STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORLANDO RUEDA, )

)

Petitioner, )

)

vs. ) Case No. 98-0413

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 2, 1998, at Fort Lauderdale, Florida, by video teleconference, before SUSAN B. KIRKLAND, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kevin J. Kulik, Esquire

600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301

For Respondent: Jennifer A. Steward

Senior Attorney

Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUE

Whether Petitioner's request for exemption pursuant to Section 400.512, Florida Statutes, should be granted.

PRELIMINARY STATEMENT

By letter dated December 16, 1997, Respondent, Agency for

Health Care Administration (Agency), notified Petitioner, Orlando Rueda (Rueda), that his request for exemption from disqualification pursuant to Section 400.512, Florida Statutes, was denied. On January 6, 1998, Rueda requested a formal hearing, and on January 23, 1998, the matter was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

The final hearing was noticed for May 11, 1998. On May 6, 1998, an Unopposed Motion for Continuance was filed. The motion was granted, and the case was rescheduled for July 13, 1998. On July 8, 1998, an Agreed-To Motion for Continuance was filed. The motion was granted, and the case was reset for October 2, 1998.

At the final hearing, Petitioner testified in his own behalf and called the following witnesses: Michael Dutko, William Rambo, and Rebecca Rueda. Petitioner introduced no exhibits.

Respondent called Santiago Sanchez as its witness and introduced Respondent's Exhibits A-M into evidence.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript, which was filed on November 13, 1998. The parties timely filed proposed findings of fact and conclusions of law, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. On May 21, 1990, Petitioner, Orlando Rueda (Rueda), was arrested on charges of sexual battery on a child. The charges

   arose from incidents which occurred in 1983.

   
   

2. On September 5, 1991, Rueda plead nolo contendere to five counts of attempted sexual battery on a child, Sections 777.04(1) and 794.011(2), Florida Statutes, and to two counts of indecent assault, Section 800.041(1), Florida Statutes. Adjudication was withheld, and Rueda was sentenced to five years probation, the terms of which included no contact with the victim or his family, no employment involving children, and a psychological evaluation.

3. Rueda maintains that he is not guilty of the crimes for which he pled nolo contendere but states that because of financial difficulties in continuing with his defense and of the possibility that he could be sentenced to life imprisonment if he were found guilty, he pled nolo contendere rather than go to trial.

4. On August 27, 1993, Rueda was arrested for driving with a suspended license. On September 17, 1993, his probation officer executed an affidavit of violation of probation indicating that Rueda violated probation by driving with a suspended license and failing to file with his probation officer a full report of having been arrested for driving with a suspended license.

5. Rueda was arrested and charged with violation of probation. On October 18, 1993, Rueda admitted to the charge of violation of probation. The court revoked Rueda's probation and

   sentenced him to another five-year term of probation and ordered Rueda to attend a sex offender program at R.E.A.C.H. once a week. The court modified the probation by order dated May 31, 1994, to require attendance at the Fifth Street Counseling Center in place of attendance at R.E.A.C.H. Rueda was to remain in the Fifth

   Street Counseling Center program until further notice from the program.

6. The program at the Fifth Street Counseling Center was headed by William Rambo, a clinical social worker. Rueda began his treatment with Mr. Rambo in June 1994. The treatment program is for a minimum of four years. The first phase, which usually lasts a year, consists of intensive weekly therapy sessions in which the patient deals with the allegations of the original sexual offense. The second phase is designed to last a minimum of one year and is a less intensive phase with bi-weekly group sessions. The emphasis in the second phase is on current functioning and monitoring of the patient's stability. The final phase is designed for two years and allows the patient to demonstrate continued stability.

7. On January 31, 1996, Rueda admitted to his probation officer that he had used cocaine on January 24, 1996. Rueda also admitted to the use of cocaine to a Secret Service Agent, who was questioning Rueda about an incident involving a counterfeit

   fifty-dollar bill. Rueda said that he had been drinking with friends when one of them went to purchase cocaine. The drug was put into a cigarette, which Rueda and his friends smoked.

8. As a result of the incident involving his use of cocaine, on February 26, 1997, the court ordered two years of community control, followed by ten years of probation which began on April 4, 1996. Community control is a form of house arrest

   and sometimes involves wearing an electronic monitoring device. Rueda was required to wear an electronic monitor for one year. Barring any further violations of probation, Rueda's probation is due to expire in 2008.

9. On May 12, 1997, Rueda wrote a letter to the Respondent, Agency for Health Care Administration (Agency), requesting an exemption and outlining his criminal background. His letter did not include any information concerning the January 1996, cocaine- related violation.

10. On December 8, 1997, the Agency granted Rueda an informal hearing before an informal hearing committee on his request for an exemption. During the informal hearing, the committee specifically asked Rueda to describe any special conditions of his probation. Petitioner did not volunteer that at the time of the informal hearing that he was being required to wear an electronic monitor. The informal committee had learned about the electronic monitor from Rueda's probation officer. Rueda did not reveal that he was wearing a monitor until the committee specifically asked whether he was under electronic monitoring.

11. Rueda is still in the first phase of his treatment with Mr. Rambo. Part of the reason that he has not completed the first phase is that each time he violated probation, the probation period would begin anew, and Rueda would have to begin the first phase anew. However, based on the testimony of

    Mr. Rambo, Rueda has made progress in his treatment, but he has not completed his treatment program.

12. Other than the incidents for which Rueda plead nolo

    contendere, Rueda has not been involved in any incidents of sexual battery or indecent assault.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

14. Section 400.512, Florida Statutes, directs the Agency to require employment screening as described in Chapter 435, Florida Statutes, for home health agency personnel, personnel referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services.

15. Under the provisions of Sections 435.03(2)(l) and (p), Florida Statutes, any person for whom screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense relating to sexual battery under Section 794.011, Florida Statutes, or any offense relating to lewdness or indecent exposure under Chapter 800, Florida Statutes.

16. Section 435.07, Florida Statutes, allows the appropriate licensing agency to grant any employee an exemption from disqualification for felony committed more than three years prior to the date of disqualification and provides:

    (3) 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 that the employee will not present a danger if continued employment is allowed. . . .

17. It has been 15 years since the incidents for which Rueda plead nolo contendere, and there have been no other incidents involving sexual battery or indecent assault.

18. Rueda has been serving a term of probation since the entry of his plea in 1991. During that time, he has violated his probation twice--one time for admitting to using cocaine, and the other time for driving with a suspended license and failing to report his arrest to his probation officer.

19. Rueda is continuing to receive mental health treatment relating to the attempted sexual battery and indecent assault. Although he made improvements since he began treatment in 1994, he has not completed the first phase of a minimum four-year treatment program.

20. Given that Rueda has violated his probation twice and has not completed the first phase of his treatment, he has not demonstrated by clear and convincing evidence that he is sufficiently rehabilitated that an exemption should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered denying Orlando Rueda's request for an exemption.

DONE AND ENTERED this 23rd day of December, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1998.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Jennifer A. Steward, Senior Attorney Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309

Kevin J. Kulik, Esquire

600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-000413

Orders for Case No: 98-000413