16-003765EXE Latory Smiley vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, September 12, 2016.

Summary: Petitioner demonstrated rehabilitation from her conviction in 2002 and presents no danger to APD's clients if allowed to hold a position of trust. Recommend granting the exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATORY SMILEY,

Petitioner,

vs. Case No. 16 - 3765EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 17, 2016, Admin istrative Law Judge Lisa Shearer

Nelson conducted a hearing pursuant to section 120.57(1), Florida

Statutes (2016), by video teleconferencing, with sites in

Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Latory Smiley, pro se

1104 Slay den Court

Apopka, Florida 32712

For Respondent: Andrew Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

Whether Petitioner has demonstr ated rehabilitation from her

disqualifying offense , and whether RespondentÓs intended agency

action to deny her request for an exemption is an abuse of

discretion.

PRELIMINARY STATEMENT

On May 27, 2016, Barbara Palmer, as agency head for the

Agency for Pe rsons with Disabilities (Respondent , APD , or the

Agency) , notified Petitioner, Latory Smiley, that her request for

an exemption from disqualification for employment in a position

of trust was denied. The letter informed her of her right to

request a heari ng on the AgencyÓs intended action.

Respondent received PetitionerÓs Request for Administrative

Hearing on June 16, 2016, and on July 1, 2016, the Agency

referred the case to the Division of Administrative Hearings

(DOAH) for the assignment of an administr ative law judge.

On July 14, 2016, a Notice of Hearing was issued, scheduling

the hearing for August 17, 2016. A pre - hearing telephone

conference was conducted on August 2, 2016, at which time the

procedure for the hearing w as explained, and Petitioner wa s

informed of the information provided on DOAHÓs website to assist

individuals representing themselves before DOAH .

The hearing commenced and concluded on August 17, 2016. At

the hearing, Petitioner testified on her own behalf, and

PetitionerÓs Exhibits 1 through 3 were admitted into evidence.

Respondent presented the testimony of Michael Sauve, deputy

regional operations manager for APD, and RespondentÓs Exhibits A

through H were admitted. At the hearing, Respondent requested

that Exhibit I, an e - mail f rom Respondent, be admitted into

evidence, and requested the opportunity to late - file the exhibit,

inasmuch as it had not been provided to DOAH in accordance with

the Pre - hearing Order prior to the hearing. The Agency was given

until August 24, 2016, to f ile a copy of exhibit : however, the

exhibit was never received.

The proceedings were recorded , but no transcript was

ordered. Both parties timely filed their Proposed Recommended

Orders, which have been considered in the preparation of this

Recommended O rder.

FINDING S OF FACT

1. Respondent is the state agency charged with providing

services to persons with developmental disabilities , including

those with autism, cerebral palsy, spina bifida, Prader - Willi

syndrome, and Down s yndrome . The population the A gency serves is

one with a heightened risk for ab use, neglect , and exploitation,

and people employed to work with this population are considered

to be in positions of special trust.

2. Anyone seeking employment with an entity that serves

this fragile popu lation is required to undergo a Level 2

screening , in order to e nsure that some one who ha s been convicted

or found guilty of certain enumerated crimes is not placed in a

position of trust with the people the Agency serves.

3. Petitioner applied for a posi tion with an entity called

Ð The Mentor . Ñ The position for which she applied required that

she undergo Level 2 screening.

4. A Level 2 background check was performed by the

Department of Children and Families. The background check

included criminal histo ry record checks at state, national, and

local levels. PetitionerÓ s state and local criminal record

checks were clear. However, t he background check revealed that

Petitioner ha s a disqualifying offense that was committed in 2002

in Virginia . The backgro und check also revealed some subsequent

arrests and one non - disqualifying conviction occurring after the

disqualifying offense.

5 . On December 14, 2015, the Department of Children and

Families notified Petitioner by letter that she was disqualified

from e mployment by virtue of her disqualifying offense,

identified in the letter as grand larceny. The letter notified

Petitioner of her eligibility to seek an exemption from

disqualification.

6 . Petitioner completed a Request for Exemption

Questionnaire , wh ich was provided to her . She obtained those

documents related to her criminal history that were available,

but was unable to retrieve all of them due to the passage of

time. She also submitted copies of documents related to her

training and education, em ployment history, and restoration of

her civil rights.

7 . There is an Exemption Review Request Checklist that

gives some aide in completing the exemption packet, but there

does not appear to be a set of instructions or any directions

regarding what is sou ght in the questionnaire. For example, the

checklist and the questionnaire speak of providing information

regarding Ðeach of your criminal offenses.Ñ There is no

explanation that ÐoffensesÑ is meant to include not only

convictions , but guilty and nolo co ntendere pleas, and arrest s

where the charges were dismissed . Similarly, the questionnaire

asks the applicant to list ÐstressorsÑ existing at the time of

the disqualifying offense and existing now, but does not ask an

applicant about their background. Pe titioner testified that she

called the Agency with questions regarding information to be

supplied with the questionnaire, but did not get any meaningful

assistance .

8 . By letter dated May 27, 2016, Barbara Palmer, as

d irector of the Agency, notified her t hat the Agency had denied

her request for exemption from disqualification because she had

not submitted clear and convincing evidence of rehabilitation.

No further explanation of the AgencyÓs decision was provided.

Petitioner was notified of her right to request an administrative

hearing if she disputed the AgencyÓs decision, and she timely

invoked this right.

9 . Petitioner was born June 25, 1982, and is approximately

34 years old. She never knew her father, and her mother was a

drug addict. Her older brother provided what little parenting

she received , and the environment in which she grew up had no

real moral compass. As a result, it was easy for Petitioner to

become entangled with people who were not healthy influences.

The Disqualifying Offense

10 . The offense which disqualifies Petitioner from holding

a position of trust occurred on February 13, 2002, when she was

19 years old. Ms. Smiley was a back - seat passenger in a stolen

car. When the car was stopped by polic e , the others in the car

fled th e scene. Ms. Smiley did not flee, but refused to giv e up

the names of those who had . As she stated in her exemption

questionnaire, ÐI was young and dumb at the time, and believed I

was protecting my friends by not giving the cops their names. I

was very very foolish!Ñ

11 . Ms. Smiley was originally charged with grand larceny

(the crime that the Department of Children and Families

identified) , but pled to and was found guilty of receiving stolen

property, a felony under Virginia law, as well as a lesser

included misdemeanor offense of eluding a police officer. As a

result of the plea agreement, on May 30, 2002, Ms. Smiley was

sentenced to two yearsÓ incarceration for Count 1 and 12 monthsÓ

incarceration for Count 2. The c ourt suspended the sentences for

both counts, subject to two years of unsupervised probation,

payment of court costs of $1,315.50 and restitution of $700 to

the owner of the car. 1/

12 . As of February 1, 2008, Petitioner paid both the costs

and the restitution related to her disqualifyin g offense, and she

received releases of judgment for them from the Norfolk County

Court. She also wrote a letter of apology to the victim and

stated in the questionnaire that the victim in turn had given her

encouraging words regarding the importance of t he company one

keeps that she has taken to heart.

Subsequent Criminal Events

1 3 . Agencies conducting disqualification exemption requests

are permitted to consider arrests and convictions that occur

after any disqualifying offense, whether or not the subse quent

event would be considered a disqualifying offense if the

applicant was found guilty , and regardless of the disposition of

any arrest . Based on its authority to do so, the Agency

considered the following events in PetitionerÓs past when it

denied her request for an exemption.

1 4 . There was some mention at the hearing of an arrest in

2003, which the Agency indicates was explained in an e - mail which

would be in RespondentÓs Exhibit I. However, as noted

previously, Respondent did not submit Exhibit I a fter the

hearing, and there is no documentation regarding this arrest.

However, it appears from the brief testimony at the hearing on

this issue that Petitioner was actually the victim in this

incident, and the charges against her were dismissed .

1 5 . On January 23, 2006, Petitioner was arrested and

charged with indecent language. Petitioner was 23 at the time.

The charge was dismissed on January 26, 2006.

1 6 . Petitioner explained that she had gotten into an

argument with a friend when she learned the friend w as seeing

PetitionerÓs boyfriend , and used some off - color language during

the argument.

1 7 . It is surprising that this could, in this day and age,

even be a criminal offense that is actually charged. One cannot

help but wonder how small the em ployment pool would be if all who

used indecent language could not hold positions of trust.

Nonetheless, t his ten - year - old arrest is a factor that the Agency

considered, concluding that it was evidence of PetitionerÓs lack

of judgment.

1 8 . On June 1, 200 9, Petitioner was arrested for failure to

appear. The Norfolk, Virginia, criminal records indicate that

the offense date was June 30, 2008. The charge was dismissed on

June 29, 2009. Petitioner testified candidly that she totally

forgot her court date a nd was remorseful about doing so.

1 9 . On June 14, 2009, Petitioner was arrested for

obstruction of justice, a misdemeanor. Petitioner apparently

pled guilty and was sentenced to 90 days in jail, with 80 days of

the sentence suspended. Petitioner paid th e costs associated

with this offense on or before October 5, 2009.

20 . Petitioner explained that she and some friends had been

partying, and that she Ðmouthed offÑ at a security guard. She

described her behavior has Ðcompletely out of line,Ñ for which

sh e took full responsibility. She no longer drinks alcohol or

parties, because she wants to be a better role model for her

children.

21 . As is explained below, Petitioner left the Norfolk area

and moved to Fairbanks, Alaska, where she sought and received

t raining in counseling for alcohol and drug abuse . She worked as

a counselor in Fairbanks until moving to Florida in 2013. Her

efforts to obtain employment in Florida have been stymied by the

requirement for Level 2 screening. While she has not been

empl oyed since moving to Florida, she has worked toward obtaining

her education and has been active in her church and her

childrenÓs education.

Educational History

22 . On June 15, 2002, after the entry of the felony plea,

Ms. Smiley graduated from Granby Hig h School in Norfolk,

Virginia.

2 3 . On October 6, 2011, Ms. Smiley received her

certification from the Regional Alcohol and Drug Abuse Counselor

Training Program (R A DACT), in Anchorage, Alaska, as a Counselor

Technician/Behavioral Health Aide I. To earn t his certification,

she completed 112 hours of coursework from September 19 through

October 6, 2011.

2 4 . On January 26 , 2012, Petitioner completed two hours of

continuing education in clinical documentation, approved by the

State of Alaska, DHSS Behavioral Health.

2 5 . On June 7, 2012, Petitioner received a certification

for the completion of a Motivational Interviewing course offered

by R A DACT, representing 16 contact hours.

2 6 . On October 4, 2012, Ms. Smiley received her

certification from R A DACT , as a Level I Counselor. To earn this

certification, she completed 112 hours of coursework from

September 17 through October 4, 2012 .

2 7 . All of the certifications from R A DACT indicate that the

coursework has been approved by the National Association of

Alcoho lism and Drug Abuse Counselors and will be accepted by the

Alaska Commission for Behavioral Health Certification.

2 8 . Ms. Smiley submitted documentation indicating that she

had attended classes at Valencia College in the summer of 2015,

taking classes tow ard her college degree. She also has taken

courses at Seminole State College, although the time frame for

this coursework is unclear from the documentation presented.

Employment History

2 9 . Petitioner submitted the following information related

to her wo rk history on the exemption questionnaire. From May 14,

2000 , to September 16, 20 0 3, Ms. Smiley worked on a seasonal

basis as a summer camp worker for the City of Norfolk Parks and

Recreation Department . The undersigned notes that she was

employed in thi s capacity during the time period when her

disqualifying offense occurred, and that the City of Norfolk

continued to employ her working with children, despite her felony

conviction . There is no indication that any child was harmed as

a result of the care she provided to children during her

employment with the city.

30 . From October 1, 2003 , to June 10, 2005, Petitioner

worked as a youth counselor for the YMCA in Norfolk . Her job

duties included assisting with homework and after - school

activities in the Y MCAÓs before and after school programs.

Ms. Smiley held this job working with children not long after her

felony conviction, in the same town where the conviction

occurred.

3 1 . Petitioner worked for the City of Norfolk, Parking

Division , from June 10, 20 06 , through October 1, 2008, collecting

parking fees. The City of Norfolk employed her in a position

involving the collection of money despite her felony conviction

for receiving stolen property.

3 2 . Ms. Smiley moved to Alaska , and f rom February 2, 2009,

to February 13, 2013, Petitioner worked for Fairbanks Native

Associates in Fairbanks, as a counselor. 2/ In that capacity, she

worked with clients to develop ways to cope with issues such as

HIV, grief, stress, and addi c tion, and, potentially, to

incorpor ate 12 - step programs to assist with recovery and prevent

relapse. With each of her jobs, Petitioner remained employed for

a minimum of 20 months to approximately four years. Ms. Smiley

left her job in Alaska in order to move to Florida. While she

has so ught employment in Florida, she has been unable to get past

the Level 2 screening and cannot work in the field for which she

has trained because she does not have an exemption .

Community Involvement

3 3 . On December 9, 2015, Ms. SmileyÓs civil rights to vote,

hold public office, serve on a jury, and to be a notary public

were restored by the Governor of Virginia. She has completed an

application to register to vote in Florida.

3 4 . Ms. Smiley has three special - needs children and is an

involved parent . S he attend s all of her childrenÓs school

functions and belong ed to the PTA at her childrenÓs elementary

school. She also attends church twice a week and is active in a

faith - based organization called ÐI am Judah.Ñ

3 5 . Petitioner also provided to the Age ncy two positive

letters regarding her character, from Daquisha Presley and Shavon

Haskins. Both letters are glowing in their praise of Ms. Smiley,

but contain no real explanation of how the writers know her or

any description of activities in which she i s involved that would

point to rehabilitation. However, both letter - writers are from

Virginia, making their attendance at a hearing in Florida

unrealistic. Both writers speak of Ms. SmileyÓs thoughtfulness

and giving heart, with Ms. Presley also referrin g to her

strength, grace, compassion, leadership, courage, and faith.

The AgencyÓs Decision

3 6 . The Agency declined to grant PetitionerÓs request for

exemption, stating that she had not provided clear and convincing

evidence of rehabilitation.

3 7 . At t he hearing, the Agency gave little explanation

regarding the reasoning behind its decision. It is unclear

whether Agency personnel realized that Ms. SmileyÓs disqualifying

offense was receiving stolen property, as opposed to grand

larceny, as identified i n t he Department of Children and

FamiliesÓ December 14, 2015, letter. Mr. Sauve testified that

Ms. SmileyÓs lack of employment after moving to Florida was

troubling and that the Agency had considered her non -

disqualifying offenses since the 2002 convictio n. In its

Proposed Recommended Order, the Agency asserts that Petitioner

Ðhas not demonstrated any rehabilitation specific to the

disqualifying offense, and a majority of the evidence given for

her rehabilitation existed during the ensuing non - qualifying

offenses. Ñ

3 8 . The Agency did not indicate what would qualify a s

rehabilitation Ðspecific to the disqualifying offense . Ñ However,

the record at hearing demonstrated that Petitioner paid all of

the court costs and restitution related to the disqualifying

offense, and wrote a letter of apology to the victim. She has

stopped drinking alcohol, which contributed to her past

indiscretions, and moved away from the environment where her

troubles began. All of these actions are evidence of steps

toward rehabilit ation. Moreover, the statement that the majority

of evidence Petitioner presented related to rehabilitation

existed during the ensuing non - qualifying offenses is incorrect.

With the exception of her high school diploma, all of the

training and education that Petitioner has received occurred

after the 2009 charg e, which is the last encounter Petitioner had

with the criminal authorities. The same can be said of her

employment as a counselor. Her civil rights were restored in

2015 ; also well after the 2009 charge.

3 9 . PetitionerÓs actions and her efforts to move past the

behaviors leading to her legal issues must be viewed from two

different perspectives: first , through the lens of her

background and upbringing, in order to understand the environment

in w hich she found herself and that which she now lives; and

second, through the significant and laudable goal of the Agency

to e nsure that the fragile population it serves is not exploited

or endangered.

40 . Petitioner testified at the hearing, and her tes timony

is something the Agency did not have the advantage of hearing

befor e making its initial decision. As noted above, Petitioner

did not have the benefit of a solid family structure. She did

not know her father , and her mother was a drug addict. She views

her behavior as a young adult for what it was: the foolish and

irresponsible behavior of a young woman hanging out with the

wrong people, and not thinking about the future. She admitted

that her behavior in 2009 also was irresponsible, stating that

she was Ðcompletely out of line.Ñ She testified that she has

removed herself from those influences in her life and no longer

drinks or parties, instead focusing on being a mother to her

children.

4 1 . The Agency points out that she also was a mother in

2 009 when the final non - disqualifying offense occurred. While

that is true, Petitioner has taken steps to improve her situation

since that time : by obtaining training for employment and

working in the counseling field , by attending her church and

faith - ba sed organization activities , and by being active in her

childrenÓs elementary school PTA . A ll are efforts that

Petitioner has made in the last six to seven years to be a

positive role model for her children and to rise above the

circumstances in which she was raised. In short, she is

attempting to provide for her children what no one provided for

her. She also has used the time while she has been unable to

gain employment to continue her education.

4 2 . The evidence considered at the hearing shows a woma n

who was truly remorseful for the actions in her past and who is

doing her best to overcome the limitations of her upbringing and

be a contributing member of society. Ms. Smiley has proven

rehabilitation from the single disqualifying offense by clear and

convincing evidence.

4 3 . Based on the evidence presented at the hearing , it also

demonstrates that Petitioner presents no danger to the vulnerable

population served by the Agency. The credible hearing testimony,

couple d with the information presented to the Agency, established

that Ms. Smiley presents no danger to APD clients, including

children . S ince her disqualifying offense, she has worked with

children , been entrusted with money , and worked with those

battling addiction and other stressors. While the Agency is

right to take its responsibility to protect a particularly

vulnerable population seriously, Ms. Smiley has demonstrated her

ability and passion to work with those who are less fortunate

than herself. As she stated in her Proposed Recommended Order,

ÐI want to work with trouble teens [ sic ] because I know the

STRUGGLE, I know how trouble is easy to get into and HARD to get

out, even 15 years down the road.Ñ She should be allowed to do

so.

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

pursuant to sections 120.569, 120.57(1), and 435.07(3)(c),

Florida Statutes (2016).

4 5 . As the applicant for an exemption pursuant to

section 435.07, Petitioner bears the burde n of proof to establish

rehabilitation. Section 435.07 provides in pertinent part:

(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 a t 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;

* * *

For the purposes of this subs ection, the term

ÐfeloniesÑ means both felonies prohibited

under any of the statutes cited in this

chapter or under similar statutes of other

jurisdictions.

(2) Persons employed, or applicants for

employment, by treatment providers who treat

adolescents 13 years of age and older who are

disqualified from employment solely because

of crimes under s. 817.563 , s. 893.13 , or

s. 893.147 may be exempted from

disqualification from employment pursuant to

this chapter without application of the

waiting period in subparagraph (1)(a)1.

(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 sett ing 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

caus ed to the victim, and the history of the

employee since the incident, or any other

evidence or circumstances indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

(b) The agency may consider as part of its

deliberations of the 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 an other crime, even if that

crime is not a disqualifying offense.

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law ju dge is whether the

agencyÓs intended action is an abuse of

discretion.

4 6 . PetitionerÓs single disqualifying offense, committed in

2002, was a felony under Virginia law. Section 435.04 provides

t he list of crimes for which disqualification from employm ent in a

position of trust is a consequence . The list includes crimes

identified in chapter 812, Florida Statutes (2016) , relating to

theft, robbery, and related crimes, if the offense is a felony.

§ 435. 04(2)(cc) , Fla. Stat . PetitionerÓs conviction und er

Virginia law for receiving stolen goods is a felony under a

similar statute of another jurisdiction as th e felonies listed in

chapter 812.

4 7 . Petitioner meets the eligibility requirement in

section 435.07(1)( b ) to obtain an exemption from a disqualif ying

felony. She paid all of the court costs and the restitution

related to her offense on or before February 1, 2008, more than

eight years ago. She also completed her probation more than

12 years ago.

4 8 . In order to receive an exemption, Petitioner must

demonstrate, by clear and convincing evidence, that she is

rehabilitated. J.D. v. DepÓt of Child. & Fams. , 114 So. 3d 1127,

1131 (Fla. 1st DCA 2013) (ÐThe ultimate issue of fact to be

determined in a proceeding under section 435.07 is whether the

app licant has demonstrated rehabilitation by clear and convincing

evidence.Ñ). 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 standard has been described as follows:

If reasonable men could differ 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 discr etionary ruling of the

trial judge [here, the Agency] should be

disturbed 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 2 006) (holding that

with respect to the abuse of discretion standard, the test is

Ðwhether any reasonable personÑ could take the position under

review ).

4 9 . Prohibiting people convicted of disqualifying offenses

from employment in positions of trust is in tended 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).

50 . The clear and convincing standard of proof has been

de scribed by the Florida Supreme Court as follows:

Clear and convincing evidence requires that

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 w itnesses must

be lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be establish ed.

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) .

5 1 . Pursuant to section 435.07(3)(c), Ðthe standard of

review by an ALJ is w hether the agencyÓs intended action is an

abuse of discretion.Ñ

5 2 . FloridaÓs First District Court of Appeal has reasoned

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 agenc y

headÓs intended action was an Ð abuse 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. DepÓt of Child. & Fams. , supra , 114 So. 3d at 1132. As a

con sequence, the AgencyÓs initial decision is viewed in light of

evidence that the Agency did not have the benefit of considering.

5 3 . The importance of the AgencyÓs goal to protect the

public cannot be overstated, and PetitionerÓs behavior must be

viewed th rough the lens of the AgencyÓs mission: to protect a

fragile population whose members often cannot protect themselves.

As stated by Mr. Sauve, the Agency considers the statutory

requirements for rehabilitation and the vulnerability of the

population it s erves. Given its mission, it is reasonable for

the Agency to consider anything that would point to the

possibility of danger to that fragile population.

5 4 . However, even viewing the evidence in this case through

this protective lens, there is nothing th at indicates that

Petitioner would be a danger to the APD population. The evidence

indicates that the genesis of PetitionerÓs disqualifying offense

was a group of teenagers engaging in a joy - ride. When caught,

Petitioner compounded her mistake by being l oyal to her ÐfriendsÑ

and refusing to divulge their names. While her behavior was

clearly wrong and irresponsible, it does not evidence an intent

or propensity to harm or exploit disabled adults or children.

5 5 . PetitionerÓs non - disqualifying ÐoffensesÑ likewise do

not provide concern that Ms. Smiley would harm or exploit people

with whom she worked. She was a victim in the 2003 incident, for

which charges were dismissed. The 200 6 charge for indecent

language is supportive of nothing more than a pedestr ian

vocabulary. While not admirable, the failure to appear charge

(which was dismissed) and the obstruction of justice charge (the

result of Ðmouthing offÑ at a security guard) do not point to

behavior that would place children or disabled adults in

jeopa rdy. Moreover, these most recent charges occurred more than

seven years ago, at a time when Petitioner was in the beginning

stages of making true changes in her life. From 2009 to the

present, she has had no further encounters with law enforcement ,

has d istanced herself from the environment that contributed to

her misdeeds, and has made significant strides toward her goal of

helping others avoid her mistakes .

5 6 . To be clear, t he determination of rehabilita tion does

not rest on the mere fact that an appl icant has not gotten into

any more trouble with the law. There must be affirmative steps

in a more productive direction. Petitioner has taken those

steps. She has had her civil rights restored. She has been

employed in situations where she has been ent rusted with both

children and money, in the very city where her felony occurred.

Her employers there presumably had more opportunity to

investigate the circumstances related to her conviction, and

employed her regardless. She stepped away from those infl uences

that contributed to her past behavior , moving literally across

the country, and has tried to create a more positive environment

for her children than she experienced herself. These are all

factors that the Agency should consider, and it is not appa rent

that it did so.

5 7 . The Agency did not have the benefit of PetitionerÓs

testimony at the hearing, in which she described her background

and provided additional information regarding her attempts to

obtain employment. Moreover, it appears that the Ag ency did not

appreciate the chronological sequence of events with respect to

her non - disqualifying offenses compare d to her training and

employment in the couns eling field, or the lengths to which she

has gone to remove herself from negative influences. U nder these

circumstances, and given this additional information, it would be

an abuse of discretion for the Agency to deny PetitionerÓs

request for exemption .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Disabilities enter a final order granting PetitionerÓs request

for an exemption from disqualification from a position of trust.

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

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 Clerk of the

Division of Administrative Hearings

this 12th day of September , 2016 .

ENDNOTE S

1/ There is some confusion in the record regarding the amount of

the restitution. While the judgment and sentence indicates the

amount is $700, the Final Disposition in the Case Details Sheet

from the Norfolk Circuit Court, Criminal Division, indicates that

the restitution is only $60. All indications are, regardless of

the amount, that Petitioner satisfied all of her financial

obligations relate d to these charges.

2/ The documentation Petitioner provided indicated that she began

working in Alaska in February 2009, but was arrested in Virginia

in June 2009. No one asked about these dates at the hearing. It

is assumed, absent any evidence to t he contrary, that perhaps the

arrest occurred during a visit to Virginia. This is the most

plausible explanation, given that the arrest for failure to

appear also occurred within days of this incident, while the date

of the offense for failing to appear is a year before.

COPIES FURNISHED:

Andrew Langenbach, Es quire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Latory Smiley

1104 Slayden Court

Apopka, Florida 32712

David De Lapaz, 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 Di sabilities

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.