17-002254 Bertha Delaney vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, August 18, 2017.

Summary: Petitioner is fully rehabilitated and should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERTHA DELANEY,

Petitioner,

vs. Case No. 17 - 2254

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

June 7 , 201 7 , at sites in Tallahassee and Lauderdale Lakes ,

Florida.

APPEARANCES

For Petitioner: Bertha Delaney , pro se

Rashard Ashe Williams

44 0 Northwest 119th Street

Miami , Florida 33 168

For Respondent: Kurt Eric Ahrendt , Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should be

granted an exemption from disqualification from employment with

a private contractor providing adult day training to

developmentally disabled clients of Respondent .

PRELIMINARY STATEMENT

By a letter d ated March 17 , 201 7 , the e xecutive d irector of

Respondent Agency for Persons with Disabilities , Barbara Palmer,

notified Petitioner Bertha Delaney that her request for an

exemption from disqualification from employment with a private

contractor provid ing s ervices to developmentally disabled

persons would be denied. In a Petition for Administrative

Hearing, which her representative submitted on April 6, 2017,

Petitioner exercised h er right to be heard in a formal

administrative proceeding. On April 13 , 201 7 , the agency

referred the matter to the Division of Administrative Hearings,

where the case was assigned to an Administrative Law Judge.

The final hearing took place as scheduled on

June 7 , 201 7 , with both parties present. Petition er testified

on her own behalf and called Yvonne Ginsberg as a witness. She

also moved Petitioner's Exhibits 1 through 4 into the

evidentiary record . Respondent called Petitioner and two

additional witness es , Gerard C. Driscoll and Thomas Rice .

Addit ionally, Respondent's Exhibits 1 through 5 were received in

evidence.

The final hearing transcript was filed on July 1 8 , 2017.

Each party timely filed a Proposed Recommended Order on or

before the deadline established at hearing, which was July 2 8 ,

2017.

Unless otherwise indica ted, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

2016.

FINDINGS OF FACT

1. From April 2016 to October 2016, Petitioner Bertha

Delaney (" Delaney ") was employed by Cypress Place , Inc.

("Cypress"), a private, nonprofit corporation that provides

services to developmentally disabled clients, and operates under

the regulatory jurisdiction , of Respondent Agency for Persons

with Disabilities ("APD") . Delaney was hired by Cypress as a

receptionist, and her responsi bilities included answering the

phones, handling clerical tasks such as maintaining attendance

sheets and filing , and assist ing other employees as needed.

2 . Cypress operates an adult day training program , which

offers "adult day training services" to APD clients. Such

services include " training services that take place in a

nonresidential setting, separate from the home or facility in

which the client resides, and are intended to support the

participation of clients i n daily, meaningful, and valued

routines of the community. Such training may be provided in

work - like settings that do not meet the definition of supported

employment. " § 393.063(1), Fla. Stat.

3 . There is no persuasive evidence showing that, during

her employment with Cypress, Delaney ever had face - to - face

contact with a client while performing adult day training

services . She was not, therefore, a "direct service provider"

as that term is defined in section 393.063(13), Florida

Statutes. Delaney did, however, have incidental, in - person

interactions with clients, the evidence establishes,

occasion ally assis ting client s in need of immediate help . Thus,

although Delaney did not provide training services to clients ,

she provided some services in the broader sense of "helpful

acts . "

4 . In early August of 2016, an incident involving a client

occurred at Cypress's facility, which the Department of Children

and Families ("DCF") investigated. In the course of the

investigation, the DCF i nvestigator interviewed Delaney and

learned that, because the subject client had appeared to be

limping on the day in question, Delaney had helped the client

walk from the bus to the building. At the time, Delaney had not

yet undergone level 2 background screening because Cypress had

not instructed her to do so . Rather, in or around April 2016,

when she was hired, Cypress had required Delaney to go to the

police department for a local criminal background check, which

she did. Delaney , in fact, did everyt hing that Cypress asked

her to do with regard to background screening.

5 . Soon after (and perhaps because of) the DCF

investigation, Cypress directed Delaney to submit to a level 2

background review, which she did. 1 / And so it happened that in

late August 2016, a search of Delaney's criminal history was

performed, and the results were forwarded to DCF , which

administers the background screening process for APD.

6 . By letter dated October 3 , 2016, DCF notified Delaney

that it had discovered her criminal conviction o n a charge of

g rand theft of the third degree , to which she had pleaded no

contest on June 13, 2001 . This crime is a "disqualifying

offense" under the applicable screening standards, which means

that Delaney is ineligible to work as a direct service provider

without an exempt ion from such disqualification. DCF advised

Delaney that s he needed to quit her job at Cypress and obtain an

exemption from disqualification if she wanted to resume working

there . Del an ey promptly resigned her position with Cypress.

7 . Delaney then sought an exemption from disqualification

from employment , submitting h er Request for Exemption to DCF in

November 2016. By letter dated March 17 , 201 7 , APD informed

Delaney that i t intended to deny her request based solely on t he

ground that Delaney had "not submitted clear and convincing

evidence of [h er ] rehabilitation." In other words, APD

determined as a matter of ultimate fact that Delaney was not

rehabilitated, which meant (as a matte r of law) that the head of

the agency had no discretion to grant an exemption. 2 / APD did

not, as an alternative basis for its proposed agency action,

articulate any rationale for denying the exemption

notwithstanding a showing of rehabilitation, assuming arg uendo

that such had been made.

8 . Delaney initiated the instant proceeding, hoping to

prove her rehabilitation. The undersigned has considered the

evidence as it relates to the statutory criteria for assessing

rehabilitation, and makes the following f indings of fact as a

predicate for the ultimate determination.

The Circumstances Surrounding the Criminal Incident.

9 . In or around September of 2000, Delaney stole cash

receipts from her employer, Blockbuster Video, totaling

approximately $13,800.00. Sh e was soon arrested and charged

with grand theft of the third degree, a felony offense as

defined in section 812.014, Florida Statutes.

10 . At th e time of the offense, Delaney , then 25 years

old, was experiencing financial difficulties raising two young

daughters. Although married, Delaney managed the household

mostly on her own, as her husband, an interstate truck driver ,

was often on the road. Exercising what she now acknowledges was

poor judg ment, Delaney stole her employer's funds to ease her

personal financial burden.

11 . On June 1 3, 200 1 , appearing before the Circuit Court

in and for the Eleventh Judicial Circuit of Florida, Delaney

entered a plea of nolo contendere to the criminal charge, was

convicted by plea (adjudication withheld) , and was sentenced to

two years' probation with orders to make restitution in the

amount of $13,778.00 to Blockbuster .

12 . Delaney completed her term of probation and complied

with all of the other conditions imposed by the court , including

the payment of restitution .

The Time Period That Has Elapsed s ince the Incident.

1 3 . The disqualifying offense was committed about 1 7 years

ago. Delaney thus h as had ample time to restore her reputation

and usefulness to society as a law abiding citizen followin g her

conviction , and to mature into an older, more responsible adult .

The Nature of the Harm Caused to the Victim.

1 4 . Delaney did not cause personal injury to any person in

the commi ssion of her crime. She was ordered to make

restitution to the victim , and did, although the details of this

transaction are not available in the record. Therefore, the

economic harm caused by Delaney's theft appears to have been

m inim al .

The History of the Applicant s ince the Incident.

1 5 . Since her conviction, Delaney has completed a training

program to become a patient care technician and obtained a

license to practice in Florida as a c ertified n ursing a ssistant.

She has held positions in these fields and performed admirably.

Delaney lives with her two adult daughters, son - in - law,

grandson, and fiancé; her current family situation is stable,

both emotionally and financially. Her civil rights have been

restored. She has not reoffended or oth erwise run afoul of the

law.

16. APD severely faults Delaney for a so - called

nondisclosure in her respons e to a question on the exemption

request form concer n ing previous employment . The form asks the

applicant to " provide your employment history for the last three

years ." Delaney answered, in relevant part, by stating: "I

have not been employed for the last three (3) years." She

followed this statement by describing employment predating "the

last three (3) years" and explaining that an ankle in jury in

May 2013 ( which required multiple surgeries to repair ) , together

with the attendant convalescence and rehabil itation, had kept

her out of the workforce for a couple of years. APD argues that

Delaney lied about her employment history ÏÏ it is undisputed that

she had, in fact, worked (for Cypress) during the three years

preceding her request for an exemption ÏÏ and that this alleged

"lie" proves Delaney had known not only that she was required to

undergo level 2 background screening before t aking the job with

Cypress , but also that such screening would reveal her

disqualifying criminal conviction, and that, therefore , to avoid

detection, she had work ed without being screened , in knowing

violation of law .

17 . Put aside for the moment the issue of fact regarding

whether Delaney "lied" about her employment history. APD's

argument ( that this "lie" is proof of Delaney's knowing

violation of the background screening law ) is illogical. For

even if (as a matter of f act 3 / ) Delany were required to be

screened, and even if (as a matter of law 4 / ) the background

screening statutes were personally violable by an applicant or

employee, Delaney's allegedly fraudulent answer to the

employment history question does not rationa lly l ead to the

conclusion that she knew either of these premises to be true.

18 . Mor eover, as discussed in endnote 1 , it is

unacceptable for an agency to rely upon an applicant's alleged

violation of a regulatory statute as grounds to deny an

exemption r equest where such alleged violation has never been

proved in an enforcement proceeding. This is because any person

charged with committing a disciplinable offense must be served

with an administrative complaint and afforded clear notice of

the right to a hearing, at which, if timely requested, the

agency must prove the alleged wrongdoing by clear and convincing

evidence. APD wants to skip all that and just have the

undersigned find here, for the first time, that Delaney clearly

violated section 393.0655 b y working at Cypress for at least six

months without being screened. See Resp . 's PRO at 9. That's

not happening. The only relevant finding in this regard, which

the undersigned makes, is that Delaney has never been found to

have violated section 393.065 5 by working at Cypress for at

least six months without being screened.

19 . As for the alleged "lie , " APD's position that

Delaney's response to the employment history question was

knowingly and intentionally false (by omitting reference to

Cypress) does not make sense, because DCF already knew (from

investigating an unrelated matter) that Delaney had work ed for

Cypress, and Delaney knew that DCF was aware of this fact when

she filled out the form . That cat was out of the bag.

20 . At hearing, Delaney testified credibly and

convincingly that she had not intended to mislead DCF. It is

clear that she interpreted the question as asking about her

employment during the three years before the job from which she

had been disqualified (a s opposed to the three years before

completing the exemption request form). She misunderstood the

question, to be sure, but it was an honest mistake, and the

undersigned can appreciate how a person in Delaney's shoes could

conclude that the job from which one has recently been

disqualified does not "count" towards her employment history for

purposes of seeking an exemption from disqualification .

21 . Delaney's testimony in this regard is co rroborated by

the fact that she submitted to DCF, as part of her ex emption

request package, two letters of recommendation from employees of

Cypress, written on Cypress letterhead, attesting to her good

character. These letters, taken together, make it clear that

Delaney had recently been an employee of Cypress. Obviousl y, if

Delaney had intended, knowingly, to deceive DCF by concealing

her employment with Cypress, she would not have provided these

letters.

22 . APD argues that one of these letters, from Rashard

Williams, which is dated October 27, 2016, does not specific ally

indicate that Delaney ever worked at Cypress ÏÏ and thus does not

bolster Delaney's testimony that she never intended to conceal

the fact that she had. To reach this conclusion one must

discount the writer's statement that "Ms. Delaney has proven

herse lf to be reliable, trustworthy, and compassionate both as a

person and as an employee." If the Williams letter were the

only written recommendation from a Cypress employee, however,

the undersigned would consider APD's interpretation to be, while

certainl y not the best or most reasonable, at least plausible in

view of Mr. Williams's additional comments about how well

Delaney took care of his grandmother in a capacity, apparently,

other than as an employee of Cypress.

23 . But the companion to the Williams letter, a

recommendation from Mark Chmiel dated October 24, 2016, leaves

no room for doubt that Delaney was a recent employee of Cypress.

A short, two - sentence excerpt suffices to support this finding:

"Bertha is an invaluable addition to our agency [i.e ., Cypress,]

and she has fulfilled the potential of her position far better

than anyone before her. Her moral character is beyond reproach

and I have no qualms about trusting her with our clients." 5 /

24 . The letters of recommendation that Delaney furnish ed

DCF refute the notion that she knowingly omitted Cypress from

her employment history with the intent to mislead DCF. They

prove, instead, that Delaney took for granted DCF's knowledge of

her work for Cypress, for she was certain DCF already knew about

it. In turn, tha t foundation al assumption (which , in fact, was

true) prompted Delaney to provide a history of her employment

during the several years leading up to the job with Cypress.

The undersigned finds that Delaney is not guilty of knowingly

withho lding material information from DCF in response to the

question about her previous employment.

25. Finally, the undersigned observes that APD, in its

preliminary decision - making, impermissibly allowed speculation

and conjecture to take the place of facts. In forming its

intent to deny Delaney's application, APD took into account the

" possibility that Ms. Delaney was trying to protect Cypress

Place from demonstrating that t hey were in violation of the

screening laws" as well as the " possibility that Rashard

Williams might have tried to hide the fact [ sic 6 / ] that there was

a violation of the screening requirements by Cypress Place."

Resp . 's PRO at 10 (emphasis added). On th e basis of this rank

speculation, APD conjectured that "Ms. Delaney was willing to

collude with [Cypress employees] in order not to spotlight their

violation of the licensing law." Resp . 's PRO at 18. APD proved

none of this imaginative guesswork.

Circums tances Showing Applicant Poses No Danger.

2 6 . Yvonne Ginsberg, the executive director of Cypress,

testified in support of Delaney's application. Ms. Ginsberg

stated that Delaney was an "excellent" employee and affirmed

that she had "no qualms" about Dela ney's returning to work at

Cypress once an exemption has been secured. The undersigned

credits Ms. Ginsberg's testimony as to Delaney's character.

27 . In addition, Delaney submitted the written character

references of Messrs. Chmiel and Williams, which w ere discussed

above. These documents credibly attest to Delaney's

trustworthiness, integrity, and ethical behavior.

2 8 . T he undersigned find s without hesitation that Delaney

would likely not present a danger in the future if an exemption

from disqualific ation were granted.

Ultimate Factual Determination

2 9 . The undersigned has determined, based on clear and

convincing evidence, including sufficient persuasive ev idence of

rehabilitation, that Delaney should not be disqualified from

employment because s he is, in fact, rehabilitated.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceedi ng pursuant to

sections 120.569, 120.57(1), and 435.07(3)(c), Florida Statutes .

31 . Delaney seeks to b e a n employee of a facility that

serves persons with disabilities. Section 39 3.0655 (1 ) provides

that APD " shall require level 2 employment screening pursuant to

chapter 435 for direct service providers who are unrelated to

their clients, including support coordinators, and managers and

supervisors of residential facilities or comprehensive

transitional education programs licensed under this chapter and

any other person, including volunteers, who provide care or

services, who have access to a client's livin g areas, or who

have access to a client's funds or personal property ."

32 . As mentioned, Delaney does not dispute that she

provided "care or services" to APD clients at Cypress and thus

is required to be screened, and accordingly the undersigned has

accepted this "undisputed fact." Section 393.0655(1)(b),

however, provides that "[l]icensed physicians, nurses, or other

professionals licensed and regulated by the Department of Health

are n ot subject to background screening pursuant to this section

if they are providing a service that is within their scope of

licensed practice." As a c ertified n ursing a ssistant (holding

license number CNA104945), Delaney is licensed and regulated by

the Dep artment of Health, and thus is exempt from section

393.0655 to the extent she provides care or services falling

within the "[p]ractice of a certified nursing assistant."

33. Certified nursing assistant practice entails

"providing care and assisting pers ons with tasks relating to the

activities of daily living" and includes:

tasks . . . associated with personal care,

maintaining mobility, nutrition and

hydration, toileting and elimination,

assistive devices, safety and cleanliness,

data gathering, reporting abnormal signs and

symptoms, postmortem care, patient

socialization an d reality orientation, end -

of - life care, cardiopulmonary resuscitation

and emergency care, residents' or patients'

rights, documentation of nursing - assistant

services, and other tasks that a certified

nurse assistant may perform after training

beyond that required for initial

certification and upon validation of

competence in that skill by a registered

nurse.

§ 464.201(5), Fla. Stat. There is no evidence in the present

record suggesting that Delaney provided any services to clients

at Cypress outside the scope of her licensed practice. Even if

APD were to deny Delaney an exemption, therefore, she could

resume her employment with Cypress pursuant to section

393.0655(1)(b), as long as she confined her care or services to

the practice of a certified nursing assistant.

3 4 . The level 2 screening standards to which section

393.0655(1) refers are set forth in s ection 435.04, in pertinent

part, as follows:

(2) The security background investigations

under this section must ensure that no

persons subject to the provisions 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 no t been

sealed 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.

3 5 . Having been found guilty of grand theft of the third

degree , Delaney is disqualified from employment as a direct

service provider unless s he "is granted an exemption from

disqualification pursuant to s. 435.07." See § 435.06(2), Fla.

Stat.

3 6 . Section 39 3.0655(2) provides that APD " may grant

exemptions from disqualification from working with children or

adults with developmental disabilities only as provided in

s. 435.07. "

3 7 . Under section 435.07, the head of APD is granted

authority to exempt some employees from disqualification.

Employees whom the agency head may exempt (as opposed to

employees he or she may not exempt) include, as relevant, those

whose disqualifying convictions were for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the

exemption has completed or been lawfully

released from confinement, supervision, or

nonmonetary condition imposed by the court

for the disqualifying felony.

§ 435.07(1) (a) , Fla. Stat.

3 8 . The agency head is prohibited, however, from granting

exemptions to all employees who are "exemptible" under section

435.07(1). Section 435.07(3)(a) provides:

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 .

(Emphasis added).

3 9 . Thus, to fall within the agency's power to award an

exemption from disqualification, an employee must be not o nly

"exemptible" under section 435.07(1), but also able to prove

successfully, by clear and convincing evidence, that he or she

has been rehabilitated, according to the standards presc ribed in

section 435.07(3)(a).

40 . A clearly rehabilitated, "exemptible " employee is not

entitled to an exemption, but is merely eligible to be granted

one at the agency's broad discretion. See Heburn v. Dep't of

Child. & Fams. , 772 So. 2d 561 (Fla. 1st DCA 2000), rev. denied ,

790 So. 2d 1104 (Fla. 2001); Phillips v. Dep't o f Juv. Just. ,

736 So. 2d 118 (Fla. 4th DCA 1999). "However, an agency's

discretion is not unbridled; discretionary agency action is

subject to a review for reasonableness." K.J.S. v. Dep't of

Child. & Fam. Servs. , 974 So. 2d 1106, 1109 (Fla. 1st DCA 2007 ).

Further, whether the employee has been rehabilitated is a

question of fact; the agency may not reject or modify a finding

on this issue unless it first determines, based on a review of

the entire record, that the finding is not supported by

competent s ubstantial evidence. Id. ; see § 120.57(1)( l ), Fla.

Stat.; accord , B.J. v. Dep't of Child. & Fam. Servs. , 983 So. 2d

11, 13 (Fla. 1st DCA 2008)(agency improperly reweighed ALJ's

factual findings regarding employee's rehabilitation), reh.

denied , 983 So. 2d 11, 16 (agency may not reject ALJ's findings

of fact regarding credibility, which are within the discretion

of the ALJ and may not be reweighed).

41 . In this case, as found above, Delaney carr ied h er

burden of establishing rehabilitation clearly and conv incingly.

Therefore, Delaney is eligible , in fact, for an exemption . See

J.D. v. Dep't of Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1st

DCA 2013)("The ultimate issue of fact to be determined in a

proceeding under section 435.07 is whether the applicant has

demonstrated rehabilitation by clear and convincing evidence.").

42 . Had APD's intended action on Delaney's exemption

request involved the exercise of discretion, then the

undersigned would have been required to "reach the legal

conclusion as to wh ether the proposed decision was an abuse of

discretion." Id. at 1133; see also § 435.07(3)(c), Fla. Stat.

APD found, ho wever, that Delaney was not, as a matter of fact,

eligible for an exemption, and thus, having so found, deprived

itself of any discretion over the proposed decision . This is

because the decision to deny the exemption reques t of an

ineligible applicant is not a matter of discretion but a clear

legal duty.

4 3 . There is, accordingly, n o discretionary decision for

the undersigned to review.

4 4 . The undersigned's opinion as to whether or not Delaney

should be granted an exemption is practically worthless since

the agency retains the discretion to do what it wants ,

regardless, within the confines of section 120. 57(1)( l ) . See,

e.g. , J.D. , 114 So. 3d at 1133. As the courts in Heburn and

Phillips made clear, moreover, the denial of an exemption to an

eligible employee will not generally be considered an abuse of

discretion. 7 /

45. Ordinarily, t he refore, the undersi gned would refrain

from making what is , in effect, a futile recommendation. In

this instance, however, where APD's intended denial is based

upon patently inappropriate grounds (i.e., Delaney's alleged -

but - not - proved violation of the screening requ irements);

speculation (e.g., that Delaney possibly tried to protect

Cypress from being found in violation of the screening laws);

and conjecture (e.g., Delaney colluded with Cypress employees to

hide their violation of the licensing laws), a recommendatio n to

grant the exemption will be made. A contrary decision, under

these circumstances, would be 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

D isabilities enter a final order granting Bertha Delaney the

exemption from disqualification for which s he is , in fact,

eligible.

DONE AND ENTERED this 1 8 th day of August , 20 1 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 1 8 th day of August , 20 1 7 .

ENDNOT ES

1 / There is no evidence that, before the results of Delaney's

background check were known, either DCF or APD gave Delaney and

Cypress written notice of grounds for terminating Delaney's

employment based upon her alleged "noncompliance" with the

screening st andards. See § 393.0655(4)(b), Fla. Stat. Yet, APD

now contends that Delaney knowingly violated the screening laws

by working for Cypress without first undergoing a background

check. APD's failure, however, to provide Delaney the requisite

clear point o f entry to contest this brand - new charge in an

administrative hearing, see section 393.0655(4)(c), means that

Delaney has never properly "been found to be in noncompliance"

with the screening standards, see 393.0655(4)(d), which undoes

APD's contention. T his hearing, brought by Delaney to contest

APD's decision to deny her exemption request, is not the

appropriate place to litigate original charges of wrongdoing.

If an agency believes that an applicant for an exemption from

disqualification from employmen t has committed a disciplinable

offense of which such applicant has not previously been found

guilty, it must bring a separate enforcement action. An agency

cannot be permitted to rely upon fresh allegations of wrongdoing

to bootstrap its intended denial, as APD seeks to do here.

2 / The question of whether to grant an exemption is committed to

the agency head's discretion if and only if the employee has

proved his rehabilitation by clear and convincing evidence. See

§ 435.07(3)(a), Fla. Stat. If the em ployee is not

rehabilitated, then the agency head has no choice but to deny

the exemption ÏÏ there is no discretion to be exercised in that

event. Id.

3 / To be clear, Delaney is not currently disputing that she must

undergo a level 2 background review and consequently obtain an

exemption from disqualification in order to return to work for

Cypress. It is, therefore, an "undisputed fact" for purposes of

this case that Delaney was required to be screened. It is not

undisputed, however, that Delaney knew sh e needed to have a

level 2 background review before accepting the job with Cypress,

and APD failed to prove this allegation. APD merely asserts,

without evidence, that "[t]he truth is that everyone who

performs direct care work with APD clients knows they have to be

screened prior to employment." Resp . 's PRO at 18. The

undersigned highly doubts that this is true of "everyone" and

has seen no persuasive evidence that it was true for Delaney.

4 / Whether the background screening law imposes enforceable

du ties on employees such as Delaney is a legal question . T he

short answer is no ÏÏ the law obligates licensees , i.e.,

employers, to ensure that their direct service providers timely

undergo background screening. See, e.g. , Fla . Admin . Code

R . 65G - 2.008 (2)("The licensee must comply with the screening

requirements established in Section 393.0655, F.S. and

Chapter 435, F.S. A violation of this subsection shall

constitute a Class I violation.").

5 / The body of the Chmiel letter, in full, states as follow s:

I am writing this on behalf of Bertha

Delaney. I am the Program Coordinator for

Cypress Place Adult Day Training.

I have known Bertha for over twenty years

and I serve as a supervisor in her work

setting. Bertha is a superlative example of

what a per son and an employee should be.

Her work ethic is beyond reproach, but her

moral character is what separates her from

others.

Our particular line of work requires a

higher code of ethics than most others and

Bertha shines in this area. She is very

carin g and treats each client as an

individual. She understands the challenges

our clients face and she strives to make

their worlds better.

Bertha served in a medical capacity before

working with our agency and she brings that

knowledge and compassion with her to work

every day. Her experience in that arena is

serving our clients well.

Bertha is an invaluable addition to our

agency and she has fulfilled the potential

of her position far better than anyone

before her. Her moral character is beyond

reproach and I have no qualms about trusting

her with our clients. I would have no

problem trusting my children to Bertha.

Bertha is a bright line and her ethics are

what set her apart.

6 / This so - called "fact" has never been proved in an enforcement

proceedin g, much less alleged in an administrative complaint

against Cypress.

7 / In Heburn , 772 So. 2d at 563, the court wrote that the

agency's "exercise of discretion [in granting or denying an

exemption to an eligible employee] is circumscribed by the

standards set forth in section 435.07(3)." These standards

specifically bear on the issue of rehabilitation, a fact which

an "exemptible" applicant must establish, by clear and

convincing evidence, in order simply to be eligible for an

exemption. Since the agency has no discretion to exempt

ineligible applicants but instead may grant exemptions only to

those who are eligible and hence who, by definition, have

adequately demonstrated rehabilitation pursuant to the s ection

435.07(3) standards, it is not entirely clear how those same

standards are to be applied in d istinguishing between eligible

applicants who, in the exercise of sound discretion, reasonably

should be exempted from disqualification and those who

reasonably should not be. In any event, when denying an

exemption to an eligible applicant such as Delane y , the agency

ideally should articulate the facts and circumstances upon which

its discretionary decision has been based, so that the outcome

will not appear to be arbitrary or capricious, and also to

enable a reviewing court to determine whether or not th e

agency's discretion was abused, if the disappointed applicant

appeals.

COPIES FURNISHED :

Bertha Delaney

440 Northwest 119th Street

Miami, Florida 33168

Rashard Ashe Williams

440 Northwest 119th Street

Miami, Florida 33168

(eServed)

Kurt Eric Ahrendt , Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Jada Williams , Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 3 35E

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32 399 - 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 ex ceptions 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.