20-004379 Garnett Bowe vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, March 11, 2021.

Summary: Petitioner proved, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses. Agency would abuse its discretion if it denied his request for an exemption from employment disqualification.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

G ARNETT B OWE ,

Petitioner ,

vs. Case No. 20 - 4379

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was held in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes, 1 before Administrative Law Judge

("ALJ") Cathy M. Sellers of the Division of Administrative Hearings

("DOAH") on December 15, 2020, Zoom Conference.

A PPEARANCES

For Petitioner: Garnett Dwayne Bowe, pro se

2208 Avenue E ast

Fort Pierce, Florida 34950

For Respondent: Katie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 7

Ta llahassee, Florida 32308

S TATEMENT OF T HE I SSUE S

Whether Petitioner has demonstrated, by clear and convincing evidence,

that he is rehabilitated from his disqualifying offense s , and if so, whether

Respondent would abuse its discretion in denying his req uest for an

exemption from disqualification from employment.

1 All references to Florida Statutes are to the 2020 codification.

P RELIMINARY S TATEMENT

By letter dated February 21, 2020, Respondent, Agency for Health Care

Administration, notified Petitioner, Garnett Dwayne Bowe, that his request

for an exemption from disqua lification from employment in a position of trust

was denied. The letter stated, in pertinent part:

In evaluating your application, [AHCA] has

considered the following factors, including, but not

limited to the circumstances surrounding the

criminal incide nt for which an exemption is sought;

the time period that has elapsed since the incident;

the nature of the harm caused to the victim; a

history of the employee since the incident; and any

other evidence or circumstances indicating that the

employee will n ot present a danger if continued

employment is allowed[.]

On March 12, 2020, Petitioner requested a hearing challenging the denial

of his exemption request. On October 1, 2020, the matter was referred to

DOAH for assignment of an ALJ to conduct a hearing. Following a telephonic

status conference, the final hearing was scheduled for December 1, 2020, by

Zoom Conference. Subsequently, the final hearing was rescheduled for

December 15, 2020, by Zoom Conference.

The final hearing was conducted on December 15, 2020. At the final

hearing, Petitioner testified on his own behalf and presented the testimony of

Barry Mitchell, Arthur Lewis Baker, Dean Mosley, and David Cook.

Petitioner's Composite Exhibit 1 was admitted into evidence without

objection. Respondent pr esented the testimony of Vanessa Risch and

Respondent's Composite Exhibit 1 was admitted into evidence without

objection.

The one - volume Transcript was filed at DOAH on January 12, 2021.

Petitioner timely filed his L etter R egarding D isqualification , which has been

treated as his proposed recommended order, on January 5, 2021 . Respondent

timely filed its proposed recommended order on January 22, 2021. Both post -

hearing submittals have been duly considered in preparing this

Recommended Order.

F INDINGS OF F A CT

The Parties

1. Petitioner is a 62 - year - old male who seeks an exemption from

disqualification from employment from positions that require compliance

with level II background screening requirements under section 435.0 4,

Florida Statutes.

2. Specificall y, Petitioner is seeking to become the owner and

administrator of a facility that would provide housing and related services for

persons who are in isolation due to having been infected with the virus that

causes Covid - 19. Because such facilities are subje ct to regulation by

Respondent, pursuant to section 435.06, Petitioner is subject to the

background screening requirements and restrictions of section 435.04

regarding his employment in positions of trust working with individuals who

would be temporarily r esiding in such facilities.

3 . Respondent is the agency responsible for conducting background

screening under section 435.04 for persons seeking to become employed in a

position of trust in connection w ith assisted living facilities, such as that

sought to be established by Petitioner .

Evidence Presented at Final Hearing

4 . As more fully discussed below, section 435.04(2) establishes a list of

criminal offenses that are considered "disqualifying offenses" for purposes of

disqualifying persons who have bee n convicted of, or pled nolo contendere to ,

the listed offenses , from being employed in a position involving contact with

vulnerable persons. 2

5. Between 1992 and 2015, Petitioner was arrested 2 5 times . The

competent substantial evidence establishes that Petitioner was convicted of,

or pled nolo contendere to, six disqualifying offenses.

6. Petitioner's six disqualifying offenses are as follows: dealing in stolen

property, in violation of section 812.019, Florida Statutes, committed on

February 12 , 19 8 2 ; burglary and aggravated assault with a deadly weapon, in

violation of sections 810.02 and 784.021, Florida Statutes, committed on

November 18, 1992; possession of cocaine, in violation of section 893.13,

Florida Statutes, committed on November 3, 1993; s ale of cocaine , in violation

of section 893.13, committed on November 3, 1998; and resisting officer with

violence, in violation of section 843.01, Florida Statutes, committed on

November 3, 1998.

7. Petitioner was incarcerated for approximately 11 years, and was

released from incarceration in or about 2009.

8 . Although Petitioner has been arrested 11 times since he committed his

last disqualifying offense in 1998 , all but one of th o se arrests were disposed of

by the criminal charges being abandoned, or b y nolle prosequi, which means

that the charges were dropped. 3

9 . Of the arrests subsequent to Petitioner's most recent disqualifying

offense, the great majority of them stemmed directly from a difficult personal

relationship in which Petitioner's then Ð no w former Ð girlfriend would

frequently call the police when they argued , resulting in Petitioner being

2 "Vulnerable person" is defined in section 435.02 as a minor or a vulnerable adul t. A "minor"

is a person who has not attained the age of 18 years. § 1.01(13), Fla. Stat. A "vulnerable

a dult" is a person 18 years of age or older whose ability to perform the normal activities of

daily living or provide for his or her own care or protect ion is impaired due to a mental,

emotional, sensory, long - term physical, or developmental disability or dysfunction, or brain

damage, or the infirmities of aging. § 415.102(28), Fla. Stat.

3 A nolle prosequi ends a criminal proceeding. Wilkins v. State , 9 0 So. 3d 305, 306 (Fla. 1st

DCA 2012), citing State v. Aguilar , 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008).

arrest ed . Importantly, a review of the documentation of these arrests reveals

that all of the charges related to these incidents were dropped or abandoned.

Petitioner testified, credibly, that his former girlfriend was incarcerated for

filing false reports with police, and that he obtained an injunction requir ing

her to stay away from him. Importantly, Petitioner testified , credibly and

persuasively, that he no longer is in a relationship with this individual.

10. It has been approximately six years since Petitioner's most recent

arrest. He has completed all court - ordered requirements and has fully paid

all related fines and fees.

1 1 . Petitioner's only c onviction since his most recent disqualifying offense

was in May 2014, for possession of marijuana. At the final hearing, Petitioner

testified, credibly and persuasively, that he was wrongfully charged with

marijuana possession in connection with police ha ving been called by

neighbors to investigate him for burglary of his own dwelling. Petitioner

credibly testified that he was counseled by his lawyer, Dean Mosley, not to

contest the charges because if he went to trial and was convicted, he could be

sentenc ed to a year in jail. Consequently, Petitioner pled guilty and was fined

$227.00, plus court costs. Mosley , who testified on behalf of Petitioner at the

final hearing , confirmed Petitioner's testimony regarding this incident.

12. Petitioner obtained a bachelor's degree from Florida Agricultural and

Mechanical University in 1983, and a technical degree in Computer and

Engineering Technology from Tampa Technical Institute in 1984.

1 3 . Petitioner also completed the adult congregate living facility Extend ed

Congregate Care Program provided by the Department of Health and

Rehabilitative Services, Respondent's predecessor agency, in 1995, and

completed a course in HIV/AIDS exposure to bloodborne pathogens provided

by Emergency Medical Consultants, Inc. , in 1 998 .

1 4 . Between 1994 and 1996 , Petitioner served as c o - a dministrator for

Bowe's Retirement Home, Inc., a licensed assisted living facility owned and

operated by his mother. A lthough he no longer is a co - administrator for this

facility , he currently s erve s as its marketing executive .

1 5 . Additionally, Petitioner owns and operates Bowes Restorative

Care/Services, through which he provides transitional housing for persons

who are homeless and HIV - positive, in conjunction with the Department of

Health a nd the Mental Health Court of St. Lucie County, Florida. Petitioner's

transitional housing facility was the first in the Treasure Coast region of

Florida to be approved by the U.S. Veterans Administration , and provides a

transitional residential facility s etting for homeless veterans as they

transition into an independent residential living arrangement . Petitioner has

owned and successfully operated his transitional housing facility since 2011.

1 6 . Petitioner testified, credibly, that he has not used drug s for at least

20 years, and that he does not drink alcohol.

1 7 . Petitioner has applied for the exemption at issue in this proceeding

because he desires to own and operate a Covid - 19 isolation facility, which

would provide transitional residential housing for persons who are isolating

from others while recovering from Covid - 19.

1 8 . Petitioner also noted that he eventually would like to assume

operation of his mother's retirement home business , and pass it on to his

children to operate as a family business .

1 9 . Petitioner submitted n umerous character references and letters of

recommendation prepared on his behalf to Respondent as part of his

exemption application package .

20 . Laura Saputo, a mental health court case worker with the Indian

River County S heriff's Office , wrote a character reference letter, dated

March 10, 2020, on behalf of Petitioner. Saputo stated that in working in the

community, Petitioner demonstrates empathy, compassion, caring, a strong

positive belief system, and a true desire to assist people, all of which are vital

characteristics for helping those in need better their lives. She also stated

that Petitioner works well with the M ental H ealth C ourt in Indian River

County, has a great rapport with group home clients, and conducts hi mself in

a calm, professional manner, even when dealing with difficult clients. Based

on her experiences in working with Petitioner, Saputo stated that she has a

great deal of faith in Petitioner and places her trust in him.

2 1 . Karleen Russ, a mental hea lth counselor, also wrote a letter of

recommendation on behalf of Petitioner regarding his request for an

exemption. Specifically, Russ stated that she has known Petitioner for many

years and that , in her experience, he has always exhibited a professional

demeanor, and character, and high moral standard as a mental healthcare

provider; and that he has worked diligently with clients having serious and

persistent mental health , substance abuse, geriatric, and criminal issues. She

recommended that he be grante d the approval necessary to enable him to

continue his work in the community.

2 2 . Daniel Bin, a certified behavioral health case manager, also wrote a

letter of recommendation on behalf of Petitioner. Bin stated that he has

worked with Petitioner in a pro fessional setting, and that Petitioner exhibits

preparation, skill in successfully completing complex tasks, follow - up efforts,

dedication to perfection, professionalism, and a superb work ethic . He noted

that any company would be improved by having Petiti oner as an employee.

2 3 . Eric Eschmann, a Florida registered professional guardian, wrote

two letters of recommendation on Petitioner's behalf. Eschmann stated that

Petitioner took on the responsibility of housing and caring, for five years, for

a particu larly high maintenance ward who receive d care due to mental

incapacity, and that Petitioner accurately and proficiently manage s the

ward's diet, medications, appointments, and shopping, while assuring that

the ward is well - fed; d oes not elope ; does not har ass or assault others; and is

housed in a clean and safe environment. Bin also praised Petitioner's

communication in keeping him (Bin) apprised of developments regarding the

ward requiring his attention, while proficiently handling the matters that d o

not require Bin's involvement. He highly recommended Petitioner for any role

having to do with the management or care of persons requiring assistance .

2 4 . Morgan Libbey, a court - appointed professional guardian and executive

of the Public Guardianship Progra m of Indian River County, Inc., provided a

statement that she has worked with Petitioner for approximately two years

through her organization's client services program. She stated that Petitioner

has provided excellent care and oversight of a ward of the c ourt, and that in

doing so, provided crucial services for the community , while demonstrating

honesty and compassion for others.

2 5 . Florida Representative Larry Lee, Jr. , also wrote a character reference

letter on Petitioner 's behalf . Based on his more t han 30 years of friendship

with Petitioner, Lee described Petitioner as a very caring and committed

person, determined to help others. He also noted that Petitioner "made

choices that were not advantageous early in life," but that he had accepted

responsib ility for his mistakes and learned from them. Lee recognized and

commended Petitioner for his work in the community, and appealed "to any

organization that can assist him" to help him continu e his work.

2 6 . Colleen Barnes, a realtor with Sun Group Realty, Inc., wrote a

character reference letter for Petitioner. She stated that she has k now n

Petitioner in a professional capacity for approximately five years, and she

characterized him as warm, compassionate, personable, highly motivated ,

and " capable of achi eving any goal he sets his mind to." She commended him

for his cool composure and confidence , which enable s him to keep situations

under control while working with many diverse personalities in his

profession.

2 7 . Petitioner also presented the testimony of three character witnesses at

the final hearing.

2 8 . Barry Mitchell, a certified public accountant who has been Petitioner 's

friend for over 60 years , testified at the final hearing and also wrote a letter

of recommendation that was included in Petition er's application package . I n

his letter, Mitchell characterized Petitioner as being a caring, productive

person who has "rolled up his sleeves and gone to work for the community" in

caring for physically and mentally challenged persons in his home. He also

noted that Petitioner works with his mother to assist her in operating her

retirement living facility, and that he is a "thinker and a doer." At the final

hearing, Mitchell testified that Petitioner is a hard - working, caring

individual with a vision of ma king his community a better place. In Mitchell's

view, Petitioner's talent, hard work, and potential to help his community far

outweigh his criminal record , and he urged that Petitioner be granted the

exemption , so that he can have the opportunity to contr ibute to his

community in a healthcare provision setting.

2 9 . Arthur Lewis Baker also testified at the final hearing on Petitioner's

behalf. Baker is a certified peer recovery specialist who is employed with

New Horizons, a community mental health and su bstance abuse provider , in

St. Lucie County. Baker has know n and worked with Petitioner for

approximately four years in connection with placement, by the Indian River

M ental H ealth C ourt, of clients in Petitioner's transitional residential facility.

Baker testified that Petitione r has worked with extraordinary needs clients

who have schizophrenia or bipolar disorder, and provides excellent,

compassionate care for these individuals. Specifically, Baker testified that

Petitioner always exhibits a calm demeano r when interacting with mental

health clients, and ensures that they are well - fed, given their medications,

taken to doctor's appointments, and are otherwise well - cared for.

30 . Dean Mosley, an attorney who has personally known Petitioner for

more than 4 0 years, testified at the final hearing and also wrote a character

reference letter that was included in Petitioner's exemption application

package . Mosley particularly noted Petitioner's sense of empathy ; strong

work ethic ; extensive knowledge of assisted living facilities ; and dedication to

continu ing , and ultimately operat ing , his mother's business .

3 1 . Respondent did not present any competent substantial evidence

showing that it considered Petitioner's character reference letters as part of

its rev iew and decision - making regarding Petitioner's application for

exemption. To this point, Respondent's witness, Vanessa Risch, testified that

she did not know whether Respondent considered or verified the references

included in Petitioner's application in r eviewing Petitioner's exemption

request. 4

3 2 . Petitioner testified, credibly and persuasively, that he is very

remorseful regarding his criminal offenses over the years. He presented

compelling testimony to the effect that he understands and takes

respon sibility for his actions, and that he has taken substantial steps to

change the circumstances in his life that led to him committing crimes. As

more extensively discussed above, Petitioner's actions in successfully and

safely operating a transitional resid ential facility while not having been

arrested in six years , and not having been convicted of a crime in seven years,

bear out Petitioner's testimony that he has changed his life.

3 3 . Petitioner testified, credibly and persuasively, that he is committed to

taking whatever actions are necessary to enable him to own and operate the

Covid - 19 isolation facility for which he seeks the exemption, including not

committing criminal offenses . Importantly, Petitioner understands that if he

were again to commit a cr iminal offense, any exemption that he may be

granted could be revoked.

3 4 . As Petitioner put it, he is asking for a second chance in order to be

able to work in an area to which he is dedicated, and in which he has

extensive knowledge and successful expe rience.

4 The pertinent testimony regarding Respondent's consideration of Petitioner's references as

part of its decision - making process regarding his exe mption request was as follows:

"Q: Well, was that [ considering and contacting Petitioner's character references] done, to

your knowledge? A: I . . . I don't make the decision, I'm not sure."

Findings of Ultimate Fact

3 5 . Upon consideration of the competent substantial evidence in the

record, it is determined that Petitioner has demonstrated, by clear and

convincing evidence, that he is rehabilitated from his disqualifying offense s. 5

3 6 . Under section 435.07(3)(a), matters that are relevant to demonstrating

rehabilitation include 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, the history of the

employee since the incident, and other evidence indicating that the employee

will not present a danger if employment is allowed.

3 7. Additionally, under section 435.07(3) (b) , t he agency may consider , as

p art of its deliberations regarding an applicant's rehabilitation , arrests or

convictions of the applicant subsequent to the conviction for the disqualifying

offense , even if arrest or conviction is for a crime that is not a disqualifying

offense.

3 8 . As d iscussed above, it has been over 20 years since Petitioner

committed his last disqualifying offense. Although Petitioner has been

arrested multiple times since that disqualifying offense , a ll but one of those

arrests result ed from a now - former girlfriend c alling law enforcement during

arguments with Petitioner, resulting in Petitioner being arrested. Crucial ly ,

the charges for each of those arrests were dropped . Petitioner has exhibited

the sound judgment to extricate himself from that relationship, and sin ce

doing so, has not been arrested.

3 9 . Moreover, his only conviction since his last disqualifying offense , for

possession of marijuana , was the result of having pled guilty at the advice of

counsel in order to avoid risking a potentially lengthy jail sen tence.

40 . Petitioner's conduct over the past six years since his last arrest is most

probative in demonstrating that he is rehabilitated .

5 See J.D. v. Dep't of Child. and Fams. , 114 So. 3d 1127, 1131 ( Fla. 1st DCA 2013)(whether

an applicant for an exemption has demonstrated rehabilitation is an ultimate issue of fact).

4 1 . Specifically, a s discussed in detail above, Petitioner has successfully

operated , for the past several years, a transitional residential facility for

veterans and other individuals in need of a stable, caring environmental

while they transition into permanent living arrangements.

4 2 . Importantly, Petitioner is currently engaged in precisely the kind of

activity , in the same type of residential setting, in which he would continue to

work if he is granted the exemption. That he has successfully worked with

vulnerable individuals for several years, without any problems whatsoever, is

strong evidence that Petitioner is rehabilitated and will not present a danger

or threat to vulnerable individuals staying in his facility.

4 3 . Furthermore, the fact that the Mental Health Court of Indian River

County has placed individuals in Petitioner's care at his transitional

re sidential facility is particularly strong evidence that Petitioner will not

present a danger or threat to vulnerable individuals residing in his

residential care facility . To this point, the fact that the judicial branch Ð

which obviously is fully privy to t he information regarding Petitioner's

background Ð has deemed Petitioner sufficiently rehabilitated and

trustworthy to place vulnerable individuals in his care constitutes compelling

evidence that Petitioner is rehabilitated from his disqualifying offenses a nd

will not present a danger to vulnerable individuals entrusted to his care.

4 4 . As discussed above, P etitioner presented numerous character

references, including letters from, and the in - person testimony of, persons

who have worked with Petitioner regar ding vulnerable individuals placed in

Petitioner's facility through the mental health court program. To a person,

each of these references attested to Petitioner's dedication, compassion, and

trustworthiness in working with, and providing a safe, stable en vironment

for, the individuals entrusted to his care.

4 5 . Additionally, Petitioner presented the compelling, persuasive

testimony of additional witnesses at the final hearing , further attesting to his

trustworthiness, diligence, compassion, energy, and d edication in providing a

safe, stable transitional residential environment for vulnerable individuals.

4 6 . Respondent did not present any competent evidence showing that it

considered Petitioner's character reference letters in reviewing his request for

an exemption, and it did not provide any specific evidence at the final hearing

showing that , notwithstanding Petitioner's six - plus years of exemplary

conduct during which he has successfully operated a facility in which he has

provided care to vulnerable individuals placed in his facility by the court , he

is not rehabilitated and, thus, may present a threat to vulnerable individuals

such that his exemption request should be denied.

4 7 . In sum, the competent, persuasive evidence clearly and convincingly

es tablishes that Petitioner is rehabilitated from his disqualifying offenses

such that he should be granted an exemption from employment

disqualification in this proceeding.

C ONCLUSIONS OF L AW

4 8 . DOAH has jurisdiction over the parties to, and subject matt er of, this

proceeding. §§ 120.569, 120.57(1), and 435.07, Fla. Stat.

4 9 . Because Petitioner seeks to serve as the owner and operator of a n

assisted living facility regulated by Respondent that will place him in a

position of trust having contact with vul nerable persons, he is required to

undergo level II background screening, pursuant to section 435.04.

50 . Section 435.04(2) sets forth a list of criminal offenses that are

considered "disqualifying offenses," in that they disqualify a person who has

been f ound guilty of, or for which a plea of nolo contendere has been entered

for , such offenses , from employment in positions involving contact with

vulnerable persons . T he disqualifying offenses enumerated in section

435.04(2) include offenses for which Petiti oner was convicted under chapter

812, relating to theft; section 810.02, relating to burglary; chapter 784,

relating to felony assault; section 843.01, relating to resisting arrest with

violence; and chapter 893, relating to felony drug abuse.

5 1 . As stat ed above, if a person has been found guilty or pled nolo

contendere to a disqualifying offense, he or she may not be employed in a

position having contact with vulnerable persons unless the person is

granted an exemption from the disqualification by the ag ency , pursuant to

section 435.07. § 435.04(3), Fla. Stat.

5 2 . Section 435.07 authorizes the head of an agency to grant a person

otherwise disqualified from employment , pursuant to section 435.04 , an

exemption from disqualification under certain circumstan ces. The statute

states , in pertinent part :

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, regard less 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 disqualification for:

1. Felonies for whic h at least 3 years have elapsed

since the applicant for the exemption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court for the disqualifying

felony [.]

* * *

(3)(a) In order for t he 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 a nd

convincing evidence of rehabilitation, including, but

not limited to, the circumstances surrounding the

criminal incident for which an exemption is sought,

the time period that has elapsed since the incident,

the nature of the harm caused to the victim, and

the history of the employee since the incident, or

any other evidence or circumstances indicating that

the employee will not present a danger if

employment or continued employment is allowed.

(b) T he agency may consider as part of its

deliberations o f the employeeÔs 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 o ffense.

(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 agencyÔs intended action is an abuse

o f discretion.

§ 435.07, Fla. Stat.

5 3 . Under the statute, the applicant for an exemption from

disqualification from employment has the ultimate burden to demonstrate,

by clear and convincing evidence, that he or she is rehabilitated from the

disqualifyin g offense. § 435.07(3) (a), Fla. Stat. This is a heightened

evidentiary standard, requiring more than a preponderance of the evidence.

In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). This evidentiary standard

has been described as follows:

[C] lear and conv incing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in is sue. 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)(quoting S lomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

5 4 . If the applicant demonstrates rehabilitation, he or she is eligible for an

exem ption, but not entitled to one. J.D. v. Dep't of Child. & Fams. , 114 So. 3d

1127, 1131 (Fla. 1st DCA 20 1 3). Th e agency head possesses the discretion to

deny an exemption request, but may not lawfully do so if the denial would

constitute an abuse of discretion. Id . Under the "abuse of discretion"

standard, discretion is abused when the action is arbitrary, fanciful , or

unreasonable. A.P. v. Dep't of Child. & Fams. , 230 So. 3d 3, 6 (Fla. 4th DCA

2017). Stated another way, discretion is abused when the agency's action is

arbitrary because it is not supported by facts established by the evidence of

record , or it is unr easonable. Id . at 7; see J.D. , 114 So. 3d at 1133; s ee

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

5 5 . As the court in J.D. explained, a hearing to determine rehabilitation

under section 435.07 is a de novo chapter 120 hearing in which the ALJ

determines anew whether an applicant for an exemption under section

435.07 has demonstrated rehabilitation. J.D ., 114 So. 3d at 1131, 1132.

W hether an applicant for an exemption has demonstrated rehabilitation by

clear and convincing evidence is an ult imate issue of fact that is within the

ALJ's province to determine . Id. at 1131.

5 6 . For the reasons extensively discussed above, the undersigned has

found that Petitioner has demonstrated, by clear and convincing evidence in

this de novo proceeding, that he is rehabilitated from his disqualifying

offenses.

5 7 . As found above, t he evidence that is most probative of whether

Petitioner is rehabilitated Ð i.e., his conduct over the past six years since he

was last arrested Ð establishes that Petitioner is rehabi litated and will not

present a threat or danger to vulnerable persons entrusted to his care. As

discussed above, Petitioner has been working , for multiple years, with

vulnerable individuals placed in his transitional residential facility by the

Mental Heal th Court in Indian River County . To this point, Petitioner

presented compelling testimony, by himself and others, establishing that he

has safely and successfully worked with vulnerable individuals for the past

several years, with no problems whatsoever.

5 8 . The evidence having clearly and convincingly established that

Petitioner is rehabilitated, the question then becomes whether Respondent

would abuse its discretion if it denied Petitioner's exemption request,

notwithstanding that he has demonstrated tha t he is rehabilitated.

5 9 . Although Respondent's decision to deny Petitioner's exemption request

is subject to the differential abuse of discretion standard, this standard is not

without limits. In Florida Power & Light Company v. Siting Board , 693 So.

2d 1025 (Fla. 1st DCA 1997), the court noted that even when an agency is

vested with considerable discretionary authority, the factual basis for that

exercise of discretion must be established by competent substantial evidence

in the record, and " the agenc y must expose and elucidate its reasons for

discretionary action ." Id. at 1028 (emphasis added ) .

60 . Respondent contends that the seriousness of Petitioner's disqualifying

offense s and the length of time that has elapsed since his last offense warrant

den ial of his exemption request. However, importantly, in enacting section

435.07(1)(a)1., the Florida Legislature has made the policy decision that the

types of disqualifying offenses committed by Petitioner are among those for

which an exemption from disqua lification may be granted after three years

have elapsed , provided the person requesting the exemption can show that he

or she is rehabilitated from those offenses. As found above, Petitioner has

demonstrated, by clear and convincing evidence, that he is r ehabilitated from

his disqualifying offenses.

6 1 . Although Respondent presented evidence regarding Petitioner's

criminal history, it did not present any evidence to counter the compelling,

clear, and convincing evidence presented at the final hearing Ð much of it

consisting of testimony of persons with whom Petitioner has worked in the

mental health court setting Ð showing that Petitioner is rehabilitated and will

not pose a danger to vulnerable persons.

6 2 . It is noted that when Respondent made its initial d ecision to deny

Petitioner's exemption request, it did not have the benefit of the compelling

evidence regarding Petitioner's rehabilitation and the lack of danger he may

pose to vulnerable individuals that was presented at the final hearing.

6 3 . In light of the new and additional evidence regarding Petitioner's

rehabilitation that was presented at the final hearing in this de novo

proceeding Ð particularly the persuasive, compelling testimony by friends and

professional contacts , to which Respondent was not privy when it made its

initial decision to deny Petitioner's e xemption request Ð and in the absence of

any countervailing evidence in the record directly rebutting this evidence , the

undersigned believes that Respondent would abuse its discretion if it were to

deny Petitioner's request for an exemption. 6

6 4 . Accordingly, the undersigned recommends that , pursuant to section

435.07, Respondent grant Petitioner 's request for an exemption from

employment disqualification . 7

6 A.P. v. Department of Children and Families , 230 So. 3d 3 (Fla. 4th DCA 2017), also merits

discussion. In that case, the agency denie d an exemption request under section 435.07,

notwithstanding that the ALJ had found , as a matter of ultimate fact, that the applicant was

rehabilitated from his disqualifying offense. The court reversed the agency's final order,

holding that it was error f or the agency to adopt the ALJ's findings of fact, which were based

on competent substantial evidence, but effectively disregard those findings of fact in denying

the request for an exemption.

7 As discussed above, it again bears mention that Petitioner is keenly aware that any

exemption granted is subject to being revoked if the holder of the exemption engages in any

additional criminal conduct.

R ECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Agency for Health Care Administration enter a final

order granting Petitioner's request for an exemption from disqualification.

D ONE A ND E NTERED this 11th day of March , 2021 , in Talla hassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March , 2021 .

C OPIES F URNISHED :

Katie Jackson, Esquire James D. Varnado, General Counsel

Agency for Health Care Administration Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 7 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk Garnett Dwayne Bowe

Agency for Health Care Administration 2208 Avenue East

2727 Mahan Drive, Mail Stop 3 Fort Pierce, Florida 34947

Tallahass ee, Florida 32308

Shena L. Grantham, Esquire

Simone Marstiller, Secretary Agency for Hea lth Care Administration

Agency for Health Care Administration Building 3, Room 3407B

2727 Mahan Drive, Mail Stop 1 2727 Mahan Drive

Tallahassee, Florida 32308 Tallahassee, Florida 32308

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, F lorida 32308

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exception s to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.