STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUFUS BRADLEY, JR. )

)

Petitioner, )

)

vs. ) Case No. 99-3951

) STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing in this proceeding on August 22, 2000, in Sanford, Florida.

APPEARANCES

For Petitioner: Rufus Bradley, Jr., pro se

2180 Airport Boulevard

Sanford, Florida 32771

For Respondent: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building Number Three Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Respondent should exempt Petitioner from disqualification for employment in a health care facility pursuant to Section 435.07, Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated June 4, 1999, Respondent denied Petitioner's request for exemption. Petitioner timely requested an

administrative hearing. Respondent referred the matter to the Division of Administrative Hearings ("DOAH") to conduct the hearing.

At the hearing, Petitioner testified in his own behalf, called no other witnesses, and submitted no exhibits for admission in evidence. Respondent called no witness, cross- examined Petitioner, and submitted four exhibits for admission in evidence.

The identity of the witness and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on September 18, 2000. Petitioner did not file a proposed recommended order ("PRO"). Respondent timely filed its PRO on September 29, 2000.

FINDINGS OF FACT

1. Petitioner seeks an exemption for employment in a health care facility pursuant to Sections 435.06 and 436.07. Petitioner seeks the exemption to work in a nursing home. A nursing home is a health care facility for which Respondent is the licensing agency within the meaning of Section 435.02(3). Respondent is the agency responsible for conducting background screenings for employees of health care facilities.

2. The evidence submitted by Respondent shows that Petitioner entered a plea of nolo contendere to an offense specified in Section 435.04. On February 15, 1999, Petitioner pled nolo contendere to a charge of possession of cocaine in violation of Section 893.13(6)(A). Possession of cocaine is a

   third degree felony and a disqualifying offense within the meaning of Section 435.04(2)(mm). The Circuit Court in Seminole County, Florida withheld adjudication of guilt.

3. Petitioner failed to submit any evidence or law showing that he satisfies the requirements for an exemption in Section

   435.07. Petitioner failed to cite any legal authority for waiving the three-year waiting requirement in Section 435.07(1)(a) and (2). Petitioner failed to show that he otherwise satisfies the conditions for exemption prescribed in Section 435.07(3).

   CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

5. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that he should not be disqualified from employment in a health care facility. Section 435.07(3). Petitioner failed to satisfy his burden of proof.

6. Petitioner submitted no evidence or legal authority to support his claim for exemption. The evidence shows that Petitioner pled nolo contendere to a disqualifying offense within three years of the claim for exemption. Petitioner cited no legal authority for ignoring the three-year waiting requirement. Even if the three-year requirement were inapplicable to Petitioner, Petitioner submitted no evidence showing that he

satisfies the conditions of exemption prescribed in Section 435.07(3).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for exemption.

DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2000.

COPIES FURNISHED:

Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration Suite 3431

Fort Knox Building 3 2727 Mahan Drive

Tallahassee, Florida 32308

Rufus Bradley, Jr. 2180 Airport Boulevard

Sanford, Florida 32771

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building Number Three Tallahassee, Florida 32308

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: 99-003951

Orders for Case No: 99-003951