vs. DOAH Case No. 15-0288
Respondent.
An administrative hearing was conducted in this case on May 7, 2015, in Tallahassee, Florida, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings (DOAH).
For Respondent: Lindsay W. Granger, Esquire
Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust,
should be granted.
In September 2014, Petitioner submitted a request for exemption from disqualification to Respondent Agency for Health Care Administration (AHCA or Respondent). AHCA conducted a telephonic hearing with Petitioner on December 9, 2014. By letter dated December 12, 2014, AHCA advised Petitioner that her request for an exemption from disqualification, pursuant to section 435.07, was denied. Petitioner timely requested an administrative hearing, and the case was referred to DOAH on or about January 15, 2015.
The final hearing was originally scheduled for March 24, 2015, but was continued until May 7, 2015. At the final hearing held May 7, 2015, the parties agreed that Respondent would present its testimony before Petitioner’s presentation in order to present the basis for the preliminary denial of Petitioner’s request for exemption. Respondent presented the testimony of one witness and offered three exhibits which were received into evidence without objection as Respondent’s Exhibits A-1 through A-3. Petitioner testified on her own behalf and presented the testimony of three other witnesses. Petitioner offered into evidence three exhibits which were received into evidence without objection as Petitioner’s Exhibits P-1 through P-3. The
proceedings were recorded, but neither party ordered a transcript.
Following the end of the evidentiary portion of the final hearing which concluded on May 7, 2015, the parties were given
30 days from the date of the hearing within which to file their respective proposed recommended orders. Respondent timely filed its Proposed Recommended Order on June 5, 2015. Petitioner did not file a proposed recommended order.
Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat.
Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809.
Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM.
This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes.
The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07.
Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM.
In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death.
Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014.
The results of the June 17, 2014, teleconference are not at issue in this proceeding.
Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014.
A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly.
A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing.
Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences;
Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption.
Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014.
After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing.
At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied.
Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses.
Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption.
Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed.
Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver.
Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was
already being paid by her employer for the services she rendered.
Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses.
Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf.
Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction.
Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense.
Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility.
At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor.
On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal.
Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills.
In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now.
Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children.
Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter.
Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always
favored her mother and did not believe the 2009 allegations against her mother.
One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption.
Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer.
Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process.
Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing.
Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion.
Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this proceeding, pursuant to sections 120.569 and 120.57, Florida Statutes (2015).
Section 408.809 authorizes Respondent to conduct background screenings under certain circumstances to assure that those seeking positions within the authority of Respondent have not committed disqualifying offenses. Section 408.809(4)(a) states the following:
(4) In addition to the offenses listed in
435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the following offenses or any similar offense of another jurisdiction:
Any authorizing statutes, if the offense was a felony.
§ 408.809(4), Fla. Stat.
Section 435.04 provides:
(1)(a) All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, fingerprinting for all purposes
and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
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(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction:
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(cc) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.
§ 435.04(1) & (2)(cc), Fla. Stat.
Due to Petitioner’s 1999 conviction of Felony Grand Theft/Bank Fraud, in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM, she has a disqualifying offense under Florida law.
Section 435.07 allows for exemptions from disqualifying offenses to be granted, and provides as follows, in pertinent part:
Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws.
(1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony;
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(3)(a) In order for the head of an agency 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 clear and convincing 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 employment or continued employment is allowed.
The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the
exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.
The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion.
§ 435.07(1)(a)1. & (3)(a) – (c), Fla. Stat.
Thus, pursuant to statute, Petitioner has the burden to show by clear and convincing evidence in her presentation before AHCA that she should not be disqualified from employment.
§ 435.07(3)(a), Fla. Stat.
As noted by the Supreme Court of Florida:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The circumstances surrounding Petitioner’s criminal history and her actions during the teleconference, including her lack of candor when addressing her criminal convictions, cast doubt on Petitioner’s rehabilitation.
Petitioner thus failed to present clear and convincing evidence of her rehabilitation.
A claim for exemption must be strictly construed against the person claiming the exemption. Heburn v. Dep’t of Child. & Fams., 772 So. 2d 561, 563 (Fla. 1st DCA 2000)(citing
State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d DCA 1976)).
Section 435.07 gives discretion to Respondent to give individuals an exemption for the enumerated acts. “[E]ven if rehabilitation is shown, the applicant is only eligible for an exemption, not entitled to one.” J.D. v. Dep’t of Child. &
Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013). Respondent has the discretion to deny an exemption notwithstanding a showing of rehabilitation, as long as it articulates its rationale for the denial. Id.
Furthermore, “the court shall not substitute its judgment for that of the [A]gency on an issue of discretion.”
§ 120.68, Fla. Stat. (2014); Intl. Union of Police Ass’n v.
Dep’t of Mgmt. Servs., 855 So. 2d 76, 82 (Fla. 1st DCA 2003).
The First District Court of Appeal has clarified that the determination of rehabilitation is factual in nature, but the determination of whether the withholding of an exemption is an abuse of discretion is legal in nature. J.D., 114 So. 3d at 1133.
Because Petitioner failed to present clear and convincing evidence that she should be granted an exemption from disqualification, it follows that Respondent’s decision to deny the application for exemption was not an abuse of discretion.
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 an exemption from disqualification for employment.
DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
1/ All references to Florida Statutes are to the 2014 version unless otherwise indicated.
Lindsay W. Granger, Esquire
Richard J. Shoop, Agency Clerk
Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3
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.
