17-003087EXE Carla Johnson-Lane vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, August 18, 2017.

Summary: Petitioner did not appear at the final hearing. Therefore, Petitioner failed to prove that the Agency's denial of her request for exemption from disqualification was an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLA JOHNSON - LANE,

Petitioner,

vs. Case No. 17 - 3087EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 1 , 2017, Administrative Law Judge Yolonda Y.

Green, of the Division of Administrative Hearings (ÐDivisionÑ),

conducted a duly - noticed final hearing in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE S

The issue in this case is whether Petitioner has demonstrated

by clear and convincing evidence that she should not be

disqualified from employment in a position involving direct

contact with children or developmentally disabled persons; and , if

so, whether RespondentÓs intended agency action to deny her

request for an exemption from disqualification is an abuse of

discretion.

PRELIMINARY STATEMENT

In a letter dated April 11, 2017, the Agency for Persons with

Disabilities (ÐAPDÑ or ÐRespondentÑ) notified Carla Johnson - Lane

( Ð Ms. Johnson - LaneÑ or Ð Petitioner Ñ) , that her r equest for an

exemption from disqualification from employment in a position of

trust was denied. As a result, Petitioner was determined to be

not eligible to be employed, licensed, or registered in positions

having direct contact with children or vulnerab le adults served in

programs regulated by APD. The basis for APDÓs denial of

exemption, as alleged in its notice of proposed agency action, was

that Petitioner had not submitted clear and convincing evidence of

rehabilitation from a past disqualifying cri minal offense.

On May 8, 2017 , P etitioner timely requested a form al

administrative hearing. On May 23, 2017, Respondent referred this

matter to the Division for a final hearing.

On May 24, 20 17, the undersigned issued the I nitial O rder.

The parties fil ed their Joint Response to Initial Order (ÐJoint

ResponseÑ) on May 31, 2017. In the Joint Response, the parties

provided dates of availability, on which the undersigned was not

available. The parties then indicated that they were available

for the final hearing on August 1, 2017. On June 6, 2017, the

undersigned issued a Notice of Hearing scheduling the final

hearing via teleconference in Tallahassee and Gainesville,

Florida , for August 1, 2017 , at 9:30 a.m .

Petitioner did not file or exchange a witnes s list, exhibit

list, or proposed exhibits, pursuant to the Order of Pre - hearing

Instructions and Notice of Hearing. On July 19, 2017, Respondent

filed its Notice of Filing Witness List and Proposed Exhibit

List, and its proposed exhibits.

Pursuant to n otice, the fin al hearing was convened at

9:30 a.m. , on August 1, 2017. No one appeared on behalf of

Petitioner. The attorney for Respondent appeared, and

RespondentÓs witnesses, Les lie Richards and Daniella Jones , were

present to testify . A court report er was in attendance, having

been retained by Respondent. After prelimina ry matters were

completed, a 30 - minute recess was granted to allow for an

appearance by Petitioner. The fi nal hearing reconvened at

10:05 a.m., without an appearance by Petitioner. Given the

burden of proof as discussed herein below , the final hearing was

thereafter adjourned.

Respondent offered E xhibits 1 through 5, which were

admitted.

Unless otherwise indicated all statutory references are to

Florida Statutes (2017 ). 1/

FIN DING S OF FACT

1. Respondent is the state agency responsible for

regulating employment of persons w ho provide direct service to

APD clients.

2. Petitioner seeks an exemption from d isqualification from

employment in order to work with APD clients.

3. I n a letter dated April 11, 2017 , Respondent issued its

noti ce of proposed agency action which informed Petitioner that

her request for exemption from disqualification was denied.

4 . Petitioner filed a timely Petition for Formal

Administrative Hearing inv olving disputed issues of material

fact.

5 . After filing the hearing request, Petitioner joined in

the response to the Initial Order, and the final hearing was

scheduled on a date provided by Petitioner. Thereafter,

Petitioner failed to comply with the Order of Pre - hearing

Instructions and failed to appear at the final hearing that

Petitioner requested .

6 . Based on PetitionerÓs failure to appear and offer

evidence, there is no evidentiary basis on which findings can be

made regarding whether Petitioner proved her rehabilitation from

the disqualifying offense such that Petitioner would not present

a danger to children or developmentally - disabled persons served

in programs regulated by Respondent.

7 . Petitioner has abandoned her hearing request.

CONCLUSI ONS OF LAW

8 . The Division of Administrative Hearings has jurisdiction

over the subject matter of the proceeding and the parties thereto

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

9 . Section 435.07 , Florida Statutes, establishes a pro cess

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 adults may seek an

exemption from disqualification. That section provides, in

perti nent part, that:

Exemptions from disqualification. -- Unless

otherwise provided by law, the provisions of

this section shall 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.

* * *

(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 inciden t 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 wi ll not

present a danger if employment or continued

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

ad ministrative law judge is whether the

agencyÓs intended action is an abuse of

discretion.

10 . The statute must be strictly construed against the

person claiming the exemption. Heburn v. Dep't of Child. &

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

11 . I t is well - established that:

[A] lthough the ultimate legal issue to be

determined by the ALJ in a proceeding under

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

head's intended action was an Ðabuse 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 hearing.

J.D. v. Dep't of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st

DCA 2013).

12 . APD has a heightened interest in ensuring that the

vulnerable population it serves is not abused, neglected, or

exploited . In light of that mission, the Legislature has

justifiably imposed a heavy bur den of proof on those seeking

approval to serve those persons when they have disqualifying

events in their past.

13 . Petitioner failed to meet her burden of proof.

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 denying Petitioner, Carla

Johnson - LaneÓs, request for an exempt ion from disqualification.

DONE AND ENTERED this 18th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 18th day of August , 2017 .

ENDNOTE

1/ Because a final order has not yet been issued for this case,

Petition er's application for exemption is governed by current

law. See E.J. v. DepÓt of Child . & Fam s . , 219 So. 3d 946 (Fla.

3rd DCA 2017) . See also Ag . for Health Care Admin. v. M t . Sinai

Med. Ctr. , 690 So. 2d 689, 691 (Fla. 1st DCA 1997).

COPIES FURNISH ED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Carla Johnson - Lane

Unit G37

900 Southwest 62nd Boulevard

Gainesville, Florida 32607

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

(eSer ved)

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 fro m 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.