16-006361EXE Felicia Deneen Maye vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, February 24, 2017.

Summary: Petitioner did not prove rehabilitation from a burglary in 1994, to which she pled guilty, by clear and convincing evidence. Record of only Petitioner's testimony, letters of support, and the passage of time was insufficient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELICIA DENEEN MAYE,

Petitioner,

vs. Case No. 16 - 6361EXE

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 January 4, 2017, by video

teleconference at locations in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Felicia Deneen Maye, pro se

3440 Harbor Winds Way

Leesburg, Florida 33801

For Respondent: Jeannette L. Estes, Esqui re

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE S

A. Did Petitioner prove rehabilitation from her guilty plea

to a charge of burglary, which disqualified from working with

vulnera ble adults and children , by clear and convincing evidence ?

B. If she did, is the intended denial of PetitionerÓs

request for an exemption from disqualification by Respondent,

Agency for Persons with Disabilities (Agency) an abuse of

discretion?

PRELIMINARY STATEMENT

By letter dated September 16, 2016, the Agency notified

Petitioner that it intended to deny her request for an exemption

from disqualification from employment in a position of special

trust. Petitioner timely requested a formal administrative

hearing to contest the decision. The Agency referr ed the dispute

to DOAH to conduct the requested hearing. The hearing was

conducted as noticed.

Petitioner testified. PetitionerÓs Exhibits 1 through 3

were accepted into evidence. The Agency presented the testimony

of Jeffery Smith. Agency Exhibits 1 t hrough 4 were admitted into

evidence.

The parties were provided an opportunity to submit proposed

recommended orders. The Agency submitted one. Petitioner did

not.

FINDING S OF FACT

1. Petitioner seeks employment with Good Wheels, Inc. Good

Wheels serve s people with disabilities. As its employee,

Petitioner would be directly providing services to people with

disabilities. The clients that Good Wheels serve s are vulnerable

individuals. They are people with intellectual disabilities,

autism, spina bifid a, Prader - Willi syndrome, cerebral palsy,

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

Fla. Stat. (2016). 1/ They are vulnerable people, more at risk for

abuse or neglect than the general population because of

intellectual deficits or p hysical disabilities. Consequently,

employment as a direct service provider for them is a position of

special trust.

2. Because Petitioner wants to work as a direct service

provider, the law requires her to comply with background

screening requirements. 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 burglary, a violation

of section 810.02(3), Florida St atutes (1994).

3. Petitioner seeks an exemption from the disqualification,

as provided for by sections 393.0655(2) and 435.07, Florida

Statutes.

4. Petitioner completed an anger management class and

satisfied all other obligations the court imposed upon her in the

burglary case.

5. PetitionerÓs criminal history includes the following

offenses, which are not of themselves disqualifying offenses:

(a) a n arrest for a ggravated b attery on September 2, 1994,

a violation of section 784.045, Fl orida Stat utes (1994);

(b) a n arrest for a ggravated a ssault with a d eadly w eapon

and b attery (misdemeanor) on September 4, 1994, violations of

sections 784.021(1)( a ) and 784.03(1)(a ) 1., Fl orid a Stat utes

(1994) (the aggravated assault charge was reduced to a second

count of battery; Petitioner was adjudicated guilty of this

offense);

(c) a n arrest for b attery in January 1995, a violation of

section 784.03 Fl orida Stat utes (1994);

(d) a n arrest for a lter ation of a t ag by a ny m eans and

d riving with n o v alid d river's l icense in February 2001,

violations of sections 322.03 and 320.061, Fl orida Stat utes

(2001);

( e) a nd an arrest for a ggravated b attery with a d eadly

w eapon and b attery in April 2002, violations of sections

784.045(1)( a )(2) and 784.03(1) Fl orid a Stat utes .

6. The disqualifying burglary offense arose from

PetitionerÓs belief that the victim stole rent money from

PetitionerÓs glove box. A friend suggested that Petitioner break

into the v ictimÓs house to recover the money. She did and was

caught.

7. This offense and most of the non - disqualifying offenses

occurred when Petitioner was young. The incidents involved

drinking alcohol. Many involved an inability to control her

temper and a r eadiness to resort to violence to solve problems.

One example is the 2002 aggravated battery charge. An argument

with PetitionerÓs girlfriend escalated from screaming to shoving

to Petitioner breaking a beer bottle on her girlfriendÓs head.

This Petitio ner characterized as a Ðpush & shove slap fightÑ with

no life threatening injuries.

8. The aggravated battery charge in September 2, 1994, is

another example. It arose from a dispute about PetitionerÓs

girlfriendÓs failure to repay money loaned by the vi ctim. The

person who loaned the money threatened to scratch the girlfriend

and infect her with a fatal disease. Petitioner and her

girlfriend began to fight with the victim. During the fight

Petitioner took a knife from the victim and stabbed him.

9. Petitioner no longer uses alcohol. Her last offense

occurred in 2002. She accepts responsibility for her actions and

is remorseful for them. But she minimizes them and the injur ies

they caused somewhat .

10. People who know Petitioner vouch for her. Someone who

has known Petitioner five years attests to her work ethic and

dedication. She described Petitioner as a Ðdynamic worker who

will go the extra mile on all projects.Ñ

11. A chronically ill person for whom Petitioner has been a

primary caregiver for more than three years praises her. She

describes her as compassionate and positive. She emphasizes

PetitionerÓs ability to stay calm and cool even when the ill

person devolved into Ðterrible rages.Ñ

12. Petitioner has satisfied the requirements to qualify

for the ÐFederal Bonding ProgramÑ offered by a company that

offers employee bonds from Travelers Property Casualty Insurance

Company. The record does not establish what the requirements to

qualify for a bond are.

13. PetitionerÓs employer from Fe bruary 27, 2006 , through

May 10, 2014, MV Transportation, has repeatedly recognized her

achievements. It awarded her a certificate of excellence as

D ivision O perator of the Quarter in recognition of valuable

contributions to safety excellence and custome r servic e. In 2012

Petitioner was para transit driver of the year. In 2013 MVÓs

S enior V ice P resident of Safety commended Petitioner for her six

years of accident - free driving and commitment to safety.

14. The information in paragraphs 10 through 13 comes from

documents, not witness testimony. Consequently , the statements

are hearsay. Their authors were not subject to cross examination

by the Agency to test any bias of the authors, the distinctness

of their memories, or the basis of their conclusio ns.

15. Petitioner attends church regularly and participates in

church activities. She credits her faith for the motivation and

resolve to end the pattern of harmful and illegal behavior

demonstrated in earlier years. Petitioner also participates in a

m otorcycle club that conducts events to raise funds for community

service.

CONCLUSIONS OF LAW

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

DOAH jurisdiction over the parties to and the subject matter of

this proceeding.

17. Petitioner seeks a position directly serving vulnerable

persons. Serving in that position requires successful completion

of Level 2 background screening under section 393.0655.

18. PetitionerÓs 1994 guilty plea disqualified her from

employment directly serving the vul nerable. Petitioner seeks an

exemption from disqualification under sections 393.0655(2) and

435.07. Petitioner is eligible to seek exemption from

disqualification.

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

exemption "must demonstrate b y clear and convincing 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." The repetition

emphasizes the importance of the requirement.

20. Clear and convincing evidence must be credible. The

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 evidence

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).

21. If the employ ee proves rehabilitation by clear and

convincing evidence, the employee must also prove that denial of

an exemption is an abuse of discretion. § 435. 07(3)(c), Fla

Stat. In J. D. v. Florida Department of Children & Families , 114

So. 3d 1127, 1130 (Fla. 1s t DCA 2013), Judge Wetherell described

the abuse of discretion review 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.

Canakaris , 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)).

22. Petitioner relies on only her testimony and documents

containing statements of others. As noted in paragraph 14, the

record does not contain evidence demonstrating how much weight or

credibility the statements in those documents should receive.

Th e record does prove that until about 15 years ago, Petitioner

would resort to violence to resolve conflicts.

23. The law places a difficult burden of proof on

Petitioner. She must prove rehabilitation by clear and

convincing evidence, not just a prepon derance. She has not

satisfied it.

24. As a whole, the record does not prove PetitionerÓs

rehabilitation by clear and convincing evidence. The evidence,

although it indicates rehabilitation, does not leave a firm

belief that Petitioner is rehabilitated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Persons with

Disabilities, enter its final order denying PetitionerÓs

exemption request.

DONE AND ENTERED this 24th day of February , 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 24th day of February , 2017 .

ENDNOTE

1/ All citations to Florida Statutes 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)

Felicia Deneen Maye

3440 Harbor Winds Way

Leesburg, Florida 34748

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServ ed)

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 .