16-003855EXE Rosemary Brinson vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, October 19, 2016.

Summary: Based upon one disqualifying offense, numerous non-disqualifying offenses, and the Department of Children and Families' allegations and findings of neglect and abuse, Petitioner is not entitled to an exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSEMARY BRINSON,

Petitioner,

vs. Case No. 16 - 3855EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was he ld in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings ( Ð Division Ñ ), on August 15 , 2016, by

video teleconference at sites located in St. Petersburg and

Tallahassee, Florida.

APPEARANCES

For Petitione r: Rosemary Brinson , pro se

1010 Eldridge Street

Clearwater, Florida 33755

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

2 00 North Kentucky Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE

The issue is whether PetitionerÓs request for exemption from

disqualification should be granted.

PRELIMINARY STATEMENT

By letter dated May 27 , 2016, Respondent, Agen cy for Persons

with Disabilities (Ð Agency Ñ or ÐRespondentÑ) , informed Petitioner

that her request for an exemption from disqualification was

denied. Petitioner filed a request for an administrative hearing

dated June 25 , 2016. The request was forwarded t o the Division

on July 8 , 2016.

The Division set this matter for hearing by video

teleconference before Administrative Law Judge Robert S. Cohen on

August 15 , 2016, at sites located in St. Petersburg and

Tallahassee, Florida .

At the hearing, Petitioner t estified on her own behalf and

offered two composite exhibits, which were accepted into

evidence. Respondent presented the testimony of Jeff rey Smith

and offered six exhibits, which were accepted into evidence.

No transcript of the hearing was prepare d. Respondent filed

its proposed recommended order on August 25, 2016 . Petitioner

did not make any post - hearing submittal.

References to statutes are to Florida Statutes (201 5 ),

unless otherwise noted.

FINDING S OF FACT

1. Respondent is the state agenc y responsible for

regulating the employment of persons i n positions of special

trust as direct service providers.

2. Petitioner is seeking employment with Always Promoting

Independence, LLC, and Supporting Independence/Honor Health Care

Management, both service providers are regulated by Respondent.

3 . Petitioner wants to work as a direct service provider,

which requires background screening. The results of PetitionerÓs

background screening revealed a history of criminal offenses.

4. Respondent relies on the Department of Children and

Families Background Screening Unit ( Ð Department Ñ ) to initially

receive exemption from disqualification requests and to compile

documents related to such requests.

5. On February 8, 2016, Petitioner submitted a Request for

Exemption, Exemption Questionnaire ( Ð Questionnaire Ñ ) , various

criminal records, character references, and other various

documents (the Ð Exemption Packet Ñ ), to the Department seeking to

demonstrate support for the granting of an exemption from

employment d isqualification. The Department subsequently

forwarded the Exemption Packet to the Agency for review.

6. To begin its exemption review, Respondent considered

PetitionerÓs disqualifying offense. In May 1991, Petitioner

committed the disqualifying offense of Ð Fraudulent Use of Credit

Card Ñ (six counts). Petitioner pled nolo contendere to the

disqualifying offense and adjudication was withheld. She was

sentenced to 24 monthsÓ probation and payment of fines and court

costs. She completed her term of proba tion early.

7. In its continued exemption review, Respondent considered

the following non - disqualifying offenses , which Petitioner

obtained subsequent to her May 1991 disqualifying offense: an

arrest for Ð Aggravated Assault with a Firearm Ñ in August 1997 (a

violation of section 784.021, Florida Statutes) ; an arrest for

Ð Driving While License Suspended with Knowledge Ñ in October 2007

(a violation of section 322.34(2), Florida Statutes); an arrest

for Ð Driving While License Suspended with Knowledge Ñ in

Sept ember 2008 (another violation of section 322.34(2)); an

arrest for Ð Possession of Cannabis Ñ in March 2012 (a violation of

section 893.13(6)(b), Florida Statutes); and a conviction for

Ð Possession of Drug Paraphernalia Ñ in March 2012 (a violation of

section 893.147(1)).

8 . Petit ioner received notification by letters dated

September 22, 2015, and January 12, 2016, from the Department,

RespondentÓs background screening entity, of her disqualification

from employment due to criminal history.

9 . The specific d isqualifying offense listed in both

letters was ÐFraud - Illegal Use of Credit Cards,Ñ a violation of

section 817.61, Florida Statutes.

10. Petitioner provided details of the circumstances

surrounding the disqualifying offense. In short, Petitioner

indicat ed she gave three ÐassociatesÑ a ride to the mall in

exchange for their promise to buy her a new pair of shoes. She

left the Champs sports store with her shoes, expecting one of her

companions to pay for them. She was in her car when her

companions ran f rom the store with a security guard in pursuit.

They told her to start the car which she refused because she

believed she had not done anything wrong. Unfortunately for her,

one of her companions had attempted to pay for her new shoes with

a stolen credi t card. She and her companions were arrested and

charged with credit card fraud. Petitioner provided

documentation of the charge, the disposition after her no contest

plea, and the fact that her probation was terminated early.

11. Petitioner provided ex planations for all but one of the

non - disqualifying offense s that ranged from the gun charge being

at the end of a Ðbad relationshipÑ (her then - girlfriend falsely

accused her) ; to she was pulled over for a broken taillight, then

charged with driving with a suspended license (she claimed she

paid her tickets and the license was reinstated, although no

records were provided on this point); to she was pulled over for

having to o dark a window tint in her car and cannabis was found

(she testified it was not hers ) , but, since no one confessed to

ownership , all were cited for possession ; and finally to no

explanation at all for the 2007 driving with a suspended license

charge.

12. Petitioner accepted little responsibility for her

criminal offenses and concluded w ith the statement that she has

no current involvement with any court system; she stated she is

in Ðgood standing.Ñ

13. Petitioner indicated on her Questionnaire that there

was no harm to any victim or property, including damage or

injury , in her past.

14. Petitioner indicated on her Questionnaire that there

were no stressors in her life at the time of the disqualifying

offense.

15. Regarding current stressors in her life, P etitioner

testified she is unable to provide for her family and she is

eager to ob tain and keep steady employment.

16. Petitioner listed her educational achievements as a

diploma from Clearwater High School (1988) , an Associate in Arts

degree from Tampa Tech in computer engineering (1991) , and an

A ssociate in Science (ÐA.S.Ñ) degree fr om St. Petersburg College

in human services (2014) .

17. Petitioner indicated on her Questionnaire that she has

received no counseling for any reason.

18. Petitioner indicated on her Questionnaire that she has

no history of alcohol and drug abuse.

19. Pe titioner indicated on her Questionnaire that she is

involved with a community organization known as ÐParents that

Care.Ñ

20. As to expressing remorse or accepting responsibility

for her actions, Petitioner testified she completed her probation

early and t hat she no longer surrounds herself with negative

influences and people.

21. PetitionerÓs recent work history has been stable. Her

work history since 2009 indicate s she has worked for two groups

providing direct support/in - home support staff: Supporting

Independence/Honor Health Care Management (2012 - present) and

Peaceful Dreams, Inc. (2009 - 2012) .

22. In addition to the criminal records submitted,

Petitioner also offered affidavits of good moral char a cter,

written personal statements , IRS W - 2 Forms, a c opy of her A. S .

degree from St. Petersburg College, and three letters of

reference attesting to her character. The letters were written

by people who have known Petitioner for many years and who

believe her to be hard - working , reliable, and caring. Petit ioner

also submitted a copy of an exemption from disqualification she

had received from the Agency for Health Care Administration

( Ð AHCA Ñ ) dated May 27, 2014.

23. Jeffrey Smith, r egional o perations m anager for the

Suncoast Region, testified that the Agenc y reviewed all the

provided documentation provided by Petitioner, the information

provided on the Exemption Questionnaire, the various records

documenting PetitionerÓs criminal history, her educational

record , her character references, and her exemption fr om AHCA.

24. Following a review of all the documentation included in

the Exemption Packet, Agency Director Barbara Palmer advised

Petitioner by a letter dated May 27, 2016, that her request for

an exemption from her disqualifying offense was denied. The

basis for the denial was that Petitioner failed to provide clear

and convincing evidence of her rehabilitation.

25. Mr. Smith testified the Agency consider e d all the

documentation submitted by Petitioner in her Exemption Packet, as

well as the additional documents provided prior to and at the

hearing. He did not find that the documentation negated or

refuted the official records of the disqualifying and non -

disqualifying offenses.

26. Further, the fact that the non - disqualifying offenses

related to Pet itionerÓs driving is relevant to the position for

which she seeks an exemption from disqualification. A direct

service provider is often called upon to transport individuals

entrusted to her care. PetitionerÓs statement that her license

was reinstated an d that she received no more driving citations

after the offenses described above was refuted by Mr. Smith,

based upon subsequent driving records regarding Petitioner.

27. Mr. Smith also noted two additional reports from the

Department in which Petitioner was named the alleged perpetrator .

One report showed some indicators of child abuse

(cuts/punctures/bites/excessive corporal punishment ) , and the

other report involv ed allegations of exploitation of a vulnerable

adult, specifically, one with a developmenta l disability , but

resulted in no official findings of exploitation.

2 8 . The AgencyÓs clients are a vulnerable population,

consisting of individuals whose developmental disabilities are

defined as intellectual disability, autism, spina bifida,

Prader - Wil li syndrome, cerebral palsy, Down syndrome, and/or

Phelan - McDermid syndrome. Without the AgencyÓs services, these

clien t s would require institutionalization.

2 9 . Petitioner testified passionately that she enjoys

working with individuals with disabilitie s. Working in this

field inspired her to return to school to earn a degree in human

services. She testified that working with persons with

disabilities is her long - term goal. She admitted she made some

Ðfoolish mistakesÑ when she was younger, but that s he now accepts

responsibility for her actions. She also testified that she

believed her exemption should be granted because another agency,

AHCA, had granted her an exemption from disqualification.

30 . Respondent countered with the fact that this vulnera ble

population requires being able to rely on the direct care

providerÓs good character and trustworthiness . Individuals

entrusted with the care of the disabled are often called upon to

make decisions of a financial, medical, and social nature. The

Agenc y must weigh the benefit against the risk when considering

granting an exemption. PetitionerÓs history shows poor judgment

on her part , and she provided testimony that was inconsistent

with the documentation of her criminal history and the report and

alle gations of abuse or neglect from the Department. Petitioner

admitted to use of a credit card of a vulnerable adult , which

showed poor judgment on her part. Additionally, the close

proximity of P etitionerÓs most recent arrest (2012) to her

request for exe mption demonstrates her issues with the law are

not limited to the distant past. Finally, Respondent, pursuant

to section 435.07(5), Florida S tatutes, considered the exemption

given Petitioner by AHCA. T he exemption from AHCA , however, is

neither binding on the Agency nor does such exemption follow the

same criteria or involve the same service population as the

exemption sought from Respondent.

31 . The granting of an exemption from employment

disqualification would allow Petitioner to be employed as a

direct service provider to Agency clients. The undersigned

appreciates Mr. SmithÓs thoughtful and comprehensive assessment

of P etitionerÓs criminal history and fitness to hold a position

of trust , and finds his testimony at hearing and reasons for

recomme nding the denial to be credible and reasonable .

CONCLUSIONS OF LAW

32 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and 435.07,

Florida Statut es.

33 . Section 393.0655(5), Florida Statutes , provides in

pertinent part:

The background screening conducted under this

section must ensure that, in addition to the

disqualifying offenses listed in s. 435.04,

no person subject to the provisions of this

section has an arrest awaiting final

disposition for, has been found guilty of,

regardless of adjudication, or entered a plea

of nolo contendere or guilty to, or has been

adjudicated delinquent and the record has not

been sealed or expunged for, any offens e

prohibited under any of the following

provisions of state law or similar law of

another jurisdiction:

* * *

(b) This chapter, if the offense was a

felony.

* * *

(j) Section 817.61 , relating to fraudulent

use of credit cards, if the offens e was a

felony.

34 . Section 435.04 provides in pertinent part:

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

screened pursuant to this section must

undergo security background investigations as

a condition of employment and continued

employment which inc ludes , but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local crimi nal records checks through

local law enforcement agencies.

35 . Section 393.0655(2) states in relevant part:

EXEMPTIONS FROM DISQUALIFICATION - The agency

may grant exemptions from disqualification

from working with children or adults with

developmental disabilities only as provided

in s. 435.07.

3 6 . Section 435.07(3)(a) provides:

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

disq ualified 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

employme nt or continued employment is

allowed.

3 7 . "The standard of review by the administrative law judge

is whether the agency's intended action is an abuse of

discretion." § 435.07(3)(c), Fla. Stat. The "abuse of

discretion" standard of review has been des cribed as follows:

If reasonable [persons] could differ as to

the propriety of the action taken . . . then

the action is not unreasonable and there can

be no finding of an abuse of discretion. The

discretionary ruling . . . should be

disturbed only when [the] 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

"whe ther any reasonable person" could take the position under

review).

3 8 . An administrative law judge sits in a review capacity

here and must decide whether the AgencyÓs determination

concerning rehabilitation or lack thereof constitutes an abuse of

discret ion. An administrative law judge must ascertain whether

the A gency abused its discretion in determining that an applicant

failed to show rehabilitation by clear and convincing evidence.

3 9 . The logical means of applying this standard is as

follows:

Alt hough the hearing before the hearing

officer was a de novo proceeding, that simply

means that there was an evidentiary hearing

during which each party had a full and fair

opportunity to develop an evidentiary record

for administrative review purposes. It does

not mean, as the hearing officer apparently

thought, that the hearing officer sits as a

substitute for the Department and makes a

determination whether to award the bid de

novo .

Intercontinental Prop., Inc. v. Dep't of Health & Rehabilitative

Servs. , 606 So. 2d 380, 386 (Fla. 3d DCA 1992) (emphasis added);

see also , State Contracting & Eng'g Corp. v. Dep't of Transp. ,

709 So. 2d 607, 609 (Fla. 1st DCA 1998) ("In this context, the

phrase 'de novo hearing' is used to describe a form of intra -

Department review. The judge may receive evidence, as with any

formal hearing under section 120.57(1), but the object of the

proceeding is to evaluate the action taken by the Department.");

§ 120.57(3)(f), Fla. Stat.

40 . The undisputed facts are that Petitioner co mmitted one

disqualifying offense in 1991. Had this been the only blemish on

her record since 1991, and had she demonstrated rehabilitation

from such offense that occurred in the distant past, a case could

have been made for PetitionerÓs receiving an exem ption from

disqualification. However, P etitionerÓs more recent offenses

involving traffic violations, possession of cannabis, and

Department investigations into abuse of vulnerable children and

adults , do not paint a picture of an individual who has learn ed

from past mistakes and has been rehabilitated. Further more , the

fact that Petitioner has never sought or received counseling for

her missteps points to a lack of remorse or a true acceptance of

responsibility for her past transgressions.

41 . Petitione r is to be commended for her return to college

to receive a degree in human services, a strong step towards

understanding how individuals entrusted to her care are to be

treated. Her demeanor depicts a person who wants to help others,

yet her continued cr iminal offenses, some minor, others directly

related to trust concerning persons in her care , demonstrate that

she has not yet achieved a level of rehabilitation that can

permit the Agency to approve an exemption from disqualification.

42 . The Agency has appropriately exercised its broad

statutory discretion in denying PetitionerÓs request for

exemption from disqualification. Further, the Agency Ós action in

determining that Petitioner has not been rehabilitated do es not

constitute an abuse o f discretion. Accordingly, the Agency Ós

denial of PetitionerÓs request for an exemption from

disqualification should be upheld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilit ies enter a final order denying PetitionerÓs request for

an exemption from disqualification.

DONE AND ENTERED this 19th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Jud ge

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 19th day of October , 2016 .

COPIES FURNISHED:

Rosemary Brinson

1010 Eldridge Street

Clearwater, Florida 33755

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

200 North Kentucky Avenue , Suite 422

Lakeland, Florida 33801

(eServed)

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, Flori da 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 submit written exception s 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.