       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                                  A.P.,
                                Appellant,

                                    v.

            DEPARTMENT OF CHILDREN AND FAMILIES,
                          Appellee.

                             No. 4D17-1016

                           [November 1, 2017]

   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 reasonable than that which was being
rejected.” The Secretary’s explanation was that:

      [E]ven if rehabilitation is shown, Petitioner is only eligible for
      an exemption, not entitled to one. I still have the discretion
      to deny the exemption notwithstanding the showing of
      rehabilitation. See J.D. [v. Fla. Dep’t of Children & Families,
      114 So. 3d 1127 (Fla. 1st DCA 2013)]. If reasonable persons
      could differ as to the appropriateness of the Departments [sic]

1It is unclear from the record as to how Appellant could “continue” to work with
children and vulnerable adults following his disqualification.

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      decision to deny Petitioner’s request for an exemption, the
      Department’s decision is not unreasonable and, thus, not an
      abuse of discretion. Based on the ALJ’s findings, I have
      concluded that reasonable persons could differ as to the
      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. I conclude, based on the ALJ’s findings, that Petitioner’s
      request for an exemption should be denied in light of the
      nature of his disqualifying offense and the children (which can
      include infants and small children) and the vulnerable adults
      with whom he could be working.

   This appeal followed.

                                 Analysis

   An agency’s decision to grant or deny an exemption is subject to the
deferential abuse of discretion standard of review. K.J.S. v. Dep’t of
Children & Family Servs., 974 So. 2d 1106, 1109 (Fla. 1st DCA 2007).
“Discretion . . . is abused when the . . . action is arbitrary, fanciful, or
unreasonable . . . .” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.
1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

   In order to reject the ALJ’s conclusion of law, “the agency . . . must
make a finding that its substituted conclusion of law . . . is as or more
reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla.
Stat. (2016); see also B.J. v. Dep’t of Children & Families, 983 So. 2d 11,
13 (Fla. 1st DCA 2008) (recognizing that an agency is bound to honor the
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. Stat. “The
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.” J.D. v. Fla. Dep’t of
Children & Families, 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013).

   Here, the Secretary’s adoption of the ALJ’s factual findings, particularly
the above-quoted paragraph 24, conflicts with, and cannot be reconciled
with, his legal conclusion. As noted in the ALJ’s findings adopted by the
Secretary, there was no threat of “present danger” as of the time of

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Appellant’s application for an exemption.

    To the extent that the Secretary is intimating that “the nature of
[Appellant’s] disqualifying offense” forever disqualifies like 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. Stat.

    The Secretary’s decision to, in essence, apply a blanket lifetime
prohibition is similar to the “my rule of thumb” decisions that have been
reversed by appellate courts in this state. See, e.g., Cromartie v. State, 70
So. 3d 559, 564 (Fla. 2011) (reversing for fundamental error because the
trial court refused to consider a legislatively authorized sentencing option
as a matter of general policy); Fraser v. State, 201 So. 3d 847, 849-50 (Fla.
4th DCA 2016) (reversing because the trial court expressed a “general
policy” that mental health could never serve as a basis for a downward
departure); Little v. State, 152 So. 3d 770, 772 (Fla. 5th DCA 2014)
(reversing after the trial court stated: “When a jury finds a defendant
guilty, I don’t downward depart.”); Barnhill v. State, 140 So. 3d 1055, 1061
(Fla. 2d DCA 2014) (reversing in part because the trial court had a “general
policy” of not considering a downward departure sentence in child
pornography cases). “Due process demands an impartial decisionmaker
regardless of whether the decision is being made by a fact-finder or a
reviewing body.” Verizon Bus. Network Servs., Inc. ex. rel. MCI Commc’ns.,
Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008).

    In relying upon a correlation between “the nature of [Appellant’s]
disqualifying offense and the children (which can include infants and small
children) and the vulnerable adults with whom he could be working,” and
the reference to J.D., the Secretary’s decision indicates some confusion
with respect to Appellant’s offense and/or the circumstances in J.D. As
detailed above, Appellant’s offense was approaching an adult male in a
park that was apparently the site of similar encounters (per the presence
of the undercover officer) and displaying his private parts to this adult,
with no indication that the officer was pretending to be a “vulnerable
adult.” In J.D., DCF responded to a request for an exemption from an
individual who had been convicted of criminal child abuse for an incident
wherein she choked her own son (J.D. also had convictions for cocaine
possession and DUI). J.D., 114 So. 3d at 1128, 1129 n.1. The Secretary
denied an exemption that would enable J.D. “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

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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 that has
      elapsed since the incident, the nature of the harm 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. Stat. There is no indication in the Secretary’s decision
that he considered these factors or what specific factors or rationale he
relied upon, other than “the nature” of Appellant’s underlying offense. As
such, the DCF decision is not in conformity with section 120.57(1)(l). We
are, therefore, compelled to remand this matter to DCF for a decision that
is consistent with this opinion.

                                Conclusion

    The Secretary abused his discretion by adopting and then disregarding
the ALJ’s findings that Appellant is rehabilitated and “presents no danger
if employed in a position of special trust caring for children or vulnerable
adults,” instead reaching a conclusion that appears contrary to the ALJ’s
findings, with no “sufficient particularity” in its rationale for this
discrepancy. J.D., 114 So. 3d at 1134. DCF’s final order is reversed and
remanded for a decision consistent with the ALJ’s findings. If the
Secretary once again reaches a different conclusion than the ALJ and
denies the exemption, the final order must articulate the specific rationale
for this denial.

   Reversed and Remanded.

DAMOORGIAN and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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