16-006909EXE Kyanna Raquel Dixon vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, January 27, 2017.

Summary: Petitioner did not prove that APD's denial of her request for exemption from disqualification was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYANNA RAQUEL DIXON ,

Petitioner ,

vs. Case No . 1 6 - 6909EXE

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice , this case was heard on January 26,

2017 , in Tallahassee, Florida , before E. Gary Early, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respond ent: Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE S

The issue in this case is whether Petitioner has, pursuant

to section 435.07, Florida Statutes, demonstrated by clear and

convincing evidence that she should not be disqualified from

employment in a position involving direct contact with children

or developmentally disabled persons and, thus, whether the

intended action to deny an exemption from disqualification from

employment is an abuse of the agencyÓs discretion.

PRELIMINARY STATEMENT

By letter dated October 13, 2016 , the Agency for Persons

with Disabilities (ÐAPDÑ or ÐRespondentÑ) issued its notice of

proposed agency action by which it informed Kyanna Raquel Dixon

(ÐPetitionerÑ) that her request for exemption from

disqualification was denied. As a result, Petitioner was

determined to be Ðnot eligible to be employed, licensed, or

registered in positions having direct contact wi th children or

developmentally disabled people served in programs regulated by

the Agency for Persons with Disabilities.Ñ The basis for APDÓs

determination, as alleged in its notice of proposed agency

action, was that Petitioner Ð[had] not submitted clear and

convincing evidence of [her] rehabilitationÑ from disqualifying

criminal offenses in her past.

On November 7, 2016 , Petitioner timely filed her Request

for Administrative Hearing with APD. In her Request for

Administrative Hearing, Petitioner dispu ted APDÓs determination

that she had not proven her rehabilitation. On November 21,

2016 , APD referred the case to the Division of Administrative

Hearings for a formal administrative hearing.

The Initial Order was entered on November 22, 2016 .

Respon ses to the Initial Order were filed by Respondent and

Petitioner on November 28, 2016 , and November 30, 2016 ,

respectively. Among the dates provided by Petitioner as being

available for the final hearing was January 26, 2017. On

December 6, 2016, a Notic e of Hearing scheduling the final

hearing for January 26, 2017, at 9:00 a.m. was entered.

Petitioner did not file or exchange a witness list, exhibit

list, or proposed exhibits, pursuant to the Order of Pre - h earing

Instructions. On January 18, 2017, Re spondent filed its

Proposed Prehearing Statement. The Proposed Prehearing

Statement recited the facts underlying the decision to file a

unilateral statement, and included copies of the numerous

communications with Petitioner as to the necessity to meet in

order to prepare for the January 26, 2017 , hearing. Despite

having communications with Petitioner, counsel for Respondent

was unsuccessful in having Petitioner participate in her efforts

to comply with the Order of Pre - hearing Instructions.

The final h earing was convened at 9:00 a.m. on January 26,

2017 , as noticed. No one appeared on behalf of Petitioner.

Counsel for Respondent appeared. A court reporter was in

attendance, having been retained by Respondent. After

preliminary matters were disp ensed with , a 20 - minute recess was

granted to allow for an appearance by Petitioner. The final

hearing was reconvened at 9:20 a.m. , without an appearance by

Petitioner. Given the burden of proof as discussed herein, t he

final hearing was thereafter adjourned.

References to statutes are to Florida Statutes (201 6 )

unless otherwise noted.

FINDINGS OF FACT

1 . By letter dated October 13 , 201 6 , Respondent issued its

notice of proposed agency action by which it informed P etitioner

that her request for exemption fr om disqualification was denied.

2 . A timely Petition for Formal Administrative Hearing

involving disputed issues of material fact was filed on behalf

of Petitioner.

3 . A fter filing the hearing request, Petitioner responded

to the Initial Order, and th e final hearing was scheduled on a

date provided by Petitioner. Thereafter, Petitioner f ailed to

comply with the Order of Pre - h earing Instructions and failed to

appear at the final hearing.

4 . Based on PetitionerÓs failure to appear and offer

evidence, there is no evidentiary basis on which findings can be

made regarding whether Petitioner proved her rehabilitation from

the disqualifying offense such that Petitioner would not present

a danger to children or developmentally disabled people served

in prog rams regulated by Respondent .

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has

jurisdiction over the subject matter of the proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1) ,

Florida Statutes .

6 . Section 4 35.07 establishes a process by which persons

with criminal offenses in their backgrounds that would

disqualify them from acting in a position of special trust

working with children or vulnerable adults may seek an exemption

from disqualification. That sec tion provides , in pertinent

part, that :

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall 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 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.

* * *

(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

discreti on.

7 . The statute must be strictly construed against the

person claiming the exemption. Heburn v. Dep't of Child. &

Fam s . , 772 So. 2d 561 (Fla. 1st DCA 2000).

8 . It is well - established that:

although the ultimate legal issue to be

determined by th e ALJ in a proceeding under

section 435.07(3)(c) is whether the agency

head's intended action was an Ðabuse of

discretion,Ñ the ALJ is to evaluate that

question based on the facts determined from

the evidence presented at a de novo chapter

120 hearing.

J .D. v. Dep't of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st

DCA 2013).

9 . APD has a heightened interest in ensuring that the

vulnerable population it serves is not abused, neglected, or

taken advantage of. In light of that mission, the Legislature

h as justifiably imposed a heavy burden of proof on those seeking

approval to serve those persons when they have disqualifying

events in their past.

10 . Petitioner failed to meet her burden of proof.

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

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

Disabilities enter a final order denying Petitioner , Kyanna

Raquel DixonÓs , request for an exemption from disqualification.

DONE AND ENTERED this 27th day of January, 2017, in

Tallahassee , Leon County, Florida.

S

E. GARY EARLY

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 27th day of January , 2017 .

COPIES FURNISHED :

Kyanna R. Dixon

Post Office Box 454

Quincy, Florida 37353

Kyanna Dixon

1720 Bordeaux Boulevard

Tallahassee, Florida 32303

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

(eServed)

Michele Lucas, Agency Clerk

Agency for Persons with Disabilities

40 30 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency fo r 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.