16-003377EXE Dwayne Gaskin vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, September 21, 2016.

Summary: Petitioner failed to prove rehabilitation in light of inconsistent work history, repeated minor infractions, and lack of other evidence of rehabilitation; and ageny denial of request for exemption from disqualification is not an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWAYNE GASKIN,

Petitioner,

vs. Case No. 16 - 3377EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 23, 2016, a vid eo teleconference hearing was held

at locations in West Palm Beach and Tallahassee, Florida, before

F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dwayne Gaskin, pro se

2310 Jo H ayward Drive

Fort Pierce, Florida 34946

For Respondent: Llamilys Maria Bello, Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard, Suite 305

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Petitioner shou ld be exempt from

disqualification from employment in a position of trust, pursuant

to section 435.07, Florida Statutes (2016). 1/

PRELIMINARY STATEMENT

In a letter signed by the director of the Agency for Persons

with Disabilities (Respondent or the Agenc y), dated May 27, 2016,

Mr. Dwayne Gaskin (Petitioner or Mr. Gaskin) was notified that

his request for exemption from disqualification from employment

was denied, based upon the AgencyÓs determination that Mr. Gaskin

had failed to submit clear and convinci ng evidence of his

rehabilitation. On May 31, 2016, Mr. Gaskin requested a formal

hearing. On June 16, 2016, the Agency referred the matter to the

Division of Administrative Hearings for assignment of an

Administrative Law Judge to conduct the final hear ing.

At hearing, Respondent presented the testimony of Petitioner

and that of Mr. Gerry Driscoll, regional operations manager for

the Southeast Region at the Agency. RespondentÓs Exhibits A

through K were received into evidence without objection, with t he

caveat that many contained hearsay. Petitioner testified on his

own behalf and offered no exhibits.

The proceeding was transcribed, but neither party ordered a

copy of the transcript. At the request of Respondent at hearing,

the deadline to file propo sed recommended orders was extended to

September 9, 2016. Respondent timely filed a P roposed

R ecommended O rder, which was considered in the preparation of

this Recommended Order.

FINDING S OF FACT

Based on the evidence presented at hearing, the following

findings of fact are made:

1. The Agency is the state entity which supports vulnerable

persons with various developmental disabilities. The Agency

contracts with direct service providers and is responsible for

regulating the employment of persons serving in positions of trust

with these providers.

2. Vision Builders One, Inc., is a service provider for the

Agency. Mr. Gaskin applied with Vision Builders One, Inc., to

become a caregiver, a position of trust which requires completion

of level 2 background screening.

3. The Department of Children and Families conducts initial

screening on behalf of the Agency. Background screening and

local criminal records revealed a significant history of

involvement with law enforcement for Mr. Gaskin. 2/

4. In respo nse to inquiries concerning possession of

cocaine on December 2, 1988, Mr. Gaskin stated:

I was young, not thinking straight, and

decided to experiment with selling illegal

drugs. I was arrested in a known location

for having three cocaine rocks. I was p laced

on probation.

5. On February 8, 1989, Mr. Gaskin entered a plea of nolo

contendere to possession of a controlled substance, cocaine, a

felony of the third degree.

6. In response to inquiries concerning violation of

probation on May 31, 1990, Mr. Gaskin stated:

I didnÓt want to result back to selling

illegal drugs. I was unable to find

employment; therefore, I didnÓt have money to

pay my probation fees. I violated and was

sentenced to 18 months in prison.

7. In response to inquiries concernin g resisting an officer

without violence on April 9, 1993, Mr. Gaskin stated:

I do not recall this arrest or charge. Once

researched, the clerk was unable to locate

court documents for this charge.

8. In response to inquiries concerning contempt of cour t

regarding child support on November 15, 1993, Mr. Gaskin stated:

I was unemployed and unable to pay the child

support purge.

9. In response to inquiries concerning possession of

cocaine on February 15, 1994, Mr. Gaskin stated:

I was hanging out with a few guys, and one of

them left cocaine in the backseat of my car,

unknowingly to me. This charge against me

was dropped.

10. In response to inquiries concerning cocaine possession

on February 5, 1995, Mr. Gaskin stated:

I was parked in my car and had cocaine in my

possession when the law officers approached

my car. I received one year house arrest

probation, six months weekend jail, and 75

hours of community service work, in addition

to court fines and suspended driver license.

11. On June 19, 1995 , Mr. Gaskin entered a plea of nolo

contendere to possession of a controlled substance, cocaine, a

felony of the third degree.

12. In response to inquiries concerning a domestic battery

on July 20, 2000, Mr. Gaskin stated:

My wife and I were separated. I stayed away

for four weeks and when I returned to our

home, my wife had a male friend in the house.

I was upset and she wouldnÓt let me in our

home, so I knocked the door in to enter.

When entering, she and I exchanged hurtful

words and we struck eac h other. She called

police and I was arrested. Those charges

were downsized to lesser charges. I was

sentenced to one year probation, attend and

complete an anger management class.

13. On January 31, 2001, Mr. Gaskin entered a plea of nolo

contendere to trespass of an occupied dwelling, a misdemeanor of

the first degree and to domestic battery, a misdemeanor of the

first degree.

14. In response to inquiries concerning contempt of court

for violation of a protective injunction regarding domestic

viole nce on September 3, 2000, Mr. Gaskin stated:

My bondsman neglected to notify me of my

court date; therefore, I didnÓt appear on day

of court. When informed of the contempt of

court, I turned myself in, so no arrest

record. The bondsman notified the court of

negligence and the contempt of court charges

were dropped.

15. In response to inquiries concerning failure to appear

on March 1, 2002, Mr. Gaskin stated:

I do not recall this arrest or charge. I

will be following up on researching to

receive clar ification that this was actually

me. Once the research is completed I will

provide a detailed statement.

16. In response to inquiries concerning violation of

probation for trespassing in an occupied dwelling March 1, 2002,

Mr. Gaskin stated:

I was viol ated because my wife made an untrue

statement to the police that I was harassing

her. I called to ask for visitation with my

son and we got into a verbal argument.

17. In response to inquiries concerning driving while

license suspended on July 24, 2010 , Mr. Gaskin stated:

I got a traffic ticket leaving work which

violated my probation. I notified my

probation officer and turned myself in, so

there wasnÓt an arrest. My probation was

re - instated; I then paid it off and completed

it to its entirety.

1 8. S ince September 10, 2002, Mr. Gaskin has been released

from all confinement, supervision, and non - monetary sanctions

imposed for the disqualifying offenses he committed. Since

April 14, 2016, Mr. Gaskin has been released from all monetary

conditions.

19. Mr. Gerry Driscoll is the regional operations manager

for the Southeast Region in the Agency. He has served in his

current position for 3 years and has been employed with the

Agency for 17 years. Mr. Driscoll credibly testified that the

Agency has responsibility for a very vulnerable population, many

of whom are unable to later tell others about the actions of

their caregivers. This population is thus very susceptible to

exploitation. Mr. Driscoll noted that the Agency must consider

any prior inst ance of violence very carefully.

20. While in his written submission to the Agency

Mr. Gaskin stated that he never caused any harm or injury to any

victim, at hearing he admitted that he caused injury to his wife

when he hit her after breaking into th eir home and injury to

others in selling them controlled substances, testimony that is

credited.

21. Mr. Gaskin submitted three character reference letters

to the Agency stating generally that he is hardworking,

intelligent, and committed.

22. Mr. Gask in further stated that he was very remorseful

and admitted he had made poor choices in his life in the past.

He explained that he just wants an opportunity to be a productive

citizen, to work, and to take care of his family.

23. Mr. Gaskin seems sincer e in his desire to care for

vulnerable persons, and asks for a chance to work with them to

demonstrate that he is rehabilitated. However, the statute

requires that rehabilitation be shown first through other work

history and by additional means: only then may an exemption to

disqualification be granted.

24. While Mr. Gaskin stated that he is rehabilitated, he

offered little evidence to clearly demonstrate that. He completed

some courses toward certification as a firefighter in 2004 - 2005,

but has evide ntly not pursued that further. He completed some

courses required as a condition of probation, but has not

participated in other counseling or coursework.

25. Mr. GaskinÓs work history in the past decade, a very

important element in demonstrating reha bilitation, has been very

Ðsketchy,Ñ as Mr. Driscoll testified. Mr. Gaskin indicated that

his last employment ended in July 2014. He was employed by

Manpower Staffing Services doing temporary work for about 14

months in several jobs such as maintenance w orker, demolition

worker, and equipment/maintenance technician. He also worked at

United Parcel Service for a couple of months in 2010.

26. Although Mr. Gaskin has not had steady work in recent

years, he noted that when needed, he assists his father - in - law

with handyman work, his son with his entertainment business, his

cousin with his bail bonds business, and his nephew with his

marketing business. He noted that he also assists at his church.

27. Passage of time is a factor to be considered in

determ ining rehabilitation, and the last disqualifying offense was

many years ago. However, Mr. GaskinÓs history since his

disqualifying offenses continues to reflect minor incidents and

does not contain sufficient positive indications of

rehabilitation.

28. Petitioner failed to prove by clear and convincing

evidence that he is rehabilitated and that he will not present a

danger if he is exempted from his disqualification from employment

in a position of trust.

CONCLUSIONS OF LAW

29. The Division of Admini strative Hearings has jurisdiction

over this case pursuant to sections 120.57(1) and 435.07(3)(c),

Florida Statutes.

30. PetitionerÓs disqualification limits the employment

opportunities that are available to him. He will be unable to

work at Vision Buil ders One, Inc., or with similar providers in a

position of trust, unless an exemption is granted. Petitioner has

demonstrated standing to maintain this proceeding.

31. Level 2 employment screening standards set forth in

section 435.04(2)(ss) provide that a person who has pled nolo

contendere to a felony offense under chapter 893, relating to

drug abuse prevention and control, is disqualified from

employment in a possession of trust.

32. At the time of PetitionerÓs offense of possession of

cocaine on Dece mber 2, 1988, cocaine was listed as a controlled

substance under schedule II in section 893.03(2)(a)4., Florida

Statutes (Supp. 1988). Under section 893.13(1)(f), possession of

a controlled substance was then a third - degree felony.

PetitionerÓs plea of n olo contendere to felony possession of

cocaine disqualifed him from employment in a position of trust.

33. At the time of PetitionerÓs offense on February 5,

1995, cocaine was still listed as a controlled substance in the

same section of the Florida Statu tes. Under section

893.13(6)(a), Florida Statutes (1993), possession of a controlled

substance was a third - degree felony. PetitionerÓs plea of nolo

contendere to felony possession of cocaine disqualifed him from

employment in a position of trust.

34. Le vel 2 employment screening standards set forth in

section 435.04(3) also provide that a person who has entered a

plea of nolo contendere to any offense that constitutes domestic

violence as defined in section 741.28, Florida Statutes, is

disqualified from employment in a position of trust.

35. Under section 741.28, "domestic violence" includes any

battery causing physical injury to one family or household member

by another family or household member. Under this statute,

"family or household member" includ es spouses and persons who

have a child in common.

36. The offense to which Petitioner pled nolo contendere on

January 31, 2001, was a battery that resulted in injury to his

spouse and mother of his child, a household member, and

constituted domestic vio lence.

37. Petitioner's plea of nolo contendere to battery in

violatio n of section 784.03, Florida Statutes (2000),

disqualifies him from employment in a position of trust.

38. Under section 435.07(1), the head of the Agency may

grant an exemption fr om disqualification for offenses for which

the applicant has been released from confinement, supervision, or

nonmonetary condition imposed by the court. An applicant is

eligible for exemption consideration immediately after release

from court sanctions im posed for misdemeanors and three years

after release from sanctions imposed for felonies. Petitioner

meets this requirement with respect to each of his disqualifying

offenses and is eligible for consideration for an exemption.

39. In order to receive a n exemption, the applicant has the

burden of proving that he is rehabilitated. Under section

435.07(3), Petitioner must prove rehabilitation by clear and

convincing evidence.

40. The prohibition from employment in positions of trust of

individuals conv icted of disqualifying offenses is intended to

protect the public welfare, and the statute must be strictly

construed against the person claiming exemption. Heburn v. Dep't

of Child. & Fams. , 772 So. 2d 561, 563 (Fla. 1st DCA 2000) .

41. The clear and convincing standard of proof has been

described by th e Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must 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

lac king 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

42. Under section 435.07(3)(a), evidence of rehabilitation

may include, but is 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 applicant since the

incident, or any other evidence or circumstances indicating that

the employee will no t present a danger if employment or continued

employment is allowed.

43. Section 435.07(3)(c) provides Ð 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 o f

review by the administrative law judge is whether the agencyÓs

intended action is an abuse of discretion.Ñ

44. Although the statutory language prescribes a Ðstandard

of review,Ñ it also provides that the review is of the agency's

ÐintendedÑ action and makes applicable the "hearing procedures set

forth in chapter 120," which call for the issuance of a

recommended order back to the agency head for final agency action.

45. The statute thus combines elements of a de novo

evidentiary hearing with elements o f review of earlier action.

While providing for consideration of new evidence, the statute

requires that some deference be given to the agencyÓs intended

action. The recommended order must contain a legal conclusion as

to whether the agency head's intend ed action to deny the

exemption constitutes an "abuse of discretion.Ñ J.D. v. Fla.

Dep't of Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1st DCA

2013)( ultimate legal issue to be determined by Administrative Law

Judge is whether the agency head's intended a ction was an "abuse

of discretion" based on facts as determined from the evidence

presented at a de novo chapter 120 hearing).

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

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

a bused when the . . . action is arbitrary, fanciful, or

unreasonable, which is another way of saying that discretion is

abused only where no reasonable [person] would take the view

adopted." See also Kareff v. Kareff , 943 So. 2d 890, 893 (Fla.

4th DCA 2006 )(holding that pursuant to the abuse of discretion

standard, the test is whether Ðany reasonable person" would take

the position under review).

47. While Petitioner provided some evidence of

rehabilitation, he failed to prove by clear and convincing

evid ence that he is rehabilitated or that he will not present a

danger if he is exempted from his disqualification from employment

in a position of trust.

48. Under the facts determined here, a reasonable person

could conclude that Petitioner should not be gr anted an exemption

from disqualification. The AgencyÓs determination to deny

Petitioner an exemption from his disqualification does not

constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order denying Mr. Dwayne GaskinÓs

application for exemption from disqualification.

DONE AND ENTERED this 21st day of September , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 21st day of September , 2016 .

ENDNOTE S

1/ All statutory references are to the 2016 Florida Statutes,

except as otherwise indicated. Petitioner's application is

governed by the law in effect at the ti me the final order is

issued. See Ag. for Health Care Admin. v. Mt. Sinai Med. Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997)(agency must apply law in

effect at the time it makes its final decision).

2/ The criminal history in the record shows arrests and

convictions for Dwayne Leonard Wallace, Dwayne Lenard Andr ews, and

Dwayne Leonard Andrews; however, it is uncontroverted that it all

pertains to Mr. Gaskin. Mr. Gaskin admits it is his history.

Information in the record indicates that his name was ch anged to

Gaskin in July 2013.

COPIES FURNISHED:

Llamilys Maria Bello, Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard , Suite 305

Fort Lauderdale, Florida 33301

(eServed)

Dwayne Gaskin

2310 Jo Hayward Drive

Fort Pierce, Florid a 34946

Lori Oakley, Acting 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 s ubmit 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.