16-005481EXE Curtis A. Jackson vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, February 1, 2017.

Summary: Petitioner demonstrated rehabilitation over a 20-year period from his disqualifying offense and should be granted an exemption from disqualification to hold a position of trust.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS A. JACKSON,

Petitioner,

vs. Case No. 16 - 5481EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was h eld in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (ÐDivisionÑ) , on December 16, 2016 , in

Lauderdale Lakes , Florida.

APPEARANCES

For Petitioner: Curtis A. Jackson, pro se

2860 Northwest 187 th Street

Miami Gardens, Florida 33056 - 3131

For Respondent: Llamilys Maria Bello, Esquire

Agency for Persons with Disabilities

Suite 305

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether PetitionerÓs request for

exemption from disqualification should be granted.

PRELIMINARY STATEMENT

By letter dated August 10, 2016, Respondent, Agency for

Pe rsons with Disabilities (the ÐAgencyÑ), informed Petitioner

that his request for exemption from disqualification was denied.

P etitioner filed a request for an administrative hearing dated

August 23, 2016. The request was forwarded to the Division on

Sept ember 20, 2016.

The final hearing in this case was scheduled to commence on

November 8, 2016. On November 3, 2016, Respondent filed an

Agreed Motion for Continuance , stating that the parties needed

additional time to reach a possible settlement. The moti on was

granted, and the hearing was reset for December 16, 2016. The

parties did not settle the case, and it proceed ed to hearing as

scheduled.

At the hearing, Petitioner testified on his own behalf and

offered no exhibits into evidence. Respondent prese nted the

testimony of Gerry Driscoll, regional operations manager for the

AgencyÓs Southeast Region, and offered 11 exhibits, which were

accepted into evidence.

No transcript of the hearing was prepared. Respondent

timely filed its P roposed Recommended Or der on January 11, 2017 ,

which was considered in the preparation of this Recommended

Order . Petitioner did not make any post - hearing submittal.

References to statutes are to the Florida Statutes (2016),

unless otherwise noted.

FINDING S OF FACT

1. Respond ent is the state agency responsible for

regulating the employment of persons in positions of special

trust as direct service providers.

2. Petitioner is seeking employment as a caregiver with

Dynamic Healthcare Providers, Inc. (ÐDynamic HealthcareÑ), a

se rvice provider regulated by Respondent.

3. Since Petitioner applied to be a caregiver , a position

of special trust, with Dynamic Healthcare, he is required to

undergo a L evel 2 background screening .

4. The Department of Children and Families (ÐDepartme ntÑ or

ÐDCFÑ) conducts initial screening on behalf of the A gency.

Background screening and local criminal records revealed a

history of involvement with law enforcement , as Petitioner

admitted in both the paperwork he filed with the Agency and in

his test imony at hearing.

5. On September 27, 1994, Petitioner entered a plea of

guilty to c ocaine p ossession, a third - degree felony, and to

p ossession of d rug p araphernalia , a first - degree misdemeanor.

The c ocaine p ossession conviction is a disqualifying offens e for

employment in a position of trust. He was ordered to pay court

fees and costs, and sentenced to 14 daysÓ confinement in county

jail.

6. In the course of that same arrest, Petitioner also was

charged with b attery on his pregnant girlfriend, a misdem eanor

offense, but that charge was later abandoned.

7. In his response to the Exemption Questionnaire,

Petitioner explained the incident as follows:

A lady whom I was getting high with on a

daily basis and shared my residence with [ , ]

we got into an argume nt. I refused to share

my drugs with her that particular day [ . ] She

then became irate and called the police and

told them I assaulted her. I was searched by

the officer [ s. ] [ T ] hey found a crack pipe on

my person with residue . I was charged with

cocain e possession [ . ]

8. At the hearing, when asked if he had another prior

arrest for domestic violence, Petitioner admitted he had been

arrested previously, and charged with domestic violence in a

separate incident, regarding a dispute he had with a previous

girlfriend. Petitioner also explained his other previous

arrests.

9. Concerning his January 22, 1995, arrest for c ocaine

p ossession, a third - degree felony , Petitioner explained in his

Exemption Questionnaire:

While standing on the corner in the Miami

Ov er Town area [ , ] I was suddenly approached

by [ a ] Miami Dade Police Officer. I was in

possession [ of ] what appeared to be crack

cocaine. I was arrested and charged with

possession. No action was taken because it

was not cocaine. It gave the appearance o f

an illegal substance.

10. Concerning his March 31, 1995, arrest for c ocaine

p ossession, a third - degree felony, Petitioner explained in his

Exemption Questionnaire:

While traveling south on Biscayne Blvd and NW

69 [ th ] Street [ , ] I was involved in an

acci dent [ . ] I had a crack pipe and

approximately two crack rocks in the vehicle.

A search was conducted by Miami Dade Police,

I was subsequently charged with possession

and DWLS [;] no action was taken.

11. Concerning his April 24, 1998, arrest for driving while

license suspended/habitual offender , a felony, Petitioner

explained in the Exemption Questionnaire:

I was driving a young lady home who was

feeling ill at the time. I was pulled over

at a DUI check point on 175 st [sic] NW 27 th

Avenue in Miami Garde ns. My license was

suspended during that time [.]

[C] onsequently ; [sic] I was arrested for DWLS

and for a bench warrant [.] I really cannot

remember what it was for. Eventually ; [sic]

I got my license s [sic] re instated.

12. Conc erning his May 29, 2008, arrest for f ailure to

a ppear [ c apias] regarding a traffic offense, Petitioner explained

in his Exemption Questionnaire:

I was pulled over by Miramar police while

going to the store. The officer informed me

that there was an outstanding bench warrant

for failing to appear. The charge was DWLS

which was a 22 year old case. The charges

[sic] was eventually dropped [ ; ] case was

dismissed.

13. Petitioner also was questioned concerning a June 13,

1992, charge of h omicide - w illful k ill with a w eapon , which the

Agency had originally listed as a disqualifying offense to

employment in a position of trust. In an addendum to his

Exemption Questionnaire, Petitioner explained:

A guy I was hanging out with got into an

argument with another individual, [sic] he

prod uced a firearm. Consequently ; [sic] he

shot the guy in the leg and the guy feel

[sic] to the ground. The shooter then

pointed the gun at the guyÓs head in an

attempt to shot [sic] him in the head area.

I then grabbed the shooter to stop him from

shootin g the other guy in the head. We then

left the area in the shooterÓs car. Metro

Dade P olice gave chase, the gun was thrown

out the car [sic] consequently, the shooter

pulled over. We were both taken into

custody. The charged [sic] was eventually

dropped down to a misdemeanor.

14. The Agency reviewed all of PetitionerÓs criminal

records and determined that his 1992 charge of homicide - willful

kill with a weapon had been reduced to accessory after the fact ,

a misdemeanor, for which adjudication of guilt w as withheld on

June 13, 1992. The Agency did not consider this conviction to be

a disqualifying offense , but did consider it in the totality of

the evidence it reviewed concerning PetitionerÓs exemption from

disqualification.

15. Mr. Gerry Driscoll, the regional operations manager for

the AgencyÓs Southeast Region, credibly testified that the Agency

has a significant responsibility to a vulnerable population, many

of whom lack competency, and are unable to communicate to others

any negative or improper ac tions carried out by their caregivers.

Th e s e individuals are often solely dependent on their caregivers,

and are thus susceptible to exploitation. Mr. D riscoll noted

that the Agency considers any prior criminal conduct involving

violence or aggression wi th particular care when exercising its

authority and discretion to grant exemptions for employment in

positions of trust.

16. In his written submission to the Agency, Petitioner did

not specifically admit to causing any harm or injury to any

victim. Howe ver, at the hearing, he admitted that he had caused

injury to others with whom he associated during his period of

addiction, especially his family, girlfriends, and children.

17. Academically, Petitioner has accomplished a great deal.

He has received the following post - secondary school degrees: an

associate of arts degree from Miami Dade College (2010), a

bachelor d egree in Liberal Studies from Barry University (2013) ,

and a m asters in Social Work ( Ð MSW Ñ ) (2016) from Barry

University. He has been a lifet ime member of the Delta Epsilon

Iota Academic Honor Society since 2013.

18. PetitionerÓs r é sum é demonstrates an uninterrupted work

history since 1997, with experience in the fields of social

services, mental health, and substance abuse counseling ,

primari ly involving individuals with mental illness and substance

addictions. He was most recently employed with Dynamic

Healthcare and has been providing substance abuse counseling and

support to non - Agency clients with addiction issues.

19. Petitioner submitt ed letters of reference and

recommendations from : his current employer, Samuel E. Kelly,

d irector of Dynamic Healthcare ; Justice for Life, a psycho -

education provider for the Misdemeanor Drug Court Program in

Broward County; Better Way of Miami, Inc., an inpatient facility

for drug and alcohol addiction; and Overtown Youth Center and

John F. King, Attorney at Law , from 2008 .

20. Petitioner submitted additional training certificates

that were considered by the Agency , including : The McShin

Foundation Lead ership Training Institute Peer Addiction Recovery

Training; The Broward House HIV/AIDS Continuing Education (2014) ;

HIPAA Basics T raining (2013); Aggressive Control Training (2014);

and Ethics Training (2014).

21. Mr. Driscoll testified that the Agency al so considered

the following exemptions previously granted to Petitioner by

other agencies: an employment waiver granted by DCF on

October 10, 2008, to work with adults in mental health and

substance abuse ; an exemption from disqualification from

employmen t under section 435.07, Florida Statutes, granted by the

Agency for Health Care Administration on January 23, 2015; and

another more recent exemption from DCF granted on April 29, 2016.

2 2 . At the hearing, Petitioner admitted he had suffered a

Ð22 - year a ddiction to a controlled substance.Ñ He started

drinking alcohol at age ten , and ended with c rack c ocaine. He

received substance abuse counseling from two different providers:

Better Way of Miami in 1995 - 1996, and Spectrum Programs in 2002 -

2003. Moreov er , he offered credible testi mony that he has been

clean from this addiction for 20 years and attends regular

meetings of Narcotics A nonymous ( Ð N.A. Ñ ) or Alcoholics Anonymous

( Ð A.A. Ñ ) to this day.

2 3 . Mr. DriscollÓs position was that, despite there bein g

some evidence of rehabilitation submitted with the Application

for Exemption, and the subsequent request for hearing , and even

the sincere testimony given by Petitioner at hearing concerning

his addiction, this did not amount to sufficient evidence for h im

to recommend an exemption from disqualification. W hen

considering all the evidence in its totality, he testified, the

Agency did not conclude Petitioner had met his burden by the

standard of clear and convincing evidence.

CONCLUSIONS OF LAW

2 4 . The Di vision 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 Statutes.

2 5 . Section 393.0655(5), Florida Statutes, provides in

pertinent part:

Th e 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 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.

* * *

(j) Section 817.61, relating to fraudulent

use of credit cards, if the offense was a

felony.

2 6 . 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 includes, but need not be

limited to, fingerprinting for statewide

criminal histor y records checks through 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.

2 7 . 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.

2 8 . Section 435.07(3)(a) provi des:

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

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.

29 . "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 described 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. C anakaris , 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

"whether any reasonable person" could take the position under

review).

3 0 . An a dministrative law judge sits in a review capacity

here and must decide whether the AgencyÓs determination

concerning rehabilitation or lack thereof constitutes an abuse of

discretion. An administrative law judge must ascertain whether

the Agency abused it s discretion in determining that an applicant

failed to show rehabilitation by clear and convincing evidence.

3 1 . The logical means of applying this standard is as

follows:

Although the hearing before the hearing

officer was a de novo proceeding, that s imply

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 of ficer 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 Cont racting & 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 sect ion 120.57(1), but the object of the proceeding

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

120.57(3)(f), Fla. Stat.

3 2 . The abuse of discretion standard is indeed a harsh one.

It is not beyond the realm of possibility a reasonable mind coul d

believe an individual , whose principal disqualifying offense and

related crimes occurred during a period of drug addiction, has

not and never will fully recover, because as many people believe,

Ðonce an addict , always an addict , Ñ or at least a recovering

addict. Despite the difficulty in finding that the Agency abused

its discretion in denying the exemption from disqualification

sought by Petitioner, Petitioner has proven, by clear and

convincing evidence, that he has been rehabilitated from his

disquali fying offense. Here, the disqualifying offense was a

narcotics offense more than 2 2 years ago. Since that time, even

taking into account subsequent offenses, mostly within a few

years of the disqualifying offense and while still using drugs,

Petitioner h as voluntarily submitted himself to constant meetings

of N.A. or A.A. for more than 20 years . He has been sober for 20

years and remains sober today. He also has bettered his lot in

life by successfully seeking a college education and earning both

an und ergraduate and graduate degree , the latter an MSW that will

allow him to serve patient s with a high degree of skill, if

granted the exemption.

3 3 . Without disparag ing the sincere beliefs held by

Mr. Driscoll and others within the Agency as to the ability of an

individual like Petitioner to rehabilitate himself , the

undersigned believes this is exactly the case in which the Agency

should find Petitioner has rehabilitated himself to such an

extent that he is both qualified and safe to be allowed to serve

the vulnerable population under the Agency Ós jurisdiction .

Further, the faith other Florida agencies have shown in

Petitioner , by granting him exemptions from disqualification or

waivers for employment, lends further credence to his current

ability to serve the AgencyÓs patient population. PetitionerÓs

life experiences and continuing recovery from his tribulations

qualify him to hold a position of trust.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that t he Agency for Persons with

D isabilities enter a final order granting PetitionerÓs

Application for Exemption from Disqualification.

DONE AND ENTERED this 1st day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 1st day of February , 2017 .

COPIES FURNISHED:

Curtis A. Jackson

2860 Northwest 187th Street

Miami Gardens, Florida 33056 - 3131

Llamilys Maria Bello, Esquire

Agency for Persons with Disabilities

201 West Broward Boulevard , S uite 305

Fort Lauderdale, Florida 33301

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disab ilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Michele Lucas, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

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.