17-000219EXE Amy Vieland vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, March 16, 2017.

Summary: By virtue of her non-appearance at hearing, Petitioner failed to prove that APD's denial of her request for exemption from disqualification was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMY VIELAND,

Petitioner,

vs. Case No. 17 - 0219EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this ca se was heard on March 8, 2017, in

New Port Richey, Florida, before W. David Watkins, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: 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 s in this case are whether Petitioner has, pursuant

to section 435.07, Florida Statutes, demonstrated b y 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 December 15, 2016, the Agency for Persons

with Disabilities (ÐAPDÑ or ÐRespondentÑ) issued its notice of

proposed agency action by which it informed Amy Vieland

( 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 with 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] rehabi litationÑ from disqualifying

criminal offenses in her past.

On January 3, 2017, Petitioner timely filed her Request for

Administrative Hearing with APD. In her Request for

Administrative Hearing, Petitioner disputed the facts upon which

APD relied in de termining that she should be disqualified from

working with children or developmentally disabled people. On

January 13, 2017, APD referred the case to the Division of

Administrative Hearings for a formal administrative hearing.

The Initial Order was en tered on January 13, 2017. A Joint

Response to the Initial Order was filed by Respondent and

Petitioner on January 20, 2017. Among the dates provided by

Petitioner as being available for the final hearing was March 8,

2017. On January 25, 2017, a Notice of Hearing scheduling the

final hearing for March 8, 2017, at 9:30 a.m. in New Port

Richey, the location requested by the parties, was entered.

On February 15, 2017 , APD filed a Motion to Transfer Venue,

seeking to have the matter heard via video teleco nference with

locations in Tallahassee and Tampa. Petitioner did not file a

written response to the motion, so the undersigned convened a

telephonic motion hearing/pre - hearing conference on February 24,

2017 , for the purpose of hearing argument on the mot ion, and to

discuss other pre - hearing matters. Petitioner attended the

telephonic motion hearing, and strenuously objected to the

requested change of venue, since she resides in Shadyhills,

Florida. On that same date the undersigned entered a written

O rd er denying the Motion to Tr ansfer Venue. Also on

February 24, 2017 , the undersigned issued an Amended Notice of

Hearing in which only the starting time of the hearing was

changed. The new starting time for the hearing was designated

as 10:30 a.m. in orde r to accommodate travel of the parties and

witnesses.

Petitioner did not file or exchange a witness list, exhibit

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

Instructions. On February 14, 2017, Respondent filed its

Witness List and Proposed Exhibit List.

The final hearing was convened at 10:30 a.m. on March 8,

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

Counsel for Respondent appeared, as did RespondentÓs witness,

Jeffrey Smith. A court reporter was in attendance , having been

retained by Respondent. After preliminary matters were

dispensed with, a 45 - minute recess was granted to allow for an

appearance by Petitioner. During this time , the undersignedÓs

assistant attempted to contact Petitioner at her phone numbe r of

record, but was unsuccessful. Also during this interval, the

undersigned, adorned in his robe, stood in the hallway outside

of the hearing room to make himself more visible to Petitioner

if she was having difficulty locating the hearing room.

The fi nal hearing was reconvened at 11:15 a.m., without an

appearance by Petitioner. Given the burden of proof as

discussed herein, the final hearing was thereafter adjourned.

References to statutes are to Florida Statutes (2016)

unless otherwise noted.

FIN DING S OF FACT

1. By letter dated December 15, 2016, Respondent issued its

notice of proposed agency action by which it informed Petitioner

that her request for exemption from disqualification was denied.

2. A timely Petition for Formal Administrative H earing

involving disputed issues of material fact was filed on behalf of

Petitioner.

3. After filing the hearing request, Petitioner responded

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

date provided by Petitioner. Thereafter, Petiti oner failed to

comply with the Order of Pre - hearing 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 Peti tioner proved her rehabilitation from

the disqualifying offense such that Petitioner would not present

a danger to children or developmentally disabled people served in

programs regulated by Respondent.

CONCLUSIONS OF LAW

5. The Division of Administrativ e 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 435.07 establishes a process by which persons

with criminal offenses in their backgrou nds 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 section provides, in pertinent part,

that:

435.07 Exemptions from disqualification. --

U nless 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 off enses 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 emplo yment.

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 th at 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 emp loyment 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. &

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

8. It is well - established that:

[A] lthough the ultimate legal issue to be

determined by t he 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

has 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 of

setting forth clear and convincing evidence of reha bilitation

indicating that she will not present a danger if employment or

continued employment is allowed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities ent er a fina l order denying Petitioner,

Amy VielandÓs, request for an exemption from disqualification.

DONE AND ENTERED this 1 6 th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative L aw 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 1 6 t h day of March , 2017 .

COPIES FURNISHED:

Amy Vieland

Post Office Box 11256

Shadyhills, Florida 34610

Jeannette L. Estes, Esquire

Agency for Persons with Disabilities

Suite 422

200 North Kentucky Avenue

Lakeland, Florida 33801

(eServed)

Michele Luc as, 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 32399 - 0950

(eS erved)

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.