16-004506EXE Jose Rangel vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, December 30, 2016.

Summary: Petitioner failed to establish agency abused its discretion in denying the exemption sought. Agency found, as did the evidence presented, that Petitioner failed to show clear and convincing evidence of rehabilitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE RANGEL,

Petitioner,

vs. Case No. 16 - 4506EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice on Octob er 11, 2016, in Titusville,

Florida, a hearing was conducted before J. D. Parrish, an

administrative law judge with the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Jose Rangel, pro se

2596 Emerson Drive Southea st

Palm Bay, Florida 32909

For Respondent: Jeanette L. Estes, Esquire

Agency for Persons with Disabilities

200 North Kentucky Avenue, Suite 422

Lakeland, Florida 33801

STATEMENT OF TH E ISSUE S

Whether Jose Rangel (Petitioner) has established by clear

and convincing evidence that he is entitled to an exemption to

work in a position of special trust; and, if so, whether Agency

for Persons with Disabilities (Respondent) abused its discreti on

in denying the exemption.

PRELIMINARY STATEMENT

On or about July 8, 2016, Respondent notified Petitioner

that his request for an exemption to work in a position of

special trust had been denied. The grounds for the denial were

stated to be PetitionerÓs failure to submit clear and convincing

evidence of rehabilitation. According to a background screening

(required of all persons who seek to work in positions of special

trust) , Petitioner committed a disqualifying offense. As such,

he was required to se ek an exemption and to set forth information

that would demonstrate by clear and convincing evidence that he

is rehabilitated and entitled to the exemption sought. Upon

receipt of the notice of denial Petitioner timely challenged the

proposed action and r equested an administrative hearing. The

case was forwarded to the Division of Administrative Hearings on

or about August 11, 2016.

At the hearing Petitioner testified in his own behalf and

offered a three - page exhibit that was received in evidence over

o bjection. 1/ Petitioner failed to comply with the prehearing

O rder and failed to provide a copy of his exhibit to Respondent

in a timely manner before the hearing. Respondent presented the

testimony of Michael Sauve, deputy regional operations manager,

an d RespondentÓs Exhibits A through E were admitted into

evidence. Respondent provided copies of its exhibits to

Petitioner before the hearing as ordered.

A transcript of the proceedings was not filed. The parties

were granted ten days within which to fil e their proposed

recommended orders. The proposed order timely submitted by

Respondent has been fully considered.

FINDING S OF FACT

1. In connection with his desire to work for the Devereaux

Florida Treatment Network, a service provider under the authorit y

of Respondent, Petitioner sought an exemption to work in a

position of special trust. As a direct service provider who has

contact with persons who are challenged in one manner or another,

Petitioner was subject to a background screening to assure he

me ets the requirements of persons working with those served by

his potential employer.

2. PetitionerÓs background screening disclosed criminal

offenses that required explanation and further comment from

Petitioner. PetitionerÓs criminal offense of Uttering a F orged

I nstrument , a violation of s ection 831.02, Florida Statutes

(2016) , is a disqualifying offense that requires an exemption.

Should Respondent grant Petitioner an exemption, Petitioner would

be allowed employment as a direct provider of services t o clients

served under the umbrella of RespondentÓs provider network. As

such, Respondent takes its responsibility to screen applicants

for employment very seriously.

3. RespondentÓs clients are perhaps the most vulnerable of

all individuals served withi n the framework of social services.

By definition , RespondentÓs clients are those who are

intellectually disabled, autistic, have spina bifida, Prader -

Willi syndrome, cerebral palsy, Down syndrome and/or Phelan -

McDermid Syndrome. Without assistance from Respondent ,

typically , these clients would face institutionalization.

Instead, Respondent attempts to provide services to persons

meeting its criteria at the local level. RespondentÓs clients

are vulnerable to abuse, neglect, exploitation, and in many

in stances , cannot self - advocate for their best interests.

RespondentÓs obligation is to assure all persons working with its

clients meet the highest standard of trust.

4. In seeking to protect RespondentÓs clients , the Florida

Legislature designated certa in criminal offenses as disqualifying

so that persons who commit those acts may not work in positions

of special trust. It is undisputed that uttering a forged

instrument constitutes a disqualifying offense.

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

Exemption, Exemption Questionnaire, criminal records, character

references, and other documents in an attempt to obtain the

exemption from employment disqualification. Petitioner asserts

that he is rehabilitated and entitled to an exemption.

6. In August 2003 Petitioner committed the criminal offense

of Uttering a Forged Instrument , a felony . In 2005, Petitioner

pled guilty to the charge and adjudication was withheld.

Petitioner was sentenced to two days Ó jail time with credit for

time se rved, was given probation, and was required to pay fines

and court costs. This crime constitutes a disqualifying offense.

7. Petitioner was also charged with non - disqualifying

offenses in August 2003 contemporaneous with the disqualifying

charge. Non - di squalifying charges include Driving Under the

Influence (2 nd Offense) and giving a false name.

8. Petiti onerÓs third criminal charge of P ossession of an

U ndersized R ed fish would not be a disqualifying crime.

9. PetitionerÓs exemption questionnaire repr esented that

all criminal matters were Ðsatisfactory/closedÑ .

10. PetitionerÓs driving record demonstrates a series of

moving violations that include: two driving under the influence

charges; a failure to use designated lane; a failure to use due

care; a nd a leaving the scene of a crash before police arrive d .

11. Petitioner falsified his Affidavit of Good Moral

Character by indicating he had not been found guilty of or

entered a plea of nolo contendere, regardless of adjudication, of

the offenses liste d. By falsely completing the form,

PetitionerÓs current character and trustworthiness are subject to

question. Petitioner suggested the incorrect response was an

oversight.

12. Petitioner has been employed with Ricoh or Adecco as a

customer service repr esentative since March of 2012. This

employment history is acceptable to demonstrate a stable work

history.

13. Petitioner and his wife also worked as licensed foster

parents. Although the Department of Children and Families did

not render findings conf irming that he committed any improper

act, Petitioner was the subject of an investigation for an

alleged act of sexual abuse on a child.

14. Petitioner maintains he is entitled to an exemption in

this case because he does not drink anymore, is in a commit ted

marriage, has demonstrated a stable work history, and is an

active, respected member of his church. Petitioner does not

believe his criminal acts would indicate any degree of harm to

any victim.

15. Respondent reviewed all of the information submitte d by

Petitioner and determined Petitioner did not demonstrate a

sufficient level of rehabilitation to justify an exemption.

Among RespondentÓs concerns were PetitionerÓs lack of detail in

explaining his disqualifying offense and non - disqualifying

offenses ; PetitionerÓs failure to acknowledge that using another

personÓs name and identification could have caused significant

legal issues for that person; and PetitionerÓs failure to

acknowledge and comprehend the importance of truthfully

completing his Affidav it of Good Moral Character.

16. Over objection PetitionerÓs three - page exhibit

regarding an exemption issued by the Agency for Health Care

Administration (AHCA) was admitted into evidence. 1/ Petitioner

erroneously believed that the exemption issued by AH CA would

necessitate the issuance of the exemption in this case.

17. After consideration of the exemption issued to

Petitioner by AHCA, Respondent found that an exemption to work

with RespondentÓs clients is not warranted. RespondentÓs clients

are cons idered very vulnerable and all of the reasons previously

considered weigh against the issuance of an exemption in this

case.

CONCLUSIONS OF LAW

18. Pursuant to s ections 120.569 and 12 0.57(1), Florida

Statutes (2016), the Division of Administrative Hearing s has

jurisdiction over the subject matter of and the parties to this

proceeding.

19. Section 435.07, Florida Statutes (2016) , provides, in

part:

Exemptions from disqualification. -- Unless

otherwise provided by law, the provisions of

this section 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.

* * *

(3)(a) In orde r 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 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

employment or continued employment is

allowed.

(b) The agency may consider as part of its

deliber ations 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 another crime, even if that

crime is not a disqual ifying 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.

20. Section 393.0655, Florida Statutes (2016) , provides, in

pertinent part:

(2) Exemp tions f rom d isqualification . -- The

agency may grant exemptions from

disqualification from working with children

or adults with developmental disabilities

only as provided in s. 435.07

* * *

(5) Disqualifying Offenses . -- The background

screening co nducted 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

adjudicatio n, 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 the following

provisions of state law or similar law of

another jurisdiction:

* * *

(b) This chapter, if the offense was a

felony.

* * *

(l) Section 831.02 relating to uttering

forged instruments.

21. Pursuant to law an applicant for an exemption must

provide clear and convincing evidence of Ðrehabilitation .Ñ This

Ðclear and convincingÑ standard requires proof that is more than a

preponderance of the evidence but less than beyond and to the

exclusion of a reasonable doubt. For proof to be considered clear

and convincing :

[T] he evidence must be found to be cre dible;

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 the facts at issue.

The evidence must be of such weight that it

produces in the mi nd 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. 1994) (quoting, with

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

DCA 1983)).

22. Should the agency determine, as it did in this case,

that the applicant for an exemption has not provided clear and

convincing evidence to establish rehabilitation, the decision may

be contested. In this case, Petitioner timely chal lenged

RespondentÓs decision to deny the exemption and was afforded an

administrative hearing to present evidence in support of his case.

The standard of review for this case is set forth by law: whether

the agencyÓs intended action is an abuse of discre tion.

Therefore, the issue for determination is whether the agencyÓs

intended action constitutes an abuse of discretion based upon the

facts determined from the evidence presented at hearing. If

Petitioner failed to present clear and convincing evidence of

rehabilitation , it can hardly be suggested that the agency abused

its discretion in denying the exemption. Moreover, the burden to

establish that the agency abused its discretion in denying an

exemption is difficult. See J.D. v. DepÓt of Child. & Fam s . , 114

So. 3d 1127 (Fla. 1st DCA 2013).

23. In this case, Respondent articulated a concise and well -

reasoned explanation for the decision to deny PetitionerÓs

exemption application. RespondentÓs client population is among

the stateÓs most vulnerable. Ma ny clients are unable to self -

advocate and cannot attend to their own best interests. In many

instances , RespondentÓs clients are totally dependent on

caregivers who must address their physical, medical, and financial

well - being. Without direct care , cli ents served by RespondentÓs

providers would be institutionalized. Persons seeking to provide

direct care for this population must be of the highest character.

RespondentÓs obligation to protect its clients is not disputed.

PetitionerÓs disqualifying off ense, although committed some time

ago, demonstrated a lapse of character. PetitionerÓs failure to

fully explain all of the circumstances related to the charge

troubled Respondent. At least two of PetitionerÓs non -

disqualifying charges were alcohol - relat ed. Petitioner did not

disclose counseling or other means that enabled him to stop

drinking. When looked through the lens of his recent failure to

truthfully respond to a question in his Affidavit of Good Moral

Character, PetitionerÓs criminal history lo oms large. In addition

to other non - disqualifying offenses and allegations, Petitioner

has not demonstrated he is rehabilitated to the degree required

for this client population.

24. Additionally, PetitionerÓs belief that the exemption

granted by AHCA s hould be sufficient to support an exemption in

this case is erroneous. Each agency must determine whether an

exemption is appropriate and must consider the evidence presented

to it based upon its clientsÓ needs and the dictates of its

judgment. Based upo n the facts of this case, it is concluded

Respondent did not abuse its discretion in denying PetitionerÓs

exemption.

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 application

for an exemption.

DONE AND ENTERED this 30th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Admi nistrative 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 30th day of December , 2016 .

ENDNOTE

1/ PetitionerÓs E xhibit 1 consisted of AHCAÓs exemption letter

and rec ommendations from PetitionerÓs pastor and employer.

RespondentÓs objection primarily was directed at the exemption

letter since Petitioner had not provided it as required bef ore

the hearing. Letters of support were a part of PetitionerÓs

application for exemption.

COPIES FURNISHED:

Jose Rangel

2596 Emerson Drive Southeast

Palm Bay, Florida 32909

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

200 North K entucky Avenue , Suite 422

Lakeland, Florida 33801

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Michele Lucus, Agency Clerk

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

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.