final until disposition of timely filed motion for rehearing.
Administrative Appeal from the Department of Children and
Families Lower Tribunal Nos. 16-517 & DCF-16-146-FO.
Gallardo Law Offices, P.A. and Jesus Novo, for appellant.
Jo Bondi, Attorney General, and Carrol Y. Cherry Eaton,
Senior Assistant Attorney General (Ft. Lauderdale), for
SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.
appeals from a final order of the Department of Children and
Families ["DCF"] denying her request for an
exemption from disqualification for employment as a child
care worker. We affirm.
2006, E.J. was convicted of an aggravated assault. She
successfully completed the terms of her probation, which
ended in 2011. She has no other offenses on her record. Since
then, she has obtained her A.A. degree in early childhood
education and sought to apply for childcare positions. She
was disqualified because of her criminal record, and in 2015
applied to DCF for an exemption from disqualification. The
DCF denied her application, and E.J. timely requested a
formal administrative hearing. The matter was referred to the
Division of Administrative Hearings ["DOAH"] and an
administrative law judge ["ALJ"] held a hearing on
March 31, 2016. In April 2016 the ALJ issued a Recommended
Order concluding that E.J. had met her burden of proving
rehabilitation by clear and convincing evidence, pursuant to
section 435.07(4), Florida Statutes. The DCF filed exceptions
to the Recommended Order.
E.J.'s appeal was pending before DOAH, section 435.07(4)
was amended by section 1 of Chapter 2016-98, Laws of Florida.
That amendment prohibited DCF from granting exemptions for
current or prospective child care workers who were charged
with or convicted of enumerated offenses, of which aggravated
battery is one. The amendments became effective July 1,
2016. On July 28, 2016, DOAH issued its Final Order accepting
DCF's exceptions and denying E.J.'s application for
exemption from disqualification.
current statutory circumstances, we must affirm the Order
below because the law changed during the pendency of
E.J.'s application for exemption. Florida follows the
general rule that "a change in a licensure statute that
occurs during the pendency of an application for licensure is
operative as to the application, so that the law as changed,
rather than as it existed at the time the application was
filed, determines whether the license should be
granted." Lavernia v. Dep't of Prof'l
Regulation, Bd. of Med., 616 So.2d 53, 53-54 (Fla. 1st
DCA 1993); see also Agency for Health Care Admin. v.
Mount Sinai Med. Ctr. of Greater Miami, 690 So.2d 689,
691 (Fla. 1st DCA 1997) (holding Lavernia extended
to administrative rules, as "[t]he agency must apply the
law in effect at the time it makes its final
decision."). Because E.J.'s application and appeal
were pending when the statutory changes went into effect on
July 1, 2016, and the Final order was rendered July 28, 2016
after the statutory amendments' effective date, we
conclude DCF was statutorily barred from granting E.J. an
addition, Florida courts have also upheld disqualification
from employment based upon convictions occurring before the
effective date of chapter 435, Fla. Stat. See Sledge v.
Dep't of Children & Families, 861 So.2d 1189
(Fla. 5th DCA 2003). See also Heburn v. Dep't of
Children & Families, 772 So.2d 561, 563 (Fla. 1st
DCA 2000) (holding that an exemption from a statute enacted
to protect the public welfare is strictly construed against
the person claiming the exemption, and the Department is not
required to grant a petitioner any benefits under the
exemption); Phillips v. Dep't of Juvenile
Justice, 736 So.2d 118, 119 (Fla. 4th DCA 1999)
("[E]ven if Phillips' presentation constituted
clear, convincing, and unrefuted evidence that he qualified
for an exemption, the agency was not under any obligation to
give him one.").
no abuse of discretion is shown in the record. See Thomas
v. Dep't of Juvenile Justice, 730 So.2d 809 (Fla. 3d
DCA 1999) ("This court may not substitute its judgment
for that of the agency on an issue of discretion."). The
Final Order on appeal is affirmed.