17-002471EXE Vijay Ramjit vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, July 31, 2017.

Summary: Petitioner proved by clear and convincing evidence that he was rehabilitated, and APD's denial of his request for exemption from disqualification was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIJAY RAMJIT,

Petitioner,

vs. Case No. 17 - 2471EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was held on June 15 , 2017,

by video teleconference at sites in Tallahassee and Lauderdale

Lakes , Florida, before June C. McKinney, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARENCE S

For Petitioner: Matthew M. Fischer, Esquire

Chapman Law Group

4000 Hollywood Boulevard, Suite 555 - S

Hollywood, Florida 33021

For Respondent: Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE S

Whether Petitioner has shown, by clear and convincing

evidence, that he is rehabilitated from his disqualifying

offense s , and, if so, whether Respondent ' s intended action to

deny Petitioner ' s request for an exemption from employment

disqualification would constitute an abuse of discretion.

PRELIMINARY STATEMENT

By letter dated March 17, 2017, the Agency for Persons with

Di sabilities ( " APD " or " Respondent " ) issued its notice of

proposed agency action by which it informed Petitioner

( " Peti ti oner " or " V.R . " ) that his request for exemption from

disqualification had been denied. As a result, Petitioner was

determined ineligible " 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. " The ba sis for APD ' s determination,

as alleged in its notice of propos ed agency action, was that

P etitioner had " not submitted clear and convincing evidence of

[ his ] rehabilitation " .

On or about April 4, 2017, Petitioner filed his Request for

Administrative Hearing with Respondent. On April 24, 2017 , APD

referred the case to the Division of Administrative Hearings

( " DOAH " ) .

The Initial Order was entered on April 24, 2017 . A Joint

Response to the Initial Order was filed by Respondent on

April 28, 2017. On May 1 , 2017, a Notice of Hearing by Video

Teleconference was entered, scheduling the final hearing for

June 15, 2017 , at 9:30 a.m. , by video teleconference in

Tallahassee and Lauderdale Lakes , Florida, the locations

requested by both parties.

At the formal hearing, Petitioner testified on his own

behalf and called one witness, Donovan Ramcharan ("Ramcharan") .

Petitioner ' s E xhibits 1 and 2 were received into evidence.

R espondent presented the testimony of two witnesses: Gerry

Driscoll , Regional Operations Manager ; and Tom Rice, Prog ram

Administrator . Respondent ' s E xhibits 1 through 5 were received

into evidence.

The undersigned took official recognition of chapter 435 and

section 393.0655 , Florida Statutes (2016) .

The proceedings of the hearing were recorded by a court

reporter but not transcribed.

References to statutes are to Florida Statutes (2016 ),

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is the state agency charged und er chapter 393

with regulating the employment of persons who see k to become

employed working in positions of trust with persons with

disabilities.

2. Petitioner is seeking to start and operate a group home ,

Sunshine Loving Care, f or persons with developmental

disabilities .

3. Petitioner plans to serve as an administrator for

Sunshine Loving Care and perform s work as a direct service

provider. Petitioner is required to have a background screening

before becoming a provider of services.

4. The Department of Children and Families ("DCF")

administers the background screening process for APD.

5. Petitioner ' s background screening identified two

criminal convictions: a burglary and larceny stemming from the

same June 2, 1995, incident .

6. On June 24, 2016, DCF notified Petitioner that he was

disqualified from employment due to his criminal history and

specifically because of the two disqualifying offenses, burglary

and larceny.

7. On o r around November 14, 2016, Petitioner submitted a

request for exemption and supporting documentation ( " exemption

package " ) to Respondent .

8. On March 17, 2017, Agency Director Barbara Palmer

advised Petitioner by letter that his request for an exemption

from the disqualifying offenses was denied. The basis for the

denial was that Petitioner failed to submit clear and convincing

evidence of his rehabilitation.

9. On or about April 10, 2017, Petitioner requested to

appeal APD ' s denial.

10. At the hearing , as well as in the exemption package

considered by APD , Petitioner took full responsibility for the

incident regarding his disqualifying offense s . At hearing,

Petitioner credibly explained the circumstances under which he

committed the offense s . On or about June 2, 1995, as General

Manager of a U - Haul self - storage facility, a customer did not pay

his storage unit fee and the items in the unit went up for

auction. Before the auction date, two of Petitioner ' s employees

asked for the unit ' s items. Petitioner gave the employees

authority to take the items. Then, Petitioner and the two

employees took the items from the unit for their personal use.

On the day of the auction, the unit owner showed up to pay the

outstanding bill and contacted the police when he learned his

items had been taken. When questioned by police, Petitioner

im mediately took responsibility for taking the items with his two

employees , confessed, and helped facilitate returning the items .

11. Petitioner provided the same account of the incident in

his personal statement portion of the exemption package and

stated:

While working at U - Haul as the General

Manager , a customer did not pay for his

storage unit and it went up for auction.

After sev eral failed attempts to contact the

customer, on June 2, 1995, I authorized two

of my employees to empty his storage bin.

His personal effects were taken with my

authorization; he then returned the day of

the auction and wanted to pay for his unit.

He as ked [where] his stuff was and I told him

we had them. He said it was theft and he

reported it. The police c ame and asked for

the things. I told them that I authorized

the employees to take the items but we will

return all of it. Nevertheless, we were a ll

arrested and charged. I received 2 year

probation and was ordered to pay restitution .

After a year and a half, I was finished

paying the restitution and my probation was

then terminated early.

12. Petitioner's full admission of his involvement at

hearing coincides with his personal history statement above from

his exemption package because he admits it was him three times

specifically stating " we had them, " " we will return all of it "

and "we were all arrested and charged . "

13. Petitioner's exemption package and testimony at hearing

also detail he was 22 years old at the time when he committed the

disqualifying offenses. Petitioner was terminated from his

employment at U - Haul for his actions. He did not challenge the

charges. Instead, on September 26, 1995, Petitioner pled no

contest to the criminal charges , adjudication of the guilt was

withheld, and Petitioner was sentence d to two years of probation

with an order to make restitution. H e successfully completed his

probation e arly and he paid restitution in full .

14. Petitioner already has experience working, without

incident, around and with persons who are or may be considered

vulnerable. After Petitioner pled to the charges , he was unable

to obtain employment. Eventually, Petitioner started working as

a caregiver for several families. He cared for an elderly father

for 16 months until he passed and subsequently went to care for

another father for a second family for over a year.

15. Petitioner provided compelling letters of

recommendation in his exemption package and at hearing from

one family attesting to how he took " excellent care of [the

father] " and further a ttesting to his work ethic, reliability,

punctuality , gentleness , and t rustworthiness . The Doobay letter

also s t ated the father looked forward to Petitioner ' s presence

every day because he motivated the father to get out the house

and mingle with others. Another reference letter in the

exemption package further detailed how Petitioner successfully

cared for a wheelchair - bo und male , took him to his medical

appointments, and continuously demonstrated patience, calm ness

when assisting and was loyal, full of life, caring , and a delight

to be around.

16. Ad ditionally, for approximately the last 12 years ,

Petitioner has assisted Ramcharan who is wheelchair - bound. At

hearing, Ramcharan testified that Petitioner picks him up to go

to the temple, the movies, shopping and other activities and is

very loving, understanding, cares for people and is " capable of

taking care of [the] disabled . "

17. Petitioner has also made substantial effort s to become

well - educated so that he can become gainfully employed. He

provided evidence in his exemption package of obtaining an AA

degree in criminal justice and business administration. He also

obtained his real estate license about 18 years ago .

18. In Petit ioner ' s exemption package and at hearing,

Petitioner demonstrated how he has given back to his community .

He actively works at the Christy House, a place for abused women

and children . Specifically, he has been helping renovate by

painting, cabinetry, building a bench, and attempting to create a

butterfly garden. Petitioner also cooks and feeds the homeless.

19. Petitioner has shown that he a responsible individual

by successfully h olding jobs for over 14 years. His exemption

package mirrors his testimony at hearing detailing his

employment. Most recently, Petitioner has been employed as an

Operation s Manager Supervisor for FedEx Freight since 2013 . He

also works as a r e al estate agent for Keller Williams handling

commercial real estate tran sa ctions with deals ranging from

$500,000 to $ 1,0 00,000 . Prior to FedEx, he maintained steady

employment at management levels in the following roles: S t o re

Manager for Advance Auto Parts from 2003 - 2006; Sales Manager over

a 56 - million - dollar store for Lowes Home Improvement from 2006 -

2009; and Sales Manager and Area Supervisor over three stores and

one warehouse for Uni s elect Auto Parts from 2010 - 2013 .

20. Over the last 15 years, Petitioner h as received 17

traffic citations and he provided the detailed documentation for

each citation to APD as part of Petitioner ' s exemption package.

Fourteen citations were dismissed or closed without prosecution

as evidenced by the disposition paperwork in Petitioner's

exemption package.

21. At hearing, Respondent presented the testimony of Gerry

Driscoll ( " Driscoll " ) . Driscoll explained APD ' s process for

reviewing exemption requests and about the vulnerability of the

disabled clients APD serves . Driscoll further testified about

the importance of ensuring those who work with the clients are

competent to provide services because APD's clients can easily be

taken advantage of since providers have access to both their

living environment and funds.

22. Drisc oll testified regarding Petitioner ' s submittal

of his exemption application package and Respondent ' s review of

that package. Dri s coll testified that Petitioner was deni ed an

exemption because he does not feel that Petitioner provided a

detailed account of the criminal offense s as compared to the

police report s ; but , instead, he determined Petitioner blamed

others for the stolen items in his home and vehicle.

23. Driscoll also testified Petitioner's exemption

package was a problem because Petitioner' s report of events

did not match the police reports and he felt Pet i tioner minimized

the incidents. Additionally , D riscoll was concerned about

Petitioner's 17 traffic citations since the administrator

position Petitioner seeks to get includes transportation of

vulnerable individuals. Dri s coll determined that Petitioner ' s

traffic record shows a disregard of the law, which is part of the

reason Petitioner was denied.

24. At hearing, Thomas Rice ("Rice" ) confirmed that APD

was primarily concerned with Petitioner ' s exemption p ackage and

determined that Petitioner was not rehabilitated because

Petitioner did not admit to a more direct role with the stolen

merchandise. Rice testified that Petitioner ' s exemption package

was t roubling , and it lack ed honesty and trustworthiness based on

the police report s ; and , therefore, APD concluded that

rehabilitation was not sufficiently demonstrated.

Findings of Ultimate Fact

25. Upon careful consideration of the entire record,

it is determined that Petitioner has demonstrated by clear

and convincing evidence that he is rehabilitated from his

disqualifying offenses of burglary and larceny and that he will

not present a danger to disabled or otherwise vulnerable persons

with whom he would have contact if employment is allowed.

26. It has been over 23 years since Petitioner committed

the disqualifying offenses as a young adult. Petitioner was not

convicted of the disqualifying of fenses. Instead, adjudication

was withheld , and Petitioner has had no further criminal arrests

or convictions subsequent to his disqualifying offenses.

27. Petitioner was honest and forthright a bout his past and

expressed his remorse in his exemption package by stating " I made

a mistake [that ruined my life ]."

28. Petitioner has worked reliably over a sustained period

in a position in which he cared for vulnerable persons. By all

accounts, Pe titioner was a reliable, kind, caring, and diligent

employee. This experience shows that Petitioner can be trusted

to behave appropriately in situations involving vulnerable

persons, such as the disabled.

29. Petitioner ' s completion of his AA degree , li censure as

a r eal estate agent making million - dollar monthly sale total s,

and an almost 14 - year history of employment in management is

further evidence of appropriate behavior and moving his life

forward .

30. The undersigned further finds that denial of

Petitioner ' s exemption request would constitute an abuse of

discretion. As discussed above, it appears that Respondent

relied heavily on the hearsay in the police reports and

17 charged traffic citations in making its decision to deny

his exemption requ est and failed to adequately consider the

information Petitioner provided regarding his rehabilitation. In

doing so, Respondent failed to recognize Petitioner ' s admissions

of his wrongdoing by using "we" three times in the exemption

package personal statement. Respondent also failed to properly

evaluate Petitioner having only three traffic infractions ,

not 17 , because 14 were closed or dismissed. The evidence also

indicates that Petitioner has and continues to perform well and

safely in a work sett ing involving interaction with vulnerable

individuals.

31. Petitioner demonstrated, by credible and very

compelling evidence, that he made a wrong decision and took the

initiative to turn his life around.

32. For these reasons, it is determined that no reasonable

individual, upon fully considering the record in this proceeding

could find that Petitioner is not rehabilitated.

CONCLUSION OF LAW

33. DOAH has jurisdiction over the subject matter of the

proceeding and the parties thereto pursuant to sections 12 0 .569

and 120.57(1), Florida Statutes (2016) .

34. Section 435.07 , Florida Statutes, esta blishes 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 developmentally disabled children or vulnerable

adults may seek an exemption from disqualification.

35. APD has a heightened interest in ensuring that t he

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

even ts in their past.

36. Section 393.0655(1) states in pertinent part:

The [Agency for Persons with Disabilities]

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 living areas, or who have access to

a client ' s funds or personal property.

Background screening shall include employment

history checks as provided in s. 435.03(1)

and local criminal records checks through

local law enforcement agencies.

37. Section 435.04, which establishes level 2 screening

requirements, provides :

(2) The security background investigations

under this section must ensure that no

persons subject to the provisions of this

section . . . have been found guilty of,

regardless of adjudication, or entered a plea

of nolo contendere or guilty to . . . any

offens e 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.

38. Because Petitioner pled guilty to burglary and larceny ,

he is disqualified from employment as a direct service provider

for developmentally disabled clients unless granted an exemption

by Respondent pursuant to section 435.07.

39. Section 435.07 provides :

Exemptions from disqualification. ÏÏ Unless

otherwise provided by law, the provisions of

this section apply to exemptions from

disqualification for disqualifying offenses

revealed pursuant to background screenings

required under this chapter, regardless o f

whether those disqualifying offenses are

listed in this chapter or other laws.

(1)(a) The head of the appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification 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[.]

* * *

For the purposes of th is subsection, the term

"felonies" means both felonies prohibited

under any of the statutes cited in this

chapter or under similar statutes of other

jurisdictions.

* * *

(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 settin g 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.

(b) The agency may consider as part

of its deliberations of the employee's

rehabilitation the fact that the employee

has, subsequent to the conviction for the

disqualifying offense for which the exemption

is being sought, been arrested for or

convicted of another crime, even if that

crime is no t a disqualifying offense.

(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

agency's intende d action is an abuse of

discretion.

40. Pursuant to this statute, Petitioner , as the applicant

for an exemption , must demonstrate his rehabilitation by clear

and convincing evidence. This is a heightened standard,

requiring more proof than a mere preponderance of the evidence.

This standard requires tha t the evidence be found credible, the

facts to which the witnesses testify be distinctly remembered,

the testimony be precise and expl icit, and the witnesses be

lacking in confusion as to the facts at 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); Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

41. For the reasons discussed above, Petitioner proved by

clear and convincing evidence that he is rehabilitated from his

disqualif ying offenses.

42. Pursuant to section 435.07, even if the applicant

demonstrates rehabilitation, he or she is only eligible for an

exemption, not entitled to one. The agency head retains

discretion to deny the exemption, provided its decision does not

constitute an abuse of discretion. Under this statute, if

reasonable persons could differ as to the propriety of the agency

decision, the decision is not unreasonable and, thus, not an

abuse of discretion. Canakaris v. Canakaris , 382 So. 2d 1197,

1203 ( Fla. 1980). Conversely, if the agency's decision is

arbitrary, it constitutes an abuse of discretion. Id .

43. For the reasons discussed above, under the specific

circumstances of this case, if Respondent were to deny

Petitioner's exemption request, its action would be arbitrary

and thus constitute an abuse of discretion. As discussed above,

Respondent's witnesses acknowledged relying on the hearsay police

reports and the alleged 17 traffic infractions but not giving

full consideration to Petitioner's personal statement and

improperly evaluating Petitioner's three traffic infractions.

Respondent also appears to have overlooked Petitioner's recent,

successful experience working around vulnerable persons, which

provides real - life evidence that he is reha bilitated and will not

pose a danger to vulnerable persons entrusted to his care.

The agency is charged with determining whether an applicant

has been rehabilitated from his or her disqualifying offense,

which requires consideration of all information p rovided by an

applicant, including that germane to rehabilitation. See

§ 435.07(3 )(a), Fla. Stat. Here, the evidence indicates that

Respondent did not adequately consider information key to

accurately determining whether Petitioner is rehabilitated.

4 4. Accordingly , the undersigned determines that Petitioner

has met his burden to demonstrate his rehabilitation from his

disqualifying offenses, and that, under the circumstances

specific to this case, if Respondent were to deny Petitioner's

exemption request, its action would be arbitrary and would

constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Disabilities, enter a final order granting Petitioner's request

for an exemption from disqualification from employment.

DONE AND ENTERED this 31st day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 3 1st day of July , 2017 .

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Matthew M. Fischer, Esquire

Chapman Law Group

4000 Hollywood Boulevard , Suite 555 - S

Hollywood, Florida 33021

(eServed)

Jada Williams, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

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

(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.