16-003914EXE Raymond Tyson vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, October 14, 2016.

Summary: Petitioner did not prove that Respondent abused its discretion when denying Petitioner's request for exemption from being disqualified to work in a position of special trust.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND TYSON,

Petitioner,

vs. Case No. 16 - 3914EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing in this cause was held

by video teleconference between sites in Ft. Myers and

Tallahassee, Florida, on September 16 , 2016, before

Linzie F. Bogan, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Raymond Tyson, pro se

3864 Washington Avenue

Fort Myers, Florida 33905

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE

Whether the Agency for Persons with Disabilities abused its

discretion when denying PetitionerÓs request for exemption from

being disqualified to work in a position of special trust.

PRELIMINARY STATEMENT

On or about August 7, 2015, the Department of Children and

Families, as agent for the Agency for Persons with Disabilities

(Respondent), notified Petitioner that his criminal background

check re vealed offenses that disqualified him Ðfrom working or

being licensed in accordance with sections 435.04 and, if

applicable, 408.809(4), Florida Statutes.Ñ On or about April 4,

2016, Petitioner submitted to Respondent a request seeking an

exemption from b eing disqualified to work in a position of

special trust. On or about June 14, 2016, Respondent informed

Petitioner that his request for exemption was denied. Petitioner

filed a request for administrative hearing and on July 14, 2016,

Respondent forwarde d PetitionerÓs request to the Division of

Administrative Hearings for a final hearing.

At the final hearing, Petitioner testified on his own behalf

and presented testimony from Kimberly Fain, who works with

Petitioner, and Halsey Watkins, III, a ssistant p astor,

Jesus Christ Outreach Center. Respondent presented testimony

from a single witness, its employee Jeffrey Smith, who works for

Respondent as r egional o perations m anager. No exhibits were

admitted into evidence on behalf of Petitioner. RespondentÓ s

Exhibits A through E were admitted into evidence.

A transcript of the final hearing was not filed. Petitioner

and Respondent each filed a Proposed Recommended Order. The

Proposed Recommended Orders filed by the parties were considered

in the preparati on of this Recommended Order.

FINDING S OF FACT

1. It is undisputed that Petitioner has an extensive

criminal background. His disqualifying offenses (larceny)

occurred in April 1998 and July 2009 , respectively. PetitionerÓs

first recorded involvement, as an adult, in the criminal

enterprise commenced in 1997, when, at the age of 19, he was

charged with burglary. During the 12 - year period between 1997

and 2009, Petitioner was arrested multiple times for criminal

violations such as marijuana possession, sh oplifting, and failure

to appear in court. He also had multiple instances during this

period where he violated the terms of his probation and was cited

for motor vehicle traffic infractions. Petitioner readily

acknowledges that from 1997 through July 200 9, his life was in a

fairly constant state of chaos, and he recognized that if he did

not make a change he would likely end up in prison or dead.

2. In or around October 2009, Petitioner started a new

chapter in his life when he made the decision to beco me a member

of the Jesus Christ Outreach Center (JCOC). Petitioner has been

a committed member of JCOC as evidenced by his extensive

involvement in several ministries of the church, which include

working with troubled youth, coordinating church - related

co nferences, and serving as a praise and worship leader.

3. Since September 2009, Petitioner has been continuously

employed. In July 2012, Petitioner went to work for Sandy Park

Development Center where he worked as a direct care aide for

individuals with developmental disabilities. In early 2015,

Petitioner went to work for the Shalimare Company in Ft. Myers,

Florida, where he also provided assistance to individuals with

developmental disabilities. According to the testimony of one of

his co - workers, P etitioner has proven himself to be a hard -

working, trustworthy, and a reliable individual.

4. In order to provide assistance to individuals served by

Shalimare, it was necessary that Petitioner pass a background

screening check. On July 10, 2014, the Ag ency for Health Care

Administration (AHCA), pursuant to a request from Shalimare,

cleared Petitioner to work in positions of special trust,

including those positions where services are provided directly to

individuals with developmental disabilities.

5. Petitioner believes that he has clearly and convincingly

proved that he is rehabilitated because since 2009 he has not

engaged in criminal activity, has maintained steady employment

where he distinguished himself as being hard - working, trustworthy

and reli able, and has demonstrated dedicated and unwavering

commitment to his church and community. Furthermore, Petitioner

also believes that his claim of rehabilitation is bolstered by

the fact that since July 10, 2014, he has been authorized by AHCA

to work in positions of special trust.

6. Respondent, the Agency for Persons with Disabilities,

believes that Petitioner has failed to demonstrate that he can be

trusted to work in positions of special trust as to clients under

the jurisdiction of the agency. In support of its position that

Respondent has not demonstrated that he is rehabilitated, APD

cites discrepancies between PetitionerÓs account of his criminal

activity and the law enforcement records pertaining to the same,

his actions of knowingly driving wi th a suspended driverÓs

license while transporting a minor, and his pattern of poor

decision making as evidenced by his multiple arrests. 1/ While APD

commends Petitioner for the positive steps he has taken towards

turning his life around, APD believes tha t ultimately

PetitionerÓs 12 years of deviant behavior are not, at this time,

counterbalanced by the normalized behavior that he demonstrated

during the last 7 years.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding.

§§ 120.569, 120.57(1), and 435.07, Fla. Stat. (2016). 2/

8. Section 393.0655, Florida Statutes, provides in part as

follows:

(5) Disqualifying offenses. -- The background

screening conducted under this sect ion 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 o f nolo

contendere or guilty to, or has 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:

(a) Any authorizing s tatutes, if the offense

was a felony.

9. Section 435.07 provides, in part, as follows:

Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section apply to

exemptions from disqualification for

disqualifying of fenses revealed pursuant to

background screenings required under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

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

may grant to any employee otherwise

disq ualified from employment an exemption

from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imp osed by the court for the

disqualifying felony;

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under

similar statutes of other jurisdictions for

which the applicant for the exemption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court;

3. Offenses that were felonies when

committed but that are now misdemeanors and

for which the applicant for the exemption has

completed or been lawfully released from

confineme nt, supervision, or nonmonetary

condition imposed by the court; or

4. Findings of delinquency. For offenses

that would be felonies if committed by an

adult and the record has not been sealed or

expunged, the exemption may not be granted

until 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 offense.

* * *

(3)(a) In order for the head of an ag ency 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

e vidence 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 histor y 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 employee Ós

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 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 procedures 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 .

* * *

(5) Exemptions granted by one agency shall

be considered by subsequent agencies, but are

not binding on the subsequent agency.

10. Petitioner bears the burden of proving by clear and

convincing evidence that he should not be disqualified from

employment and is, therefore, entitled to the exemption sought.

§ 435.07(3)(a), Fla. Stat.

11. In considering RespondentÓs intended action of denying

PetitionerÓs exemption request, the undersigned must consider

whether the agency head abused his or her discretion when passing

on PetitionerÓs request. The ÐÒabuse of discretionÓ standard is

highly deferential.Ñ E.R. Squibb & Sons v. Farnes , 697 So. 2d

825, 826 (Fla. 1997). An agency head abuses his or her

discretion within the meaning of section 435.07 when the

Ðintended actionÑ under review Ðis arbitrary, fanciful, or

unreasonable, which is another way of saying that discretion is

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

adopted by the [agency head]. If reasonable [persons] c ould

differ as to the propriety of the [intended] action . . . , then

it cannot be said that the [agency head] abused [his or her]

discretion.Ñ Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla.

1980).

12. The essence of ÐrehabilitationÑ within the mea ning of

section 435.07(3)(a) is that an applicant thereunder would Ðnot

present a danger if employment or continued employment is

allowed.Ñ

13. Petitioner is to be commended for the progress that he

has made towards rebuilding his life. In particular,

P etitionerÓs commitment to youth and his dedication to his church

are to be applauded. However, the evidence presented to the

undersigned demonstrates that Respondent's intent to deny

Petitioner's exemption request is not unreasonable. Respondent

is taske d with protecting the public welfare, especially when it

comes to the care of the vulnerable in our society. Based on

Petitioner's disqualifying offenses, his repeated violations of

law during a 1 2 - year period, doubts as to the truthfulness of his

stateme nts as part of the exemption review process, and

legitimate concerns regarding his judgment (i.e. , knowingly

operating a vehicle with an expired driverÓs license while

transporting his nephew to day care), Respondent did not abuse

its discretion when it de nied Petitioner's request for an

exemption.

14. It certainly is of significance that RespondentÓs

sister agency, the AH CA , cleared Petitioner to work in a position

of special trust. However, section 435.07(5) makes clear that

exemptions granted by one a gency are not binding on another

agency.

15. Petitioner has failed to establish that the reasons

offered by Respondent in denying his request for exemption are

arbitrary, fanciful, or unreasonable. Accordingly, Petitioner

has failed to meet his burden o f proving by clear and convincing

evidence that RespondentÓs decision to deny his exemption request

was an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Per sons with

Disabilities, enter a final order denying PetitionerÓs request

for exemption.

DONE AND ENTERED this 14th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Di vision 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 14th day of Oc tober , 2016 .

ENDNOTE S

1/ For example, in explaining his December 7, 1998, arrest for

shoplifting, Petitioner stated that Ð[w]hen we got out of the

store we were told to stop [running], [and] I did.Ñ The

narrative prepared by the arresting officer note s that when

Petitioner exited the store, security personnel Ðwere all yelling

at them to stop as [Petitioner] ran across the parking lot to

[the awaiting] vehicle,Ñ and that Petitioner did not stop running

when instructed to do so. Another incident of par ticular concern

to APD occurred in early 2009 when Petitioner was pulled over for

speeding and arrested for driving with a suspended license.

Petitioner was driving his nephew to day care when this incident

occurred. Also, in its Proposed Recommended Ord er, APD notes

that at the final hearing Petitioner mentioned for the first time

that one of his shoplifting incidents was motivated by a desire

to secure items for a child that he mistakenly believed that he

had fathered. As correctly noted by Respondent, Petitioner

previously described this particular shoplifting incident as

being motivated by his desire to feed his drug dependency.

PetitionerÓs inconsistent testimony, according to APD, is further

evidence that Petitioner is not sufficiently trustworthy so as to

warrant receiving the requested exemption.

2/ All subsequent references to Florida Statutes will be to 2016,

unless otherwise indicated.

COPIES FURNISHED:

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Ke ntucky Avenue

Lakeland, Florida 33801

(eServed)

Raymond Tyson

3864 Washington Avenue

Fort Myers, Florida 33905

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Rich ard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Lori Oakly, Acting Agency Clerk

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 exceptions within

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

to this Recommended Order should be filed with the agenc y that

will issue the Final Order in this case.