DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
J.J.,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
No. 2D22-3612
December 27, 2023
Appeal from the Department of Children and Families.
Nicholas V. Castellano, II, of Buckman & Buckman, P.A., Sarasota, for
Appellant.
Deanne C. Fields, Assistant General Counsel, Tampa, for Appellee.
KHOUZAM, Judge.
This is J.J.'s appeal of a final agency order entered by the
Department of Children and Families (DCF) denying his request for an
exemption from disqualification from employment in positions having
direct contact with children or vulnerable adults. We affirm in all
respects but write to explain our reasoning.
DCF was created to work with local communities to promote strong
families and protect individuals. See § 20.19(1)(a), Fla. Stat. (2023). Its
express primary mission and purpose is "to protect the vulnerable." Id.
To that end, DCF has a role in preventing employees with certain
disqualifying offenses from having contact with any vulnerable people.
See § 435.06, Fla. Stat. (2023). As soon as an employer becomes aware
that an employee has been even arrested for a disqualifying offense, the
employer must remove that employee from contact with vulnerable
people "until the arrest is resolved in a way that the 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. Dep't of Child. &
Fams., 772 So. 2d 561, 563 (Fla. 1st DCA 2000). Moreover, "[a]n
exemption from a statute, enacted to protect the public welfare, is strictly
construed against the person claiming the exemption, and the
Department [i]s not required to grant [the employee] any benefits under
the exemption." Id. (citing State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d
DCA 1976)).
Under the statutory framework, it is the employee who has the
burden to establish rehabilitation by clear and convincing evidence:
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
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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). The legislature has further specified that DCF also "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 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. v. Dep't of Child. &
Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013). Consequently, "[t]he
agency head still has the discretion to deny the exemption
notwithstanding the showing of rehabilitation, but he or she must
articulate the rationale for doing so in order to facilitate judicial review."
Id. (first citing Heburn, 772 So. 2d at 563-64; then citing Phillips v. Dep't
of Juv. Just., 736 So. 2d 118, 119 (Fla. 4th DCA 1999)).
Against this legal backdrop, we turn to the facts of this case. Since
1989, J.J. has been employed with Sarasota County in the Parks and
Recreation Department, where he has worked with children during the
County's summer camp program and coached various children's sports
teams. He has also run programs for elderly adults, such as pickleball.
In 1998, J.J. pleaded guilty to grand theft, an offense that
indisputably disqualifies him from any position in any program providing
care to children, the disabled, or vulnerable adults. See § 435.04(2)(cc),
Fla. Stat. (2023); see also § 435.04(2)(r), Fla. Stat. (1997). The charge
arose out of a "money scheme" he participated in where he collected
Florida Department of Law Enforcement funds designated for deceased
individuals with the same name as him. Ultimately, adjudication was
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withheld, and J.J. was placed on probation for a period of ten years and
ordered to pay restitution.
In 2005, J.J. was arrested for two counts of sexual battery upon a
person twelve or older but less than eighteen by a person in
familial/custodial authority—another disqualifying offense. See §
435.04(2)(s), Fla. Stat. (2023); see also § 435.04(2)(s), Fla. Stat. (2004).
J.J. was working as a campus security guard for Sarasota County
Schools, and a female student accused him of sexual battery. A
probation violation report was filed alleging a violation of the condition
prohibiting new law violations, and a hearing was held where J.J. was
found to have violated his probation. His probation was extended an
additional five years based on this violation, and he was forced to resign
from his position as campus security guard. However, the State declined
to prosecute the sexual battery charges.
The record is unclear why J.J. was permitted to continue working
in his position with the County Parks and Recreation Department
without any exemptions from statutory disqualification and why he did
not apply for an exemption until 2021. DCF initially denied his request
for exemption based on his serious prior offenses and failure to
demonstrate rehabilitation. As later explained by the chief of the
agency's background screening program, one of the reasons for the
denial was DCF's determination that J.J. had tried to hide his sexual
battery arrest from the agency.
J.J. challenged the denial, and an evidentiary hearing was held
before an administrative law judge (ALJ). Following the hearing, the ALJ
recommended that J.J.'s request for exemption be granted on the basis
that he was rehabilitated and could be trusted around children and
vulnerable adults. The ALJ concluded that "the determination that
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Petitioner would be a harm to children or vulnerable adults because of
[his arrest for sexual battery on a minor] is not supported by the
evidence in the record. Specifically, there was no credible evidence as to
what allegations supported the charge and arrest, or that the allegations
were true." The ALJ also found that "there is no competent evidence
Petitioner tried to hide the sexual battery arrest."
Following review of the ALJ's recommendation, DCF entered a final
agency order rejecting the recommendation and denying J.J.'s request for
exemption. DCF concluded that "[a]lthough Petitioner demonstrated
rehabilitation, Petitioner's subsequent arrest for sexual battery on a
minor and his dishonest description of why and how he violated
probation in an affidavit he submitted to the Department render the
Department's denial of Petitioner's exemption request a reasonable
exercise of its discretion." J.J.'s appeal of the final agency order is now
before us.
The crux of J.J.'s argument on appeal is that DCF improperly
rejected the ALJ's findings of fact, specifically those regarding the sexual
battery allegations and his candor regarding the related arrest. It is true
that "neither an administrative agency nor a reviewing court may reject
an administrative hearing officer's findings of fact, as long as those
findings are supported by competent, substantial evidence in the record."
Maynard v. Fla. Unemployment Appeals Comm'n, 609 So. 2d 143, 145
(Fla. 4th DCA 1992). But conversely, the agency may reject or modify an
ALJ's findings of fact if "the agency first determines from a review of the
entire record, and states with particularity in the order, that the findings
of fact were not based upon competent substantial evidence or that the
proceedings on which the findings were based did not comply with
essential requirements of law." § 120.57(1)(l), Fla. Stat. (2022). Indeed,
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the agency can even reject an ALJ's determination regarding an
applicant's truthfulness if that determination is not supported. See Fox
v. Dep't of Child. & Fams., 262 So. 3d 782, 785 (Fla. 4th DCA 2018) ("The
Department properly exercised its authority in rejecting the ALJ's
conclusion that appellant did not lie on his exemption application, as
this conclusion was not supported by the ALJ's findings of fact or
competent substantial evidence." (first citing § 120.57(1)(l); then citing
Yerks v. Sch. Bd. of Broward Cnty., 219 So. 3d 844, 848 (Fla. 4th DCA
2017))).
We review the agency's final action denying an exemption under a
deferential abuse of discretion standard of review. A.P. v. Dep't of Child.
& Fams., 230 So. 3d 3, 6 (Fla. 4th DCA 2017). "Discretion . . . is abused
when the . . . action is arbitrary, fanciful, or unreasonable . . . ." Id.
(alterations in original) (quoting Canakaris v. Canakaris, 382 So. 2d
1197, 1203 (Fla. 1980)). We must determine if DCF's decision was
unreasonable or outside the range of discretion delegated to it. See
Heburn, 772 So. 2d at 563 (citing § 120.68(7)(e)1, Fla. Stat. (1997)).
Here, we cannot say that DCF abused its wide discretion or acted
unreasonably in rejecting the ALJ's factual findings regarding proof of
J.J.'s probation violation for the new law violation of sexual battery on a
minor and his candor about this issue.
With respect to the arrest for sexual battery, the ALJ found there
was no nonhearsay evidence of the sexual battery allegations against J.J.
to support DCF's fear that J.J. could be a harm to children. According to
the ALJ, DCF's fear was solely based on a violation of probation report,
the contents of which were double or triple hearsay. Although the ALJ
found that J.J. had entered an admission to violating his probation, she
concluded there was no clear evidence of why he was alleged to have
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violated his probation in the first place. He was never prosecuted for
sexual battery, and there was no credible evidence that the allegations
against him were true.
DCF reasonably rejected these findings. First, even disregarding
the hearsay statements within the violation report, the report itself still
establishes that J.J. was arrested based on two new alleged law
violations of sexual battery on a minor which resulted in an allegation
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 . . . another crime, even if that crime is not a disqualifying
offense.").
Further, the ALJ's findings about the sexual batteries ignored two
nunc pro tunc court orders admitted into evidence as well as J.J.'s own
testimony at the hearing. The order modifying J.J.'s probation reflects
that his probation had been extended by five years to fifteen years, and
he was ordered to have no contact with the victim, no unlawful or
inappropriate contact with any minor, or any one-on-one training with
any female minor (with one named exception). The order on violation of
probation further states expressly that J.J. did not admit to the violation
but rather was found in violation following a hearing. He was ordered to
complete a psychological evaluation for sexual offender conduct and
complete any treatment found necessary.
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At the hearing before the ALJ, J.J. was confronted with these
exhibits and he admitted that he was found in violation of his probation
based on his arrest for sexual battery and that an evidentiary hearing
was held, where he was represented by an attorney and the victim
testified. He denied the allegations of sexual battery detailed in the
violation report. But he admitted that his probationary term was
extended to fifteen years and that there were several modifications
directing him not to have contact with minors. He admitted that he was
ordered to complete a psychological evaluation for sexual offender
treatment but explained that the evaluation indicated that such
treatment was not needed. He admitted that he was forced to resign
from his employment with Sarasota County Schools as campus security.
Considering the "entire record," which includes these orders and
testimony along with the violation report, there was indeed sufficient
nonhearsay evidence to support DCF's rejection of the ALJ's findings and
recommendation regarding the sexual battery allegations. See §
120.57(1)(l); see also 120.57(1)(c) ("Hearsay evidence may be used for the
purpose of supplementing or explaining other evidence, but it shall not
be sufficient in itself to support a finding unless it would be admissible
over objection in civil actions."). Apart from the arrest itself, J.J.'s
probation was extended in duration by fifty percent and modified to
include new sex-offense-related requirements based on the allegations
following an evidentiary hearing. The order imposing these new
conditions expressly refers to the affidavit of violation alleging new law
violations in the form of sexual batteries on a minor and states that the
court "found [J.J.] in violation of his probation," which requires proof of
guilt by a preponderance of the evidence. See Bowser v. State, 937 So.
2d 1270, 1271 (Fla. 2d DCA 2006) ("The proper standard for finding a
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law violation is whether a preponderance of the evidence establishes that
the probationer committed the charged offense."). Because there was
nonhearsay evidence in the record to support DCF's fear that J.J. could
be a harm to children based on the sexual battery arrest and the
resulting probation violation, it was reasonable and not an abuse of
discretion for DCF to reject the ALJ's finding to the contrary.
As to J.J.'s candor, the ALJ found that there was no evidence that
J.J. tried to hide his arrest for sexual battery because he had referenced
court documents related to the violation of probation in his exemption
application and had convincingly testified at the hearing that the
allegations against him were false. The ALJ pointed out that there was
no indication that DCF had requested more information regarding the
sexual battery allegations from J.J. and that he had refused to provide
such information.
DCF also reasonably rejected these findings. J.J. represented in
his affidavit supporting his exemption application that the violation of
probation was the result of his failure to pay restitution—which the
record reveals is not true. Neither his affidavit nor his statement in
support of his application mention anything about the allegations of
sexual battery on a minor, the arrest, or the modification of his probation
based on these allegations. Although he did provide DCF with
documents revealing some of the information, they were buried within
the voluminous attachments in support of his application with nothing in
his application or statements disclosing or directing DCF's attention to
this obviously serious and statutorily relevant matter.
Clearly contradicting his representation in the affidavit, J.J.
testified at the hearing before the ALJ that the violation of probation was
not based on failure to pay restitution; instead, when confronted with the
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sexual battery allegations, J.J. admitted they were the cause. The chief
of DCF's background screening program also testified that, although J.J.
had provided the arrest report with his application, what caused her
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). Because there was record evidence suggesting that J.J.
had not been fully candid about his sexual battery arrest in seeking an
exemption from the statutory disqualification, it was reasonable and not
an abuse of discretion for DCF to reject the ALJ's finding to the contrary.
All of that said, we have some concerns about gaps in the record
before us. The evidence below leaves several questions unanswered,
including the following: Why was J.J. permitted to work for the County
for so long despite his disqualifying conviction and subsequent arrest?
Why did J.J. wait until 2021 to file for an exemption? Why did the State
decline to prosecute the new law offenses for which J.J. was found in
violation of his probation, especially when they are as serious as sexual
battery on a minor and an evidentiary hearing was apparently held where
the victim testified? Why were the orders finding J.J. in violation of his
probation and modifying his probation entered nunc pro tunc several
years after the fact? Although none of these questions affect the outcome
of this particular case for the reasons explained above, we caution DCF
to consider the impact of such unanswered questions on future cases
involving denial of recommended exemptions.
Ultimately, given the unique circumstances of this case as well as
DCF's mission of protecting children and vulnerable persons and the
agency's wide discretion to uphold that purpose by preventing potentially
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harmful employees from working with them, it was reasonable and not
an abuse of discretion for DCF to decline J.J.'s request for an exemption.
Although eligible for an exemption, J.J. was never entitled to one. See
J.D., 114 So. 3d at 1131. Accordingly, we affirm DCF's final agency order
denying J.J.'s request for an exemption.
Affirmed.
CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.
__________________________
Opinion subject to revision prior to official publication.
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