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A.P. v. Department of Children and Families

Florida Court of Appeals, Fourth District

November 1, 2017

A.P., Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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.

          Edmund M. 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). 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 deficiencies.

         Background

         At the 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. (2016).

         Recently, 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.[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. 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.

         Having 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.

         The 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 ...


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