17-002769EXE Molita Cunningham vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Wednesday, September 13, 2017.

Summary: Petitioner proved by clear and convincing evidence that she is rehabilitated from disqualifying offenses. The Agency's intended decision to deny exemption was without credible evidence at hearing and an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOLITA CUNNINGHAM,

Petitioner,

vs. Case No. 17 - 2769EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was held on July 13, 2017, via

video teleconference at sites in Tallahassee and Miami, Florida,

before June C. McKinney, a designated Administrative Law Judge of

the Division of Administrative Hearings ("DOAH") .

APPEARENCES

For Petitioner: Molita Cunningham , pro se

12437 Southwest 220 th Street

Miami, Florida 33170

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 s he is rehabilitated from her 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

Disabilities ( " APD " or " Respondent " ) issued its notice of

proposed agency action by which it informed Petitioner

( " Peti ti oner " or " Cunningham " ) that her request for exemption

from disqualification had been denied. As a result, Petitioner

was determined ineligible " to be employed, contract with, be

licensed or otherwise authorized to have direct face - to - face

contact with a client while providing services to the client,

have access to a client ' s living areas, or have access to a

client ' s funds or personal property. " The basis for APD ' s

determination, as alleged in its notice of propos ed agency

action, was that P etitioner had " not submitted clear a nd

convincing evidence of [her] rehabilitation . "

On May 1 , 2017, Petitioner filed her Request for

Administrative Hearing with Respondent. On May 15, 2017,

APD referred the case to DOAH .

On June 1, 2017, a Notice of Hearing by Video Teleconference

was entered, scheduling the final hearing for July 13, 2017,

at 9:30 a.m. in both Tallahassee and by video teleconference in

Miami, the locations requested by both parties.

At the formal heari ng, Petitioner testified on her own

behalf and called one witness, Crystal Kingcade . Petitioner ' s

E xhibits 1 through 3 were received into evidence.

Respondent presented the testimony of three witnesses:

Evelyn Alvarez, APD Southern Regional Operations Manager; Tom

Rice, Prog ram Administrator for Regional S upports/Licensing ; and

Petitioner. Respondent ' s E xhibits 1 through 5 were received into

evidence.

The proceedings of the hearing were recorded by a court

reporter but not transcribed.

FINDINGS OF FACT

1. APD serves clients with disabilities such as autism,

intellectual disabilities, Downs Syndrome, and Prader - Willi

Syndrome. A P D ' s clients range from those needing total care to

those who can live on their own with minimal assistance.

2. The s ervices 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 APD ' s

vendors in individual homes, group homes, and suppor ted living

arrangements.

4 . Petitioner is seeking to work as a direct service

provider in a group home for persons with developmental

disabilities.

5 . Section 435.06(2) , Florida Statutes , mandates that an

employer may not hire someone for a position requiring contact

with any " vulnerable person " until a completed background

screening " demonstrates the absence of any grounds for the denial

o r termination of employment. "

6. The Department o f Children and Families ("DCF")

administers the background screening process for APD.

APD ' s Action

7. Petitioner's background screening identified three

felony counts that are disqualifying criminal offenses , and all

for r esisting an o fficer with violence to his person.

8. On November 14 , 2016, DCF notified Petitioner that s he

was disqualified from employment due to h er criminal history and

specifically because of the three counts of resisting an officer

with violence to his person from a November 26, 1975, Miami Dade

incident .

9. On or around December 1 , 2016, Petitioner submitted a

request for exemption , which included the exemption application

and questionnaire to DCF . The instructions provided: " [f ] or

EACH criminal offense appearing on your record, please write your

DETAILED version of the events and be specific. Attach extra

pages as needed and please type or write legibly.

10. When Petitioner filled out the questionnaire, she

provided the following ans wers to each question on the exemption

questionnaire:

11. Question #1 asked for " disqualifying incident(s). "

Petitioner responded " 3 Counts of Resisting Arrest with

Violence. "

12. In response to Question #2 " Non - disqualifying

Offenses(s), " Petitioner again provided none of the details

surrounding these offenses. She listed two non - disqualifying

offense s, " Battery " and " Petit Theft " to which she had criminal

dispositions.

13. Question #3 asks, " What is the current status in the

court system? " Petitioner responded, " N/A. "

14. In Response to Question #4 on her Exemption

Questionnaire, regarding " the degree of harm to any victim or

property (permanent or temporary), damages or injuries, "

Petitioner indicated " N/A. "

15. In answering Question # 5 , about whether there were " any

stressors in [her] life at the time of the disqualifying

incident, " Petitioner again indicated " N/A. "

16. Question #6 asked whether there are any current

stressors in her life, Petitioner responded : " [ D ] ivorce d living

at home with my 3 minor children. I am a spokes - person for the

SEIU union. Fight for Fifteen. I feed the homeless in my

community. "

17. As confirmed at hearing, Petitioner listed educational

achievements and training as the following :

Fla College of B usiness Î Certified Nursing

Assistant (1985)

National School of Technology Î Surgical Tech

(1998)

Food Service Î Brevard C.C.

18. Under Question #8 of the Exemption Questionnaire, in

response to the question whether she had ever received any

counseling, Petitioner indicated " N/A. "

19. Question #9 of the Exemption Questionnaire asks, " Have

you ever used/misused drugs and alcohol? P lease be specific and

list the age at which you started and how you started. "

Petitioner again responded " N/A. "

20. Question #10 of the Exemption Questionnaire asks

whether Petitioner was involved in any community activities.

Petitioner responded, " I h ave volunteered with Senator Dwight

Bullard, Fla. State Rep. McGhee, Mayor W oodard , Joe Garcia, etc. "

21. Question #11 asks the applicant to " Document any

relevant information related to the acceptance of responsibility

for disqualifying and non - disqualifying offenses . " Petitioner

responded as follows: " Yes. I accept responsibility at the time

of this offense I was 17 years of age and trying to fit in with

my friends. I have learned when you know better you do better. "

22. The Exemption Questionnaire also requested Petitioner

to provide her three prior years ' work history. Petitioner

provided detailed information about her 18 - year work history in

the health care field , which included care of the vulnerable

community. Petitioner has worked in a hospital, nursing home,

private home, and with both mental health and hospice patients.

Petitioner ' s answer also outlines how she had performed some of

the same job responsibilities as a direct service provider for

the following employers:

JR Ranch Group Home LLC: C.N.A 10/3/16

to present - Companion to individual bathing,

feeding, dressing, grooming, etc.

Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15 -

Working in private homes with hospice

patients bathing , feeding grooming, shaving,

R. O.M. T.C.C. vital signs, doctor ' s

appointments , etc.

Gramercy Park Nursing Home: C.N.A. 2/15/05

to 3/12/08 - Working in skilled nursing

facility doing patient care , vitals ,

charting , lifting , bathing, feeding ,

dressing , physical therapy , etc.

Jackson M. Hospital: C.N.A. 1/7/98

to 5/8/2001 - Working on HIV unit, patient

care, R.O.M., bed making, bathing, feeding,

dressing, shaving, o ral care, transferring,

lifting , etc.

23. On December 15, 2016, DCF sent a letter to Petitioner

requesting additional documentation to complete the exemption

application. Petitioner was asked to " provide the arrest report

(from arresting agency) and CERTIFIED court disposition JUDGMENT

AND SENTENCE " for the following offenses appearing on [ her ]

criminal history screening report:

05/20/2013 MIAMI - DADE POLICE DEPARTMENT,

BW DRIVING WHILE LICENSE SUSPENDED

5/11/2002 MIAMI - DADE POLICE DEPARTMENT,

AGGRAV BATTERY

5/11/2002 MIAMI - DADE POLICE DEPARTMENT,

AGGRAV BATTERY

12/22/2001 MIAMI - DADE POL ICE DEPARTMENT,

COUNTY ORD VIOL

1/13/1998 MIAMI - DADE POLICE DEPARTMENT,

AGGRAV BATTERY

1/13/1998 MIAMI - DADE POLICE DEPARTMENT,

BATTERY

1/13/1998 MIAMI - DADE POLICE DEPARTMENT,

AGGRAV BATTERY

1/13/1998 MIAMI - DADE POLICE DEPARTMENT,

BATTERY

9/28/1996 M IAMI - DADE POLICE DEPARTMENT,

AGGRAV BATT - POL OFF

9/28/1996 MIAMI - DADE POLICE DEPARTMENT,

RESISTING OFFICER

9/28/1996 MIAMI - DADE POLICE DEPARTMENT,

BATTERY

9/28/1996 MIAMI - DADE POLICE DEPARTMENT,

RESISTING OFFICER

4/11/1994 MIAMI - DADE POLICE DEPARTMENT,

AGG ASSLT - WEAPON

4/11/1994 MIAMI - DADE POLICE DEPARTMENT,

AGG ASSAULT Î WEAPON

01/14/1991 MIAMI - DADE POLICE DEPARTMENT,

SHOPLIFTING

11/07/1981 MIAMI - DADE POLICE DEPARTMENT,

ASSAULT

11/07/1981 MIAMI - DADE POLICE DEPARTMENT,

RESISTING OFFICER

11/07/1981 MIAMI - DADE POLICE DEPARTMENT,

DISORDERLY CONDUCT

24. The DCF letter also instructed Petitioner that if she

could not obtain the arrest report and/or court disposition, she

might sub mit a notarized written " detailed statement on each

arrest explaining why you were arrested. You must include the

victim ' s age and relationship to you and the sentence you

received (probation, jail, prison, etc). "

25. Additionally, t he letter requested pro o f o f income, an

affidavit of good moral character, two to five letters of

recommendation, and a personal history explaining what happened

with each arrest, current home life, education, training , family

members, goals, and community involvement. The letter provided

Petitioner a 30 - day deadline and notified Petitioner " [n]o

further action [would] be taken on [her] application for

exemption until we receive the requested information. " (emphasis

added).

26. On or about December 21, 2016, Petitioner complied with

the DCF letter and provided 99 pages of documents including

Florida Criminal History Record requested , certified police

arrest reports, notarized printed dockets of her criminal

offenses with court dispositions, notarized document from the

Clerk of Circuit and County C ourt Harvey Ruv i n listing all

Petitioner ' s criminal charges and court dispositions available in

Miami - Dade, certificate of parole, 2009 certificate of

restoration of civil rights , taxes, nursing assistant

certification, certifi cate of liability insurance, continuing

education certificates, program certificates, June 13, 2015,

White House Conference on Aging program listing Petitioner as a

speak er at the White House, 2015 newspaper articles detailing

Petitioner ' s substantive work in minimum pay raise advocacy

nationwide for the Fight for Fifteen c ampaign , letters of

recommendation, driving history records , ACHA exemption to work

in the healthcare field as a C ertified Nursing Assistant ( " CNA " ) ,

and a personal stat ement .

27. Petitioner ' s personal statement and testimony at

hearing provided a comprehensive history of how she has been a

caregiver since 1982 " working [ i ] n hospitals, nursing homes,

mental health, hospice, private homes, SLF , etc. " Petitioner ' s

statement further detailed that she became a Certified Nursing

Assistant in 1985 after the disqualifying offense incident and

became a surgical technician in 1997 . Petitioner also provided

the requested following explanations for each of her arrests:

1.) 11/26/1975: I was arrested for (3)

counts of resisting arrest with violence. At

the time I was 17 years of age hanging with

the wrong crowd.

2.) 11/07/1981: Was at a party drinking got

in fight with boyfriend. No case action.

3.) 01/14/199 1: In store buying groceries

didn ' t realize there were a pair of socks in

my buggy charged with petty theft no way I

would have stolen a pair of one dollar socks.

Judge was dumbfounded.

4.) 04/11/1994: G ot into argument with my

mother in which she was drinking she called

police to say I had a gun. In which was not

true. Office[r] ask me had I ever been to

jail I stated yes he then said put your hands

behind your back then placed me under arrest.

My Mom was there next morning to bond me out.

Case No Action.

5.) 09/28/1996: I was witness to a murder I

told officer what I seen but didn ' t want to

speak in front of people, also did not want

to be labeled as a snitcher. I told the

officer I would come to talk but I would not

walk with him. I proceede d to walk away the

officer grabbed me by the back of my hair,

the officer and I proceeded to fight at that

time other people got involved. The lead

detective asked the officer why he did that.

The lead detective promise me he would come

to court with me in which he did case was

dismissed. Case No Action.

6.) Boyfriend and I got into argument he was

drinking and he wanted to drive I told him no

he wouldn ' t give me my keys, so I proceeded

to knock head lights out. Case No Action.

7.) 01/13/1998: Got in fight with

boyfriend. Case No Action.

28. Petitioner responded to the best of her ability to each

of DCF ' s request s for information.

29. DCF summarized Petitioner ' s 99 document submission in

an Exemption Review Summary ( " summary " ) and forwarded the

application, questionnaire, and supporting documents to APD for

review. The summary correctly identified Petitioner ' s 1975 acts

of resisting an officer as the disqualifying offense s . The

summary outline d t welve non - disqualifying offenses with which

Petitioner was charged. However, the summary categorized o ne

non - disqualifying offense as a driving charge and outlined an

additional n ine non - disqualifying offenses as dismissed or

dropped, as Petitioner had reported in her personal s tatement

when she said " no action " was taken. The summary only listed a

1991 shoplifting charge and a 2001 county ordinance violation for

which Petitioner was prosecuted.

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

advised Petitioner by letter that h er request for an exemption

from the disqualification has been denied . The basis for the

denial was that Petitioner failed to submit clear and convincing

evidence of h er rehabilitation.

31. On May 1, 2017, Petitioner requested to appeal APD ' s

denial.

Hearing

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

Petitioner took full responsibility for her disqualifying

offense s . At hearing, Cunningham also showed remorse. In her

personal statement she st ated she " paid her deb t to society . . .

learned from [her] mistakes. "

33. Petitioner also credibly explained the circumstances at

hearing for her 1975 disqualifying convictions and testified that

she was 17 years old when she broke in to the neighbor ' s empty

house across the street and was hanging out there . When she was

arres ted they were handling her roughly . She was originally

charged with burglary, larceny and resisting arrest. The

burglary and larceny charges were dropped and she pl ed to three

co unts of resisting an officer with violence to his person.

34. Petitioner was sentenced to a youth program but left

it, was bound over as an adult , and was sentenced to prison where

she served three and a half years.

35. Petitioner successfully completed her parole on

August 23, 1981, and her civil rights were restored on May 8,

2008.

36. Petitioner testified to her other non - disqualifying

offenses as she had detailed in her personal statement. She

explained that the 1981 criminal charge was dropped and stemmed

from a fight with her boyfriend while at a party where she had

been drinking. In 1994, her mom, who was a drinker, was acting

out and called the police on Petitioner. Her mother lied and

told the police Petit ioner had a gun , which she did not . The

police asked Petitioner if she had been to jail previously and

she answered yes and was arrested. Her mother came and got her

out of jail the next morning and the case was dismissed.

Petitioner verified that in 1996 , she would n o t tell the police

officer what she saw regarding a murder because she was going to

the police station to report it privately . T he officer grab b ed

her from behind, they fell to the ground, and she was arrested

for Battery on an Officer. The next day the lead detective came

to court and testified on Petitioner ' s behalf that the officer ' s

behavior was inappropriate and Petitioner was released and the

charges were dropped. Petitioner also explained that she

received another arrest because her boyfriend was drunk and took

her car keys and was going to drive. Petitioner testified she

could not stop him so she knocked the headlights and windows out

of her car to prevent him from driving and ultimately the charges

were dropped.

37. Petition er confirmed at hearing that at least nine of

the criminal charges she obtained were either dismissed or

dropped and she had not been arrested in over 10 years.

Petitioner ' s credible detailed testimony during the hearing was

information that APD did not have the benefit of having while

reviewing her application .

38. Petitioner affirmed that she had a July 1999 public

assistance fraud case on which adjudication was withheld for her

trad ing food stamps to pay her light bill . DCF failed to ask

Petitioner about the case in the request letter with the list of

other charges . Petitioner admitted that the public assistance

fraud case was the only case in which Petitioner had to make

restitution . S he paid back the total amount of food stamps she

sold and then her food stamps were reinstated.

39. Evelyn Alvarez ( " Alvarez " ) , APD Regional Operations

Manager for the Southern Region, made an independent review of

Petitioner ' s Request for Exemption, Petitioner ' s Exemption

Questionnaire, and documentation submitted on December 21, 2016.

40. Among the factors identified by Alvarez as a bas i s for

the recommendation of denial of the ex e mption was the perception

that Petitioner ' s application was incomplete . Alvarez determined

Petitioner did not take responsibility for her arrests or show

any remorse.

41. Alvarez testified that APD needs to be able to rely on

the answers provided by the a pplicant in the Exemption

Questionnaire to get the information needed to decide whether to

grant an exemption. Although she relied on other information

gathered as well, what the a pplicant state d in the Exemption

Questionnaire is very important.

42. Alvarez explained that she consider ed both Petitioner ' s

disqualifying and non - disqualifying offenses, the circumsta nces

surrounding those offenses, the nature of the harm caused to the

victim, the history of the applicant since the disqualifying

incident, and finally, any other evidence indicating whether the

applicant will present a danger to vulnerable APD clients if

employment is allowed. Alvarez also testified that she looked

for consistency in the applicant ' s account of events in her

Exemption Questionnaire, whether or not the applicant accepted

responsibility for her actions and whether the applicant

expressed re morse for her prior criminal acts. Alvarez concluded

that there were inconsistencies between Petitioner ' s account of

her disqualifying and non - disqualifying offense s compared with

those found in the police reports.

43. Alvarez further testified she was concerned that

Petitioner had n umerous traffic citations. Alva rez explained the

citations concerned her because individuals who are granted

exemptions would potentially be in positions to transport clients

and a n applicant that maintains a good dr iving record

demonstrates an ability to ensure the health and safety of

clients being served .

44. At hearing, Petitioner testified that her driving

record " was not the best. " The summary detailed that the 2008

infractions included failure to pay required toll s , improper

left , and lack of proof of insurance . Petitioner also had other

driving offenses , such as a DWLS and Driver License in 2007 and a

safety belt violation in 2006.

45. After her review , Alvarez decided that Petitioner had

exhibited a continuing pattern of criminal offenses over an

extended period of time, many of which were violent and involved

fights , and she concluded Petitioner had not demonstrated

rehabilitation.

46. At hearing, Tom Rice ( " Rice " ), APD Program

Administrator for Regional Supports/Licensing , testified that an

individual ' s good character and trustworthiness is important for

i ndividuals who provide direct care for APD because service

providers are frequently responsible for assisting individuals in

making decisions of a financial, medical, and social nature. APD

must weigh the benefit against the risk when considering granting

an exemption.

47. Rice explained that APD ' s clients are susceptible to

abus e because they are reliant on ot hers to assist with intimate

tasks , such as getting dressed , going to the bathroom, feeding,

medicine , and funds. Direct service providers need to care and

keep clients safe.

48. Rice verified that Petitioner was eligible to work in

an APD group home as a C N A.

49. Rice also testified that APD was concerned with

Petitioner ' s failure to disclose details in her accounts

regarding her criminal offenses because it calls into question

her trustworthiness. He further testified such factors

demonstrate a pattern of poor judgment and decision - making and

provide cause for APD to question Petitioner ' s fitness for

providing services to the vulnerable individuals for which it is

responsible and that is why Petitio ner was denied .

Findings of Ultimate Fact

50. Upon careful consideration of the entire record, the

undersigned finds that Petitioner has demonstrated by clear and

convincing evidence that she is rehabilitated from h er

disqualifying offenses of resisting an officer with violence to

his person and that she will not present a danger to disabled or

otherwise vulnerable persons with who m she would have contact if

employment in a group home were allowed.

51. Petitioner has shown she is a responsible individual by

successfully holding jobs in the health field for approximately

18 years. Her employment has been in positions where she cared

for vulnerable persons and no evidence was presented that

Petitioner was a danger while doing so. Instead, Petitioner ' s

exemption package mirrors her credible testimony of her previous

employment serving as a companion, bathing, feeding, dressing,

grooming, taking vital signs, transporting patients to doctor ' s

appointments, a nd working in a private home , which are personal

care services that some direct service provider s also supply .

52. Petitioner was honest and forthright about her past and

supplied 99 pages detailing her past to comply with DCF ' s request

to complete her application. Petitioner testified convincingly

that she has turned her life around.

53. Petitioner ' s only disqualifying offense s occurred over

40 years ago. Even though she was arrested at least twelve times

since then , nine of the charges were dismissed and Petitioner ' s

last criminal arrest was 2002.

54. Petitioner also obtained three certificates after her

disqualifying offense s . Petitioner received licensure as a CNA

and s he has been successfully practicing under her license with

an ACHA exemption in the health care field . Some of Petitioner ' s

work has even been with vulnerable adults in both a hospital and

nursing home .

55. The undersigned further finds that denial of

Petitioner ' s exemption request would constitute an abuse of

discreti on. As discussed above, it appears Respondent relied

heavily on the initial application submitted , hearsay in the

police reports , and traffic infractions , and failed to adequately

consider the 99 pages and nine dismissed charges Petitioner

provided regarding her rehabilitation . In doing so, Respondent

failed to properly evaluate Petitioner ' s disqualifying offenses

having occurred over 40 years ago and the last non - disqualifying

criminal arrest being at least 1 5 years ago and the majority of

the charges being dismissed. The evidence also indicates that

Petitioner has perform ed successfully in a healthcare work

setting , including some care of vulnerable individuals.

56. Additionally , Petitioner has gone above and beyond to

contribute in the community. She volunteers with the homeless

and also volunteers with legislators and a mayor , and advocated

nationally for a minimum wage increase i n the Fight for Fifteen

campaign, serving as the spokes - person. In 2015 , t he White House

also extended an invitation to Pe titioner to speak because of her

advocacy , and Petitioner passed the background check and

screening that the secret service conducted. As Petitioner

testified at hearing, had she been any type of threat or been

dangerous or violent based on her previous arrests, she would not

have passed the high security screening and been allowed in the

White House to speak.

57. Petitioner also testified she does not have anything to

hide. Sh e demonstrated, by credible and very compelling

evidence, that s he made wrong decision s and took the initiative

to turn h er life around.

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

individual, upon fully considering the record in this proce eding

could find that Petitioner is not rehabilitated.

59. The concerns expressed by Respondent in formulating its

intended action, without the benefit of hearing testimony,

particularly with those regarding her untruthfulness and lack of

remorse for her actions, were effectively refuted by the credible

testimony at hearing.

CONCLUSION OF LAW

60. DOAH has jurisdiction over the subject matter of the

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

61. Secti on 435.07 , Florida Statutes, establishes 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 disqual ification.

62. Section 393.0655(1) , Florida Statutes, 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 client s,

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.

6 3. 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,

regardles s of adjudication, or entered a plea

of nolo contendere or guilty to . . . any

offense prohibited under any of the following

provisions of state law or similar law of

another jurisdiction:

* * *

( mm ) Section 843.01 , relating to resisting

arrest with violence .

64. Because Petitioner pled to resisting an officer with

violence to his person , s 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.

65. 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 screeni ngs

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 agency

may grant to any employee otherwise

disqualified from employment an exemption

from dis qualification 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 felon y[.]

* * *

For the purposes of this 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 o f 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 convi ncing

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 th e 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 not a disqualifying offen se.

(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 intended action is an abuse of

discretion.

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

for an exemption , must demonstrate her rehabilitation by clear

and convincing evidence. This is a heightened standard,

requiring more proof than a mere preponderance of the evidence.

This standard requires that 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).

67. For the reasons discussed above, Petitioner proved her

rehabilitation, clearly and convincingly, with substantial

evidence that was not available to Respondent in formulating its

intend ed action to deny Petitioner ' s exemption request. Notably,

APD ' s conclusion that Petitioner was untrustworth y was mainly

based on Petitioner ' s application and the hearsay of police

reports . That concern is put to rest by Petitioner ' s credible,

clear, an d convincing testimony and the substantial evidence

supplied in the 99 documents complying with DCF ' s request.

68. Furthermore, the weight given to disqualifying offenses

over 40 years old is misplaced. The record shows that in the

more than 15 years since her last non - disqualifying criminal

arrest , Petitioner has steered clear of criminal trouble, and has

taken meaningful steps to change her life for the better.

69. Petitioner ' s change is further shown by her

contributions to the community . She has been working with the

homeless and a dvocating on behalf of Americans making a minimum

wage . She even worked nationally in the Fight for F ifteen

campaign to raise the minimum wage to 15 dollars . Petitioner

also spoke at the White House after having met the national

security screening and background requirements .

70. While it may not have been an abuse of discretion for

APD to initially deny Petitioner ' s request for an exemption, the

clear and convincing evidence adduced a t the final hearing leads

the undersigned to conclude that Petit ioner has demonstrated

rehab ilitation and does not currently present a danger to

vulnerable clients of APD if employment as a direct care service

provider for deve lopmentally disabled persons is allowed. Under

the specific circumstances of this case , it would constitute an

abuse of discretion for Respondent to deny her request for an

exemption from disqualification.

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, Molita

Cunningham's, request for an exemption from disqualification from

employment.

DONE AND ENTERED this 13 th day of September, 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 13 th day of September, 2017 .

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Espla nade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Molita Cunningham

12437 Southwest 220 th Street

Miami, Florida 33170

(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.