17-000940EXE Clarissa Ailes vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, August 8, 2017.

Summary: Petitioner failed to prove by clear and convincing evidence that she has been rehabilitated from her disqualifying offenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARISSA AILES,

Petitioner,

vs. Case No. 17 - 0940EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fi na l hearing was held in this

case on July 18, 2017, via video teleconference at sites in

Jacksonville and Tallahassee, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge (ÐALJÑ)

of the Division of Administrative Hearings (ÐDO AHÑ).

APPEARANCES

For Petitioner: Clarissa Ailes, pro se

8227 Windypine Lane

Jacksonville, Florida 32244

For Respondent: Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE S

Whether Petitioner demonstrated, by clear and convincing

evidence, that she is rehabilitated from her disqualifying

offense; and, if so, whether Respondent would abuse its

discretion if it denied PetitionerÓs request for an exemption

from disqualification from employment, pursuant to chapter 435,

Florida Statutes (201 6 ). 1/

PRELIMINARY STATEMENT

Via a letter dated August 23, 2016, the Agency for Persons

with Disabilities (ÐAPDÑ) notified Clarissa D. Ailes that her

request for an exemption from disqualification had been denied.

As stated in the letter, APDÓs decision meant that Ms. Ailes

was Ðnot eligible to be employed, licensed or reg istered in

positions having direct contact with children or developmentally

disabled people served in pro grams regulated by [APD].Ñ

Ms. Ailes requested an administrative hearing to challenge APDÓs

proposed action, and the matter was refer r ed to DOAH to co nduct

a formal administrative hearing pursuant to sections 120.569 and

120.57(1), Florida Statutes.

The undersigned scheduled the final hearing to occur on

April 19, 2017. However, during a telephonic pre - hearing

conference convened on April 11, 2017, i t became apparent that

Ms. Ailes had not been adequa tely apprised of exactly why APD

had denied her request for an exemption from disqualification.

While APD specified during the phone conference the exact basis

for the denial, the undersigned sua sponte cancelled the final

hearing in order to ensure that Ms. Ailes w ould have an

opportunity to prepare her case.

After receiving mutual dates of availability from the

parties, the undersigned rescheduled the final hearing to occur

on June 13, 2017.

The under signed convened the final hearing on June 13,

2017, at the scheduled time. Ho wever, Ms. Ailes never appeared,

and the undersigned ask ed his assistant to contact Ms. Ailes and

schedule a phone conference .

During the June 15, 2 017, telephonic conference, Ms. Ailes

explained that she did not attend the June 13, 2017, final

hearing because she did not receive the notice of hearing in the

mail. After verifying that all parties were available for a

final hearing on July 18, 2017, the undersigned issued an Ord er

on June 16, 2017, rescheduling the final hearing for July 18,

2017.

The final hearing was convened as scheduled. Ms. Ailes

testified on her own behalf, and APD presented the testimony of

Leslie Richards. In addition, APD called Ms. Ailes as a

witnes s. APD Ós Exhibits 1 through 5 were accepted into

evidence. APD Ós Exhibits 6 and 7 were officially recognized.

The p arties did not order a transcript. Therefore, they

had until July 28, 2017, to file proposed recommended orders.

APD filed a timely Pro posed Recommended O rder on July 25, 2017,

but Ms. Ailes did not file anything prior to the deadline , nor

has she since . APDÓs Proposed Recommended Order was considered

in the preparation of this Recommended Order .

FINDING S OF FACT

1. APD serves clients with autism, intellectual

disabilities, Downs Syndrome, and Prader - Willi Syndrome. ADPÓs

clients range from those needing total care to those who can

live on their own with minimal assistance.

2. The services APD provides to its clients include

personal care, respite care, adult day training, supported

living, and a wide variety of other services.

3. The aforementioned services are provided by APDÓs

vendors in individual homes, group homes, and supported living

arrangements.

4. Section 435.06(2) mand ates that an employer may not

hire someone for a position requiring contact with any

Ðvulnerable personÑ until a completed background screening

Ðdemonstrates the absence of any grounds for the denial or

termination of employment.Ñ See § 435.02(6), Fla. St at.

(providing that a Ðvulnerable personÑ means Ða minor as defined

in s. 1.01 or a vulnerable adult as defined in s. 415.102.Ñ).

5. If the position in question requires ÐLevel 2Ñ

screening, then an applicant cannot be hired if he or she has

committed o ne or more of the disqualifying offenses enumerated

under section 435.04(2).

6. However, an applicant with one or more disqualifying

offenses can still be hired if he or she is granted an exemption

by the pertinent agency. § 435.06(2)(a), Fla. Stat.

7. When APD considers whether to grant an exemption from a

disqualifying offense, it considers the following factors:

(a) the nature of any harm that resulted from the disqualifying

offense; ( b ) any events occurring since the disqualifying

offense; ( c ) any training or counseling received by the

applicant since the disqualifying offense ; and (d) has the

applicant presented clear and convincing evidence of

rehabilitation .

8. Ms. Ailes applied for a position as an Ðadult day

counselor and companionÑ with th e YMCA.

9. An adult day counselor works in a facility where

clients learn job skills and participate in activities that

facilitate independence. A companion assists a client with

connecting to resources in the local community and assists with

transport ing the client to those resources.

10. On March 7, 2016 , and in conjunction with her

application for a position with the YMCA , Ms. Ailes filled out

an APD standardized form entitled ÐAffidavit of Good Moral

Character.Ñ She signed the form and thus ver ified that she had

not been found guilty of or entered a plea of guilty or nolo

contendere to a long list of enumerated offenses, including

forgery and uttering forged instruments.

11. The Department of Children and Families (Ðthe

DepartmentÑ) reviewed Ms. AilesÓ application and determined

whether the information therein was correct and current .

12. On March 11, 2016, the Department issued a letter

notifying Ms. Ailes that the Department had reviewed her

criminal history in the course of conducting a background check

and di scovered that she had three offenses involving forgery and

pass ing a forged check .

13. The aforementioned offenses occurred on O ctober 12,

2010. After Ms. Ailes entered a guilty plea, the Duval County

Circuit Court withh eld adju dication and imposed 12 months of

probation. Ms. Ailes was also required to pay $788.54 in

restitution.

14. Because of the aforementioned offenses, t he

DepartmentÓs letter stated that section 435.04 prohibited

Ms. Ailes from having the position for whi ch she had applied.

15. The DepartmentÓs letter closed by notifying Ms. Ailes

that she may be eligible to apply for an exemption from

disqualification . In addition, the letter directed her to a

website having the eligibility requirements and an applica tion

for exemption from disqualification.

16. On May 3, 2016, Ms. Ailes completed a ÐRequest for

ExemptionÑ application .

17. A questionnaire accompanied the application and asked

Ms. Ailes to describe her disqualifying offense.

18. Ms. Ailes respo nded to that question by writing

ÐUttering Forged Bill Î 2010.Ñ She also wrote that, ÐWhen this

incident took place in my life, I was not in a good place. I

had no support system and was raising a child on my own. Some

serious health issues were placed upon me and I did not know

what to do.Ñ

19. In response to a question regarding her Ðcurrent

status with the court system,Ñ Ms. Ailes stated that, ÐMy

current status is adjudication withheld and in compliance [with

all that] was required of me.Ñ

20. Another question inquired about the Ðdegree of harm to

the victim,Ñ and Ms. Ailes stated that Ð[r]estitution was paid

back to the victim by myself and an apology was written.Ñ

21. With regard to the stressors in her life when she

committed the disqualif ying offense, Ms. Ailes stated that she

Ðsuffered from lack of support from family, financial issues,

single parent, and health issues. This is now 6 years later and

I am in a better place with a clear mind.Ñ

22. As for her current stressor s , Ms. Ailes stated that :

My current stressor right now is trying to

find adequate employment so I can provide a

better life for my daughter and [me]. I do

not just want any job. I would love to get

back to my passion of helping others in

need. Before this inciden t took place I was

10 years strong in the nursing field and

continuing my nursing career. My current

support system would be my daughter, mother,

church family, counselors and friends. I am

still a single mother raising my 9 year old

daughter who is ADHD , with some learning

disabilities and we live in a 2 bedroom

apartment. We are barely making it off of

my Social Security Benefits. I volunteer at

my daughterÓs school a couple of days a week

and I am involved in 2 ministries at my

church.

23. With reg ard to whether she has accepted responsibility

for the disqualifying offense, Ms. Ailes stated that :

I have accepted responsibility for my

actions 6 years ago . [I] wrote an apology

letter to the victim and apologized face to

face in court. I also paid restitution back

to the victim and the documents are attached

from the Clerk of Courts. I have asked God

for forgiveness and to open the heart of the

victim to forgive me. Everything that I

have been through has been a real eye opener

and has brought me closer to God. I now

know my purpose here on earth and I just

want to be remembered for making a

difference in peopleÓs lives and not

destroying them. God has given me another

chance to make things right in my life and

that is all I am trying to do. I f ind

myself [often] ministering to young adults

on staying out of trouble, telling my story

and teaching them about God.

24. In response to a question asking her to provide her

employment history over the last three years, Ms. Ailes stated

that she had Ðn o employment history for the past 5 years due to

disability.Ñ

25. Ms. Ailes attached a statement to the questionnaire

describing her life since she committed the disqualifying

offense s in 2010:

Looking back on 2010, I had goals and dreams

since the age of 16. Those goals are still

obtainable and I will continue to strive for

success. Somewhere I lost my way and

everything that I had worked so hard for

went down the drain by my actions. IÓve had

two near death experiences and God kept me

through it all . I have a passion and a

purpose which is very clear. He wants me to

continue to do His work and along the way

share my story with others. My life is so

much better now since 2010. I had some deep

rooted issues that all came to pass. I had

to g o throu gh some extensive healing and

therapy. Today I am a woman of God first, a

great mother, full of life, filled with

love, full of wisdom, determination and very

passionate. Every chance I get now I find

myself ministering to others and just

letting them kn ow that God loves them and to

never give up. IÓve experienced His work

and I am a living testimony on how good He

is. I thank God each and every day for

restoring me and making me like new so I can

continue to bless others. My daughter, who

is my world, has suffered a great deal

through it all and that is why I am still

fighting for a better life for us. She is

depending on m e and watching everything I

do. I just want to be a positive role model

in her life and when I leave this earth, I

want her to be able to s ay that her mom made

a difference. I see her future and it is

very bright, I want to give her what my

parentÓs didnÓt give me. A chance, an

opportunity, the best education, guidance,

encouragement and love most of all. My

current situation is that I am receiving

Social Security benefits, food stamps,

Medicare and child support. I was declared

disabled in 2010 and have not worked since.

I am currently in a two - bedroom apartment

with my 9 year old daughter, barely making

it off of the income I have coming in but I

am not giving up. The only family I have

here in Jacksonville, FL is my mother and my

church family. I have other family support

back home where I am from which is Omaha,

NE. They all support me in everything I do,

they are aware of my struggle and what I am

trying to accomplish going forward with my

life. It has been hard finding employment

in other fields due to my work history being

all Health Care. I have been doing

everything in my power to get back into the

work field doing w hat I love to do. As I am

currently in the Vocational Rehabilitation

Program and Clay Behavioral Health Program.

As far as my Certified Nursing Assistant

license, I have applied to retake my exam

through Prometric and should be able to take

it within a m onth. I have been studying

online and taking practice exams to brush up

on my skills and Medical Terminology. My

future goal is to finish up my Medical

Assistant Degree through Kaplan University

and I only have about 15 credits to complete

the program. I am looking at mid next year

to complete it because I am going through

Total Permanent Disability, they have

discharged all my previous student loans and

they have me in a three year post - monitoring

period which will be up in June 2017. No

therapy was re commended at the time of

incident, only to continue medication. I

would just like the opportunity to prove to

everyone that people can change for the

better. God has forgiven me that I know. I

also asked Him to open up the heart and mind

of the victim t o forgive me as well and it

was already done. I would just like to

thank you for your time and consideration

for this exemption.

26. On May 10, 2016, the Duval County Circuit Court issued

an Order sealing the records pertaining to the offenses

committ ed by Ms. Ailes on October 12, 2010. 2 /

27. On June 17, 2016, the Agency for Health Care

Administration (ÐAHCAÑ) notified Ms. Ailes that she had

Ðdemonstrated by clear and convincing evidence that an exemption

from disqualification from employment should be and is granted.Ñ

28. On August 23, 2016, APD issued a letter notifying

Ms. Ailes that her request for an exemption from

disqualification had been denied based on the background

screening conducted on March 9, 2016. As stated in the letter,

Ð[t]his decision means you are not eligible to be employed,

licensed or registered in positions having direct contact with

children or developmentally disabled people served in programs

regulated by [APD].Ñ

29. The letter also stated that all of the information

considered by APD did not amount to Ðclear and convincing

evidence of your rehabilitation.Ñ

30. APDÓs letter closed by notifying Ms. Ailes of her

right to request a formal administrative hearing.

Evidence Adduced at the Final Hearing

31. Through h er testimony d uring the final hearing,

Ms. Ailes presented much more information than in her

application for an exemption.

32. For instance, Ms. Ailes obtained a certified nursing

assistant (ÐCNAÑ) license and began working in the healthcare

field in 20 00. During the ensuing years, she worked with

disab led adults and disabled children.

33. Ms. Ailes Ó disqualifying offenses resulted from her

forging a check for $800 and another for $900.

34. The checks in question belonged to an elderly friend

of hers. Ms. Ailes was close to the victim and his wife, and

the victim gave Ms. Ailes his checkbook so that she could pay

his bills and expenses.

35. Ms. Ailes entered a guilty plea to the forgery and

uttering charges, but adjudication was withheld.

36 . Ms. Ailes was release d from probation after paying

restitution to the victim.

37. Ms. Ailes paid restitution through money she received

via child support payments, temporary cash assistance, and her

mother.

38. Prior to the health problems mention ed in her

application, Ms. Ailes had worked as a CN A for a home care

business in Jacksonville, Florida , from 2008 through 2010.

39. However, she was forced to leave that job because of

several serious health problems .

40. Ms. AilesÓ health problems beg an with severe headaches

that necessitated frequent trips to the emergency room. She was

ultimately diagnosed as having a brain tumor.

41. In addition, Ms. Ailes developed diabetic neuropathy

that led to her feet being numb for approximately two years.

She also lost sensation on the right side of her body.

42. Ms. Ailes had been experiencing frequent seizures but

no longer does so.

43. She has degenerative disc disease and sciatica in her

lower back and treats with a pain management specialist onc e a

month.

44. As a result of the afor ementioned health problems,

Ms. Ailes was unable to work between 2010 and 2016 .

45. While Ms. Ailes considers herself to be disabled, she

has returned to the work force.

46. In February of 2016, Ms. Ailes began w orking at Panera

Bread . In addition to being a delivery driver, Ms. Ailes worked

in the dining area by bringing food to customers and busing

tables.

47. Ms. Ailes decided that she did not want to work in

food service and left Panera Bread in the beginn ing of May of

2016.

48. At th at point in time, Ms. Ailes wanted to return to

working with the disabled.

49. Accordingly, Ms. Ailes began working as a residential

aide for an assisted living facility in August of 2016 .

50. However, she left that posi tion approximately six

weeks later because her coworkers became hostile toward her

after she reported incidents of abuse to the Department and the

Attorney GeneralÓs Office.

51. For the last 11 months, Ms. Ailes has work ed at

St. MichaelÓs Homecare, a b usiness that provides light

housekeeping, transportation to and from doctorÓs appointments,

and personal care. The personal care component can include

assistance with bathing, meal preparation, and dressing.

52. Ms. Ailes is working with one client at this time.

That client is 42 years old, visually impaired, and physically

handicapped.

53. While Ms. AilesÓ CNA license is no longer current and

active, she is studying to retake the CNA licensing exam, and

she has worked to further her education by ta king business

administration courses at Kaplan.

54. Leslie Richards, APDÓs Northeast Region Manager,

testified that Ms. Ailes Ó application provided very little

information about her disqualifying offenses and the victim of

those offenses . Given that la ck of detail and the fact that her

criminal records had been sealed, Ms. Richards testified that

APD did not have enough information to make an informed decision

as to whether to grant Ms. AilesÓ request for an exemption.

55. Ms. Richards acknowledged t hat AHCA has granted

Ms. Ailes an exemption from employment disq ualification.

According to Ms. Richards, APD is justified in imposing a higher

standard on exemption applicants because APDÓs clients are more

vulnerable than AHCAÓs. 3/

Ultimate Findings of Fact

56. After considering the evidence and testimony presented

at the final hearing, the undersigned finds that Ms. Ailes has

not presented clear and convincing evidence that she has been

rehabilitated.

57. As explained in th e Conclusions of Law belo w,

Ms. Ailes has made considerable progress in overcoming her

health issues and improving her circumstances. If Ms. Ailes

were to re - apply for an exemption and present more information

about the circumstances of her disqualifying offenses, the

victim of t hose offenses , and witness testimony regarding her

character , then there is a good chance that she could satisfy

her burden of presenting clear and convincing evidence of

rehabilitation.

CONCLUSIONS OF LAW

58. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569,

120.57(1), and 435.07(3), Florida Statutes.

59. Section 110.1127( 2 ), Florida Statutes, provides that

Ð[a]ll positions in programs providing care to children, the

developmentally dis abled, or vulnerable adults for 15 hours or

more per week . . . are deemed to be persons and positions of

special trust or responsibility Ñ and require employment

screening pursuant to chapter 435, using the Level 2 standards

set forth in that chapter.Ñ

6 0. Section 393. 0 655 (5) , Florida Statutes, establishes

Level 2 screening requirements by provid ing in pertinent part:

( 5 ) 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 guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guilty to, or has been adjudicated

delinquent and the record h as not been

sealed or expunged for, any offense

prohibited under any of the following

provisions of state law or similar law of

another jurisdiction :

* * *

(k) Section 831 .0 1 , relating to forgery .

( l ) Section 831.02, relating to uttering

forged inst ruments.

61. Because Petitioner committed the offense s noted

directly above, she is disqualified from employment in positions

of trust in which she would have contact with vulnerable

persons. See § 435.04(2), Fla. Stat.

62. Section 435.07 authorizes t he agency head to grant a

person otherwise disqualified under section 435.04 an exemption

from such disqualification under certain circumstances. In that

regard, subsection (3)(a) provides that:

[e]mployees 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 t o 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.

63. Under section 435.07, the applicant fo r an exemption

from disqualification has the ultimate burden to demonstrate, by

clear and convincing evidence, that he or she is rehabilitated

from the disqualifying offense. § 435.07(3)(a), Fla. Stat.

64. This is a heightened standard, requiring more than a

mere preponderance of the evidence. In re: Graziano , 696 So. 2d

744, 753 (Fla. 1997). This evidentiary standard has been

described as follows:

[C]lear and convincing 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 Slomowitz

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

65. Under section 43 5.07(3)(a), evidence of rehabilitation

may include, but is 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 victi m, and the history of the

applicant 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.

66. Section 435.07(3)(c) provides that the agency hea dÓs

decision to grant or deny an exemption Ðmay 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 discretion.Ñ

67. Therefo re, even if the applicant demonstrates

rehabilitation, he or she is only eligible for an exemption, not

entitled to one. The agency head possesses the discretion to

deny an exemption request, but may not lawfully do so if the

denial would constitute an ab use of discretion. See J.D. v.

DepÓt of Child. & Fams. , 114 So. 3d 1127 (Fla. 1 st DCA 2013);

s ee also Heburn v. DepÓt of Child. & Fams. , 772 So. 2d 561 (Fla.

1 st DCA 2000).

68. Under the highly deferential Ðabuse of discretionÑ

standard, if reasonable persons could differ as to the propriety

of the agency action taken, 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).

Conversely, if the agencyÓs denial of the exemption request is

unreasonable, then its action constitutes an abuse of

discretion. I d . (discretion is abused when the action is

arbitrary, fanciful, or unreasonable).

69. In reconciling the Ðabuse of discretionÑ standard

mandated by chapter 435 with the Ðde novoÑ proceeding provided

by chapter 120, the First District Court of Appeal has stated

that while:

the ultimate legal issue to be determined

by the ALJ in a proceeding under section

435.07(3)( c) is whether the agency

headÓs intended acti on was an Òabuse of

discretion,Ó the ALJ is to evaluate that

question bas ed on facts determined from

the evidence presented at a de novo

chapter 120 hearing.

J.D. v. DepÓt of Child. & Fam. , 114 So. 3d at 1132.

70. However, Ms. Ailes did not present clear and

convincing evidence demonstrating that she has been

rehabilitated from her disqualifying offense.

71. Ms. Ailes should be commended for overcoming her

physical challenges and returning to the workforce. She should

also be commended for wantin g to make a better life for her

daughter and for drawing strength from her faith.

72. Ms. Ailes persuasively asserts that someone should not

be endlessly punished for one instance of bad judgment.

73. Nevertheless, the prohibition against employ ing

i ndividuals convicted of disqualifying offenses under section

435.04 in positions of trust is intended to protect the public

welfare, and the statute must be strictly construed against the

person claiming exemption. See Heburn , 772 So. 2d at 563 ;

Smiley v. APD , Case No. 16 - 3765EXE ( Fla. DOAH Sept . 12, 2016)

(stating that Ð[t]he importance of the AgencyÓs goal to protect

the public cannot be overstated, and PetitionerÓs behavior

must be viewed through the lens of th e AgencyÓs mission to

protect a fragile pop ulation who s e members often cannot protect

themselves . . . [T] he Agency considers the statutory

requirements for rehabilitation and the vulnerability of the

population it serves. Given its mission, it is reasonable for

the Agency to consider anything th at would point to the

possibility of danger to that fragile population.Ñ).

74. While Ms. AilesÓ testimony was compelling, it was not

enough (by itself) to clearly and convincingly demonstrate that

she has been rehabilitated.

75. However, the foregoin g statement should not be

construed as a conclusion that Ms. Ailes is incapable of

presenting clear and convincing evidence of rehabilitation.

76. The primary shortcoming in Ms. AilesÓ case was that

she presented no direct testimony other than her own.

77. If Ms. Ailes were to a pply again for an exemption

and present testimony from her current employer and/or her

clients regarding the quality of he r character, then it is

much more likely that she would b e able to satisfy her burden

of proof. 4/ See gen erally Mack v. APD , Case No. 15 - 3268EXE ( Fla.

DOAH Sept . 11, 2015)(concluding that APDÓs Ðintended action was

formulated without the benefit of the compelling testimony of

PetitionerÓs six very credible witnesses, including: the couple

who are APD clients with developmental disabilities, to whom

Petitioner provided exemplary care and safe transport for five

years; the family of the disabled couple; a physical therapist

assistant who also provided services to the disabled couple and

observed Petitioner in h is caregiver role over the five - year

span; and PetitionerÓs uncle who is a pastor at the church where

Petitioner serves as a choir director. All of these witnesses

would entrust (and have entrusted) their valuables, their loved

ones, and their own lives t o Petitioner, and each of them

emphatically rejected any notion that Petitioner will pose a

danger to children, to persons with developmental disabilities,

or to any other vulnerable persons, if allowed to resume

employment. To the contrary, these witness es spoke eloquently

to the great loss suffered by the APD clients who are no longer

extraordinarily well - cared for by Petitioner because he is not

eligible to do so without an exemption, and who want him

back.Ñ).

78. Testimony from Ms. AilesÓ pastor and other members of

her church family regarding her character could also be useful

in establishing the quality of her character. 5/ See generally

Brown v. APD , Case No. 16 - 0625EXE ( Fla. DOAH May 11,

2016)(noting that Ð[i]n response to a question in the exemp tion

application regarding whether she receives any form of

counseling, she responded vaguely that she gets counseling at

her church, as needed. No specifics were offered. No

documentation or testimony was presented with regard to the

counseling she has obtained at her church, such as a description

of the nature of the counseling services she referred to and how

often she has availed herself of those services. Here, too, a

better showing could be made, such as by offering testimony of a

pastor or other c hurch official who could attest to PetitionerÓs

rehabilitation that may be evident from her drawing on church

resources for support .Ñ) (emphasis added) ; Rivera v. APD ,

Case No. 15 - 5039E X E ( Fla. DOAH Nov . 11, 2015)(noting that APDÓs

Ðdenial of the exemption was formulated without the benefit of

the compelling testimony of PetitionerÓs four very credible

witnesses, all of whom emphatically rejected any notion that

Petitioner poses any risk to children, to persons with

developmental disabilities, or to any othe r vulnerable

persons.Ñ).

79. Because Ms. Ailes failed to present clear and

convincing evidence of rehabilitation , there is no need to

evaluate whether denial of PetitionerÓs application would amount

to an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order denying PetitionerÓs

application for an exemption from employment disqualification.

DONE AND ENTE RED this 8 th day o f August, 2017 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8 th day of August , 2017 .

ENDNOTE S

1/ Unless indicated otherwise, all statutory references will be

to the 201 6 version of the Florida Statutes. The statutes

relevant to the instant case were not amended during the 2017

legislative session in any manner that would impact the instant

case .

2/ Section 943.059(4)(a), Florida Statutes, provides that one

who has had his or her criminal h istory record sealed Ðmay

lawfully deny or fail to acknowledge the arrests covered by the

sealed recordÑ except if that person is seeking to be employed

or lic ensed by the Department, the Division of Vocational

Rehabilitation, AHCA, APD, the Department of Health, the

Department of Elder Affairs, or the Department of Juvenile

Justice.

The undersigned took into consideration the fact that

Ms. Ailes did not disclose he r criminal history on her

ÐAffidavit of Good Moral Character.Ñ When she fil l ed out the

aff idavit, her application to seal her criminal history record

was pending before the Duval County Circuit Court.

3/ In Brown v. APD , Case No. 16 - 0625EXE ( Fla. DOAH May 11,

2016), the petitioner had received exemptions from AHCA and the

Department of Juve nile Justice (ÐDJJÑ) prior to having her

exemption request denied by APD. The Brown ALJ concluded that

APD was justified in exercising greater caution than AHCA and

DJJ:

[APD] took those other exemptions into

account in reviewing PetitionerÓs

application, but also considered the

differences in the types of services that

could be provided, and the clients who would

be served, in positions of special trust

within [APD]Ós purview. [APD] believes that

greater caution is required because of

[APD]Ós vulnerable clientele and also

because of the nature of the services

Petitioner would be able to provide to these

vulnerable people. [APD]Ós view is

reasonable in this case. For example,

PetitionerÓs history skirting around violent

incidents is of heightened concern for this

vulnerable population. PetitionerÓs history

with crimes involving theft, forgery, and

issuing worthless checks is of heightened

concern because of duties that include

helping adults with developmental

disabilities gain independence by helping

th em shop, pay bills, balance checkbooks,

and manage budgets.

(emphasis added).

4/ A representative from APD stated at the final hearing that

there is no prohibition to Ms. Ailes re - applying for an

exemption.

5/ APDÓs third exhibit includes a one - pa ge letter of reference

from a Supported Employment Spe cialist who has worked with

Ms. Ailes at the Clay Behavioral Health Center. While such

letters are helpful in demonstrating rehabilitation, they are

usually not as effective as live testimony.

COPIES FURNISHED:

Jada Williams, Agency Clerk

Agency for Persons with Disabilities

Suite 335E

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Clarissa Ailes

8227 Windypine Lane

Jacksonville, Florida 32244

Kurt Eric Ahrendt, Esquire

Age ncy for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D itschler, General Counsel

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

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.