16-006360EXE Denise A. Wilson vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, February 22, 2017.

Summary: The Agency for Persons with Disabilities did not abuse its discretion in denying Petitioner's request for exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE A. WILSON,

Petitioner,

vs. Case No. 16 - 6360EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on January 6, 2017 , in Gainesville, Florida, before

W. David Watkins, the assigned Administrative Law Judge of the

Florida Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Denise Wilson, p ro se

237 S outhwest 6 th Ave nue

Gainesville, F lorida 32601

For Respondent: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

200 N orth Kentucky Ave nue , S uite 422

Lakeland, F lorida 33801

STATEMENT OF THE ISSUE S

The issu es are 1) whether Petitioner has shown, by clear and

convincing evidence, that she is rehabilitated from her

disqualifying offense(s) ; and , if so , 2) whether Respondent's

intended action to deny Petitioner's request for an exemption

from employment disqual ification would constitute an abuse of

discretion.

PRELIMINARY STATEMENT

By letter dated September 26, 2016, Respondent, Agency for

Persons with Disabilities (APD) , notified Petitioner that her

request for an exemption from disqualification from employment in

a position of special trust had been denied. Petitioner timely

filed with APD a Request for Administrative Hearing on the

intended agency action announced in APD's September 26, 2016,

letter. The matter was referred to DOAH on October 31, 2016, for

t he assignment of an administrative law judge to conduct a formal

hearing in the locality where Petitioner resides and to submit a

recommended order to APD.

As noticed, the final hearing was held on January 6, 2017,

in Gainesville, Florida. Petitioner te stified on her own behalf

and presented the testimony of two witnesses: Sherry McCrae and

Faye Williams, both of whom were PetitionerÓs sister s . APD

called Leslie Richards, r egional o perations m anager, as its sole

witness. Without objection, APDÓs E xhib its A through D were

received in evidence. Petitioner did not offer any exhibits at

the final hearing.

While a court reporter was present at the hearing, neither

party ordered a transcript prepared.

Both Petitioner and APD subsequently submitted Propos ed

Recommended Orders, both of which have been carefully considered

in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following F indings of F act are made:

1. Petitioner is seeking employment with The Arc of Alachua

County, a service provider regulated by APD.

2. PetitionerÓs desired employment is to work as a direct

service provider, which requires compliance with background

screening requirements. The results of Peti tionerÓs background

screening identified a history of criminal offenses.

3. Petitioner received noti fication via letter dated

April 4, 2016, from the Department of Children and Families

(DCF), RespondentÓs background screening entity, of her

disqualific ation from employment due to a criminal history. The

specific disqualifying offense listed in the letter was Larceny

(a violation of section 810.014, Florida Statutes (2016) 1/ ).

4. FloridaÓs L egislature has designated certain criminal

offenses as disqual ifying offenses, which would prevent an

individual from working as a direct service provider. However,

an individual may seek an exemption from the employment

disqualification.

5. The granting of an exemption from employment

disqualification would allow for PetitionerÓs employment as a

direct service provider to APD clients.

6. A PDÓs clients are a vulnerable population, consisting of

those individuals whose developmental disabilities are

statutorily defined as: intellectual disability, autism, spina

b ifida, Prader - Willi syndrome, cerebral palsy, Down syndrome,

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

Without APDÓs services, these clients would otherwise require

institutionalization.

7. APDÓs clients often have severe deficits i n their

abilities to complete self - care tasks and communicate their wants

and needs. These clients are at a heightened risk of abuse,

neglect, and exploitation because of their developmental

disabilities and inability to self - preserve; consequently,

emplo yment as a direct service provider to APD clients is

regarded as a position of special trust.

8. APD is the state agency responsible for regulating the

employment of persons in positions of special trust as direct

service providers for which Petitioner s eeks to qualify. See

§§ 110.1127(2)(c)1 . and 393.0655, Fla. Stat. Many of the tasks

direct service providers perform for , and/or assist individuals

with disabilities with , include those of a social, personal

needs, and/or financial nature.

9. APD relies on DCF to initially receive exemption from

employment disqualification requests and compile documents

received related to such requests.

10. On or around May 10, 2016, Petitioner submitted a

Request for Exemption, Exemption Questionnaire, a copy of her

criminal record, character references, and other various

documents (the Exemption Packet) to DCF in order to demonstrate

support for the granting of an exemption from employment

disqualification. DCF subsequently forwarded the Exemption

Packet to APD for review.

11. In beginning its exemption review, APD considered

PetitionerÓs disqualifying offe nse. Specifically, in

December 1982, Petitioner committed the disqualifying offense of

Larceny/Grand Theft (a violation of section 810.014 ). The

courtÓs fina l disposition of the case included the withholding of

adjudication of guilt, two yearsÓ probation, and payment of

costs.

12. In its continued exemption review pursuant to section

435.07(3)(b), Florida Statutes, APD considered the following non -

disqualifyi ng offenses which Petitioner committed subsequent to

her December 1982 disqualifying offense: an arrest for Worthless

Check on December 23, 1995 (a violation of section 832.05,

Florida Statutes) ; a second arrest for Worthless Check on

December 23, 1995 (a violation of section 832.05) ; a conviction

for Worthless Check on December 24, 1995 (a violation of section

832.05) ; an arrest for Driving While License Suspended/Revoked in

June 1996 (a violation of section 322.34(2), Florida Statutes) ;

an arrest for Wor thless Check in January 2007 (a violation of

section 832.05(4)( a )) ; and an arrest for Violation of Injunction

Domestic Violence/Contempt of Court in August 2012 (a violation

of section 741.31(4)(a), Florida Statutes).

The Disqualifying Offense

13. Petiti oner provided an account of her disqualifying

offense, Larcency/Grand Theft, in an addendum to the Exemption

Questionnaire, dated August 3, 2015. Petitioner indicated in her

account that she relocated to Tampa from Gainesville. She was

22 years old, sing le, and employed with the State of Florida.

She became roommates with another female who was attending

college at the University of South Florida. Petitioner stated ÐI

have no explanation as to why the both of us committed a crime of

theft.Ñ Petitioner further explained that she received a two -

year term of probation and completed all her court - ordered

sanctions within a year. Petitioner also noted that Ð[s]ince

that time, I have not committed any further crimes. Ñ

14. Petitioner provided the following r ecord concerning her

disqualifying offense: state attorney court record

(13 th Judicial Circuit, Hillsborough County, State Attorney).

The Non - Disqualifying Offenses

15. Court records received in evidence indicate a total of

six non - disqualifying offense s as previously mentioned.

Petitioner did not disclose any of her non - disqualifying

offenses, nor did she provide accounts for such on the Exemption

Questionnaire, despite the directions specifically requiring an

applicant to do so.

16. Petitioner did no t provide records of her non -

disqualifying offenses. Records of those offenses were obtained

by APD as part of its detailed review process. Records of the

non - disqualifying offenses obtained included: worthless check

affidavit, witness form, copies of c heck, and no information

filed court filing (Sears 12/23/1995); worthless check affidavit,

witness form, and copy of check (Pic Ó n Save 12/23/1995);

worthless check affidavit, witness form, copy of check, and court

judgment (PicÓ n Save 12/24/1995); worthles s check affidavit,

witness form, copy of check, copy of court diversion judgment and

supporting documentation, and copy of dismissal of charge (Publix

1/30/2007); and warrant affidavit for arrest (Alachua County

SheriffÓs Office, August 2012).

17. Petitio ner indicated that she has no current

involvement with any court system; specifically, she stated ÐI

have not experienced any criminal charges since my last event in

1982.Ñ

18. Regarding whether there was any degree of harm to any

victim or property, incl uding damage or injuries, Petitioner

stated ÐI have not experienced any harm or damage to anyone or

any property since my last event in 1982.Ñ

19. In answering the question about stressors in her life

at the time of the disqualifying incident, Petitioner indicated

that there were none , other than being on probation.

20. Regarding whether there are any current stressors in

her life, Petitioner stated ÐI have no current stressors with the

law.Ñ

21. Petitioner indicated that her current support system

and l iving arrangements include being married and having one

daughter and numerous grandchildren. Petitioner also explained

that her community activities/volunteer efforts include

volunteering with the school system (field trips/activities) and

attending churc h and performing functions for the churchÓs

treasury department.

22. Regarding educational and training achievements,

Petitioner stated that she graduated from high school, started a

career with the State of Florida, and attended a word

processing/informa tion course where she received the Most

Outstanding Student Award.

23. The Exemption Questionnaire asks whether an applicant

has ever received counseling for any reason. Petitioner

indicated that she has not received counseling for any reason; if

she fel t stress , she would call the Employee Assistance Program.

Petitioner noted she has not experienced any Ðmajor post -

traumatic [stress]. Ñ

24. As to whether she has used and/or abused drugs or

alcohol, Petitioner replied that she has Ðnot abused any type of

drugs or alcohol in [her] life.Ñ

25. Petitioner indicated the following regarding feeling

remorse/accepting responsibility for her actions: ÐI am the type

of person to feel remorse towards everything and every person

that I have contact with. I always take full responsibility for

any action(s) that I encounter when I am in the wrong.Ñ

26. The Exemption Questionnaire asks for an applicantÓs

prior three yearsÓ work history. Petitioner provided the

following information: 4/2016 to 5/2016 - - The Arc of Ala chua

County (support tech/direct care); 11/2007 to 7/2014 -- DCF -- North

Florida Evaluation & Treatmen t Center (Human Services

Worker III); 3/2004 to 7/2007 Ï DCF -- State of Florida Foster Care

(word processor/data management specialist); 4/1998 to 9/2003 --

Ameri can Psychiatric Association (membership

coordinator/secretary).

27. In addition to the criminal record submitted,

Petitioner also provided the following additional documents that

were included in her Exemption Packet: local law background

checks, a volun teer award (Head Start), three letters of

reference attesting to PetitionerÓs character, and an Affidavit

of Good Moral Character. The letters were written by persons who

have known Petitioner for several years; they described

Petitioner as devoted, loyal , honest, kind, and trustworthy.

Finally, Petitioner submitted a copy of an exemption letter she

received from DCF, dated February 12, 2016.

28. Leslie Richards, r egional o perations m anager for APDÓs

Northeast Region, advised that APD reviewed all docume ntation

provided by Petitioner in her Request for Exemption, the

information indicated in PetitionerÓs Exemption Questionnaire,

the various records documenting PetitionerÓs criminal history,

her volunteer award, character letters, and exemption from DCF.

29. Following a review of PetitionerÓs Exemption Packet,

Agency Director Barbara Palmer , advised Petitioner by a letter

dated September 26, 2016, that her request for an exemption from

her disqualifying offense was denied. The basis for the denial

was t hat Petitioner failed to submit clear and convincing

evidence of her rehabilitation.

30. Petitioner sent APD a request for hearing on or around

October 11, 2016. APD received this request timely and

subsequently forwarded this appeal to DOAH. Along with her

request for hearing, Petitioner submitted a personal statement

explaining her reasons for disputing the denial and requesting

the hearing, a copy of the denial letter, and a copy of a

training certificate summary for APD - approved courses through her

f ormer employer, the Arc of Alachua County.

31. At hearing, Ms. Richards explained APDÓs process of

reviewing exemption requests and the consideration of

PetitionerÓs application for such. Per Ms. Richards, APD

considers the disqualifying offense, the cir cumstances

surrounding the offense, the nature of the harm caused to the

victim, the history of the applicant since the incident, and

finally, any other evidence indicating that the applicant will

not present a danger if employment is allowed.

32. Addit ionally, Ms. Richards testified that APD looks for

consistency in the applicantÓs account of events in his or her

Exemption Questionnaire, the passage of time since the

disqualifying incident, whether the applicant accepts

responsibility for his/her action s , and whether the applicant

expresses remorse for his or her prior criminal acts. Because an

applicant will be occupying a position of special trust if

granted an exemption, APD weighs all of these factors in its

determination.

33. Ms. Richards testifie d that all of PetitionerÓs

submissions were reviewed and taken into consideration; she noted

that the starting point of APDÓs review began with the date of

the disqualifying offense and any criminal conduct occurring

thereafter. Ms. Richards emphasized th at in APDÓs review, it was

noted that Petitioner failed to disclose sufficient details of

the account of her disqualifying offense. Specifically,

Petitioner provided what appeared to be background information

about the time frame surrounding the offense a nd the person whom

she committed the offense with, but indicated in her statement ÐI

have no explanation as to why the both of us committed a crime of

theft.Ñ Petitioner provided other details about this time in her

life , but nothing specific about the cr ime itself. Ms. Richards

stated that it left APD with a concern that Petitioner was not

forthright with disclosure of the circumstances involving the

crime.

34. Ms. Richards also explained that APD took note that

Petitioner failed to disclose any of h er non - disqualifying

offenses, and that this fact was also of concern. APD obtained

records of the non - disqualifying offenses and considered them in

its review. Ms. Richards noted that the nature of the offenses,

particularly the Worthless Checks and the Violation of the

Injunction Domestic Violence/Contempt of Court, were troubling

because those offenses involved monetary transactions and

interpersonal relations. Ms. Richards observed that the

individuals APD serves are highly susceptible to abuse, negl ect,

and exploitation , and a person who is in a role as a direct

service provider would be assisting those individuals in a social

and financial capacity.

35. APD reviewed PetitionerÓs involvement with three DCF

investigations involving allegations of abu se toward a vulnerable

adult, PetitionerÓs spouse. Although there were no findings

against Petitioner in these cases, based on the issues presented,

DCF did make the recommendation for Petitioner to pursue family

counseling. Ms. Richards noted that there is no evidence that

Petitioner followed through with DCFÓs recommendation, and by

PetitionerÓs own admission on the Exemption Questionnaire, has

Ðnot received counseling for any reason.Ñ

36. In addition to both the criminal offense and DCF -

related inform ation, APD noted PetitionerÓs less than stellar

driving record. Ms. Richards advised that a direct service

provider will often be in a position to transport clients, and

PetitionerÓs driving record reflects a series of both moving and

non - moving violation s , which pose a concern. The record reflects

a total of five driving - related violations: driving while

license suspended/revoked (previously mentioned) ; tag not

assigned (criminal traffic) ; red light camera citation ; unlawful

speeding ; and a second red l ight camera citation.

37. Ms. Richards testified regarding APDÓs consideration of

PetitionerÓs prior employment history with DCF , and the

subsequent exemption for employment granted to Petitioner by DCF.

At hearing, APD presented employment evaluations and records of

written disciplinary action taken against Petitioner by DCF while

in its employ. Ms. Richards specifically noted that some of the

disciplinary issues for which Petitioner was cited included:

sleeping on the job while employed at a forensic facility ; not

securing the front door of a building at a forensic facility ;

tardiness ; inappropriately streaming media on a state - owned

computer ; insubordination (refusal to work a shift) ; failure to

report to work ; and poor performance/negligence (failur e to

answer phones/answer front door of facility).

38. Petitioner ultimately was dismissed from DCF due to her

inability to perform her job funct ions because of an injury.

Ms. Richards explained that these disciplinary issues gave APD

great pause in con sidering granting Petitioner an exemption, as

they were indicators for potential behaviors that could pose a

great risk to individuals served by APD, many of whom are unable

to communicate their wants and needs. The setting in which

Petitioner committed t hese workplace violations mirrors those in

which clients of APD are served.

39. Ms. Richards did state that APD considered the

exemption granted by DCF to Petitioner, however, the weight of

the prior disciplinary issues outweighed that decision when

com pared to the possible jeopardy in which APD clients could be

placed. Should Petitioner obtain future successful employment

with DCF, APD would consider that in a subsequent exemption

application review.

40. Petitioner testified on her own behalf at the h earing.

She spoke about the circumstances surrounding the disqualifying

offense, reiterating her statement from the addendum to the

Exemption Questionnaire. She provided no new information or

surrounding details about the crime. Again, she stated that s he

has not had any legal issues since 1982. Regarding her non -

disqualifying offenses, Petitioner remarked that she ÐdidnÓt

consider those bad checks as crimes , Ñ and though she denied being

convicted of such , she admitted having overdrafted checks.

41. Petitioner also stated that regarding the DCF

investigations and the Injunction Violation/Contempt of Court

charge, ÐthatÓs not why we are here today, so I am not going to

talk about that.Ñ Petitioner did admit to the driving

infractions on her record, bu t stated that two of them, running

red lights, were due to the fault of her daughter , as she was the

driver at the time, rather than Petitioner.

42. Petitioner stated that she is older and wiser and has

changed. She enjoyed working at the adult day care program with

the Arc of Alachua County. She indicated that any bad checks she

has written , she Ðtook care of.Ñ Petitioner offered explanations

for the disciplinary situations involving her prior employment

with DCF, attempting to minimize her role. She explained that

she and her husband, who Petitioner described as a vulnerable,

disabled adult, no longer have domestic issues ; however, they are

currently homeless. Petitioner stated that APDÓs denial is

keeping her in an adverse financial situation, stati ng ÐI cannot

find a job right now because of this denial.Ñ When cross -

examined by counsel regarding her ability to obtain gainful

employment with DCF and its covered providers, Petitioner

admitted that she can seek a job under DCFÓs purview.

43. Petition er presented the testimony of two witnesses.

Her sister, Sherry McCrae, a retired police officer, stated that

she lived with her sister the entire time she was in college;

Petitioner provided a source of support to her during this

period. Ms. McCrae stat ed that her sister has been working all

the years since the disqualifying incident. She affirmed that

their maiden name is Williams, PetitionerÓs last name at the time

of the disqualifying incident.

44. PetitionerÓs second witness, Faye Williams, testifi ed

that after PetitionerÓs disqualifying incident, she got a job and

was active in the community. Petitioner has a desire Ðto be a

part of something.Ñ She loves people, especially children.

45. Petitioner asserted that she enjoys working with

individu als with disabilities; at her last place of employment,

she believed she found her Ðpurpose and mission.Ñ She loves

helping people. She admits she made some mistakes , but that was

long ago. Petitioner argued that she Ðreally only committed one

crimeÑ; s he has rehabilitated herself and that should be enough

for APD. She believes APD abused its discretion in denying her

request for exemption.

46. The individuals APD serves are vulnerable and highly

susceptible to abuse, neglect, and exploitation, due to their

developmental disabilities. APDÓs representative observed that

APDÓs clients must be assigned to direct care providers without

fear of their endangerment. This necessarily requires reliance

on a caregiverÓs good character and trustworthiness.

Indi viduals who provide direct care are frequently responsible

for assisting individuals in making decisions of a financial,

medical, and social nature. APD must weigh the benefit against

the risk when considering granting an exemption .

47. Ms. Richards ca utioned that PetitionerÓs criminal

history reflects a pattern of poor judgment. PetitionerÓs

failure to disclose certain details in her account regarding her

disqualifying offense calls into question her trustworthiness.

Additionally, failure to disclose her non - disqualifying

offenses, along with a failure to recognize that those offenses

are truly crimes, is not only troubling , but calls into question

PetitionerÓs trustworthiness. It also demonstrates a complete

lack of remorse and acceptance of respons ibility for her

actions.

48. Petitioner did not admit to any of the harm she caused

to her victims. PetitionerÓs minimization of the discipline she

received while employed by DCF also gives great pause, as the

individuals she was charged with caring for were clients in a

forensic setting, a clear parallel to the clients she would

serve should an exemption be granted by APD.

49. PetitionerÓs multiple driving citations are concerning

as well , and demonstrate a pattern of questionable decision -

making, esp ecially when considering her for a position where she

could potentially transport clients. All of the aforementioned

factors, along with proximity in time of her application to her

last arrest (2012) , caused APD to question PetitionerÓs fitness

for provid ing services to the vulnerable individuals for which

it is responsible, the most vulnerable population in the state.

50. Petitioner failed to meet her burden of proving clear

and convincing evidence of rehabilitation, and therefore, the

denial of the exem ption was proper.

CONCLUSIONS OF LAW

51. Pursuant to sections 120.569, 120.57(1), and 435.07,

Florida Statutes, DOAH has jurisdiction over the subject matter

and parties of this appeal.

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

pertinent p art:

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 an arrest awaiting final

disposition for, has been found gui lty 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 simil ar law of

another jurisdiction:

(a) Any authorizing statutes, if the offense

was a felony.

53. 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 inv estigations as

a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records chec ks through the

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(2) The security background investigations

under this section must ensure that no

persons subject to the provis ions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guilty to, or have been adjudicated

delinquent and the record has not been sea led

or expunged for, any offense prohibited under

any of the following provisions of state law

or similar law of another jurisdiction:

* * *

(cc) Chapter 812 , relating to theft,

robbery, and related crimes, if the offense

is a felony.

5 4 . 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.

55. Petitioner is disqualifi ed from employment based on her

1982 Larceny/Grand Theft offense pursuant to sections 393.0655(5)

and 435.04(1)(a) and (2)(cc). She now seeks exemption from this

disqualification pursuant to sections 393.0655(2) and 435.07.

56. Section 393.0655 require s APD to follow the

requirements set forth in section 435.07 when reviewing a request

for an exemption from employment disqualification.

57. Section 435.07(3)(a) provides in pertinent part :

In order for the head of an agency to grant

an exemption to an y 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, inclu ding, 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 inci dent, or any other

evidence or circumstances indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

58. Pursuant to section 435.07(3)(b) , APD may also consider

an exemption applicantÓs convictions and/or arrests for non -

disqualifying offenses that occurred subsequent to a

disqualifying offense. As a result, APDÓs review and

consideration of PetitionerÓs subsequent non - disqualifying

offenses and/or arrests were proper.

59. Pursuant to section 435.07(5) , A PD must consider

PetitionerÓs prior exemption granted by DCF in its determination

for exemption; however, DCFÓs decision is not binding upon APD.

The evidence established that APD gave due consideration to DCFÓs

exemption in its determination.

60. An app licant must provide clear and convincing evidence

of his or her "rehabilitation," pursuant to section 435.07(3), as

that term is defined by the statute.

61. The evidentiary standard of clear and convincing is

that of an Ðintermediate standard,Ñ Ðrequir[ ing] more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.ÓÑ In re: Graziano , 696 So.

2d 744, 753 (Fla. 1997). The Florida Supreme Court has defined

this standard as such:

[C]lear and convinc ing 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 the 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. 1994) , quoting Sl omowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983); See also In

re: Adoption of Baby E.A.W. , 658 So. 2d 961, 967 (Fla. 1995)

(ÐThe evidence [in order to be clear and convincing] must be

sufficient to convince the trier of fact without hesitancy.Ñ).

See also Westinghouse Elec tric Corp. v. Shuler Bros. , 590 So. 2d

986, 988 (Fla. 1st DCA 1991) ( ÐAlthough this standard of proof

may be met where the evidence is in conflict . . . it seems to

preclude evidence that is ambiguous.Ñ).

62. Section 435.07(3)(c ) establishes that if the agency

head decides that an otherwise eligible applicant has not

provided clear and convincing evidence of rehabilitation, the

agency head's decision may be contested through the hearing

procedures set forth in chapter 120.

63. I n considering RespondentÓs action of denying

PetitionerÓs request for exemption from employment

disqualification, the standard of review is whether the agency

head abused his or her discretion when issuing such denial. Id.

The ÐÒabuse of discretionÓ stan dard is highly deferential.Ñ E.R

Squibb & Sons v. Farnes , 697 So. 2d 825, 826 (Fla. 1997). Abuse

of discretion within the meaning of section 435.07 is found when

an intended action under review Ðis arbitrary, fanciful, or

unreasonable, which is another w ay of saying that discretion is

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

adopted by the [agency head]. If reasonable [persons] could

differ as to the propriety of the [intended] action . . . , then

it cannot be said that the [agency hea d] abused [his or her]

discretion.Ñ Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla.

1980); Kareff v. Kareff , 943 So. 2d 890, 893 (Fla. 4 th DCA 2006),

citing Vandergriff v. Vandergriff , 456 So. 2d 424, 466 (Fla.

1984) (holding that pursuant to the abuse of discretion standard

the test is Ðwhether any reasonable personÑ could take the

position under review) .

64. Petitioner is to be commended for her educational and

training achievements and the desire to serve others;

additionally, it is notable that she is actively involved in

volunteering with the schools and at her church. It is

understandable that Petitioner, based on her passion to help

others, would want to serve as a direct service provider under

the APDÓs purview. PetitionerÓs previous work hist ory and

training indicate that she is employable; additionally,

Petitioner produced evidence of an exemption granted by DCF

whereby she possesses the means to secure gainful employment in

the human services field. This avenue provides Petitioner a

means t o meet her career and financial goals and needs.

65. With that said, PetitionerÓs failure to disclose her

non - disqualifying offenses and acknowledge those crimes, and her

lack of remorse and acceptance of responsibility for her actions

and harm caused t o others , gives great pause in consideration of

granting an exemption. This, along with the proximity in time to

the application from the most recent offense, is cause for

concern. Additionally, those factors pose an undue risk to those

vulnerable indivi duals APD serves should the exemption be

granted.

66. M oreover, Petitioner admitted that she has not sought

employment with DCF (by whom she has been granted an exemption)

or any of its covered entities, since receiving notice of APDÓs

denial of her exem ption request. Consequently, it appears that

PetitionerÓs failure to do so is a barrier to her own financial

well - being and success; Petitioner instead points to APDÓs denial

for her current state of affairs. Finally, Petitioner failed to

provide substan tive details regarding the disqualifying offense

itself. Without a complete and clear account of the

circumstances surrounding the offense, it is not unreasonable

that APDÓs Director determined not to grant an exemption to

Petitioner.

67. Public policy c oncerns dictate that the individuals

APD serves receive the strongest of protections. As a result,

the caregivers employed within APDÓs regulatory authority occupy

positions of special trust and must meet stringent requirements

pursuant to section 435. T he expectation for individuals in

these positions is that persons with developmental disabilities

can be entrusted to their care without fear of endangerment;

APDÓs reliance on this trust assumes a caregiverÓs fitness of

character and honesty. Based on th e evidence presented,

PetitionerÓs ability to meet those expectations is not clear and

convincing.

68. Petitioner has not met her burden of proving by clear

and convincing evidence that she has shown rehabilitation. Given

the circumstances as presented , and a review of section

435.07(3)(a), the APD DirectorÓs denial of PetitionerÓs request

for an employment exemption was not unreasonable. Because of

PetitionerÓs failure to meet her burden, APDÓs decision to deny

her exemption request was not an abuse of discretion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Director of the Agency for

Persons with Disabilities issue a final order upholding the

denial of PetitionerÓs exemption request.

DONE AND ENTERED this 2 2nd day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of February , 2017 .

ENDNOTE

1/ Unless otherwise indicated, all statutory references are to

the 2016 version of the Florida Statu tes.

COPIES FURNISHED:

Denise Arnette Wilson

237 Southwest 6th Avenue

Gainesville, Florida 32601

(eServed)

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

(eServed)

M ichele Lucas, 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

Tallahassee, Florida 3239 9 - 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 right to submit written exce ptions 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.