17-003557EXE Eugenia Mays vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, January 12, 2018.

Summary: Petitioner proved by clear and convincing evidence that she was rehabilitated. APD's intended decision to deny the exemption from disqualification was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENIA MAYS,

Petitioner,

vs. Case No. 17 - 3557EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 26, 2017, by video teleconference at sites in

Sarasota and Tallahassee, before Administrative Law Judge

Lynne A. Quimby - Pennock of the Division of Administrative

Hearings (Division).

APPEARANCES

For Petitioner: L eland M. Taylor, Esquire

Leland M. Taylor, Esquire, PL

532 12th Street West

Bradenton, Florida 34205

For Respondent: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 315C

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE S

Whether Petitioner, Eugenia Mays, has demonstrated by clear

and convincing evidence that she should not be disqualified from

employment in a position involving direct contact with

d evelopmentally disabled persons; and, thus, whether

Respondent Ó s intended action to deny Petitioner Ó s request for an

exemption from employment disqualification is an abuse of

discretion.

PRELIMINARY STATEMENT

By le tter dated May 16, 2017, the Agency for Persons with

Disabilities (APD or Respondent) informed Petitioner that her

request for exemption from disqualification had been denied. As

a result, Petitioner was determined ineligible Ð to be employed,

contract wit h, be licensed or otherwise authorized to have direct

face Î to - face contact with a client while providing services to

the client, have access to a client Ó s living areas, or have

access to a client Ó s funds or personal property. A client is any

person determ ined eligib le for services by the Agency. Ñ The

basis for APD Ó s determination, as alleged in its notice of

proposed agency action, was that Petitioner had Ð not submitted

clear and convincing evidence of [her] rehabilitation . Ñ

Petitioner timely filed a req uest for a hearing. On

June 20, APD referred the case to the Division. The Initial

Order was entered on June 21. A Joint Response to the Initial

Order was filed by APD on June 27, and the heari ng was scheduled

for August 22 . After one continuance, the hearing was held on

October 26, by video teleconference in Tallahassee and Sarasota.

At the final hearing, Petitioner testified on her own behalf

and presented the testimony of Marvin Smith, Kathy Barnes,

Marvina Johnson - Allen, and Edward Gresham . Peti tioner Ó s

Exhibit 1 was received into evidence over objection.

Respondent presented the testimony of Jeff Smith, APD Ó s

regional operations manager (ROM), and Daniella Jones, APD Ó s

management review specialist. Respondent Ó s Exhibits 1

through 5 1/ were rec eived into evidence.

The Transcript was filed with the Division on November 17.

On November 20, APD filed an agreed motion seeking an extension

of time in which to file the proposed recommended orders (PROs).

The agreed motion was granted. Respondent fi led its PRO on

December 8. Petitioner filed her PRO on December 11. As the

Recommended Order had not been finalized and there was no

objection to the late PRO, both have been considered.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2017 Florida Statutes.

FINDING S OF FACT

1. APD is the state agency responsible for licensing and

regulating the employment of persons in positions of trust, and

is charged with serving and protecting adults or children with

developmental disabilitie s, sometimes referred to as vulnerable

individuals. 2/

2. Vulnerable populations served by APD may include

individuals with developmental and intellectual disabilities,

autism, cerebral palsy, spina bifida, Prader - Willi syndrome, and

Down syndrome. Some o f APD Ó s clients are incapable of e xpressing

their needs or unable to expres s whether something is wrong. APD

also has administrative jurisdiction to enforce the laws

governing such licensees.

3. Petitioner is a 55 - year - old female seeking licensure

from A PD to serve as a direct care provider for Respondent Ó s

clients.

4. As part of the application process for employment as a

direct service provider, Petitioner was subject to a routine pre -

employment background screening pursuant to sec tion 435.04 ,

Florida Statutes. The screening revealed the existence of

several disqualifying criminal incidents in Petitioner Ó s past.

In 1987, 1990 and 1994, Petitioner was convicted of possession of

cocaine, possession of cocaine with the intent to sell, and the

sale of coc aine. Additionally , there were several non -

disqualifying events in Petitioner Ó s background.

5. On January 9, 2017, Petitioner executed her Request for

Exemption , which was filed with the Department of Children and

Families (DCF). 3/ DCF conducts the init ial screening of all

applicants by making sure all the required documents are present

and then it conducts the initial background investigation for

APD .

6. Background screening and local criminal records revealed

a history of involvement with law enforcem ent . Petitioner

admitted and took full responsibility for the offenses in both

the paperwork she filed with APD and in her testimony at hearing.

DCF then issued a Ð high level summary Ñ to APD.

7. Among the items submitted by Petitioner in support of

her Request for Exemption were her employment history record,

information regarding the final court dispositions of the arrest

reports and/or charging affidavit ; information regarding the

completion of sanctions ; her proof of rehabilitation ; letters of

recomm endation ; her personal history ; an executed affidavit of

good moral character ; the non - disqualifying issues ; and an

updated local law result .

8. Several letters were sent to Petitioner seeking

additional information, and Petitioner responded to the best of

her ability to each request for information.

9. Once Ms. Jones received the DCF summary, she reviewed

Petitioner Ó s documentation. She then checked the court and other

systems for any additional charges that may not have been

included by the Florida Department of Law Enforcement or the

Federal Bureau of Investigation. Ms. Jones also verified that

any court - orde red sanctions were completed. Ms. Jones had access

to state and federal government data bases, including a

comprehensive case information syst em to ensure that all fines

and fees were paid , and she checked the applicantÓs Ð driving

record through the DMV . Ñ Additionally , she checked Petitioner Ó s

Ð eligibilities through AHCA and Medicaid. Ñ

10. Ms. Jones then prepared a summary packet , which was

p rovided to the ROM. The ROM must review the packet within a

certain time frame and p rovide a recommendation to the State

O ffic e C ommittee (SOC).

11. ROM Smith identified the factors that he considered

when making his recommendation : the disqualifying offense(s);

the circumstances surrounding the offense; any proof or some

evidence of rehabilitation or counseling ; any show of Ð some

remorse and /or ownership of t he charges that have been filed Ñ ;

the possible consequences to Ð the health and safety of the

i ndividuals that Ñ APD serves; and Ð any non - disqualifying offenses

that may have been charged against the individual. Ñ ROM Smith

recommended denial of Petitioner Ó s exemption request.

12. Upon receipt of the ROM Ó s recommendation, Ms. Jones

then prepared a r ecommendation summary and presented that to the

SOC. The SOC consists of APD Ó s chief of staff and a program

administrator from the regional support unit. An APD attorney

was present for legal advice.

13. Ms. Jones identified the factors that APD Ó s SOC

considers in making the recommendation for the denial of an

exemption request as: Ð any arrests or criminal convictions after

the original disqualifying offense; the employment history;

training and education; professional references Ñ; driving record;

oth er agency exemptions or involvement with other agencies; and

any inspections or exemptions of the other agencies. Ms. Jones

averred that APD takes Ð into account those inspections or those

exemptions. Ñ

14. Once the SOC made its recommendation, Ms. Jones took

the two recommendations (the ROM Ó s and the SOC Ó s) to APD Ó s

director who reviewed the material to make the final decision.

15. Ms. Jones averred that Ð most of the time common sense

is used Ñ when APD approached the question of rehabilitation

standar ds. That if the issue involve d a drug - related offense,

one would look for drug rehabilitation, and if that were missing,

Ð that is a lack of responsibility on the applicant Ó s part. Ñ

16. A review of PetitionerÓs application, and her

uncontroverted testim ony confirmed that she has been employed in

several successful occupations since 1990. Petitioner Ó s first

business, started in 1990 , was Precise Nail and Beauty Salon

(Salon). When the economy went down, Petitioner determined she

needed a second job and that is when she started working for a

home companion company in Bradenton. The Salon continues in

operation today.

17. Petitioner did research to begin her own home companion

company and started Precise Home Companions (PHC). PHC is a non -

medical ope ration , which is certified through the state to go

into private homes and provide non - medical home care. This care

includes preparing meals, doing laundry, making their beds,

helping persons with their bills, taking them to and from

doctors Ó appointments, and whatever other activities they need.

Petitioner successfully completed a Level 2 background screening

and took the classes and/or training necessary for the license.

Petitioner obtained the requisite insurance and continues to hold

the appropriate b ond for PHC.

18. In setting up PHC, Petitioner was given access to

conduct backgroun d screenings to hire more staff. O nce the staff

was on board, Petitioner had to ensure they had training and were

tested for Ð TB. Ñ Petitioner was responsible for making sure the

six employees recorded their work hours in order for the payroll

service to issue their pay.

19. Petitioner recognized another area of need when a PHC

client needed more a ttention than PHC could provide. Petitioner

researched and opened an ad ult family care home. Petitioner Ó s

adult family care home (AFCH) is li censed by the Agency for

Health C are Administratio n (AHCA ). AFCH is Petitioner Ó s

responsibility and she maintains the requisite insurance and

bond. AFCH is a home which provides room and board for up to

five elderly clients, although only four were in residence on the

hearing date. The clients may need assistance with their

activities of daily living . AFCH also keep s the residents busy

with various activities, outings and events.

Disqualifying Offenses

20. Petitioner testified that her Ð downfall, Ñ as she refers

to it, occurred in and before 1994. Between 1987 and 1994 ,

Petitioner (when she was between 25 and 31 years of age) was

convicted of possession of cocaine with intent t o sell, sale of

cocaine, and possession of cocaine, all disqualifying offenses.

Petitioner steadfastly maintained that she has never used drugs,

but possessed and sold them in order to support her children. No

evidence was presented to establish that Pet itioner ever used

drugs. Petitioner admitted that it was her Ð decision to do

wrong, Ñ and she took full responsibility for those actions.

However, Petitioner was clear that it was also her determination

to change when she realized she had been wrong. Pet itioner did

change and for the past 23 years has not had a disqualifying

offense.

21. Petitioner changed her environment. She joined a

church and became very active in it. She divorced her then -

husband w ho she found to be using drugs. Petitioner recent ly

married a man with a bachelor Ó s degree in rehabilitation

counseling.

22. Petitioner completed the sanctions imposed by the

courts, and all fees and costs related to the disqualifying

offenses were paid. For the past 23 years, Petitioner has not

had a ny disqualifying offenses.

23. Marvin Smith has known Petitioner for approximately ten

years, having married Petitioner Ó s mother. Smith visits in

Petitioner Ó s home once or twice a month, and does not think her

residence is a Ð destructive environm ent. Ñ S mith has attended

church with Petitioner, and sees her lifestyle as Ð moving in the

right direction. Ñ Further, in the ten years Smith has known

Petitioner, he has never seen her act in a violent manner. 4/

24. Marvina Johnson - Allen has known Petitioner for over

20 years, and has witnessed Petitioner caring for people in her

church and home. Additionally , Johnson - Allen provided insight

into the various successful businesses that Petitioner has

started, and Petitioner Ó s volunteer work in the community.

25. Kathy Barnes has known Petitioner for over ten years,

having met her at Petitioner Ó s beauty salon. Barnes was not

Petitioner Ó s employee, but as a custome r , Barnes watched

Petitioner work hard. In over ten years, Barnes has never seen

Petitioner use dru gs or alcohol. At one point Barnes had major

surgery, and without being asked by Barnes, Petitioner supplied

housekeepers to enable Barne s to recover from the surgery.

26. Edward Gresham has known Petitioner for approximately

three years, and is now Peti tioner Ó s husband. Gresham works as a

rehabilitation counselor in the health care field, and also works

in the home that Petitioner operates. Gresham has successfully

cleared a Level 2 background check. Further, he has observed

Petitioner ensuring that r esidents are clothed in their own

clothes, are fed , and receive their allowance s . In the three

years he has known Petitioner, Gresham has not seen Petitioner

use alcohol or illegal drugs.

Non - Disqualifying Offense

27. APD focused on (in addition to the drug rehabilitation

issue) Petitioner Ó s driving record, and her designation as a

habitual driving offender. The basis for this focus was a

concern that Petitioner might drive a client to an appointment.

Petitioner recently completed a driver Ó s educat ion course, from

which she learned a great deal about her responsibilities as a

driver. She paid the fines associated with the offender status,

and she has a current, valid work driverÓs license. Petitioner

anticipates obtaining a completely clear drive r Ó s license in

June 2018.

28. In denying the request for exemption, APD Ð considered

all available information that led to [Petitioner Ó s]

disqualification, as well as all information provided by Ñ

Petitioner regarding the disqualification. APD denied

Petit ioner Ó s request because she had Ð not submitted clear and

convincing evidence of [her] rehabilitation. Ñ

Other Attributes of Significance

29. Petitioner has worked consistently over a sustained

period in a position in which she cares for multiple perso ns. By

all accounts, Petitioner is a reliable, kind, caring and diligent

worker, and her current continuous employment demonstrates that

she can be trusted to work appropriately in situations involving

vulnerable adults.

30. Petitioner is licensed by AHC A. She holds an exemption

from AHCA which has been appropriate ly renewed since its

issuance.

31. Petitioner is allowed to participate in the Medicaid

program as a provider.

32. Petitioner completed courses necessary to obtain the

requisite licenses.

33. Section 435.07 , Florida Statutes, the controlling

statute regarding the exemptions from disqualification , provides

the following , in pertinent part:

Exemptions from disqualification . Ï 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 of

whether those disqualifying offenses are

listed in this chapter or other laws.

(1)(a) The head of the ap propriate 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 fr om

confinement, supervision, or nonmonetary

condition imposed by the court for the

disqualifying felony;

* * *

(b) A person applying for an exemption who

was ordered to pay any amount for any fee,

fi ne, fund, lien, civil judgment,

application, c osts of prosecution, trust, or

restitution as part of the judgment and

sentence for any disqualifying felony or

misdemeanor must pay the court - ordered amount

in full before he or she is eligible for the

exemption.

For the purposes of this subsection, the term

Ð felonies Ñ 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 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

eviden ce 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 Ó s

rehabilitation the fact that the employee

has, subsequ ent 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 offense.

(c) The decision of the head of an agency

regarding an exempt ion may be contested

through the hearing proce dures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agency Ó s intended action is an abuse of

discretion.

* * *

( 5) Exemptions granted by one agency s hall

be considered by subsequent agencies, but are

not binding on the subsequent agency.

34. Rehabilitation is not defined in statute or rule.

35. Petitioner Ó s last disqualifying offenses occurred in

1994, approximately 23 years ago. At some point, t he passage of

time itself , without any disqualifying offenses, must be evidence

of rehabilitation. While by no means dispositive, the passage of

23 years since the last disqualifying offense is substantial

evidence of Petitioner Ó s rehabilitation. Petitio ner Ó s forthright

demeanor and her willingness to discuss her Ð downfall Ñ and her

determination to turn her life around are significant.

Petitioner testified convincingly that she has turned her life

around, and is not the same person that she was 23 plus y ears

ago.

36. Petitioner has successfully worked with elderly persons

in a positive and helpful manner, and currently presents no

danger to the vulnerable population served by Respondent. The

concerns outlined by Respondent in its decision letter, with out

the benefit of the hearing testimony, were refuted by the

credible testimony adduced at hearing. Common sense tells a huge

story of Petitioner Ó s rehabilitated life. Petitioner meets the

objective criteria for an exemption from disqualification as

est ablished by section 435.07(1).

CONCLUSIONS OF LAW

37. The Division has jurisdiction over the subject matter

of the proceeding and the parties thereto pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

38. Section 435.04, provides, in pertine nt 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 fo r statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement age ncies.

39. The disqualification of Petitioner was based on three

disqualifying offenses, i.e. , possession of cocaine, possession

of cocaine with the intent to sell, and the sale of cocaine that

occurred in 1987, 1990 and 1994. Petitioner has not had an y

disqualifying offenses in over 20 years.

40. 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 special trust

working with children or vulnerable adul ts may seek an exemption

from disqualification. See paragraph 33 above.

41. The statute must be strictly construed against the

person claiming the exemption. Heburn v. Dep Ó t of Child. &

Fam. , 772 So. 2d 561 (Fla. 1st DCA 2000).

42. The abuse of discret ion 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 can be no finding of an abuse o f

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, however, without

limitati on. . . . [T]he trial courts Ó

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 89 0, 893 (Fla. 4th DCA 2006)

(holding that pursuant to the abuse of discretion standard, the

test is Ð whether any reasonable person Ñ could take the position

under review).

43. It is now established that:

[A] lthough the ultimate legal issue to be

determine d by the ALJ in a proceeding under

section 435.07(3)(c) is whether the agency

head Ó s intended action was an Ð abuse of

discretion, Ñ the ALJ is to evaluate that

question based on the facts determined from

the evidence presented at a de novo

chapter 120 hear ing.

J.D. v. Dep Ó t of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st

DCA 2013).

44. As found 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 Ó s exemption request.

45. The record shows that it has been over 23 years since

PetitionerÓs last disqualifying event. Petitioner has taken

meaningful steps to change her life and has been a successful

business woman for over 20 years.

46. APD has a heightened interest in ensuring that its

vulnerable clients are not abused, neglected, or exploited. In

light of that mission, the Legislature has justifiably imposed a

heavy burden on those seeking approval to serve those pers ons

when they have disqualifying events in their past.

47. Notwithstanding the foregoing evidence of

rehabilitation, the record reflects that Petitioner Ó s

disqualifying of fenses were ones involving drug - related

offenses. It was not an abuse of discretio n for that fact to be

given significant weight. H owever, 23 years without a drug -

r elated arrest is significant, and demonstrates rehabilitation.

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

the Agency to initially deny Petitioner Ó s request for an

exemption, the clear and convincing evidence adduced at the

final hearing leads the undersigned to conclude that Petitioner

has demonstrated her rehabilitation from the disqualifying

offenses, and would not currently present a danger to vulnerable

c lients of APD if employment as a direct care service provider

for developmentally disabled persons is allowed. In light

thereof, it would constitute an abuse of discretion for

Respondent to deny her request for an exemption from

disqualification.

RECOMME NDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Agency for Persons with Disabilities granting Petitioner Ó s

request for an exemption from disqualification.

DONE AND ENTERED this 12 th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 12 t h day of January , 2018 .

ENDNOTE S

1/ Within Respondent Ó s Exhibit 1, a page is missing from the

letter which sta rts at Bates - stamped page 4 , and within

Respondent Ó s Exhibit 2, page 20, is a poorly copied page which

makes it difficult, if not i mpossible , to read . Personal

identification information ( i.e. , social security numbers) is

present on various pages througho ut Respondent Ó s exhibits.

2/ Section 435.02 , Florida Statutes, provides the following

definition for Ð vulnerable person Ñ :

[A] minor as defined in s . 1.01 or a

vulnerable adul t as defined in s . 415.102.

Section 1.01 (13) , Florida Statutes, provides the w ord Ð minor Ñ :

[I] ncludes any person who has not attained

the age of 18 years.

Section 415.102 , Florida Statutes, provides:

Vulnerable adult means a person 18 years of

age or older whose ability to perform the

normal activities of daily living or to

provi de for his or her own care or protection

is impaired due to a mental, emotional,

sensory, long - term physical, or developmental

disability or dysfunction, or brain damage,

or the infirmities of aging.

3/ It appears that Petitioner filed two Requests for E xemptions ,

as the first request was not timely completed .

4/ There are no allegations of violence alleged in the denial

letter; however , the information is valuable in providing a

complete assessment of Petitioner Ó s Ð rehabilitation. Ñ

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Eugenia Mays

2606 4th Street East

Bradenton, Florida 34208

Brian F. McGrail, Esquire

Agency for Persons with Disabil ities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Leland M. Taylor, Esquire

Leland M . Taylor, Esq uire , PL

532 12th Street West

Bradenton, Florida 34205

(eServed)

Trevor S. Suter, Esquire

Agency for Persons w ith Disabilitie s

Suite 315C

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Pers ons 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 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.