21-000340EXE Clifford Pennywell vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, April 22, 2021.

Summary: Petitioner failed to prove that Respondent abused its discretion when denying Petitioner's request for exemption from being disqualified to work in a position of special trust.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C LIFFORD P ENNYWELL ,

Petitioner ,

vs. Case No. 21 - 0340EXE

A GENCY F OR P ERSONS W ITH

D ISABILITIES ,

Respondent .

/

R ECOM MENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on March 18 , 2021, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

A PPEARANCES

For Peti tioner: Clifford Pennywell , pro se

Apartment B3

5295 59th Circle West

Kenneth City, Florida 33709

For Respondent: Radhika Puri, Esquire

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether the Agency for Persons with Disabilities abused its discretion

when denying PetitionerÔs request for exemption from being disqualified to

work in a position of special trust.

P RELIMINARY S T ATEMENT

On or about July 5, 2018, the Department of Children and Families, as

agent for the Agency for Persons with Disabilities (Respondent), notified

Petitioner that his criminal background check revealed offenses that

disqualified him Ñfrom working or b eing licensed in accordance with sections

435.04 and, if applicable, 408.809(4), Florida Statutes.Ò Petitioner submitted

to Respondent a request seeking an exemption from being disqualified to

work in a position of special trust, and Respondent, by corresp ondence dated

December 9, 2020, informed Petitioner that his request for exemption was

denied. Petitioner filed a request for administrative hearing, and on

January 26, 2021, Respondent forwarded PetitionerÔs request to the Division

of Administrative Heari ngs (DOAH) for a final hearing.

At the final hearing, Petitioner testified on his own behalf and did not

offer the testimony of any other witness. Respondent presented testimony

from a single witness, its employee Ramsey Garner, who works for

Respondent as an operations review specialist. No exhibits were admitted

into evidence on behalf of Petitioner. RespondentÔs Exhibits 1 and 2 were

admitted into evidence.

A one - volume Transcript of the final hearing was filed with DOAH on

April 1, 2021. Petitioner and Respondent each filed a Proposed Recommended

Order. The Proposed Recommended Orders filed by the parties were

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

A. Disqualifying Offenses

1. As noted above, the Department of Children and Families, by

correspondence dated July 5, 2018, informed Petitioner that his background

check revealed two disqualifying offenses. The first offense is described by the

Department as Ñ04/25/2014 PINELLAS PARK POLICE DEPARTMENT,

LARCENY,Ò and the secon d is described as Ñ08/30/2005 ST. PETERSBURG

POLICE DEPARTMENT, BATTERY DOM - VIOL.Ò

2. As an initial matter, the August 2005 offense does not disqualify

Petitioner from working in a position of special trust. Specifically, o n

August 30, 2005, Petitioner was arrested, and charged with misdemeanor

battery in violation of section 784.03, Florida Statutes (2005) , which is a

disqualifying offense . PetitionerÔs arrest occurred as a result of a physical

altercation with his brother, who was a minor when the alleged offense

occurred. According to the case summary sheet ( Resp. Ex . 2, p . 99), on

Apr il 13, 2006, the charge was reduc ed to the Ñlesser included misdemeanor

[of] disorderly conduct,Ò to which Petitioner entered a plea of nolo contend e re.

On or about May 17, 2006, Petitioner was Ñadjudicated guiltyÒ of disorderly

conduct in violation of section 509.143, Florida Statutes (2005). A violation of

section 509.143 is not a disqualifying offense under any of the controlling

statutes .

3 . On April 25, 2014, Petitioner was arrested and charged with violating

section 812.014(2)(c)1., Florida Statutes (2013). This section provides, in part,

that Ñ[i]t is grand theft of the third degree and a felony of the third degree È

if the property stolen is È [v]alued at $300 or more, but less than $5,000.Ò On

May 28, 2014, Petitioner was found guilty of the offense as charged

(adjudication of guilty withheld), and ordered to serve 18 months of probation

which included restitution of $75.00 to the victim. According to Petitioner,

this offense occurred when he stole cellphones from a Metro PCS store.

B. Non - disqualifying Offenses

4 . O n August 20, 2018, Petitioner was cited for multiple traffic violations.

According to the arrest affidavit, the following events occurred:

A stop was initi ated on the DefendantÔs vehicle for

failure to stop at a steady red signal. Upon

initiating a stop utilizing emergency lights and

sirens, the defendant failed to stop for the

emergency vehicle. He continued 3 blocks to the

Choice gas station located at 340 1 5th Ave., S.

Upon making contact, Defendant was identified by

FL DL and confirmed via David as being suspended

on 8/13/2018 with notice provided on 8/9/2018 for

failure to pay a traffic penalty. David also

confirmed 4 prior DWLS/R convictions and

previou sly listed as a habitual traffic offender.

Petitioner was cited for felony Ñdriving while license suspended or revoked,

fleeing and eluding police officer, [and] possession of marijuana.Ò On

October 9, 2018, t he State Attorney administratively closed the Ñ marijuana

and fleeingÒ charges, and on October 11, 2018, reduced the felony Ñdriving

while license suspended or revokedÒ charge to a misdemeanor. On

November 14, 2018, the Court (Judge Dittmer) accepted PetitionerÔs guilty

plea, and adjudicated him guilty of the misdemeanor offense of Ñdriving while

license suspended or revoked.Ò See Resp. Ex . 2, p . 253 and 255 .

5 . While the charges referenced in the previous paragraph were pending,

Petitioner, on October 6, 2018, was stopped by the police, and again cited for

the felony offense of Ñdriving while license suspended or revoked.Ò Unlike

before, there was no reduction in this charge, and o n November 14, 2018,

Petitioner entered a plea to the charged offense, and was adjudicated guilty

(Judge Quesada) of the thi rd - degree felony of ÑDriving While License

Revoked (Felony - Habitual ) .Ò See Resp. Ex . 2, p . 260 - 265.

C . General Background Information

6 . Petitioner is enrolled as a student, and is working towards earning his

associate of arts degree. Petitioner has a spor adic work history, and during

the last few years has subsist ed primarily on student loans. Petitioner

testified that he regularly attends church. He is not involved in any

community activities, nor has he received any special recognition or awards

since hi s conviction for the disqualifying offense.

7 . From approximately October 2016 through June 2020, Petitioner

worked at several institutional facilities that offer services to vulnerable

adults. During this timeframe, Petitioner was investigated five times for

possible mistreatment of vulnerable individuals, with each investigation

dismissed as unsubstantiated. 1

C ONCLUSIONS OF L AW

8 . DOAH has jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569, 120.57, and 435.07, Fla. Stat. (202 0). 2

9 . PetitionerÔs April 2014 felony conviction, which resulted from his

violation of section 812.014(2)(c)1., is a disqualifying offense under section

435.04(2)(cc) , Florida Statutes .

1 0 . Section 435.07 provides, in part, as follows:

Unless otherwise pr ovided 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 appropriate 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 exe mption has

completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by the court for the disqualifying

felony;

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under similar

statutes of other jurisdictions for which the

applicant for the exemption has completed or been

1 Oddly, each of the five investigation reports, no matter the date, notes that P etitioner is 34

years of age.

2 All subsequent references to Florida Statutes will be to the 2020 codification, unless

otherwise indicated.

lawfully released from confinement, supervision, or

nonmonetary condition imposed by the court;

3. Offenses that were felonies when committed but

that are now misdemean ors and for which the

applicant for the exemption has completed or been

lawfully released from confinement, supervision, or

nonmonetary condition imposed by the court; or

4. Findings of delinquency. For offenses that would

be felonies if committed by an a dult and the record

has not been sealed or expunged, the exemption

may not be granted until 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

offense.

(b) A person applying for an exemption who was

ordered to pay any amount for any fee, fine, fund,

lien, civil judgment, application, costs of

prosecution, trust, or restitution as part of the

judgment an d 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

ÑfeloniesÒ means both felonies prohibited under any

of the statu tes 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 evidence or circumstances indicating that

the employee will not present a danger if

e mployment or continued employment is allowed.

(b) The agency may consider as part of its

deliberations of the employee's rehabilitation the

fact that the employee has, subsequent to the

conviction for the disqualifying offense for which

the exemption is b eing 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 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.

11. In considering RespondentÔs intended action of denying PetitionerÔs

exemption request, the undersigned must consider whether the age ncy head

abused his or her discretion when passing on PetitionerÔs request. The ÑÓabuse

of discretionÔ standard is highly deferential.Ò E.R. Squibb & Sons v. Farnes ,

697 So. 2d 825, 826 (Fla. 1997). An agency head abuses his or her discretion

within the me aning of section 435.07 when the Ñintended actionÒ under

review Ñis arbitrary, fanciful, or unreasonable, which is another way of saying

that discretion is abused only where no reasonable [person] would take the

view adopted by the [agency head]. If reason able [persons] could differ as to

the propriety of the [intended] action ... , then it cannot be said that the

[agency head] abused [his or her] discretion.Ò Canakaris v. Canakaris , 382 So.

2d 1197, 1203 (Fla. 1980).

12. The essence of ÑrehabilitationÒ wit hin the meaning of section

435.07(3)(a) is that an applicant thereunder would Ñnot present a danger if

employment or continued employment is allowed.Ò

13. During the seven year period since committing his disqualifying

offense, Petitioner, less than three years ago, secured a felony conviction for

habitually operating a motor vehicle while his license was suspended or

revoked, failed to hold steady employment, has not secured any special

recognition or awards of any type, and has done nothing in terms of in volving

himself in activities that uplift and otherwise improve his community. While

Petitioner is to be commended for attending church and working diligently

towards securing an associate of arts degree, these activities, without more,

are insufficient to demonstrate rehabilitation within the meaning of section

435.07.

14. Petitioner has failed to establish that the reasons offered by

Respondent in denying his request for exemption are arbitrary, fanciful, or

unreasonable. Accordingly, Petitioner has fail ed to meet his burden of

proving by clear and convincing evidence that RespondentÔs decision to deny

his exemption request was an abuse of discretion.

R ECOMMENDATION

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

R ECOMMENDED that Re spondent, Agency for Persons with Disabilities, enter

a final order denying PetitionerÔs request for exemption.

D ONE A ND E NTERED this 22nd day of April , 2021 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalache e Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of April , 2021 .

C OPIES F URNISHED :

Clifford Pennywell Radhika Puri, Esquire

Apartment B3 Agency for Persons with Disabilities

5295 59th Circle West 4030 Esplanade Way , Suite 3 09

Kenneth City, Florida 33709 Tallahassee, Florida 32399

Trevor S. Suter, Esquire Danielle Thompson

Agency for Persons With Disabilities Senior Attorney / Agency Clerk

4030 Esplanade Way , Suite 380 Agency for Persons with Disabilities

Tallahassee, Florida 32399 - 0950 4030 Esplanade Way, Suite 309

Tallahassee, Florida 32399 - 0950

Francis Carbone, General Counsel

Agency for Persons With Disabilities Barbara Palmer, Director

4030 Esplanade Way, Suite 380 Agency for Persons With Disabilities

Tallahas see, Florida 32399 - 0950 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

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 exceptions to this Recommended

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

case.