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. 
2

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 
3

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 
4

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 
5

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, 
6

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 
7

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. 
8

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 
9

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 
10

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 
11

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.