16-004102EXE Mamie Petersen-Mclaurn vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, November 8, 2016.

Summary: Petitioner failed to prove that Respondent's intended action to deny her request for exemption from disqualification was an abuse of discretion where she had a subsequent non-disqualifying offense involving domestic violence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAMIE PETERSEN - MCLAURN,

Petitioner,

vs. Case No. 16 - 4102EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed f inal hearing was held in this case on

October 4, 2016, via video teleconference sites in Tallahassee

and Jacksonville, Florida, before Suzanne Van Wyk, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petit ioner: Mamie Peterson - McLaurn, pro se

2747 Sophia Street

Jacksonville, Florida 32208

For Respondent: Melissa E. Dinwoodie, Esquire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville, Florida 32224

STA TEMENT OF THE ISSUE

Whether the AgencyÓs intended action to deny PetitionerÓs

application for exem ption from disqualification for employment is

an abuse of the AgencyÓs discretion.

PRELIMINARY STATEMENT

By letter dated June 14, 2016, the Agency for Persons with

Disabilities (ÐAgencyÑ or ÐRespondentÑ) issued its notice of

agency action by which it informed Petitioner that her request

for exemption from disqualification was denied. As a result,

Petitioner was determined to be Ðnot eligible to be employed,

li censed or registered in positions having direct contact with

children or developmentally disabled people served in programs

regulated byÑ the Agency. In the letter, the Agency reported its

determination that Petitioner had Ðnot submitted clear and

convinc ing evidence of [her] rehabilitation.Ñ

Petitioner filed her Request for Administrative Hearing with

the Agency, which was referred to the Division of Administrative

Hearings on July 20, 2016. The final hearing was scheduled for

October 4, 2016, and com menced as scheduled.

At the final hearing, Petitio ner testified on her own behalf

and introduced PetitionerÓs Exhibits P1 and P2, which were

admitted in evidence.

Respondent presented the testimony of Leslie Richards, the

AgencyÓs Regional Operations Man ager. RespondentÓs Exhibits R1

through R5 were admitted in evidence.

The proceedings were recorded, but the parties did not order

a transcript thereof. Respondent timely filed a Proposed

Recommended Order on October 24, 2016. Petitioner filed a

Propo sed Recommended Order on October 27, 2016, to which

Respondent did not object. Both partiesÓ Proposed Recommended

Orders have been considered in preparing this Recommended Order.

FINDING S OF FACT

Parties and Background

1. Petitioner is a 57 - year - old fema le residing in

Jacksonville, Florida. Petitioner wishes to open her own group

respite care home for adults with developmental disabilities. As

such, Petitioner seeks to become a direct - care provider to the

AgencyÓs clients with developmental disabilities .

2. Respondent is the state agency responsible for licensing

and regulating the employment of persons in positions of special

trust. Specifically, the AgencyÓs mission includes serving and

protecting vulnerable populations, including children and adults

with development al disabilities.

3. For the last 29 years, Petitioner has been employed by

Vistakon, a division of Johnson & Johnson Vision Care, Inc. Her

current position is Distribution Operator II, fulfilling customer

orders for shipping.

4. Petiti oner is a long - term member of Faith United Miracle

Temple in Jacksonville, where she serves on the usher board,

greets churchgoers on Sunday mornings, and teaches childrenÓs

Sunday school classes.

5. Petitioner is involved in many community service

projec ts including Habitat for Humanity, Florida Blood Drive,

feeding the homeless, and supporting her employerÓs diversity and

i nclusion programs.

The Disqualifying Offense

6. On December 26, 2003, Petitioner, then known as

Mamie Faith Fields, was arrested at her home and charged with

domestic battery on her husband, Gregory Fields. PetitionerÓs

mother witnessed the incident.

7. Petitioner was 44 years old at the time of the offense.

8. The facts surrounding the incident are in dispute and

there was insuf ficient reliable evidence for the undersigned to

make any findings of fact relative to the details of the

incident. 1/

9. Petitioner pled no contest to the offense of domestic

battery, was sentenced to eight monthsÓ probation, and ordered to

attend a batt ererÓs intervention course and pay court costs of

$480.

10. On June 26, 2004, Petitioner completed the Hubbard

House First Step Program, a 24 - class battererÓs intervention

course.

11. PetitionerÓs probation was terminated early on July 26,

2004.

Subseq uent Non - Disqualifying Offense

12. On May 8, 2007, Petitioner was involved in another

physical altercation with Mr. Fields. The incident occurred

while Petitioner was a right front - seat passenger in the vehicle

Mr. Fields was driving.

13. Petitioner w as arrested and charged with domestic

battery. The arresting officer observed scratches on Mr. FieldsÓ

face and on the back of his right shoulder. The arresting

officer observed no injury to Petitioner.

14. Petitioner was 48 years old at the time of he r arrest.

15. The charges against Petitioner were dropped by the

State AttorneyÓs Office and Petitioner was not prosecuted for any

crime. 2/

Subsequent Personal and Professional History

16. Petitioner and Mr. Fields were divorced in 2011.

17. Petitioner reported having attended six weeks of

marital counseling with Mr. Fields, but the record does not

support a finding of the timeframe in which the counseling

occurred.

18. PetitionerÓs employment has not changed since the

disqualifying offense.

19. In 2 014, Petitioner sought, and was granted, an

exemption from disqualification from the Department of Children

and Families ( Ð DCF Ñ ). Her reported interest was in opening, or

working in, a day care facility.

20. By May 2015, Petitioner had completed over 50 hours of

child care training, including child care facilities rules and

regulations, early literacy, and family child care home

certificates.

21. Petitioner has n ot been employed with any child care

provider subsequent to receiving the exemption from DC F.

22. In response to questioning by the undersigned as to why

Petitioner had not pursued employment with a DCF provider,

Petitioner stated that there were Ðway too many restrictionsÑ and

that she had discovered that Ðif a kid says you hit them, an

actio n could be taken against you.Ñ

23. PetitionerÓs current interest is in opening a group

home to provide respite care services for the AgencyÓs adult

clients with developmental disabilities.

24. Petitioner filed two previous applications with

Respondent - - in 2010 and 2014 -- for exemption from

disqualification, but was denied both times.

25. In 2016, Petitioner completed four courses required by

the Agency for providers of direct - care services to its clients:

Introduction to Development al Disabilities ; Hea lth and Safety;

HIV/Bloodborne Pathogens; and Zero Tolerance. The Agency has

certified that Petitioner has completed a course required for

providers in the Medicaid Waiver program. Earlier this year,

Petitioner also completed HIPAA training and three hou rs of

classroom training in ÐPersonal Outcome Measures - Overview:

Choices and Rights.Ñ

PetitionerÓs Exemption Request

26. The Exemption Questionnaire presented by the Agency to

Petitioner listed three offenses to which she was to respond:

the 2003 disqu alifying offense, the 2007 non - disqualifying

arrest, and an earlier 1994 arrest for aggravated

battery/domestic violence.

27. The 1994 of fense involved Petitioner, then known as

Mamie Faith Lundy, and her previous husband, John Lundy. The

1994 offense r esulted in an arrest, but charges were later

dropped and Petitioner was not prosecuted.

28. In response to a request for her detailed version of

the events of the 2003 disqualifying offense, Petitioner

explained that Ðit was Christmas Day, my ex - husband was upset

about me spending too much money. I didnÓt want to hear him talk

about it he got upset. We [had] guest[s] and it got out of

control. Charges were dropped and we forgave each other.Ñ

29. Charges for the 2003 offense were not dropped and

Petiti oner pled no contest to domestic battery.

3 0. The offense of battery requires an intentional touching

of another person against their will, or intentionally causing

harm to another person. See § 784.03(1)(a), Fla. Stat. (2015). 3/

31. PetitionerÓs versi on of the disqualifying offense does

not contain any relevant detail regarding the offense.

32. At hearing, Petitioner testified only that Ðhe pushed

me and I pushed him back.Ñ

33. In response to the question regarding the degree of

harm to the victim or property, Petitioner stated Ðthere is no

property, no victim harm.Ñ

34. According to the observations of the police officer at

the scene in 2007, Petitioner scratched her then - husbandÓs face

and right shoulder.

35. With regard to stressors in her li fe at the time of the

disqualifying offense, Petitioner wrote Ðthere were divorce[s] in

both marriage[s].Ñ

36. With regard to current stressors, Petitioner revealed,

ÐNo current stressors. My support system is my family, God,

children, job, friends, chu rch family, Bible. I [am] living

alone now.Ñ

37. When requested to list her educational achievements and

training, Petitioner responded that she attends ÐWord of Life

studentsÓ bible school.Ñ

38. Regarding counseling she has received, she listed

ÐAlis on Behrens, six weeks.Ñ Apparently Ms. Behrens is the

marriage counselor she saw with Mr. Fields, but the record does

not reveal whether the counseling was before or after the 2003

offense, or even after the 2007 non - disqualifying offense.

39. The most relevant answer given by Petitioner on her

exemption questionnaire was with respect to accepting

responsibility, and expressing remorse, for her actions.

Tellingly, Petitioner stated, ÐI feel very bad about my action,

not to leave when people get upset. Try not to let people know

what going on in my family. And I feel responsibility for

let[ting] things go to[o] far. I feel very remorse about it.

IÓm very much ashamed as a mother, and a Grandmother that I

allowed this to happen to me.Ñ

40. Petitioner Ós explanation sounds more like regret for

allowing others to learn the details of incidents involving

battery on her husband , rather than remorse for losing her temper

and striking out at another person. Furthermore, PetitionerÓs

statements express regre t for what has happened to her, rather

than harm she has inflicted on others.

41. Similarly, at hearing , Petitioner testified that in

2003 she had left her home, but that her mother called her and

asked her to return. Petitioner stated that it was a Ðmi stakeÑ

for her to have returned to the house, but she did not describe

as mistakes the actions she took upon her return.

42. Along with her exemption application, Petitioner

submitted two character reference letters. 4/

43. Anthony Howard, an Elder in P etitionerÓs church,

described her as Ðkind, compassionate, and a hard working personÑ

and applauded her commitment to the church as an active member,

Sunday School teacher, and usher.

44. A letter from Michelle Dunnam describes Petitioner as

the Ðmost ki nd hearted person I knowÑ and applauds her

volunteerism. The letter does not reveal how long she has known

Petitioner or in what capacity. There is no record evidence of

Ms. DunnamÓs relationship to Petitioner, whether family, friend,

employer, or otherw ise.

45. Along with her request for a hearing, Petitioner

submitted one additional ch aracter reference letter. Eric

Mitchell, her employerÓs Diversity and Inclusion Community

Ambassador, submitted a Ðletter of appreciationÑ for PetitionerÓs

continuous s ervice to the Jacksonville community through Habitat

for Humanity, Florida Blood Drive, feeding the homeless, and

supporting the Employee Resou rce Groups in their message of

diversity and i nclusion and at her church.

46. When asked if any of those who sub mitted character

references were aware of her disqualifying offense, Petitioner

was defensive and seemed concerned that someone at the Agency

might reveal her background to them.

Final Hearing

47. At final hearing, Petitioner presented very little

testim ony and no witnesses on her behalf.

48. Petitioner presented two additional character reference

letters: One each from both of her ex - husbands.

49. In his letter, Mr. Lundy described Petitioner as an

excellent mother, caring, intelligent, motivated, a nd Ðmore than

capable of managing a group of people.Ñ He cited her long - term

employment and her involvement with the church as evidence of her

dedication to family and community. He explained that Petitioner

had asked for forgiveness and that they have f orgiven each other.

50. Mr. Fields wrote that Petitioner has expressed that she

is truly sorry, that he has forgiven her, and that he hopes for

her to have a successful life.

51. Despite PetitionerÓs obvious commitment to her church

and community, Peti tionerÓs case for rehabilitation is thin.

Petitioner was involved in a subsequent domestic battery

incident, in which she caused minor injury to her husband, after

completing a battererÓs intervention course. There is no

evidence of Petitioner pursuing a nger management or any other

counseling subsequent to the 2007 incident. Furthermore, the

2007 incident took place in a car while Mr. Fields was driving,

which put Petitioner, her husband, and other drivers at risk, a

fact which was not acknowledged by Pe titioner.

52. Petitioner was not forthcoming with the details of any

of the incidents in question, yet denied the details as recorded

in the police reports.

53. Petitioner was middle - aged when the 2003 and 2007

incidents occurred, thus eliminating any ex planation on the basis

of lack of maturity.

54. PetitionerÓs community volunteer work is laudable and

she has reason to be proud of her service. However, the work

does not demonstrate PetitionerÓs ability to calmly handle day -

to - day difficult situations with developmentally - disabled

clients. Even Petitioner admitted that she has not encountered

behavioral issues with the children in her Sunday school class

because their Ðparents are right there.Ñ

CONCLUSIONS OF LAW

55. The Division of Administrative He arings has

jurisdiction over the subject matter of, and the parties to, this

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

Statutes.

56. Section 435.04, Florida Statutes, provides, in

pertinent part, that:

(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 includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks th rough the

Department 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.

* * *

(3) The security background i nvestigations

under this section must ensure that no person

subject to this section has been found guilty

of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense that constitutes domestic violence as

defined in s. 741 .28, whether such act was

committed in this state or another

jurisdiction.

57. The Agency based its disqualification of Petitioner on

her 2003 nolo contendere plea to battery/domestic violence.

58. Section 435.07 establishes a process by which person s

with criminal offenses in their backgrounds, that would

disqualify them from acting in a position of special trust

working with children or vulnerable adults, may seek an exemption

from disqualification. That section provides:

435.07 Exemptions from di squalification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqualification for

disqualifying offenses 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

disqualified 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 sanction for the

disqualifying felony;

* * *

(3)(a) In order for the head of an agency to

grant an exemption to any employee, th e

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 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 o ther

evidence or circumstances indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

* * *

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedure s set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended decision is an abuse of

discretion.

59. An exemption from a statute enacted to protect the

public welfare is strictly construed against the person claiming

the exemption. Heburn v. Dep't of Child. & Fams. , 772 So. 2d 561

(Fla. 1st DCA 2000).

60. The abuse of discretion standard of review set forth in

section 435.07(3)(c) 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 discretionary ruling of the

trial judge should be disturbed only when his

decision fails to satisfy th is test of

reasonableness.

* * *

The discretionary power that is exercised by

a trial judge is not, however, without

limitation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

of the judge nor in an inconsistent manner.

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 di scretion standard, the test is

Ð whether any reasonable pe rso nÑ could take the position under

review).

61. The Agency has a heightened interest in ensuring that

the vulnerable population being protected by chapter 435, i.e.,

developmentally disabled children and adults, is not abused,

neglected, or exploited. In light of that mission, the

legislature has imposed a heavy burden on those seeking approval

to serve this vulnerable population when they have disqualifying

events in their past.

62. The statutorily - enumerated factors to be considered by

the Agency in eva luating an exemption application are the details

surrounding the disqualifying offense, the nature of the harm

caused, the history of the employee since the incident, and the

time period that has elapsed since the incident. § 435.07(3)(a),

Fla. Stat.

63. The limited details of the disqualifying offense

demonstrated PetitionerÓs inability to control her anger. By her

own testimony, Petitioner left the scene, presumably allowing

time to Ðcool off,Ñ but when she returned , violence still ensued.

The fact th at Petitioner was not forthcoming with details and

seemed to be more concerned with harm to her reputation than the

harm she caused others, did nothing to support her cause.

64. Of note, in arriving at its intended decision to deny

PetitionerÓs exemption application, the Agency considered the

1994 arrest for aggravated battery/domestic violence. That

arrest, for which no charges were brought, occurred prior to the

disqualifying offense.

65. Section 435.07(3)(b) provides that Ð[t]he agency may

consider a s part of its deliberations . . . 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.Ñ

66. The statute does not authorize the agency to consider

offenses which occurred prior to the disqualifying offense, and

to do so was error. Dawson v. Ag. for Pers. with Disab. ,

Case No. 16 - 0661 n.2 (Fla. DOAH Apr. 28, 2016; Fla. APD May 23,

2016)(criminal arrests and convictions predating the

disqualifying offense should not have been considered by the

Agency); Rivera v. Ag. for Pers. with Disab. , Case No. 15 - 5039

(Fla. DOAH Nov. 10, 2015; Fla. APD Dec. 8, 2015)(ÐConsidering

evidence of non - d isqualifying crimes committed prior to the

disqualifying offenses exceeded the powers and duties granted by

the Legislature.Ñ); Edwards v. Ag. for Pers. with Disab. ,

Case No. 14 - 4987 n.4 (Fla. DOAH March 17, 2015)(R espondentÓs

consideration of PetitionerÓ s criminal offenses that occurred

prior to the disqualifying offense violated the principle of

statutory construction which requires statutes to be interpreted

in a manner that gives meaning and effect to all of their

provisions . ).

67. While it was error for the Agency to have considered

the 1994 incident in arriving at its intended decision to deny

PetitionerÓs exemption request, it did not undermine the AgencyÓs

determination under the circumstances of this case. Even

excluding evidence of the 1994 arre st, Petitioner failed to prove

rehabilitation by clear and convincing evidence.

68. The undersigned concludes, based on the totality of the

circumstances, that the AgencyÓs intended denial of PetitionerÓs

requested exemption does not constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

PetitionerÓs request for an exemption from disqualification.

DONE AND ENTERED this 8th day of November , 20 16 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November , 2016 .

ENDNOTE S

1/ The police report is hearsay. However, since this case is

not criminal in nature, the report falls withi n the public

records hearsay exception in section 90.803(8), Florida

Statutes.

The public record exception is limited to Ðmatters observed

pursuant to a duty imposed by law as to matters which there was

a duty to report.Ñ The statements in the police rep ort

attributed to Petition er, Mr. Fields, and the witness are simple

hearsay for which there exists no applicable exception under

section 90.803. However, the police officerÓs observations of

the extent of injury or damage fall squarely within the

exempti on.

In an administrative proceeding, hearsay evidence is

insufficient to support a finding of fact unless the evidence

falls within an exception to the hearsay rule. See Fla. Admin.

Code R. 28 - 106.213(3). While hearsay statements are admissible

in an ad ministrative proceeding to supplement or explain other

non - hearsay evidence, pursuant to rule 28 - 106.213(3), the

hearsay statements in this case were inadmissible because they

were disputed, rather than corroborated, by Petitioner.

2/ Thus, this incident is not a disqualifying offense pursuant

to sec tion 435.04(2) , Florida Statutes .

3/ Unless otherwise noted herein, all references to the Florida

Statutes are to the 2015 version.

4/ A third letter, from Vistakon Human Resources simply verified

the leng th, title, and address of PetitionerÓs employment.

COPIES FURNISHED:

Melissa E. Dinwoodie, Esquire

Agency for Persons with Disabilities

3631 Hodges Boulevard

Jacksonville, Florida 32224

(eServed)

Mamie Petersen - McLaurn

2747 Sophia Street

Jacksonville, Florida 32208

Lori Oakley , Acting Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

T allahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

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 rig ht 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.