16-004357EXE Jennifer Ford vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, October 11, 2016.

Summary: Agency denial of request for exemption from disqualification was not abuse of discretion where Petitioner showed little proof of rehabilitation, except for the passage of time, and had further law enforcement involvement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER FORD ,

Petitioner,

vs. Case No. 16 - 4357EXE

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 19, 2016, a video teleconference hearing was

held at locations in West Palm Beach and Tallahassee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer Ford, pro se

4108 Shelley Road North

West Palm Beach, Florida 33407

For Respondent: Llamilys Maria Bello , Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard, Suite 305

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Petitioner should be exempt from

disqualification from employment in a position of trust, pursuant

to section 435.07, Florida Statutes (2016). 1/

PRELIMINARY STATEMENT

In a letter signed by the director of the Agency for Persons

with Disabilities (Respondent or the Agency), dated June 26,

2016, Ms. Jennifer Ford (Petitioner or Ms. Ford) was notified

that her request for exemption from disqualification from

employment was denied, based upon the Agency ' s determination that

Ms. Ford had failed to submit clear and convin cing evidence of

her rehabilitation. On July 11, 2016, Ms. Ford requested a

formal hearing. On July 29 , 2016, the Agency referred the matter

to the Division of Administrative Hearings for the assignment of

an Administrative Law Judge to conduct the final hearing.

At hearing on September 19, 2016 , Respondent presented the

testimony of Petitioner and that of Mr. Gerry Driscoll, regional

operations manager for the Southeast Region of the Agency.

Respondent ' s Exhibits A through D were received into evidence

without objection, with the caveat that many contained hearsay.

Petitioner testified on her own behalf and offered no exhibits.

The proceeding was transcribed, but neither party ordered a

copy of the transcript. Upon motion from Respondent at hearing ,

t he deadline to file proposed recommended orders was extended to

October 3, 2016 . Respondent timel y filed a Proposed Recommended

O rder, which was considered in the preparation of this

Recommended Order.

FINDING S OF FACT

Based on the evidence presented at hearing, the following

findings of fact are made:

1. The Agency is the state entity which supports vulnerable

persons with various developmental disabilities. The Agency

contracts with direct service providers and is responsible for

regulating the emplo yment of persons serving in positions of

trust with these providers.

2 . The A RC of Martin County , Inc. (the A RC ) , is a service

provider for the Agency. Ms. Ford applied with the A RC to become

an after - school counselor, a position of trust which requires

completion of level 2 background screening.

3 . The Department of Children and Families conducts initial

screening on behalf of the Agency. Background screening and

local criminal records revealed a history of involvement with law

enforcement , as Ms. Ford admitted in her exemption request

paperwork and her testimony at hearing , summarized below.

4 . On September 30, 2011, Ms. Ford entered a plea of guilty

to forgery, driving on a suspended license, and providing a false

name to law enforcement , for events that took place on April 9,

2010 . Forgery, a felony of the third degree, is a disqualifying

offense for employment in a position of trust. She was ordered

to pay court fees and costs, and was put on probation for a

period of 18 months for that offense.

5 . In her responses in the Exemption Questionnaire,

Ms. Ford gave few details as to the events surrounding the

disqualifying offense itself . She stated only that she was a

witness to an accident on March 20, 2011, almost a year after the

forgery incident , and , after identif ying herself to the police,

was arrested on an outstanding warrant from Martin County for the

forgery charge . Ms. Ford wrote in her own words : 2/

The f orgery was do to traffic when I was

pulled over and I gave my sister name to the

officer. The officer then allowed me t o go

to go . I didn ' t know I had a warrant for

Martin County until the night of the crash.

6 . In response to inquiries concerning another arrest for

driving with a suspended license and providing a false name to a

law enforcement officer while being arrested or detained a couple

of months later on May 9, 2011, Ms. Ford wrote:

I was on my to work and I was running late so

I then was doing ov er milage and I was pulled

over and gave office r a other name, cause I

didn ' t want to be late for work.

7 . At hearing, i n response to inquiries concerning her

arrest for shoplifting on January 22, 2013, Ms. Ford acknowledged

shoplifting a medical device for her daughter from Wal - Mart.

8 . Ms. Ford completed all confinement, supervision, and

nonmonetary conditions imposed by the court for her disqualifying

offense by March 29, 2013.

9 . Mr. Gerry Driscoll is the regional operations manager

for the Southea st Region of the Agency. He has served in his

current position for three years and has been employed with the

Agency for seventeen years. Mr. Driscoll credibly testified that

the Agency has responsibility for a very vulnerable population,

many of whom are unable to later tell others about the actions of

their caregivers. This population is thus very susceptible to

exploitation. Mr . Driscoll noted that the Agency must consider

any prior criminal conduct or dishonesty very carefully.

1 0 . I n her written submission to the Agency , Ms. Ford did

not recognize that she caused any harm or injury to any victim .

However, at hearing , she adm itted that she caused injury to her

sister when she provided and signed her sister ' s name to law

enforcement after being detained or arrested on more than one

occasion .

1 1 . Ms. Ford submitted three identically worded " form "

character reference letters to the Agency , stating generally that

she is a responsible, reliable, and honest person. The letters

do not indicate the employment status or positions of the

individuals signing the references.

1 2 . Ms. Ford further stated that she was remorseful . In

her Exemption Questionnaire, Ms. Ford wrote:

Yes my remorse is I accepting made bad cho ose

in my life and I accept full responsibility

for the actions that I made. I want to move

forward and put the pass behind me so I can

ma ke a better future for me and my kids.

1 3 . Ms. Ford seems sincere in her desire to assist

vulnerable persons and asks for a chance to work with them to

demonstrate that she is rehabilitated. However, the statute

requires that rehabilitation be shown first ; o nly then may an

exemption f o r disqualification be granted.

1 4 . While Ms. Ford stated that she is rehabilitated, she

offered little evidence to clearly demonstrate that. She

completed a home health aide course in 2012, but has not

participated in other counseling or coursework since the

disqualifying offense.

1 5 . Ms. Ford ' s recent work hi story includes employment as

an administrative assistant with Florida Community Health

Centers, Inc. , from October 8, 2014, to October 5, 2015, and

employment as a m ental h ealth t echnician with Sandy Pines

Residential Treatment Center from July 18, 2008, to January 7,

2014.

1 6 . Passage of time is a factor to be considered in

determining rehabilitation, and the last disqualifying offense

was over five years ago. However, Ms. For d ' s history since her

disqualifying offense includes more to reflect incidents and does

not contain sufficient positive indications of rehabilitation.

1 7 . Ms. Ford failed to prove by clear and convincing

evidence that she is rehabilitated and that she wi ll not present

a danger if she is exempted from her disqualification from

employment in a position of trust.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over this case pursuant to sections 120.57(1) and

435.07(3) ( c), Florida Statutes.

19 . Petitioner ' s disqualification limits the employment

opportunities that are available to her. She w ill be unable to

work at the A RC , or with similar providers in a position of

trust, unless an exemption is granted. Petitioner has

de monstrated standing to maintain this proceeding.

2 0 . S ection 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 a n 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 offense

prohibited under any of following provisions

of state law or similar law of another

jurisdiction:

* * *

(k) Section 831.01, relating to forgery.

2 1 . Petitioner ' s guilty plea to forgery on September 30 ,

2011, disqualifie s her from employment in a position of trust.

2 2 . Petitioner is seeking an exemption from employment

disqualification for her third - degree felony forgery conviction,

pursuant to section 393.0655(2) . Section 393.0655(2) requires

the Agency to follow the requirements set forth in section 435.07

when reviewing a request for exemption from employment

disqualification.

2 3 . Under s ection 435.07(1), the head of the Agency may

grant an exemption from dis qualification for offenses for which

the applicant has been released from confinement, supervision, or

nonmonetary conditions imposed by the court. An applicant is

eligible for exemption consideration immediately after release

from court sanctions imposed for misdemeanors and three years

after release from sanctions imposed for felonies. Petitioner

meets this requirement with respect to her disqualifying offense

and is eligible for consideration for an exemption.

2 4 . In order to receive an exemption, the applicant has the

burden of proving that she is rehabilitated. Under section

435.07(3), Petitioner must prove rehabilitation by clear and

convincing evidence.

2 5 . The prohibition against employing individuals convicted

of disqualifying offenses in positions of trust is intended to

protect the public welfare, and the statute must be strictly

construed against the person claiming exemption. Heburn v. Dep ' t

of Child. & Fams. , 772 So. 2d 561, 563 ( Fla. 1st DCA 2000).

2 6 . The clear and convincing stand ard of proof has been

describe d by the Florida Supreme Court:

Clear and convincing evidence requires that

the 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 witnesses

must be lacking in confusion as to t he 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 established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1 994)(quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)) .

2 7 . Under section 435.07(3)(a), evidence of rehabilitation

may include, but is not limited to, the circumstances surrounding

the incident for which an exemption is sought, the tim e period

that has elapsed since the incident, the nature of the harm

caused to the victim, and the history of the applicant since the

incident, or any other evidence or circumstances indicating that

the employee will not present a danger if employment or c ontinued

employment is allowed.

28 . Section 435.07(3)(c) provides that " 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 agency ' s

intended action is an abuse of discretion. "

29 . Although the statutory language prescribes a " standard

of review, " it also provides that the review is of the agency ' s

" intended " action and makes applicable the " hearing procedures

set forth in Chapter 120, " which call for the issuance of a

recommended order back to the agency head for final agency

action.

3 0 . The statute thus combines elements of a de novo

evidentiary hearing with elements of review of earlier action.

W hile providing for consideration of new evidence, the statute

requires that some deference be given to the agency ' s intended

action. The recommended order must contain a legal conclusion as

to whether the agency head ' s intended action to deny the

exemptio n constitutes an " abuse of discretion. " J.D. v. Fla.

Dep ' t of Child. & Fams. , 114 So. 3d 1127, 1131 ( Fla. 1st DCA

2013)(ultimate legal issue to be determined by Administrative Law

Judge is whether the agency head ' s intended action was an " abuse

of discretion " based on facts as determined from the evidence

presented at a de novo chapter 120 hearing).

3 1 . In Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla.

1980), the Court noted that " [d]iscretion, in this sense, is

abused when the . . . action is arbitrary, fanciful, or

unreasonable, which is another way of saying that discretion is

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

adopted . . . . " See also Kareef v. Kareef , 943 So. 2d 890, 893

(Fla. 4th DCA 2006)(holding that pursuant to the abuse of

discretion standard, the test is whether " any reasonable person "

would take the position under review).

3 2 . While Petitioner provided some evidence of

rehabilitation, she failed to prove by clear and convincing

evidence that she is rehabilitated or that she will not present a

danger if she is exempted from her disqualification from

employment in a position of trust.

3 3 . Under the facts determined here, a reasonable person

could conclude that Petitioner should not be granted an ex emption

from disqualification. The Agency ' s determination to deny

Petitioner an exemption from her disqualification does not

constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order denying Ms. Jennifer Ford ' s

application for exemption from disqualification.

DONE AND ENTERED this 11 th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 11 th day of October , 2016 .

ENDNOTE S

1/ All statutory references are to the 2016 Florida Statutes,

except as otherwise indicated. Petitioner ' s application is

governed by the law in effect at the time the final order is

issued. See Ag. f or Health Care Admin. v . Mt. Sinai Med. Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997) (agency must apply law in

effect at the tim e it makes its final decision).

2/ Quotes from Ms. Ford are reprinted as they appeared, without

any attempt to make grammatical corrections.

COPIES FURNISHED:

Llamilys Maria Bello, Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard , Suite 305

Fort Lauderdale, Florida 33301

(eServed)

Jennifer Ford

4108 Shelley Road North

West Palm Beach, Florida 33407

Lori Oakley, Acting Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D. Tritschler, General Counsel

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

Tallahassee, Florida 323 99 - 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 is sue the Final Order in this case.