16-006196EXE Donyel Goodman vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, January 30, 2017.

Summary: Although there was very strong evidence of rehabilitation, it was not strong enough to conclude that finding the exemption applicant had not proven rehabilitation was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONYEL GOODMAN,

Petitioner,

vs. Case No. 16 - 6196EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) conducted the final

hearing in this matter on December 19, 2016, by video

teleconference at locations in Lakeland and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

For Respondent: Donyel Goodman , p ro s e

2209 Chestnut Hill Drive

Lakeland, Florida 33809

STATEMENT OF THE ISSUE S

A. Did Petitioner prove by clear and convincing evidence

that she was rehabilitated from a felony conviction for

aggravated assault with a deadly weapon , which disqualif ied her

from working with vulnerable adults and children?

B. If she did , is Respondent Ós intended denial of

Peti tionerÓs request for an exemption an abuse of discretion?

PRELIMINARY STATEMENT

By letter dated September 16, 2016, Respondent, Agency for

Persons w ith Disabilities (Agency) , notified Petitioner that it

intended to deny her request for an exemption from

di squalification from employment in a position of special trust .

Petitioner timely requested a formal administrative hearing to

contest the decision. The Agency referred the dispute to DOAH to

conduct the requested hearing. The hearing was conducted as

no ticed.

Petitioner testified and presented the testimony of Narranji

Benton, Myosha Clark, Bakeisha Cooper, Juanita Goodman, Silas

Harris, and Meletha Lyons. PetitionerÓs E xhibits 1 through 3

were accepted into evidence. The Agency presented the testi mony

of Michael Suave. Agency E xhibits A through D were admitted into

evidence.

The parties were provided an opportunity to submit proposed

recommended orders. The Agency submitted one. Petitioner did

not .

FINDINGS OF FACT

1. Petitioner seeks employment with Utopian Support

Services , d/b/a Great Expectations. It serves people with

disabilities, and the Agency regulates it. The clients that the

Agency and the entities it regulates serve vulnerable

individuals . T hey are people with intellectual disabilit ies ,

autism, spina bifida, Prader - Willi syndrome, cerebral palsy, Down

syndrome, and/or Phelan - McDermid Syndrome. § 393.063(12), Fla.

Stat. (2016) . 1 / These individuals often have severe deficits in

their ability to care for themselves and to communicate their

needs and wants. They are at a heightened risk of abuse, neglect

and exploitation. Consequently, employment as a direct service

provider for them is a position of special trust.

2. D irect service providers assist individuals with social

activities and personal needs. Providers also often transport

clients and assist them with financial matters.

3. Petitioner wants to work as a direct service provider to

individuals with disabilities . This requires her to comply with

background screening requirem ents. PetitionerÓs background

screening identified a guilty plea to a felony that disqualified

her from working with vulnerable individuals , including people

with disabilities. The disqualifying offense is Aggravated

Assault with a Weapon, a violation of section 784.045, Florida

Statutes (2006) ( now section 784.021, Fla. Stat. ).

4. The Department of Children and Families (Department)

conducts screenings for the Agency. The Department advised

Petitioner and the Agency that she was disqualified from servi ng

vulnerable individuals because of her guilty plea.

5. Petitioner submitted a Request for Exemption, Exemption

Questionnaire, various criminal records, character references,

and other various documents (the Exemption Packet) to the

Department . It forwa rded the Exemption Packet to the Agency for

review.

6. The Agency for Health Care Administration has already

granted Petitioner an exemption from disqualification for the

same offense involved here , applying the same sta ndards that

appl y here.

Disqualifyi ng Offense

7. On April 1, 2006, when she was 23, Petitioner pled

guilty to the disqualifying offense of Aggravated Assault with a

Weapon. The court withheld a djudication. The court sentenced

Petitioner to a 36 - month period of probation, 100 hours of

com munity service, payment of $1,350.25 in costs and fees, and

anger management class. Due to an admitted violation of

community control requirements of her probation, the court

extended PetitionerÓs probation by six months. Petitioner

successfully co mplete d her probation on May 21, 2010.

8. In documents and testimony , Petitioner provided t wo

different accounts of the circumstances of the assault. In one

version, she and the owner of a beauty supply store exchanged

insults because of a comment he made abou t not car ry ing uniforms

in her size. She says she did not display a weapon.

9. The police report of the storeownerÓs description of the

incident differs. It reports the owner saying Petitioner

threatened him with a knife. These facts are the basis of t he

charge to which Petitioner pled guilty. Without the knife, there

would have been no weapon to support the charge . The ownerÓs

version is also consistent with PetitionerÓs statement in her

hearing request that she feared for her life and needed to

prot ect herself.

10. In the other version, Petitioner testified about an

earlier incident involving the storeowner and his son. She did

not mention this version of the incident in materials she

submitted to the Agency in support of her exemption request.

11. PetitionerÓs statements about the crime to which she

pled guilty demonstrate confusion rather than a refusal to accept

responsibility. Petitioner was in her early twenties at the

time, drinking heavily, and behaving irresponsibly. Now she is

not.

Subs equent Non - disqualifying Offenses

12. Petitioner was also charged with Obtaining Property in

Return for a Worthless Check on March 7, 2011. This involved a

check for $258.00 written to Stanley Steamer. The prosecutor

dismissed the charges because Petiti oner successfully completed a

worthless check diversion program.

13. In September 2011, Petitioner was arrested for

Obtaining Property in Return for a Worthless Check. The charge

was paying $21.60 for a pizza on July 4, 2011, with a check drawn

on a cl osed account. Petitioner says her sibling wrote the check

without PetitionerÓs knowledge. Petitioner says that when she

learned of it, she satisfied Ðboth the company and the courts.Ñ

Court documents indicate adjudication withheld, which indicates a

ple a or conviction. Petitioner confused the two worthless check

charges and their disposition.

Driving Record

14. Petitioner has had 21 driving violations, includ ing

safety belt violations, speeding, and careless driving. At the

time of the exemption revie w, Petitioner had a license suspension

pending.

High Praise f rom Those Who Know Petitioner

15. Six character witnesses testified to PetitionerÓs

temperament, kindness, dedication to service, and commitment to

caring for the vulnerable. They all had perso nal knowledge of

her. Their memories are distinct, and their testimony is precise

and explicit. There is no doubt that the witness es Ós testimony

is truthful.

16. Silas Harris is a provider of services to Agency

clients. He owns and operates Success for All. Mr. Harris has

known Petitioner for ten years. He is familiar with Petitioner's

work with youth football and cheerleading activities. Mr. Harris

commended Petitioner for how well she related to and worked with

individuals with disabilities in recr eational activities.

17. Bakeisha Cooper is also an Agency provider. She owns

and operates Utopian Support Services. Ms. Cooper was once a

support coordinator who assisted Agency clients with obtaining

services. She met Petitioner working with individu als with

disabilities. PetitionerÓs interactions with the clients were

patient and honest. In Ms. CooperÓs informed opinion, Petitioner

has the ability to work with individuals who have challenging

behaviors.

18. Myosha Clark has known Petitioner for se veral years.

She has worked with her in community activities such as

fundraising, youth cheerleading, feeding the homeless, and a

group known as "Made Men, Made Women." Ms. Clark describes

Petitioner as kind - hearted and dedicated to helping the needy.

P etitioner has also been a good mentor to Ms. Clark.

19. Meletha Lyons and Petitioner have been friends for ten

years. They worked together for Help is on the Way, Inc., an

Agency - licensed provider of services to individuals with

disabilities. Based upon this foundation of knowledge, Ms. Lyons

attests that Petitioner has a caring heart and loves helping

others. Ms. Lyons believes that Petitioner would "never abuse,

exploit or do anything to neglect a client . . . these people are

her heart. She goes abo ve and beyond to help them." She was not

aware of any charges of abuse or neglect against Petitioner.

20. Juanita Goodman and Petitioner have been friends for

over 20 years. Their children were involved in cheerleading

together . She and Petitioner have work ed together with Salvation

Army - sponsored events. Ms. Goodman observed Petitioner helping

people with various needs. Ms. Goodman observed Petitioner

gathering donations to help children participate in events like

cheerleading. She observed Petition erÓs ready willingness to

help families with bills and transportation. Ms. Goodman finds

Petitioner a sweet , loving person who would give you the shirt

off her back.

21. Narranji Benton met Petitioner through a mutual friend.

Petitioner has supported Ms . Benton during tough emotional times.

She has observed Petitioner feeding the homeless, spending her

money on others, and fundraising for community service programs .

Ms. Benton feels blessed to have Petitioner as a friend and would

trust her with a love d one with a disability.

22. Letters from Samuel Cooper of Help is on the Way, Inc.,

and Ivan Brooks of Lakeland Destroyers Youth Sports, Inc.,

corroborate the uniform evidence of PetitionerÓs character and

knack for caring for people with disabilities.

2 3. On the record here, there is no question that

Petitioner is a kind, patient, caring, and big - hearted person

with an affinity for caregiving. Petitioner loves working with

people with disabilities and wants to make this service her

career. She has als o completed c ertified nurse a ssistant

training.

Verified Finding of Neglect

24. In 2010 , the Department issued a verified finding of

neglect for Petitioner. This resulted from the fact that a

person with disabilities who was a passenger in the van

Petiti oner was driving left the van , and Petit i oner did not make

sure he returned. Five to ten minutes later Petitioner noticed

h is absence . She immediately notified her supervisor and

returned to find the individual. At the time and in the hearing ,

Petitione r readily acknowledged her mistake and took

responsibility for it.

Rehabilitation Analysis

25. PetitionerÓs disqualifying conviction manifests a

tendency to violence and lack of self - control. The clear and

convincing evidence of this record establishes unequivocally that

those traits are far behind her. The clear and convincing

evidence establishes that individuals in PetitionerÓs care are

not at risk of violence at her hands or of Petitioner losing her

temper. The time that has passed since the incide nt, completion

of an anger management class as a condition of probation, the

absence of similar behavior, and PetitionerÓs uniformly well -

regarded record of service all establish this.

26. The law governing granting an exemption, however, puts

other facts in play once a disqualifying offense is established.

Consideration of the non - disqualifying offenses, PetitionerÓs

traffic violation record, and the finding of neglect are

permitted. These are the factors that the Agency relies upon in

denying the exemp tion. They are relevant to caring for persons

with disabilitiesansporting clients is a service Petitioner

will likely be providing. The t raffic offenses and the

circumstance s of the verified finding create some uncertainty

about the safety of person s who may be in PetitionerÓs care.

27. The worthless check charges raise a question about

PetitionerÓs financial responsibility. This is relevant to the

care of persons with disabilities because many need help with

personal finances, even if in small wa ys. Overlooking the

individual who left the bus is also relevant.

CONCLUSIONS OF LAW

28. Sections 120.569 and 120.57(1), Florida Statutes, grant

DOAH jurisdiction over the parties to and the subject matter of

this proceeding.

29. Petitioner seeks a posi tion serving vulnerable persons

that requires successful completion of Level 2 background

screening under section 435.04 , Florida Statu t es .

30. PetitionerÓs 2006 conviction disqualified Petitioner

from employment directly serving the vulnerable. Petition er seeks

an exemption from disqualification under section 435.07.

Petitioner is eligible to seek exemption from disqualification

under section 435.07.

31. Section 435.07(3)(a) states that individuals seeking an

exemption "must demonstrate by clear and co nvincing evidence that

the employee should not be disqualified from employment." It

goes on to state that employees bear "the burden of setting forth

clear and convincing evidence of rehabilitation."

32. Clear and convincing evidence must be credible. T he

memories of witnesses must be clear and not confused. The

evidence must produce a firm belief that the truth of allegations

has been established. Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983). Evidence that conflicts with other evidenc e

may be clear and convincing. The trier of fact must resolve

conflicts in the evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) ,

658 So. 2d 961, 967 (Fla. 1995).

33. In J. D. v. Fl orida Dep artmen t of Children & Families ,

114 So. 3d 1127, 1130 (Fla. 1st DC A 2013), Judge Wetherell

described the abuse of discretion standard thus:

An agency's decision to grant or deny an

exemption is subject to the deferential abuse

of discretion standard of review. See Heburn

v. Dep't of Children & Families , 772 So. 2d

561, 563 (Fla. 1st DCA 2000). Under this

standard, "[i]f reasonable men could differ

as to the propriety of the action taken by

the [lower tribunal], then the action is not

unreasonable and there can be no finding of

an abuse of discretion." Canakaris v.

Cana karis , 382 So. 2d 1197, 1203 (Fla. 1980);

see also id . ("Discretion . . . is abused

when the . . . action is arbitrary, fanciful,

or unreasonable . . . .") ( quoting Delno v.

Market Street Railway Co . , 124 F.2d 965, 967

(9th Cir. 1942)).

34. Here the ques tion of rehabilitation is close and raises

the issue of ÐrehabilitationÑ from what? If it is solely

ÐrehabilitationÑ from the violence and anger manifested in the

crime ten years ago, then the clear and convincing evidence

establishes ÐrehabilitationÑ so clearly that denying the

exemption would be unreasonable. The offense was ten years ago.

Petitioner was young and abusing alcohol. The harm was

restricted to the fear that the offense inherently causes.

Petitioner accepted responsibility at the time. Since then,

there have been no similar offenses. She has been with many

children and people with disabilities. She has displayed only

care, concern, and support.

35. The facts are similar to th e facts in B.J. v.

Dep artment of Children & Family Services . , 983 So. 2d 11, 16

(Fla. 1st DCA 2008). The court reversed the DepartmentÓs

rejection of an Administrative Law JudgeÓs recommendation to

grant an exemption. The evidence - based findings were that eight

years had passed since the applicantÓs domestic batt ery

conviction, he had been working in childcare for four years

without incident, and that he posed no threat to children in a

day care. This led the Judge to make a finding of

rehabilitation. The Department abused its discretion when it

reversed the fin ding. The facts, however, are not completely

similar. B.J. did not have subsequent disqualifying offenses, a

history of traffic violations, or a verified finding of neglect.

36. T he Agency for Health Care Administration has granted

Petitioner an exempti on. This fact must be cons idered.

§ 435.07(5), Fla. Stat.

37. If the issue is rehabilitation from the poor judgment

underlying the disqualifying offense, reasonable people could

differ. Section 435.07(3) ( b) permits consideration of arrests or

convicti on for other crimes , even if they are not disqualifying

offenses. Petitioner has arrests and one conviction for passing

worthless bank checks. That indicates continued poor judgment

and relates to the vulnerability of the population she seeks to

serve.

3 8. The traffic violations , although not criminal offenses,

further indicate poor judgment. They too relate to the services

Pet itioner will be providing. The traffic violations, like the

verified finding , are part of PetitionerÓs history since the

disqua lifying incident and may be considered. § 435.07(3)(a) ,

Fla. Stat.

39. The test is whether reasonable people could differ

about whether Petitioner sufficiently demonstrated rehabilitation

and that she would not present a danger if granted an exemption.

J. D. v. Fla. Dep't of Child . & Fam s. , supra . On the record

here, reasonable people could differ. A reasonable person might,

and many would, conclude that Petitioner demonstrated

rehabilitation and that she does not present a danger to

vulnerable people in her care. Perhaps the Agency will choose to

exercise its discretion differently after reviewing th is fully

developed record. But a reasonable person could conclude there

is sufficient uncertainty about rehabilitation to deny an

exemption. Consequentl y, the Agency has not abused its

discretion by denying the exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Persons w ith

Disabilities, enter its final order denying Pet itionerÓs

exemption request.

DONE AND ENTERED this 30th day of January , 2017 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 30th day of January , 2017 .

END N OTE

1 / All citations to Florida S tatutes are to the 2016 codification

unless otherwise noted.

COPIES FURNISHED:

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

(eServed)

Donyel Goodman

2209 Chestnut Hill Driv e

Lakeland, Florida 33809

Barbara Palmer, Director

Agency for Persons with Disabilities

4060 Esplanade Way, Suite 380

Tallahassee, Florida 32399

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

(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 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.