On January 24, 1997, a formal administrative hearing in this case was held in St. Petersburg, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: C. A. N., Pro Se
St. Petersburg, Florida 33705
For Respondent: Thomas W. Caufman, Esquire
The issue in the case is whether the Petitioner is entitled an exemption from disqualification under the provisions of Sections 400.512(1) and 435.07(3), Florida Statutes.
Based upon past criminal activity, C. A. N. (Petitioner) is disqualified from certain types of employment as set forth in Florida Statutes. The Petitioner filed a request with the Agency for Health Care Administration (Respondent) seeking to become exempt from the automatic disqualification established by statute.
By letter dated September 23, 1996, the Respondent notified the Petitioner that her request for exemption from disqualification was being denied. The Petitioner requested formal hearing. The request was forwarded to the Division of Administrative Hearings which scheduled the proceeding.
At the hearing, the Petitioner presented the testimony of four witnesses, testified on her own behalf and had exhibits numbered 1-3 admitted into evidence. The Respondent presented the testimony of one witness and had exhibits numbered 1-2 admitted.
No transcript was filed. The Respondent filed a proposed recommended order.
C. A. N. (Petitioner) was arrested on December 17, 1985, for shoplifting and was convicted of grand larceny.
The Petitioner was arrested on February 23, 1989, for larceny and was convicted of grand larceny.
The Petitioner was arrested on August 11, 1992, for passing a forged instrument and was convicted.
The Petitioner was arrested on November 23, 1993, for passing a forged instrument and was convicted.
The Petitioner was arrested on May 11, 1994, for grand larceny and was convicted.
The Petitioner was arrested on October 26, 1994, and was convicted of forgery, grand larceny and welfare fraud.
Based on a number of offenses and an apparent violation of an probationary sentence, the Petitioner was sentenced on July 28, 1994, to serve four years and six months in prison.
Although the prison sentence does not appear to have run its course, the Petitioner has been released from incarceration. The actual date of her release was not established at the hearing.
The Respondent suggests that the short duration of her present rehabilitation is insufficient to establish that the Petitioner is of good moral character and fails to support the award of an exemption from disqualification.
The Respondent asserts that given the Petitioner's regular pattern of arrests for property-related crimes, her chosen profession of nursing presents a continuing opportunity for the theft of patient property.
There is no evidence that the Petitioner's prior criminal activity was directed towards individual victims.
Based on the testimony of the Petitioner and the supporting witnesses, the evidence establishes that the
Petitioner poses no serious danger if she becomes exempt from disqualification.
There is no evidence of any inappropriate activity of any kind since her release from incarceration.
At the hearing, the Petitioner spoke articulately of her criminal history and the reasons she believes that she will not encounter further criminal entanglement. She talked about the differences between her previous life and the life she now leads.
During the period of her criminal activity, the Petitioner was married to an abusive spouse. Since her release, she has completed a domestic violence support group program. She is obtaining a dissolution of the marriage.
None of the Petitioner's convictions are directly drug- related. Her convictions are all related to theft of funds, either by improper use of credit cards, improper receipt of public assistance funds, or retail shoplifting.
According to her uncontroverted testimony, the major reason for her criminal activity was related to drug use by the Petitioner and by her spouse. Funds were illegally obtained, either to directly purchase drugs or to purchase food for her children when their regular food money was used to buy drugs.
Since her release from incarceration, she has completed an early intervention training program related to drug dependency. There is no evidence that the Petitioner has used drugs since her incarceration.
The Petitioner is currently attending business school, and is making acceptable progress, but desires to become employed in the nursing field, for which she is trained.
The Petitioner appears to have substantial support from family and friends. At the hearing, her daughter, her prison counselor, her career counselor, and a friend from her church all spoke well of her behavior and strongly believe that she has made a permanent change in her life. Her career counselor predicted that the Petitioner could successfully enter the nursing field.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 400.512, Florida Statutes, provides for disqualification of persons convicted of various offenses from holding positions related to home health agency personnel, nurse registry personnel and certain licensed sitter, companion and homemaker services. The Petitioner's convictions fall within those which result in disqualification.
Section 400.512(1), Florida Statutes, provides for the award of exemptions from disqualification as set forth in Section 435.07.
Section 435.07(3), Florida Statutes, provides as follows:
In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that
the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient 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 employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed....
In this case, the Petitioner has met the burden. Based on the Petitioner's testimony, and that of her supporting witnesses, the evidence establishes that the Petitioner has made an important change in her life and is committed to the process of living a responsible life for herself and her children.
Although the Respondent's concern is certainly understandable given the Petitioner's history, the evidence clearly establishes that the Petitioner has more than a reasonable chance to successfully renew her life. The Legislature provided a mechanism for rewarding those persons who are able to bring about substantive change in their lives. At this time, the Petitioner appears to be such a person.
