O.M. v. Department of Children and Families

• Court: District Court of Appeal of Florida
• Decided: January 2, 2025
• Docket: 3D2023-1308
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 2, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1308 Lower Tribunal Nos. 23-053CF, DCF-23-096-FO ________________

O.M., Appellant,

vs.

Department of Children and Families, Appellee.

An Appeal from the State of Florida, Department of Children and Families.

Matthew E. Ladd, P.A. and Matthew E. Ladd, for appellant.

Leslie Hinds, Regional Legal Counsel, for appellee.

Before MILLER, GORDO and LOBREE, JJ.

GORDO, J. Osmollo Miller (“O.M.”) appeals a final order of the Department of

Children and Families (“DCF”) dismissing his petition for an administrative

hearing on the grounds of untimely filing. We have jurisdiction. 1 For the

reasons that follow, we affirm.

I.

In 1996, O.M. entered a plea of nolo contendere to two counts of

aggravated assault with a firearm and was placed on probation. After

completing his probation, O.M. began full-time employment as “childcare

personnel” with the Boys and Girls Clubs of Miami-Dade in 2001.

In 2016, the Legislature amended the employment screening statute

and explicitly mandated the disqualification of any “childcare personnel” from

employment if they had been convicted of or entered a plea of guilty or nolo

contendere to any offense relating to aggravated assault. 2 Following the

amendment, DCF conducted a background screening, which revealed that

O.M. had entered a plea of nolo contendere to two counts of aggravated

assault with a firearm.

In 2022, DCF notified O.M. in writing that he was disqualified from

employment based on his plea of nolo contendere in light of the amended

1 See Fla. R. App. P. 9.110(a)(2); § 120.68(1)(a), Fla. Stat. 2 See § 435.07(4)(c)(1)(d), Fla. Stat.

2 employment screening statute. In the same notice, DCF informed O.M. of

exemptions from disqualification on its website and encouraged him to

review the requirements to assess whether he qualified for any exemption.

After review, O.M. submitted an application for “an exemption from

disqualification.”

On February 17, 2023, DCF sent O.M. a written notification

determining that no exemption applied to him because aggravated assault

with a firearm is a “permanent disqualifying offense” under the amended

employment screening statute. Accordingly, DCF closed the exemption

request and informed O.M. in the notice of his right to request a hearing

within twenty-one days of receipt, emphasizing that failure to do so would

waive his right and render the action final.

On February 28, 2023, O.M. received written notification of the denial

of his exemption request. On March 10, 2023, O.M. submitted a timely

amended request for a hearing, challenging the denial of his exemption and

requesting that DCF consider the circumstances surrounding his nolo

contendere plea agreement. On April 5, 2023, O.M. supplemented his

hearing request, claiming that his inability to maintain employment impacted

his substantial interests while acknowledging that he had entered a nolo

contendere plea to aggravated assault with a firearm.

3 On April 17, 2023, DCF issued an initial order and notice of hearing

procedures, stating that the amended employment screening statute

mandates the disqualification of individuals from employment who entered a

nolo contendere plea to aggravated assault with a firearm, regardless of any

circumstances. The order specified that, because the matter involves a

mandatory disqualification under the amended statute and it is undisputed

that O.M. entered a nolo contendere plea to aggravated assault with a

firearm, no oral hearing would be held. Accordingly, the matter would

proceed to an informal hearing.

O.M. timely objected to the initial order and notice of hearing

procedures, asserting that an oral hearing was necessary to resolve disputes

over material facts related to his nolo contendere plea. Shortly after, on April

25, 2023, O.M. filed another request for a separate hearing, shifting his

approach from seeking “an exemption from disqualification” to contesting the

“underlying disqualification” itself. DCF issued an order denying O.M.’s

objection to the informal hearing and his request for a separate hearing,

stating that the “exemption request” and its denial were the only issues

before DCF, and there was no pending petition concerning any “underlying

disqualification” which necessitated a separate hearing.

4 On May 12, 2023, O.M. voluntarily withdrew his petition challenging

the denial of his exemption and filed a new petition requesting a separate

hearing to contest the “underlying disqualification,” asserting that he was not

“guilty” of aggravated assault with a firearm. On May 22, 2023, DCF issued

O.M. an order to show cause as to why the new petition should not be

dismissed for untimely filing, as it was submitted outside the twenty-one-day

period following the February 28, 2023, receipt of the notice informing O.M.

of his right to request a hearing. O.M. filed a response, arguing that DCF's

decision granted him only the right to file for “an exemption from

disqualification” but did not provide an option to contest the “underlying

disqualification” itself, thereby establishing a basis for equitable tolling.

DCF issued its final order of dismissal, finding that O.M. failed to show

cause, as he had already exercised his administrative rights to request a

hearing on an exemption from disqualification and had no legal right to

contest the disqualification itself under the amended employment screening

statute. This timely appeal followed.

II.

“[A]n appellate court reviews the agency’s conclusions of law de novo.”

Wise v. Dep’t of Mgmt. Servs., Div. of Ret., 930 So. 2d 867, 871 (Fla. 2d

DCA 2006). “An administrative hearing officer’s findings of fact may not be

5 disturbed by a reviewing court if those findings are supported by competent,

substantial evidence.” Bagarotti v. Reemployment Assistance Appeals

Comm’n, 208 So. 3d 1197, 1199 (Fla. 3d DCA 2017).

III.

O.M. argues his new petition for a separate hearing should not have

been dismissed because he had a basis for equitable tolling as DCF misled

him into believing he could only apply for “an exemption from disqualification”

and did not affirmatively inform him that he could contest the “underlying

disqualification” itself.

We start with the basic premise that “[a]ny person who receives written

notice of an agency decision and who fails to file a written request for a

hearing within 21 days waives the right to request a hearing on such

matters.” Aleong v. State, Dep’t of Bus. & Prof’l Regul., 963 So. 2d 799, 801

(Fla. 4th DCA 2007) (quoting Fla. Admin. Code R. 28-106.111(4)). “This

provision does not eliminate the availability of equitable tolling as a defense.”

Id. “The doctrine of equitable tolling is generally applied when a plaintiff has

been ‘misled or lulled into inaction, has in some extraordinary way been

prevented from asserting his rights, or has timely asserted his rights

mistakenly in the wrong forum.’” Id. (quoting Machules v. Dep't of Admin.,

523 So. 2d 1132, 1134 (Fla.1988)).

6 Here, the amended employment screening statute, in pertinent part,

provides that:

Disqualification from employment under this chapter may not be removed from, and an exemption may not be granted to, any current or prospective child care personnel . . . and such a person is disqualified from employment as child care personnel . . . if the person has been . . . convicted or found guilty of, or entered a plea of guilty or nolo contendere to . . . any offense prohibited under any of the following provisions of state law or a similar law of another jurisdiction:

A felony offense prohibited under any of the following statutes . . .

Section 784.021, relating to aggravated assault.

§ 435.07(4)(c)(1)(d), Fla. Stat. (emphasis added).

The plain and unambiguous language of the statute disqualifies O.M.

from receiving an exemption under the uncontested facts here. In other

words, because O.M. agrees he is the person who entered a plea of no

contest to aggravated assault and the statute does not establish a

mechanism for challenging the “underlying disqualification” itself, DCF was

not obligated to provide him a separate hearing. The statute simply does not

confer such a right.

We also agree with DCF that O.M.’s untimely filed petition without a

showing that DCF misled him or that extraordinary circumstances existed,

7 does not trigger application of the doctrine of equitable tolling in this instance.

See Aleong, 963 So. 2d at 801 (“Three of Florida's district courts have held

that the untimely filing of a request for hearing by counsel is not an

‘extraordinary’ circumstance which warrants the application of the doctrine

of equitable tolling. This court agrees, and holds that, in the instant case,

the failure of [the Appellant’s] counsel to timely file a petition for hearing did

not amount to an extraordinary circumstance; accordingly, the doctrine of

equitable tolling does not apply and does not serve to relieve [the Appellant]

of the consequences of the untimeliness of his petition.”); DMB Inv. Tr. v.

Islamorada, Vill. of Islands, 225 So. 3d 312, 317 (Fla. 3d DCA 2017) (“It is a

fundamental principle of statutory construction that where the language of a

statute is plain and unambiguous there is no occasion for judicial

interpretation.” (quoting Forsythe v. Longboat Key Beach Erosion Control

Dist., 604 So. 2d 452, 454 (Fla. 1992))). Accordingly, we find that DCF

properly dismissed O.M.’s new petition due to untimely filing.

IV.

Relying on Ayala v. Department of Professional Regulation, 478 So.

2d 1116 (Fla. 1st DCA 1985), O.M. further argues due process required DCF

to provide him with a separate hearing to contest his “underlying

disqualification” and allow him to explain why he entered a nolo contendere

8 plea, as his plea only creates a presumption of guilt but does not establish

guilt itself.

We find this argument misplaced. Unlike the statute involved in Ayala,

the amended employment screening statute mandates permanent

disqualification upon entering a nolo contendere plea, leaving no room to

contest “guilt” or maintain “innocence.” See § 435.07(4)(c)(1)(d), Fla. Stat.

The plain and unambiguous language of the statute specifies that

disqualification may not be removed and an exemption may not be granted,

to any “childcare personnel” who has been convicted of or entered a plea of

guilty or nolo contendere to any offense related to aggravated assault under

section 784.021. See id. “Florida courts have [consistently] upheld

disqualification from employment based upon convictions occurring before

the effective date of chapter 435, Fla. Stat.” E.J. v. Dep’t of Child. & Fams.,

219 So. 3d 946, 948 (Fla. 3d DCA 2017). As such, regardless of guilt, we

find DCF correct in its interpretation of the statute that no exemption may be

granted to any “childcare personnel” who entered a nolo contendere plea

related to an aggravated assault offense under section 784.021, Florida

Statutes.

O.M. implores us to consider that his conviction occurred

approximately twenty-eight years ago. He argues he has successfully

9 worked with the Boys and Girls Clubs of Miami-Dade for approximately 23

years without incident and application of the statute without allowing a

challenge to actual innocence in these administrative proceedings violates

his due process rights.

While this Court is sympathetic to O.M.’s plight, it is within the

Legislature’s province to set policy. It has often been said that “[w]hen the

language of an act is clear and unambiguous it is not within the province of

the court to sit in judgment upon the wisdom of the legislative policy

embodied in it nor to assume that the legislature meant something which

does not appear upon the face of the statute.” Platt v. Lanier, 127 So. 2d

912, 913 (Fla. 2d DCA 1961).

Both DCF and this Court are bound to follow the law as written. See

O.I.C.L. v. Dep’t of Child. & Fams., 169 So. 3d 1244, 1250 (Fla. 4th DCA

2015) (“While this court is sympathetic to the plight of [the Appellant] . . . the

role of the [court] is not to set . . . policy . . . .”); N.L.J. v. Komanski, 527 So.

2d 840, 842 (Fla. 5th DCA 1988) (“[W]e are sympathetic with the

[Respondent’s] plight and understand his frustration because no option

provides a disposition satisfactory to him. He believes that the department

misunderstood the law when selecting the options . . . Nevertheless, the law

is clear and must be followed.”); McCloud v. State, 260 So. 3d 911, 914 (Fla.

10 2018) (“If the statute is ‘clear and unambiguous,’ then this Court does not

look beyond the plain language or employ the rules of construction to

determine legislative intent—it simply applies the law.” (quoting Gaulden v.

State, 195 So. 3d 1123, 1125 (Fla. 2016))).

There may exist other proceedings by which O.M. may successfully

seek the relief he requests, but that is a different issue for a different day.

Accordingly, we affirm the final order under review.

Affirmed.