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-fouryear-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. 
2

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]

 

1 It is unclear from the record as to how Appellant could “continue” to work with 

children and vulnerable adults following his disqualification.
3

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 
4

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 
5

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.