final until disposition of timely filed motion for rehearing.
from the State of Florida, Department of Children and
Families; L.T. Case No. 16-4682.
Alejandro Larrazabal and Juan Carlos Arias of Velasquez Dolan
Arias, P.A., Plantation, for appellant.
M. Haskins, Fort Lauderdale, for appellee.
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). Appellant raises three arguments on appeal. We will
address two, agreeing with Appellant that (1) the Secretary
abused his discretion by adopting and then apparently
disregarding the Administrative Law Judge's (ALJ) factual
findings to conclude that an exemption should be denied, and
(2) the Secretary failed to provide an adequate rationale for
rejecting the ALJ's legal conclusion that it was an abuse
of discretion to deny an exemption. This matter is
accordingly remanded to the Secretary to address these
time of the request for exemption, Appellant was a
sixty-four-year-old, licensed mental health counselor in
Florida who had been practicing since 1991. In 1998,
Appellant was in a public park when he approached an
undercover police officer and asked, "[w]ould you like
to go walk?" The officer acquiesced and followed
Appellant into nearby bushes.
Appellant subsequently exposed himself to the officer and was
arrested. He pled no contest to the misdemeanor of exposure
of sexual organs, which is a disqualifying offense from being
able to work with children and vulnerable adults under
Florida's Level 2 employment screening standards. §
800.03, Fla. Stat. (2016); § 435.04(2)(x), Fla. Stat.
background screening was triggered because Appellant wanted
to open an intensive outpatient substance abuse program. He
requested an exemption from his disqualification from DCF,
explaining that he would like to "continue" to
counsel children and vulnerable adults. DCF denied
Appellant's request, and he sought review through an
administrative hearing pursuant to section 435.07(3)(c).
heard testimony from several witnesses on behalf of Appellant
and one witness from DCF. The ALJ made many factual findings
in his recommended decision, including the following
"findings" in paragraph 24:
Based on the clear and convincing evidence presented at
hearing, the undersigned finds that [Appellant] is
rehabilitated from his single disqualifying offense in 1998
and that he presents no danger if employed in a position of
special trust caring for children or vulnerable adults.
found that Appellant was rehabilitated and not a present
danger, the ALJ made a legal conclusion that DCF had abused
its discretion by denying the exemption. The ALJ recommended
that DCF grant the exemption.
Secretary of the DCF adopted all of the ALJ's findings of
fact in his final order, including the paragraph quoted
above. He rejected the ALJ's legal conclusion, however,
that it would be an abuse of discretion to deny the
exemption. The Secretary reasoned that DCF's own
antithetical legal conclusion was "as or more ...