Florida/Georgia Personal Injury & Workers Compensation

...John R. Perry, Assistant District Legal Counsel, Department of Children and Families, for Appellee. VAN NORTWICK, J. Scott Heburn appeals a final order of the Department of Children and Families determining that he is not entitled to an exemption under section 435.07(3), Florida Statutes (1997)....

...Because of his commission of the two offenses of possession of marijuana on school property with intent to sell in 1986 and armed robbery in 1991, he was disqualified from such a "position of trust" pursuant to section 435.04, Florida Statutes (1997). Heburn sought an exemption under section 435.07(3), which provides, as follows: (3) In order for a licensing department 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....

...ce of rehabilitation has been demonstrated to justify an exemption. Accordingly, it is ORDERED that petitioner's application for an exemption from disqualification from employment in a position of trust or responsibility in mental health pursuant to section 435.07, Florida Statutes, is denied....

...Accordingly, the Department contends that its conclusion that the length of time since Heburn's last incarceration is not a sufficiently long period of time to grant an exemption, given the severity of the offenses, is a conclusion within its statutory discretion. We agree. In section 435.07, the legislature has not provided for an exemption as a matter of right, but has delegated to the Department the broad discretion to grant an exemption. Subsection (1) of section 435.07 provides that "[t]he appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification ...." (emphasis added)....

...Dep't of Business Regulation, 463 So.2d 1130 (Fla.1985) (agency exercises broad discretionary authority on the question of whether to transfer liquor license when entitlement is a privilege rather than a right). The Department's exercise of discretion is sufficiently circumscribed by the standards set forth in section 435.07(3)....

...ring a weapon into an occupied dwelling (9/23/93-adjudication withheld), and a charge of domestic battery (9/23/93-adjudication withheld). §§ 39.001(2), 435.04, Fla. Stat. (1997). Appellant requested an exemption from disqualification, pursuant to section 435.07, Florida Statutes (1997), which he supported with written explanation of the incidents, letters of recommendation from a variety of organizations and individuals, proof of training he had received, and a psychological evaluation....

...The report also states that the appellant has a long-standing history of working with children and is well respected by his peers and colleagues. The evaluation further states that there has been no other violent behavior. The Department presented no evidence. The agency denied the exemption. Section 435.07(1), Florida Statutes (1997), gives discretion to the agency to give individuals an exemption for the enumerated acts....

...ed 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 continued employment is allowed. § 435.07(3), Fla. Stat. (2002). See § 402.305(2)(b), Fla. Stat. (2002) ("The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.")....

WETHERELL, J. J.D. appeals a final order of the Department of Children and Families (DCF) denying her request for an exemption from disqualification under section 435.07, Florida Statutes (2011)....

...that she was not eligible to work in a position having direct contact with children or vulnerable adults served by programs administered by DCF because of two disqualifying offenses: a 1988 conviction for purchase of cocaine and a 1989 conviction for child abuse. J.D. requested an exemption from disqualification under section 435.07....

...ug offenses and child abuse. See § 435.04(2)(hh), (rr), Fla. Stat. An individual who has a disqualifying offense may request an exemption from disqualification from the head of the appropriate agency, which in this case is the Secretary of DCF. See § 435.07(1), Fla. Stat. The agency head is authorized to grant an exemption for certain disqualifying offenses, including felonies such as those committed by J.D. for which the sentence expired more than three years prior to the request for an exemption. See § 435.07(l)(a), Fla. Stat. To be eligible for an exemption, the applicant has the burden to demonstrate that he or she should not be disqualified from employment by “setting forth clear and convincing evidence of rehabilitation.” § 435.07(3)(a), Fla....

...Additionally, the agency head may consider whether the applicant has been arrested for or convicted of another crime subsequent to the conviction for the disqualifying offense for which the exemption is being sought, even if the new crime is not a disqualifying offense. § 435.07(3)(b), Fla. Stat. The ultimate issue of fact to be determined in a proceeding under section 435.07 is whether the applicant has demonstrated rehabilitation by clear and convincing evidence....

...4th DCA 1999) (“[Ejven if Phillips’ presentation constituted clear, convincing, and un-refuted evidence that he qualified for an exemption, the agency was not under any obligation to give him one.”). The agency head’s preliminary decision may be “contested” pursuant to section 435.07(3)(c)....

...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. The parties disagree as to the proper scope and focus of the proceeding contemplated by section 435.07(3)(c)....

...ended action on the exemption request and not to determine whether the applicant is rehabilitated or to recommend whether the exemption should be granted or denied. We do not think either of these positions is entirely correct. The first sentence of section 435.07(3)(c) suggests that the Legislature intended a “typical” chapter 120 proceeding in which the purpose is to “formulate final agency action, not to review action taken earlier and preliminarily.” McDonald v....

...We are required to construe statutes in a way that gives meaning and effect to all of their provisions. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 838 (Fla.2011). Doing so here leads to the conclusion that although 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 “abuse of discretion,” the ALJ is to evaluate that question based on the facts determined from the evidence presented at a de novo chapter 120 hearing....

...the bid de novo.”). Thus, while we agree with DCF that the ALJ is to evaluate the reasonableness of the agency’s intended action on an exemption request and not to determine anew whether the exemption should be granted or denied, we do not read section 435.07(3)(c) to preclude the ALJ from determining whether the applicant demonstrated rehabilitation....

...was arrested for aggravated assault with a weapon in November 1999, driving under the influence (DUI) in June 2000, possession of cocaine and drug equipment in September 2000, and petty larceny in May 2001. She pled guilty to the DUI charge and a fine was imposed; the other charges were "nolle pressed. ” . Section 435.07 was amended in 2010 as part of a comprehensive bill on background screening....

...Haskins, Fort Lauderdale, for appellee. FORST, J. The Secretary of the Department of Children and Family Services (DCF) entered a final order denying Appellant A.P. an exemption from a criminal disqualification from work in a position of trust under section 435.07, Florida Statutes (2016)....

...He requested an exemption from his disqualification from DCF, explaining that he would like to “continue” to counsel children and vulnerable adults. 1 DCF denied Appellant’s request, and he sought review through an administrative hearing pursuant to section 435.07(3)(c). The ALJ heard testimony from several witnesses on behalf of Appellant and one witness from DCF....

...e appropriateness of a decision to deny Petitioner’s request for an exemption. Denial of Petitioner’s request for an exemption would therefore not be an abuse of discretion. It is important to note that an exemption under section 435.07, Florida Statutes, is not limited in nature, except in the realm of child care....

...findings of facts presented by the ALJ unless they are not supported by competent, substantial evidence). In demonstrating eligibility for an exemption, it is the applicant who has the burden of “setting forth clear and convincing evidence of rehabilitation.” § 435.07(3)(a), Fla....

...e individuals from working with children and vulnerable adults, this holding is at odds with the legislature’s decision to not include indecent exposure and similar offenses in the list of offenses for which an exemption is forever prohibited. See § 435.07(4)(a)-(c), Fla....

...“to volunteer at a shelter home for mothers with young children.” Id. at 1130. By contrast, the “victim” in Appellant’s underlying offense was neither a child nor a vulnerable adult, and the 1998 incident is the only conviction or arrest in 4 Appellant’s record. Section 435.07(3)(a) authorizes the agency head, in articulating his or her decision to reject the ALJ’s recommendation, to consider the circumstances surrounding the criminal incident for which an exemption is sought, the time period...

...caused to the victim, and the history of the [applicant] since the incident, or any other evidence or circumstances indicating that the [applicant] will not present a danger if employment or continued employment is allowed. § 435.07(3)(a), Fla....

...pellant. William Byrne Isaacs, Port Charlotte, for Appellee. PER CURIAM. K.J.S. appeals a final order issued by the appellee, Department of Children and Family Services ("Department"), denying his request for an exemption from disqualification under section 435.07(3), Florida Statutes (2005)....

...After serving 13.5 years in prison for these crimes, K.J.S. was released from prison in 1997. Given his particular felony convictions, K.J.S. is automatically disqualified from residing in a home that serves as a family day-care operation. [1] Under section 435.07(1) & (3), Florida Statutes *1108 (2005), however, the appropriate licensing agency may grant an exemption from disqualification for "[f]elonies committed more than three years prior to the date of disqualification" if clear and convinc...

..." by the testimony that at the exemption review hearing, he had denied or downplayed his role in these past crimes. In denying the exemption, the Department did not have access to a transcript of the hearing and, thus, reviewed an incomplete record. Section 435.07, Florida Statutes (2005), provides that "[t]he appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification." (emphasis added)....

...dent, the nature of the harm caused to the victim, and the history of the employee [felon] since the incident, or any other evidence or circumstances indicating that the employee [felon] will not present a danger if continued employment is allowed." § 435.07(3), Fla....

clear and convincing evidence, pursuant to. section 435.07(4), Florida Statutes, The DCF filed exceptions

...We have one issue before us: whether the Department of Children and Family Services (Department) erred in rejecting the Administrative Law Judge's (ALJ) recommendation to grant appellant's request for an exemption from disqualification pursuant to section 435.07(3), Florida Statutes (2005)....

...Unemployment Appeals Comm'n, 864 So.2d 498, 502 (Fla. 4th DCA 2004). In K.J.S. v. Department of Children & Family Services, 974 So.2d 1106 (Fla. 1st DCA 2007), this court considered appellant's challenge to the Department's Final Order denying his request for an exemption pursuant to section 435.07(3), Florida Statutes (2005), based on the assertion that the Final Order impermissibly rejected the ALJ's recommendation to grant the exemption. In discussing the discretion allowed the Department in rejecting the ALJ's Recommended Order, this court noted: Section 435.07, Florida Statutes (2005), provides that "[t]he appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification." (emphasis added)....

...on school property with intent to sell and armed robbery. Id. at 562. However, because of his convictions, Heburn was disqualified pursuant to section 435.04, Florida Statutes (1997). Id. Heburn sought an exemption from disqualification pursuant to section 435.07, Florida Statutes (1997)....

...NOTES [1] The Department further asserts Phillips v. Department of Juvenile Justice, 736 So.2d 118 (Fla. 4th DCA 1999), is in direct conflict with the underlying opinion. While Phillips requires that broad discretion be granted to an agency on the matter of exemptions pursuant to section 435.07, the decision does not address to what extent the agency must accept an ALJ's recommendation or how that "broad discretion" changes based on existing case law regarding the acceptance of an ALJ's findings of fact....

...She was disqualified because she entered a plea of no contest to a misdemeanor theft charge arising from an incident at Costco. This charge disqualified her from working as a Medicaid provider, unless she received an exemption from disqualification from the Secretary of the Agency pursuant to section 435.07, Florida Statutes (2019).  Garcia applied for an exemption from disqualification, but the Agency denied her request....

...(2019); see also Phillips v. Dep’t of Juv. Just., 736 So. 2d 118, 119 (Fla. 4th DCA 1999) (“This court may not substitute its judgment for that of the agency on an issue of discretion.”). In this proceeding for an exemption brought under section 435.07, the “ultimate issue of fact to be determined” is “whether the applicant has demonstrated rehabilitation by clear and convincing evidence.” J.D., 114 So....

...5 , Florida Statutes, or other authority allow for exemptions, exceptions, or waivers of the requirement that such employees meet level 2 screening requirements? 3) If so, do local school districts constitute licensing departments as contemplated in section 435.07 , Florida Statutes, such that they would be authorized to grant exemptions from disqualification under that statute? Questions One and Two As your first and second questions are related, they will be answered together....

...control of school funds must meet level 2 screening requirements as described in section 435.04 , Florida Statutes. Question Three As discussed in the previous question, section 435.04 , Florida Statutes, sets forth the level 2 screening standards. Section 435.07 , Florida Statutes, provides: "Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification....

...f the legislative history surrounding the enactment of the statute indicate any evidence of legislative intent. You state that you do not believe that the school district constitutes a "licensing agency" such that it may grant exemptions pursuant to section 435.07 , Florida Statutes....

...Such an interpretation would appear to be inconsistent with the intent underlying such statutes as section 1012.465 , Florida Statutes. Accordingly, I am of the opinion that local school districts do not constitute licensing departments as contemplated in section 435.07 , Florida Statutes, such that they would be authorized to grant exemptions from disqualification under that statute....

for employment with a licensing agency under section 435.07(1), Florida Statutes. Section 435.04, Florida

...had entered a plea of nolo contendere to two counts of aggravated assault with a firearm. In 2022, DCF notified O.M. in writing that he was disqualified from employment based on his plea of nolo contendere in light of the amended 1 See Fla. R. App. P. 9.110(a)(2); § 120.68(1)(a), Fla. Stat. 2 See § 435.07(4)(c)(1)(d), Fla....

...any offense prohibited under any of the following provisions of state law or a similar law of another jurisdiction: A felony offense prohibited under any of the following statutes . . . Section 784.021, relating to aggravated assault. § 435.07(4)(c)(1)(d), Fla....

...We find this argument misplaced. Unlike the statute involved in Ayala, the amended employment screening statute mandates permanent disqualification upon entering a nolo contendere plea, leaving no room to contest “guilt” or maintain “innocence.” See § 435.07(4)(c)(1)(d), Fla....

...be followed by five years’ probation. As part of his sentence he was ordered to pay certain costs and fees.”); § 27.52(1)(b)1., Fla. Stat. (2019) (authorizing the court to “[a]ssess the application fee [for the appointment of a public defender] as part of the sentence”); § 435.07(1)(b), Fla....

...Sledge was disqualified from employment as a home health aide due to a 1992 conviction for importing cocaine. He filed this pro se appeal of a Department of Children and Family Services (DCFS) final order denying his request for an exemption under section 435.07, Florida Statutes....

...The only basis for contesting the disqualification shall be proof of mistaken identity. (Emphasis added). Section 435.06(2) requires the employer to either fire the disqualified employee or move him into a position for which background screening is not required. Section 435.07 provides for exemptions from disqualification....

...ALJ’s interpretation of Chapter 435. First, if the ALJ’s conclusion that DCFS had no jurisdiction to act under Chapter 435 was correct, then the ALJ would not have jurisdiction either because his jurisdiction is also granted by Chapter 435. See § 435.07(3), Fla....

...It should also be noted that the ALJ made these errors sua sponte. Sledge never raised the issues of burden of proof or jurisdiction. In fact, he did not even contest his disqualification. He merely applied for an exemption, which is discretionary under section 435.07(1)....

PER CURIAM. K.J.S. appeals a final- order issued by the appellee, Department of Children and Family Services (“Department”), denying his request for an exemption from disqualification under section 435.07(3), Florida Statutes (2005)....

...After serving 13.5 years in prison for these crimes, K.J.S. was released from prison in 1997. Given his particular felony convictions, K.J.S. is automatically disqualified from residing in a home that serves as a family day-care operation. 1 Under section 435.07(1) & (3), Florida Statutes *1108 (2005), however, the appropriate licensing agency may grant an exemption from disqualification for “[fjelonies committed more than three years prior to the date of disqualification” if clear and...

...� by the testimony that at the exemption review hearing, he had denied or downplayed his role in these past crimes. In denying the exemption, the Department did not have access to a transcript of the hearing and, thus, reviewed an incomplete record. Section 435.07, Florida Statutes (2005), provides that “[t]he appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification.” (emphasis added)....

...nt, the nature of the harm caused to the victim, and the history of the employee [felon] since the incident, or any other evidence or circumstances indicating that the employee [felon] will not present a danger if continued employment is allowed.” § 435.07(3), Fla....

...e employer determines that the employee is still eligible for employment." § 435.06(2)(b). The employer must terminate or reassign any personnel found to be noncompliant "unless the employee is granted an exemption from disqualification pursuant to s. 435.07." § 435.06(2)(c). "In section 435.07, the legislature has not provided for an exemption as a matter of right, but has delegated to the Department the broad discretion to grant an exemption." Heburn v....

...he history of the 2  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. § 435.07(3)(a)....

...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 offense." § 435.07(3)(b) (emphasis added). Crucially, "even if rehabilitation is shown, the applicant is only eligible for an exemption, not entitled to one." J.D....

...that he violated his probation by failing to refrain from breaking the law. Whether or not J.J. actually committed or was found guilty of those disqualifying crimes, DCF was expressly authorized to rely upon the mere fact that he was arrested for them. See § 435.07(3)(b) ("[DCF] 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 being sought, been arrested for ....

...concern was J.J.'s failure to address the accusation and arrest in his statement submitted with his application. We are not aware of any requirement that DCF request additional information, and as discussed above it was J.J. who had the burden to prove rehabilitation. See § 435.07(3)(a)....

...3 as a condition of employment and continued employment. § 435.04, Fla. Stat. The legislature has identified offenses that disqualify a person from working as a childcare personnel unless that person is granted an exemption by the Department. § 435.07(4), Fla....

...Among the disqualifying offenses is pleading to any charge relating to prostitution. § 435.04(2)(v), Fla. Stat. The head of an “agency may grant to any employee otherwise disqualified from employment an exemption from disqualification . . . .” § 435.07(1)(a), Fla....

...e 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. § 435.07(3)(a), Fla....

...hat DCF abused its discretion in denying [petitioner’s] request for an exemption from disqualification.” Id. Like in Heburn and J.D., the Department’s decision in denying appellant’s exemption request was within its statutory discretion. Section 435.07(1)(a) clearly states that the Department “may” grant an exemption. Even the ALJ’s own order conceded that the Department had the right to refuse the request for an exemption....

...The ALJ made very specific findings and concluded that the petitioner had met the burden of proving that he had rehabilitated himself from the qualifying offense. In my view, the Department of Children and Families (“DCF”) substituted its own findings for that of the ALJ to reach a contrary conclusion. Section 435.07, Florida Statutes (2016) provides: (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....

...incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The applicant has the burden of “setting forth clear and convincing evidence of rehabilitation.” § 435.07(3)(a), Fla....

...t of Children and Families. Kimberly McCaffrey-Noel, Deland, pro se. Jennifer L. Ware, Assistant General Counsel, of Department of Children and Families, for Appellee. August 15, 2023 PER CURIAM. AFFIRMED. See § 435.07(4)(c)1.p., Fla....

...In 2012, AHCA conducted another background check, this time finding that McClain’s 1988 conviction disqualified her from working at a licensed heath care provider. AHCA notified McClain and informed her that she could file an application for an exemption pursuant to section 435.07(1)(a), Florida Statutes....

...AHCA filed a motion to 1 In 2012, agencies were permitted to grant exemptions for felonies if at least three years had elapsed since the applicant “ha[d] completed or been lawfully released from confinement, supervision, or sanction for the disqualifying felony.” § 435.07(1)(a), Fla....

...character.” The DCF agreed and granted her an exemption. The day care owner ran her program for fifteen years without incident, at least from the record before us. Nevertheless, the DCF denied her the same exemption based on an amendment to section 435.07, Florida Statutes, which excludes aggravated battery as an offense for which an exemption can be granted....