16-003378EXE Shimika King vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, October 12, 2016.

Summary: Petitioner did not prove by clear and convincing evidence that she is rehabilitated from disqualifying offenses involving child abuse and neglect. Respondent's denial of Petitioner's request for exemption is not an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIMIKA KING ,

Petitioner ,

vs.

Case No. 16 - 3378EXE

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, Adm inistrative Law Judge Yolonda Green

of the Division of Administrative Hearings (Ðthe Division Ñ) held

a final hearing in this case on August 19, 2016, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Shi mika King, pro se

3009 Grove Street

Tallahassee, Fl orida 32301

For Respondent: Tracie Hardin, Esq uire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE S

The issues in this case are whethe r Petitioner has

demonstrated by clear and convincing evidence that she is

rehabilitated from disqualifying offenses , and whether

RespondentÓs intended agency action to deny her request for an

exemption from disqualification is an abuse of discretion.

PREL IMINARY STATEMENT

In a letter dated May 27, 2016, the Agency for Persons with

Disabilities (ÐRespondentÑ or ÐAPDÑ ) notified Petitioner,

Shimika King (ÐPetitionerÑ or ÐMs. KingÑ ) , that her request for

an exemption from disqualification from employment in a position

of trust was denied. As a result of the agency action,

Petitioner was determin ed to be not eligible to be employed,

licensed , or registered in positions having direct contact with

children or developmentally disabled people served in programs

reg ulated by the APD . The basis for the denial of exemption was

that P etitioner had not submitted clear and convincing evidence

of rehabilitation from past disqualifying criminal offenses. In

response to the denial, Petitioner timely requested a final

admin istrative hearing . On June 16, 2016, Respondent referred

this case to the Division for a final hearing.

On June 22, 2016, a Notice of Hearing scheduling the final

hearing for August 10, 2016 , was issued. On July 7, 2016,

Respondent filed an unopposed m otion for continuance. The

motion was granted and the final hearing was rescheduled for

August 19, 2016. On July 26, 2016, the parties filed their

Joint Prehearing Statement. The stipulated facts have been

incorporated in this Recommended Order.

On Aug ust 2, 2016, this matter was transferred from

Administrative Law Judge Gary Early to the undersigned. O n

August 19, 2016, t he hearing proceeded as scheduled , with both

parties present. At the hearing, Respondent presented testimony

of Lynn e Da w, Responde ntÓs regional operations m anager of the

Northwest region . RespondentÓs Exhibits 1 through 5 were

admitted into evidence and the undersigned took official

recognition of Exhibits 6 and 7. Petitioner testified on her

own behalf but presented no evidence.

Respondent ordered a t ranscr ipt of the final hearing. The

one Î volume T ranscript was filed with the Division on

September 1 2, 2016. Respondent timely filed a Proposed

Recommended Order and Petitioner timely file d a post - hearing

s tatement. Both post - hea ring submittals have been considered in

preparation of this Recommended Order.

Unless otherwise indicated, all statutory references are to

Florida Statutes (2016 ) . 1/

FINDING S OF FACT

Parties

1. Respondent is the state agency responsible for

regulating employment of persons who provide direct service to

APD clients. APD clients a re a vulnerable population of

individuals whose developmental disabilities in clude

intellectual disability, autism, spina bifida, cerebral palsy,

Prader - Willi s yndrome , and Dow n s y ndrome. RespondentÓs clients

are often incapable of adequate ly communicating their needs or

whether they have been ha rmed. Therefore, employment as a

direct service provider to RespondentÓs clients is considered a

position of trust.

2. A person see king employment in a position of trust must

undergo a pre - employment Level 2 background screening to ensure

the person has not been convicted of crimes that may pose a

threat to vulnerable persons.

3. Petitioner is a 35 - year - old female who seeks to qual ify

for employment with a direct service provider (Right Direction

Christian Center, Inc.) in a position of trust. The position

for which she applied required that she undergo Level 2

background screening.

4. Th e Level 2 background screening revealed t hat

Petitioner committed five disqualifying offenses between July 1,

2004 , and August 4, 2005 , which were described as follows :

a. Count I: Aggravated Child Abuse with a

Deadly Weapon (first degree felony);

b. Count II: Aggravated Ch ild Abuse by

Gre at Bodily Harm (first degree felony);

c. Count III: Child Neglect (third degree

felony);

d. Count IV: Child Neglect (third degree

felony); and

e. Count V: Chil d Neglect (third degree

felony) .

Disqualifying Offenses

5. The events leading to the disqualifying offenses

occurred 11 ye ars ago, when Petitioner was 24 years old. She

had two biological children , a son (age 6) and a daughter

(age 3), at the time of the events . Each of the disqualifying

events involved PetitionerÓs children.

6. On A ugust 4, 2005, the paternal aunt of PetitionerÓs

son o bserved injuries to the son Ós foot and contacted the Leon

County SherriffÓs Office to report suspected child abuse. The

responding officer recorded his observations in a police

report. 2/ PetitionerÓs son indicated that Petitioner struck him

with a metal mop handle on his feet, legs , and arms as

punishment. The deputy observed a three - quarters inch ,

circular - shaped laceration , with two smaller lacerations beside

it on the inside of the sonÓs left heel.

7. On August 16, 2005, a d etective continued the

investigation. During an interview with the detective,

PetitionerÓs son indicated that Petitioner struck him with a

hange r causing ÐmarksÑ on his back, which the detective

photographed. The detective observed the Ðmarks.Ñ PetitionerÓs

son also complained of a toothache. He indicated Petitioner

placed a heated hairpin in his tooth to resolve the tooth decay .

The d etective noted in his report that the tooth appeared to be

decayed to the root. Petiti oner also left her son and daughter

at home without supervision , while Petitioner was at work. At

the conclusion of the investigation, Petitioner was arrested and

charged with child abuse and neglect.

8. On October 26, 2005, Petitioner ent ered a plea o f nolo

contendere to all five disqualifying offenses described above .

The court withheld adjudication of guilt , sentenced Petitioner

to imprisonment of 70 days (with 62 days credited for time

served) , imposed 42 months of probation with special conditions

that she: 1) follow orders of the Depar tment of Children and

Families; 2) complete parenting and anger management classes

within one year ; and 3) pay court costs and fees .

9. Petitioner completed all terms and was released from

probation on July 30, 200 9. O n May 10, 2016 , Petitioner paid

the c ivil judgment related to costs and fees imposed for her

2005 offenses and t he court issued a Satisfaction of Judgment.

Non - Disqualifying Offense

10. In addition to disqualifying offenses, agencies may

als o consid er criminal events that occur after the disqualifying

offense. The background screening revealed one non -

disqualifying offense. On June 13, 2006, Petitioner was charged

with Violation of Probation ( Ð VOP Ñ ) for driving without a valid

driverÓs l icense. A s a result of the VOP charge , on

November 16, 2006 , the court issued an O rd er modifying the

probation. T he O rder of modification added 30 days in jail with

c redit for time served and prohibited Petitioner from early

termination of probation.

Exemption R equest /Agency Review

11 . By letter, Respondent notified Petitioner that she was

di squalified from employment because of her criminal offenses .

She request ed an exemption from disqualification.

1 2 . Petitioner filed her Request for Exemption with the

Depa rtment of Children and Families (ÐDCFÑ). DCF conduct s the

background screening and prepares an exemption investigation

file on RespondentÓs behalf . A DCF background screener compiled

the investigation materials and forwarded the exemption review

file to Respondent .

13 . PetitionerÓs file was assigned to Lynne Daw for a

recommendation regarding the exemption request. Ms. Daw is the

regional operations m anager for the Northwest region. She has

been employed in that position since April 2012. Her job

res ponsibilities include overseeing operations of the region,

background screening , and eligibility for direct service

providers .

14 . Ms. Daw reviewed Peti tionerÓs exemption request file,

which included the exemption review summary, court documents,

police reports and supporting affidavits, Petitioner Ós exemption

questionnaire, notice of termination of probation supervision,

affidavit of good moral character, character reference letters,

reference check verification form, high school diploma from

Cornerston e Christian Correspondence School , and certificate of

c ompletion for a parenting class.

15 . Respondent considers the nature of the disqualifying

offenses when evaluating a request for exemption. At hearing,

Ms. Daw testified that the nature of the disqua lifying criminal

charges were concern ing due to the vulnerability of the clients

Respondent serves. In her review, Ms. Daw relied upon

statements contained in the police report made by a physician

who examined PetitionerÓs son. Those statements are hears ay

within hearsay. Because the statements do not meet any hearsay

exception, they cannot be considered for a finding of fact.

16 . Respondent also considers the history of an applicant

since the incident and other evidence or circumstances

indicating whet her the applicant would present a danger to

RespondentÓs clients if employment is permitted.

17 . Respondent considers counseling a factor, when the

nature of the offense involves acts of anger. Ms. Daw testified

that there was no evidence in the exemptio n packet to show

Petitioner completed an anger management course. During the

hearing, however, Petitioner refuted this contention and stated

she completed an anger management course. The evidence in the

record includes a notice of termination of supervis ion fro m

PetitionerÓs probation officer . Completion of an anger

management course was a term of PetitionerÓs probation.

Therefore, a reasonable inference could be drawn that she

completed the anger management course.

18 . Ms. Daw also exp ressed concern f or safety of

RespondentÓs clients who could be transported by Petitioner. Of

note, PetitionerÓs background screening revealed several traffic

violations. However, none of the violations involved injuries

to passengers or others.

19 . Subsequent to the d isqualifying offenses, Petitioner

has further ed her education by earning a general education

diploma (also known as GED) on December 1, 2011 , and a certified

nursing assistance (CNA) certification on November 16, 2015.

She is not eligible to take the cert ification exam due to the

Level 2 screening results.

20 . Petitioner also maintained e mployment after her

convictions until June 4, 2015. From April 3, 2006 , to June 4,

2015, Petitioner worked at Big Lots as a recovery associate .

From April 8, 2012 , to May 6, 2014, Petitioner worked at Vector

Connect (Cutco) as a sales representative. Sh e described her

duties as selling cutlery.

21 . Petitioner provided favorable reference letters in

support of her request for exemption. The first letter

described Pe titioner as patient, dependable , and trustworthy.

The author indicated that Petitioner served as the primary

caregiver for her physically disabled mother. It is not clear ,

however, the length of time Petitioner provided the care to the

authorÓs mother or whether Petitioner was paid for her work.

The second letter indicated Petitioner is kind and professional.

The author of that letter is described as a friend. Overall,

the letters indicated Petitioner may be a good employee but were

not helpful on the issue of rehabilitation.

22 . Ms. Daw concluded that , considering the totality of

the circumstances, there was no clear and convincing evidence

that Petitioner could work in a position of trust without posing

a safety risk to RespondentÓs clients. As a result, Ms. Daw

recommended the request for exemption be denied and submitted

the exemption file to the agency director , Barbara Palmer, for

final determination. The agency director issued the n otice of

denial on May 27, 2016, notifying Petitioner of Resp ondentÓs

determination to deny her request for exemption.

23 . Given the nature of harm due to physical abuse and the

potential of harm due to neglect, PetitionerÓs actions raise

concern about her ability to work with vulnerable persons .

Absent compellin g evidence that such serious behavior will not

be repeated, Petitioner has not met her burden .

Ultimate F indings of F act

24 . The evidence in this case d id not clearly and

convincingly establish that Petitioner has been rehabilitated

from her disqualifyin g offenses. Despite PetitionerÓs

statements that she accepts full responsibility for her a ctions,

she continue s to shift blame to her sonÓs aunt for her arrest

and continues to deny that she left her young children at home

alone.

25 . To her credit, Pet itioner has taken steps to improve

her life by earning a GED and CNA certificate and by

volunteering with the elderly in the community. However, such

evidence is not sufficient clear and convincing evidence of

rehabilitation .

26 . Respondent did not abuse its discretion in denying

PetitionerÓs request for exemption from the disqualifying

offenses because, on these facts, a reasonable person would

reach the same conclusion.

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction over the subject matter of the proceeding and the

parties thereto p ursuant to sections 120.569, 120.57(1) , and

435.07(1)(c), Florida Statu t es .

28 . Section 435.04 provides, in pertinent part, that:

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

scre ened 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 statewide

criminal history records checks through the

Departm ent 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

und er 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.

29 . Petitioner was disqualified from employment base d on

five disqualifying offenses involving child abuse and child

neglect, each of which is a felony .

3 0 . The statutory provision that addresses exemptions from

di squalification, section 435.07, underwent modifications that

took effect on July 1, 2016 . It now 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 require d under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

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

may grant to any employee o therwise

disqualified from employm ent an exemption

from disqualificat ion 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

nonmonetary condition imposed by the court

for the disqualifying felony

* * *

(1)(b) A person applying for an exemption

who was ordered to pay any amount for any

fee, fine, fund, lien, civil judgment,

application, costs of prosecution, trust, or

restitution as part of the judgment and

sentence for any disqualifying felony or

misdemeanor must pay the court - ordered

amount in full before he or she is eligible

for the exemption.

* * *

(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 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 inciden t 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 wi ll not

present a danger if employment or continued

employment is allowed.

(b) The agency may consider as part of its

deliberations of the employeeÓs

rehabilitation the fact that the employee

has, subsequent to the conviction for the

disqualifying offens e 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 procedur es set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended action is an abuse of

discretion.

* * *

( 4 ) (c) Disqualification from employment

under this chapter may not be removed from,

and an exemption may not be granted to, any

current or prospective child care personnel,

as defined in s. 402.302 (3), and such a

person is disqualified from employment as

child care personnel, regardless of any

previous exemptions from disqualification,

if the person has been registered a s a sex

offender as described in 42 U.S.C. s.

9858f(c)(1)(C) or has been arrested for and

is awaiting final disposition of, has been

convicted or found guilty of, or entered a

plea of guilty or nolo contendere to,

regardless of adjudication, or has been

ad judicated delinquent and the record has

not been sealed or expunged for, any offense

prohibited under any of the following

provisions of state law or a similar law of

another jurisdiction:

1. A felony offense prohibited under any of

the following statute s:

* * *

p. Section 827.03 , relating to child abuse,

aggravated child abuse, or neglect of a

child.

31 . Under 435.07, Petitioner meets the eligibility

r equirements for exemption from her disqualifying offenses. 3/

Petitioner completed h er probation on July 30, 2009, seven years

ago. She also satisfied the civil judgment for fees and costs

on May 11, 2016.

32 . In order to be granted the exemption, Petitioner must

demonstrate by clear and convincing evidence that she is

rehabilitated from her disquali fying offenses. J.D. v. DepÓt of

Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1 st DCA 2013)(ÐThe

ultimate issue of fact to be determined in a proceeding under

section 435.07 is whether the applicant has demonstrated

rehabilitation by clear and convincing e vidence.Ñ).

33 . Prohibiting persons convicted of disqualifying

offenses from employment in positions of trust is intended to

protect the public welfare, and section 435.07 is strictly

construed against the person seeking an exemption. Heburn v.

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

2000).

34 . The clear and convincing standard of proof has been

described by the Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence must be found to be cred ible; the

facts to which the witn esses testify must be

distinctly remembered; the testimony must be

precise and explicit a nd the witnesses must

be lacking in confusi on as to the facts in

issue. The evidence m ust be of such weight

that it produces in the mind of the trier of

fact a firm belief o r conviction, without

hesitancy, as to the tru th 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)); see also

In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

35 . Should Petitioner demonstrate rehabilitation, then it

must be determined whether the agency abused its discretion when

it initially determined it would deny the exemption. Id. The

abuse of discretion stand ard of review set forth in section

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

If reasonable men c ould differ as to the

propriety of the acti on taken by the trial

court, then the action is not unreasonable

and there can be no f inding of an abuse of

discret ion. The discre tionary ruling of the

trial judge should be di sturbed only when

his decision fails to satisfy this test of

reasonableness .

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 discretion standard, the

test is Ðwhether any reasonable personÑ could take the position

under review).

36 . In determining whether the AgencyÓs intended action is

an abuse of discretion, the First District Co urt of Appeal has

held that:

A lthough the ultimate legal issue to be

determined by the ALJ in a proceeding under

section 435.07(3)(c) is whether the 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.

J.D. v. Dep't of Child. & Fams. , 114 So. 3d at 1132 .

37 . The circumstances of the disqualifying events raise

concern that Petitioner would pose a risk of harm as a dire ct

service provider to RespondentÓs clients . The harm to

PetitionerÓs son was significant in that she struck him with a

metal mop handle and hanger, which resulted in visible injury to

the child. In addition, leaving her children unattended while

she was at work is equally concerning.

38 . Petitioner provided evidence to Respondent that she

has improved her education, maintained continuous employment ,

and volunteered with the elderly. She also indicated that she

accepts full responsibility for the incide nts . However, given

the serious nature of the offenses , the evidence is not clear

and convincing that she has been rehabilitated.

39 . A reasonable person could conclude that Petitioner

should not be granted an e xemption from disqualification. Thus,

R espondentÓs intention to d eny Petitioner an exemption does not

constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Agency for Persons with

Disabilities , ent er a final order denying Petitioner, Shimika

KingÓs, request for an exemption from disqualification.

DONE AND ENTERED this 12 th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrat ive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

thi s 12th day of October , 2016 .

ENDNOTE S

1/ Because a final order has not yet been issued for this case,

Petitioner's application for exemption is governed by current

law. See Ag. for H ealth Care Admin . v. Mount Sinai Med. Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997).

2/ The undersigned acknowledges that the police report included

in Respondent's Exhibit 3 includes statements regarding injuries

to PetitionerÓs son. The police report is hearsay. However,

because this case is not criminal in nature, the report falls

within the public records hearsay exception in section

90.803(8) , Florida Statutes . The public record exception is

limited to Ðmatters observed pursuant to duty imposed by law as

to matters which there was a duty to report.Ñ The officer s wh o

contributed to the police report directly observe d injuries to

PetitionerÓs son. T he direct observations of the officer s

recorded in the report are admissible as a n exception to the

hearsay rule and may be relied upon for a finding of fact.

3/ The st atutory provision that addresses exemptions from

disqualification, section 435.07 (4)c) , underwent modifications

that took effect on July 1, 2016 , as set forth in paragraph 30 .

Pursuant to the amended version of the statute, the agency may

be barred from g ranting an exemption from disqualification from

employment if an applicant seeks to be employed as prospective

childcare personnel. The evidence presented at hearing was not

clear regarding the scope of services provided by Right

Direction Christian Cente r , Inc . , exc ept that it is a direct

service provider. However, if PetitionerÓs request for

exemption is granted, she would be permitted to work with not

only developmentally disabled adults, but also with vulnerable

children. Therefore, if the potential position involves

providing services to children, Petitioner would not be eligible

for an exemption.

COPIES FURNISHED :

Shi mika King

3009 Grove Street

Tallahassee, Florida 32301

(eServed)

Tracie Hardin, Esq uire

Agency for Persons with Disabi lities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, Genera l Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Lori Oakley , Acting Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(e Served)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will iss ue the Fi nal Order in this case