretion for

the Agency to deny PetitionerÓs request based solely on the

information submitted with his exemption application, the clear

and convincing evidence adduced at the final hearing leads the

undersigned to conclude that Petitioner does not currently

present a danger to vulnerable clients of the Agency if employed

as a direct care service provider for de velopmentally - disabled

persons. In light thereof, it would c onstitute an abuse of

discretion for the Agency to deny his request for an exemption

from disqualification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order by the Agency for

Persons with D isabilities be entered granting PetitionerÓs

request for an exemption from disqualification.

DONE AND ENTERED this 20th day of September , 2016 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Ju dge

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 20th day of September , 2016 .

ENDNOTE S

1/ The Agency filed no objection to the timeliness of

PetitionerÓs post - hearing submittal.

2/ The record does not clearly establish which, if any, of the

children reside with Petitioner and his wife.

3/ The Comprehensiv e Case Information System report regarding

Petitioner includes another traffic infraction noted as

ÐDatashare Traffic InfractionÑ but does not list either the

number or title of the statute violated. The evidence is

insufficient to find that P etitioner ha s had more than

six traffic infractions since the disqualifying event.

4/ Mr. Mitchell has subsequently retired from the Leesburg

Police Department.

5 / T38:10 - 13.

6 / T40:18 - 25.

7 / It is important to note that physical injury is not a

required eleme nt of the crime of battery . See § 784.03(1) ,

Fla. Stat. (B attery o ccurs when a person either Ð [a] ctually and

intentionally touches or strikes another perso n against the will

of the other;Ñ or Ð [i] ntentionally causes bodily harm to another

person.Ñ ) Ther efore, the Agency cannot infer from PetitionerÓs

nolo plea that the victim actually suffered bodily injury.

8 / T41:1 - 8.

9 / All references herein to the Florida Statutes are to the 2015

version.

COPIES FURNISHED:

Jamar Hall

142 Heather Oaks Circle

La dy Lake, Florida 32159

Andrew Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Lori Oakley, Acting Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabili ties

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 Re commended Order should be filed with the agency that

will issue the Final Order in this case.