17-002567EXE Deshonda Ross vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, July 11, 2017.

Summary: Petitioner did not prove by clear and convincing evidence that she was rehabilitated from her former disqualifying offense.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESHONDA ROSS,

Petitioner,

vs. Case No. 17 - 2567EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hear ing was held in this case on

June 19, 2017, via video teleconference at sites in Tallahassee

and Jacksonville, Florida, before Suzanne Van Wyk, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Deshonda Ross, pro se

1519 Southeast Loquat Way

Lake City, Florida 3 2 025

For Respondent: Kurt E ric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEME NT OF THE ISSUE

Whether the Agency for Persons with DisabilitiesÓ (Agency)

intended decision to deny PetitionerÓs application for exemption

from disqualification for employment is an abuse of the AgencyÓs

discretion.

PRELIMINARY STATEMENT

By letter dated A pril 11, 2017, the Agency issued its notice

of agency action by which it informed Petitioner that her request

for exemption from disqualification was denied. As a result,

Petitioner was deemed ineligible to Ðbe employed, contract with,

be licensed, or oth erwise authorized toÑ serve Agency clients.

In the letter, the Agency reported its determination that

Petitioner had Ðnot submitted clear and convincing evidence of

[her] rehabilitation.Ñ

Petitioner filed her Request for Administrative Hearing with

the A gency on April 20, 2017, which request was referred to the

Division of Administrative Hearings on May 2, 2017. The final

hearing was scheduled for June 19, 2017, and commenced as

scheduled.

At the final hearing, Petitioner testified on her own behalf

but offered no witnesses and introduced no exhibits in evidence.

Respondent presented the testimony of Leslie Richards, the

AgencyÓs Northeast Regional Operations Manager. RespondentÓs

Exhibits 1 through 5 were admitted in evidence. The undersigned

grante d the AgencyÓs request for o fficial recognition of

chapter 435 and section 393.0655, Florida Statutes.

The proceedings were recorded, but the parties did not order

a transcript thereof. Both parties timely filed Proposed

Recommended Orders, which have be en considered in preparing this

Recommended Order.

All references herein to the Florida Statutes are to the

2016 version.

FINDING S OF FACT

1. Petitioner is a 33 - year - old female residing in Lake

City, Florida. Petitioner has three children, ages 19, 16, and

and 12, from her first marriage. Her first husband is deceased.

Petitioner was remarried in April 2015. Petitioner and her

husband live with, and care for, her three children, as well as

two young grandchildren and her seven - year - old niece.

2. Betw een November 2015 and September 2016, Petitioner was

employed at CARC, a residential group home licensed by the

Agency. 1/ Petitioner provided personal care to the residents, as

well as transportation for the residents to doctorÓs

appointments, shopping, a nd occasionally to cash their personal

checks. In her capacity with the group home, Petitioner had

access to and responsibility for the group home van, as well as

the corporate credit card for purchasing gasoline.

3. Since being disqualified from employm ent serving Agency

clients, Petitioner has been employed at ÐStill Waters,Ñ a

residential nursing home facility. She works 12 - hour shifts,

four days on, three days off. Petitioner testified that the

hours make it too difficult to care for her children,

g randchildren, and niece. Petitioner wishes to return to her

employment in the group home as a direct service provider to

clients of the Agency.

4. Respondent is the state agency responsible for licensing

and regulating the employment of persons in positi ons of special

trust. Specifically, the AgencyÓs mission includes serving and

protecting vulnerable populations, including children and adults

with developmental disabilities.

Disqualifying Offense

5. On May 23, 2005, Petitioner was arrested for forgery and

grand theft, stemming from having cashed a forged check. The

check was written for $391.83 , payable to a third party and

cashed by Petitioner at her bank.

6. Petitioner pled guilty t o both charges, which are third -

degree felonies.

7. In August 200 5, the court withheld adjudication, ordered

Petitioner to complete two yearsÓ probation, and entered a final

judgment for fines and costs in the amount of $373.

8. PetitionerÓs fines and costs were later converted to

community service hours, which she com pleted. Petitioner was

also required to pay restitution to the bank, which she

satisfied. Petitioner completed probation timely on August 22,

2007.

9. Petitioner was 21 years old at the time of the

disqualifying offense. The details are sketchy. Neith er

PetitionerÓs testimony nor her exemption questionnaire provide

much of an explanation.

10. The explanation in PetitionerÓs exemption questionnaire

indicates that a friend gave her a check from the friendÓs

employer, and Petitioner cashed it at Petition erÓs bank and kept

the cash. She explained that she was young and dumb and did not

know better.

11. PetitionerÓs testimony was brief, stating that she had

been hanging around with the wrong crowd, and that a friend got a

check from McDonaldÓs which Petit ioner deposited in her own

account.

12. In the questionnaire, Petitioner indicated no one else

was involved in the crime because ÐI did not tell on my friend.Ñ

She answered Ðn/aÑ to questions regarding the degree of harm to

the victim or property (perman ent or temporary), as well as

whether there were any stressors in her life at the time of the

disqualifying offense.

13. When prompted in the questionnaire to provide any

additional comments, Petitioner explained that she knew what she

did was wrong ; that she does n o t get in trouble any more; that

she has three kids, and only has time to go to work, church, and

home ; and that she wants to take care of Ðmy people,Ñ which she

enjoys.

Subsequent Non - Disqualifying Offenses

14. The AgencyÓs Exemption Review S ummary lists two 2/ non -

disqualifying offenses subsequent to PetitionerÓs disqualifying

offense. 3/

15. In March 2006, Petitioner was arrested for, and

adjudicated guilty of, passing a worthless check to Publix in the

amount of $76. On June 8, 2006, Petit ioner was ordered to

complete 12 monthsÓ probation and pay restitution, court fines,

and fees in the amount of $329.

16. PetitionerÓs probation was terminated on June 4, 2007,

having satisfied all terms thereof.

17. Petitioner wrote the check to Publix on October 3,

2005. Petitioner wa s 21 years old, caring for her seven - year -

old, four - year - old, and infant children, and her husband was

incarcerated.

18. Petitioner testified, both in her questionnaire and at

final hearing, that she wrote the check kno wing she did not have

the money to cover it because she needed food for her children

and diapers for the baby.

19. On February 20, 2012, Petitioner was charged with

leaving the scene of a traffic accident. On March 15, 2012,

Petitioner was adjudicated g uilty and placed on six monthsÓ

pro bation, ordered to complete an eight - hour driver improvement

course, and pay court costs and fines in the amount of $416.

20. Petitioner was released from probation on August 14,

2012, having satisfied all probation con ditions.

21. Petitioner was 28 years old at the time of the

incident. Petitioner was driving with a friend as a passenger,

when she crashed her car in a ditch. Petitioner left her car in

the ditch and contacted another friend to gi ve them a ride home.

22. The following day, the police came to her home and

charged her with leaving the scene of an accident.

23. Petitioner testified that she left the scene because

she had no insurance, and that it was late and dark. No evidence

was introduced to suppo rt a finding that any other vehicle was

involved in the accident, or that the accident resulted in any

property damage or injury.

Educational and Employment History

24. Petitioner graduated from high school in 2002.

25. Petitioner completed the educatio nal requirements to

become a Certified Nursing Assistant (CNA) at Lake City Community

College in 2004. However, Petitioner has not passed the written

state board exam to become certified.

26. Petitioner lists no employment history prior to 2011,

although there is some evidence that she worked as a caregiver at

a Ðcluster homeÑ in Lake City in 2005.

27. Petitioner worked as a caregiver in a group home known

as ÐOpen HeartÑ from January 2011 to October 2014. Petitioner

was subsequently employed as a hous ekeeper with Holiday Inn in

Lake City from February to November 2015. Petitioner left

Holiday Inn to become a caregiver at CARC in November 2015.

28. As noted previously, subsequent to PetitionerÓs

disqualification, she has been employed at a nursing ho me

facility.

Subsequent Personal History

29. Petitioner divorced her first husband in 2014 and he is

now deceased. Petitioner has full custody of all three of her

children and has taken on the responsibility of her 19 - year - old

daughterÓs two children, a s well as her seven - year - old niece.

30. In April 2015, Petitioner married her current husband

Octa vius, who is a 13 - year employee of Red Lobster.

31. Petitioner is active in her church where she sings in

the choir, attends Tuesday night bible study and Wednesday night

worship, and has her niece involved in a praise dance for

children program on Saturdays.

32. One of PetitionerÓs sons is disabled. Petitioner

reports that both sons play football and that she is, or has

been, a team mom for the football team.

PetitionerÓs Exemption Request

33. PetitionerÓs exemption questionnaire is bereft of

details. Most questions are answered in just a few words or are

answered as Ðnot applicable.Ñ 4/

34. Petitioner expresses remorse for her disqualifying and

non - d isqualifying offenses. However, it is not entirely clear

that Petitioner understands the ramifications of her forgery

offense, since she indicated there was no harm done by her

passing of a forged check.

35. Petitioner submitted five personal letters of reference

with her exemption application. One is from one of her sons,

another from a friend at church, and the remaining letters are

from former co - workers at care - giving agencies. Each attests to

her compassion for disabled persons and her sincerity i n the care

of those persons.

36. Petitioner did not submit any letter of reference from

a current or former employer or another individual in a position

of authority. Petitioner did not offer any witness testimony or

additional letters of reference at t he final hearing.

Ultimate Facts

37. PetitionerÓs recent employment history evidences her

work ethic and emphasizes a passion for serving persons with

disabilities. PetitionerÓs personal references support a finding

that she is committed to family and community, and has a heart

for service.

38. However, PetitionerÓs disqualifying offense, and at

least one of the subsequent non - disqualifying offenses, involves

attempts to attain money to care for her family when times were

tough. PetitionerÓs failure to describe any stressors in her

life at the time, and to clearly distinguish her circumstances at

present, substantiates the AgencyÓs reticence to allow Petitioner

to work with the most vulnerable clients. Petitioner has more

dependents at present than s he did when the disqualifying

offenses occurred. The record contains few details of how her

situation differs today from the past.

CONCLUSIONS OF LAW

39. The Division has jurisdiction over the subject matter

of, and the parties to, this proceeding pursua nt to sections

120.569 and 120.57(1), Florida Statutes.

40. Section 435.04, Florida Statutes, provides, in

pertinent part, that:

(1)(a) All employees required by law to be

screened pursuant to this section must

undergo security background investigations as

a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through t he

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(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 not been sealed

or expung ed 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.

41. Section 393.0655(5), Flo rida Statutes, provides that

the background screening conducted under this section (for direct

service p roviders), must ensure that

in addition to the disqualifying offenses

listed in s. 435.04, no person subject to the

[screening] . . . has been found gui lty of,

regardless of adjudication, . . . any offense

prohibited under any of the following

provisions of state law of similar law of

another jurisdiction:

* * *

(l) Section 831.02, relating to uttering

forged instruments.

42. The Agency based its dis qualification of Petitioner on

her 2005 convictions for grand theft and uttering a forgery.

43. Section 435.07 establishes a process by which persons

with criminal offenses in their backgrounds, that would

disqualify them from acting in a position of spe cial trust

working with children or vulnerable adults, may seek an exemption

from disqualification. That section provides:

435.07 Exemptions from disqualification . --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemption s from disqualification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

(1)(a) The head of the appropriate age ncy

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

confinemen t, supervision, or sanction for the

disqualifying felony;

* * *

(3)(a) In order for the head of an agency to

grant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth clear and convincing

evidence of rehabilitation, including, but

not limited to, the circumstances surrounding

the criminal incident for which an exemption

is sought, the time period that has elapsed

since the incident, the nature of the harm

caused to the victim, and the history of the

employee since the incident, or any other

evidence or circumstances indicating that the

employee will not present a danger if

employment or con tinued employment is

allowed.

* * *

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓ s intended decision is an abuse of

discretion.

44. An exemption from a statute enacted to protect the

public welfare is strictly construed against the person claiming

the exemption. Heburn v. Dep't of Child. & Fams. , 772 So. 2d 561

(Fla. 1st DCA 2000) .

45. The abuse of discretion standard of review set forth in

section 435.07(3)(c) has been described as follows:

If reasonable men could differ as to the

propriety of the action taken by the trial

court, then the action is not unreasonable

and there ca n be no finding of an abuse of

discretion. The discretionary ruling of the

trial judge should be disturbed only when his

decision fails to satisfy this test of

reasonableness.

* * *

The discretionary power that is exercised by

a trial judge is not, how ever, without

limitation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

of the judge nor in an inconsistent manner.

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980); Kareff

v . Kareff , 943 So. 2d 890, 893 (Fla. 4th DCA 2006)(holding that,

pursuant to the abuse of discretion standard, the test is

Ðwhether any reasonable personÑ could take the position under

review).

46. The Agency has a heightened interest in ensuring that

the vulnerable population being protected by chapter 393, i.e.,

developmentally disabled children and adults, is not abused,

neglected, or exploited. In light of that mission, the

Legislature has imposed a heavy burden on those seeking approval

to serve this vulnerable population when they have disqualifying

offenses in their past.

47. The statutorily enumerated factors to be considered by

the Agency in evaluating an exemption application are the details

surrounding the disqualifying offense, the nature of t he harm

caused, the history of the employee since the incident, and the

time period that has elapsed since the incident. § 435.07(3)(a),

Fla. Stat.

48. Twelve years have passed since PetitionerÓs

disqualifying offense and much has changed in her life, in cluding

her marital status and her responsibilities with regard to her

extended family.

49. The type of harm caused by her disqualifying offense

was economic, rather than physical or emotional in nature, and

was not a violent crime. The subsequent non - disqualifying

offense of passing a worthless check was likewise economic in

nature, and the victim was a corporation and the amount of damage

was less than $100. There is no evidence of any harm arising

from PetitionerÓs subsequent non - disqualifying offen se of leaving

the scene of a single - car accident.

50. PetitionerÓs subsequent personal history demonstrates

an ongoing commitment to family and a caring spirit for disabled

persons. However, the evidence does not truly distinguish

PetitionerÓs current situation from her former situation with

respect to stressors. The record does not demonstrate what

responsibilities PetitionerÓs husband and her 19 - year - old

daughter have with respect to the other children, grandchildren,

and her niece. It is not clear whether PetitionerÓs church and

community involvement is a departure from the influences in her

life in 2005 and 2006. Petitioner provided so little information

that the record is neither clear nor convincing.

51. PetitionerÓs case would be significantly strengthened

by evidence from the former employers regarding her work with

disabled clients at the group homes. While PetitionerÓs

testimony that she dealt responsibly with client funds and the

AgencyÓs credit card is helpful, testimony from her superior s

regarding the extent of her responsibility and her performance on

the job would be more persuasive.

52. Given the dearth of evidence, the undersigned concludes

that the AgencyÓs intended denial of PetitionerÓs requested

exemption does not constitute an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

PetitionerÓs request for an exemption from disqualification.

DONE AND ENTERED this 1 1 th day of Ju ly , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 1 1 th day of July , 2017 .

ENDNOTE S

1/ The evidence is unclear how Petitioner gained employment with

an entity regulated by the Agency with a disqualifying offense in

her criminal record. The evidence shows that Petitioner was

screened for APD employment in 2005, 2009, 2010, and 2015, prior

to the 2016 screening giving rise to the case at hand.

Petitioner received an exemption from disqualif ication in

August 2012 from the Agency for Health Care Administration (AHCA)

to work as a provider, or an employee of a provider, in the

Florida Medicaid Program.

2/ Although not listed on the AgencyÓs Exemption Review Summary,

Leslie Richards, the Agenc yÓs Regional Operations Manager,

testified that she also considered, in formulating her decision

to recommend denial of the exemption, a third subsequent non -

disqualifying offense of allowing an unlicensed minor to operate

a vehicle. Inasmuch as the charg e was not listed by the Agency

as a basis for denying PetitionerÓs application for exemption,

the undersigned is not assured that Petitioner was on notice that

the Agency relied upon this subsequent offense a s a basis for

denial. Without appropriate notic e, Petitioner would have been

unable to meet the charge with evidence at the final hearing,

thus denied basic due process of law. As such, the undersigned

does not rely upon the testimony and other evidence of the 2013

charge of allowing an unlicensed min or to operate a vehicle in

reaching the recommendation in this matter.

3/ In reaching its intended decision to deny PetitionerÓs

exemption request, the Agency also considered a charge of petit

theft against Petitioner which predates her disqualifying

off ense. The operative statute does not authorize the agency to

consider offenses which occurred prior to the disqualifying

offense, and to do so was error. Medaries v. Ag. for Pers. with

Disab. , Case No. 16 - 6425 n.1 (Fla. DOAH Jan. 25, 2017; Fla. APD

Mar. 8, 2017); Dawson v. Ag. for Pers. with Disab. , Case No. 16 -

0661 n.2 (Fla. DOAH Apr. 28, 2016; Fla. APD May 23, 2016)

(criminal arrests and convictions predating the disqualifying

offense should not have been considered by the Agency); Rivera

v. Ag. for Per s. with Disab. , Case No. 15 - 5039 (Fla. DOAH

Nov. 10, 2015; Fla. APD Dec. 8, 2015)(ÐConsidering evidence of

non - disqualifying crimes committed prior to the disqualifying

offenses exceeded the powers and duties granted by the

Legislature.Ñ); Edwards v. Ag. for Pers. with Disab. , Case

No. 14 - 4987 n.4 (Fla. DOAH Mar. 17, 2015)(RespondentÓs

consideration of PetitionerÓs criminal offenses that occurred

prior to the disqualifying offense violated the principle of

statutory construction which requires statutes to be interpreted

in a manner that gives meaning and effect to all of their

provisions.).

4/ The brevity of PetitionerÓs answers may be due to the fact

that she previously applied to the Agency for an exemption in

2009, and that she was granted an exemption from AHCA in 2012

(presumably based upon completion of an exemption

questionnaire). Petitioner should be made aware that the

undersigned is confined to the record of the current exemption

request in making a determination in the case at hand.

COPIES FU RNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Deshonda Ross

1519 Southeast Loquat Way

Lake City, Florida 320 2 5

Jada Williams, Agency Clerk

Agency for Pe rsons with Disabilities

4030 Esplanade Way, Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler , General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 3 80

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 o f this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.