E.J., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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The court held that the Department of Children and Families was statutorily barred from granting an exemption from disqualification due to a change in law during the pendency of the application.
[1] A change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather tha…
[2] An agency must apply the law in effect at the time it makes its final decision.
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Join FLexlaw to unlock all legal intelligenceE.J., convicted of aggravated assault in 2006, sought an exemption from disqualification for employment as a child care worker after completing probat…
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E.J. appeals from a final order of the Department of Children and Families [“DCF”] denying,her request for an exemption from disqualification for employment as a child care worker. We affirm.
In 2006, E.J. was convicted of an aggravated assault. She successfully completed the terms of her probation, which ended in 2011. She has no other offenses on her .record. Since then, she has obtained her A.A. degree in early childhood education and sought to apply for childcare positions. She was disqualified because of her criminal record, and in 2016 applied to DCF for an exemption from, disqualification. The DCF denied her application, and E.J. timely requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings [“DOAH”] and an administrative law judge [“ALJ”] held a hearing on March 31, 2016. In April 2016 the ALJ issued a Recommended Order concluding that E.J. had met her burden of proving rehabilitation by clear and convincing evidence, pursuant to. section 435.07(4), Florida Statutes, The DCF filed exceptions to the Recommended Order.
While E.J.’s appeal was pending before DOAH, section 436.07(4) was amended by section 1 of Chapter' 2016-98, Laws of Florida. That amendment prohibited DCF from granting exemptions for current or prospective child care workers who were charged with or convicted of enumerated offenses, of which aggravated battery is one.1 The amendments became effective July 1, .2016. On July 28, 2016, DOAH issued its Final Order accepting DCF’s exceptions and denying E.J.’s application for exemption from disqualification.
Under current statutory circumstances, we must affirm the Order below because the law changed during the pen-dency of EJ.’s application for exemption. Florida follows the general rule that “a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted.” Lavernia v. Dep’t of Prof'l Regulation, Bd. of Med., 616 So.2d 53, 53-54 (Fla. 1st DCA 1993); see also Agency for Health Care Admin. v. Mount Sinai Med. Ctr. of Greater Miami, 690 So.2d 689, 691 (Fla. 1st DCA 1997) (holding Lavernia extended to administrative rules, as “[t]he agency must apply the law in effect at the time it makes its final decision.”). Because E.J.’s . application.and appeal were pending when the statutory changes went into effect on July 1, 2016, and the Final Order was rendered July 28, 2016 after the statutory amendments’ effective date, we conclude DCF was statutorily barred from granting E.J. an exemption.
*948In addition, Florida courts have also upheld disqualification from employment based upon convictions occurring before the effective date of chapter 435, Fla. Stat. See Sledge v. Dep’t of Children & Families, 861 So.2d 1189 (Fla. 5th DCA 2003). See also Heburn v. Dep’t of Children & Families, 772 So.2d 561, 563 (Fla. 1st DCA 2000) (holding that an exemption from a statute enacted to protect the public welfare is strictly construed against the person claiming the' exemption, and the Department is not required to grant a petitioner any benefits under the exemption); Phillips v. Dep’t of Juvenile Justice, 736 So.2d 118, 119 (Fla. 4th DCA 1999) (“[Ejven if Phillips’ presentation constituted clear, convincing, and unrefuted evidence that he qualified for an exemption, the agency was not under any obligation to give him one.”).
Finally, no abuse of discretion is shown in the record. See Thomas v. Dep’t of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999) (“This court may not substitute its judgment for that of the agency on an issue of discretion.”). The Final Order on appeal is affirmed.
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O.M. v. Dep't of Child. & Families, 404 So. 3d 547 (Fla. 3d DCA 2025)
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Bayfront HMA Med. Ctr. v. Dept. of Health (Fla. 2d DCA 2020)…d." Cantrall v. Dep't of Highway Safety & Motor Vehicles, 828 So. 2d 1062, 1063 (Fla. 2d DCA 2002) (quoting Lavernia v. Dep't of Prof'l Regulation, Bd. of Med., 616 So. 2d 53, 53–54 (Fla. 1st DCA 1993)); accord E.J. v. Dep't of Children & Families, 219 So. 3d 946, 947 (Fla. 3d DCA 2017). Accordingly, the Department was required to apply the versions of sections 395.402 and 395.4025 that became effective on March 21, 2018. It erred by applying the prior version of these statutes and by entering a final order…
Authorities Cited
- Agency FOR Health Care Admin. v. Mount Sinai Med. Ctr. OF Greater Miami, 690 So. 2d 689 (Fla. 1st DCA 1997)
- Phillips v. Dep't OF Juv. Just., 736 So. 2d 118 (Fla. 4th DCA 1999)
- Heburn v. Dep't of Child. & Families, 772 So. 2d 561 (Fla. 1st DCA 2000)
- Henry Lavernia, M.D. v. Dep't of Prof'l Reg., 616 So. 2d 53 (Fla. 1st DCA 1993)
- Charner v. Broward Cnty. Sch. Bd. & Fla. Unemployment Appeals Comm'n, 730 So. 2d 809 (Fla. 3d DCA 1999)
- Beckett v. State, 730 So. 2d 809 (Fla. 4th DCA 1999)
- Sledge v. Dep't of Child. & Families, 861 So. 2d 1189 (Fla. 5th DCA 2003)