john p. millerVs.susan sapoznikoff|Agency for Health Care Ad... -- eLawyers

Petitioner: JOHN MILLER
Respondent: AGENCY FOR HEALTH CARE ADMINISTRATION
Judges: LINZIE F. BOGAN
Agency: Agency for Health Care Administration
Locations: Tampa, Florida
Filed: Jun. 12, 2019
Status: Closed
Recommended Order on Friday, January 17, 2020.
Latest Update: Mar. 05, 2020
Summary: Whether the Agency for Health Care Administration abused its discretion when denying Petitioner’s request for exemption from disqualification to work in a position of special trust.Petitioner failed to prove that the Agency abused its discretion when denying Petitioner's request for exemption from disqualification to work in a position of special trust.

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN MILLER,

vs.

Petitioner,

Case No. 19-3202

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held by video teleconference between sites in Tampa and Tallahassee, Florida, on November 25, 2019, before Linzie F. Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: John P. Miller, pro se

8436 Quarter Horse Drive Riverview, Florida 33578

For Respondent: Susan Sapoznikoff, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration abused its discretion when denying Petitioner’s request for exemption from disqualification to work in a position of special trust.

PRELIMINARY STATEMENT

Petitioner submitted to the Agency for Health Care Administration (Agency) a request seeking an exemption from being disqualified to work in a position of special trust. On or about November 4, 2018, Petitioner submitted to the Agency an application for exemption from disqualification. By correspondence dated January 2, 2019, Petitioner was advised by the Agency that his application was denied. Petitioner elected not to request review of the Agency’s denial, but instead, submitted, on or about February 25, 2019, another application for exemption from disqualification. By correspondence dated

April 12, 2019, the Agency informed Petitioner that his February 2019 request for exemption was denied. Petitioner filed a request for administrative hearing, and on June 12, 2019, the Agency forwarded Petitioner’s request to the Division of Administrative Hearings for a final hearing. The matter was initially set for final hearing to commence on August 27, 2019. The parties moved for a continuance, which was granted, and the matter was rescheduled for November 25, 2019.

At the final hearing, Petitioner testified on his own behalf, and Vanessa Risch testified on behalf of the Agency. No other witnesses testified on behalf of either party.

Petitioner’s Composite Exhibit 1 was admitted into evidence. Agency Exhibits 1 through 4 were also admitted into evidence.

A single-volume Transcript of the final hearing was filed on December 16, 2019. Petitioner did not file a proposed recommended order. The Agency filed a Proposed Recommended Order, which was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

STIPULATED FACTS
1. On June 28, 2013, Petitioner was arrested, and charged with a single-count of aggravated child abuse in violation of section 827.03(2)(a), Florida Statutes, and a single-count of child abuse in violation of section 827.03(2)(c).
2. On May 12, 2014, Petitioner pled and was adjudged guilty to the lesser included offense of contributing to the delinquency or dependency of a child, in violation of section 827.04(1).
3. Section 435.04(2)(jj), Florida Statutes (2019),1/ provides that a violation of section 827.04(1) is an offense which disqualifies an individual from working in a position of special trust.
4. In 2018 Petitioner sought employment as a customer service supervisor in the call center for Centene’s Sunshine State Health Plan (Sunshine State). Sunshine State has a contract with the Agency to provide managed care services.
5. Petitioner, as a customer service supervisor for Sunshine State, had access to personally identifiable information
  
  and protected health information (sensitive information) of individuals serviced by the company. Sunshine State’s contract with the Agency requires that employees who have access to sensitive information must pass a level 2 background screening in order to remain employed by Sunshine State. Petitioner did not pass the background screening.
6. By correspondence dated April 12, 2019, the Agency informed Petitioner that his request for exemption from disqualification was denied after consideration of the following factors:
  1. the circumstances surrounding the criminal incident for which an exemption is sought;
  2. the time period that has elapsed since the incident;
  3. the nature of the harm caused to the victim;
  4. a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed; and [that Petitioner did not provide] clear and convincing evidence of rehabilitation as required by Florida Law.
DISQUALIFYING OFFENSE
1. The Agency, in considering Petitioner’s application for exemption, prepared an “exemption decision summary” which provides an overview of Petitioner’s criminal history. The
  
  summary states the following with respect to Petitioner’s disqualifying offense:
  Arrest Report: [Petitioner’s] [s]on, who was six and seven years old during the times of the incidences, has behavioral problems and particularly did not like his father’s girlfriend. [Petitioner] [u]sed varying methods to try and stop his son’s violent behavior, including . . . striking [the son] on multiple occasions, tying him to the table, and causing extensive bruising. . . .
  
  Applicant Statement: [Petitioner] admitted that he knew what was done [to his child] was not right; admitted to spanking his son using his hand, once with a belt, and an electrical cord the day before – mark left on thigh; admitted to using zip-ties to loosely secure his son for 20-30 minutes, to a table, when he would not be able to watch him. [Petitioner] denied using cold water or ice cubes; never addressed the use of duct tape; denied denying the child food; stated fold[ing] clothes was not a form of punishment, as everyone had chores; did not address the punishment of forcing the child to stand in the corner; admitted to having child perform pushups before he [started] spanking him. [Petitioner] admitted the child slept in the kitchen, as there was no other place he could sleep where he was able to watch [the child].
  
  [Petitioner] explained that the child also had behavioral issues in school and would frequently have to be picked up from school; stated he had to go on FMLA to protect his job due to having to leave work so often. [Petitioner] explained through all of the help he sought, no one ever offered an explanation for his son’s behavior (i.e. autism, Asperger’s, etc.). DCF removed the children, including the victim and the other children in the home at the time. [Petitioner] voluntarily gave up his rights to said child.[2/]
NON-DISQUALIFYING INTERACTIONS WITH THE CRIMINAL JUSTICE SYSTEM
1. Petitioner has no reported interaction with the criminal justice system subsequent to the occurrence of the disqualifying offense.
2. In May 2011, Petitioner was cited for driving under the influence of alcohol (DUI). There is no evidence that alcohol consumption was a factor when Petitioner committed the disqualifying offense.
EVIDENCE OF SUGGESTION OF REHABILITATION

Petitioner, in support of his suggestion of rehabilitation, offered five letters of reference. Each letter generally attests to Petitioner’s good character and work ethic.
One of the letters of reference is from Dr. Frankie Small, Ed.D., Ed.S., MSW, LCSW. Dr. Small’s letter dated November 2, 2018, advises that she provides once-weekly family therapeutic services to Petitioner, his domestic partner, and their five children. Dr. Small indicates that during the year or so that she treated Petitioner, he impressed her as being a supportive and caring individual who has a positive attitude towards his five children. In considering the letter, it is noted that Dr. Small makes no reference to Petitioner’s disqualifying offense, there are no treatment notes provided, and there is no mention of the specific issues which necessitated the utilization of her services by Petitioner. These omissions make

it difficult to assess whether Petitioner has meaningfully addressed his personal issues which contributed to, or caused him to commit, the disqualifying offense.
In support of his suggestion of rehabilitation, Petitioner also provided to the Agency a copy of a January 23, 2019, psychological evaluation prepared by Dr. Tracey Henley. Dr. Small referred Petitioner to Dr. Henley for neuropsychological evaluation. Dr. Henley’s report notes that Dr. Small did not include with the referral any of Petitioner’s mental health records. Dr. Henley’s report also notes that Petitioner, as part of the proceedings related to the disqualifying offense, was treated by forensic psychiatrist
Dr. Michael Mayor, who diagnosed Petitioner “with an adjustment disorder due to family turmoil.” The instant record does not include any treatment records from Dr. Mayor. Finally,
Dr. Henley recommended that that Petitioner receive individual counseling to address his “symptoms of emotional distress and to develop appropriate coping skills.” There is no evidence that Petitioner either received, or is receiving, individual therapy as recommended by Dr. Henley.
As previously noted, Petitioner was arrested on June 28, 2013, for the disqualifying offense. As part of the
adjudicatory process associated with the disqualifying offense, Petitioner, between June 2013 and May 2014, completed a 13

session “Nurturing Dads Course,” started, and eventually completed, a group course in “Anger Management and Emotional Management with Intensive Parenting,” and performed 50 hours of community service.
Subsequent to the disqualifying offense, Petitioner, in December 2014, earned a Bachelor of Applied Science degree from St. Petersburg College.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569, 120.57(1), and 435.07, Fla. Stat.
Section 435.07 provides, in part, as follows:

Exemptions from disqualification.-- 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:
1. 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;
2. Misdemeanors prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions for
  
  which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court;
3. Offenses that were felonies when committed but that are now misdemeanors and for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court; or
4. Findings of delinquency. For offenses that would be felonies if committed by an adult and the record has not been sealed or expunged, the exemption may not be granted until 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 offense.
* * *

(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.
1. 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.
2. 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.
Section 435.04 provides, in part, as follows:

(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:
* * * (jj) Section 827.04, relating to
contributing to the delinquency or dependency of a child.

There is no dispute that Petitioner’s violation of section 827.04 disqualifies him from working in a position of special trust.
Petitioner bears the burden of proving by clear and convincing evidence that he should not be disqualified from employment, and is, therefore, entitled to the exemption sought.
§ 435.07(3)(a), Fla. Stat.
In considering Respondent’s intended action of denying Petitioner’s exemption request, the undersigned must consider

whether the agency head abused his or her discretion when passing on Petitioner’s request. The “‘abuse of discretion’ standard is highly deferential.” E.R. Squibb & Sons v. Farnes, 697 So. 2d
825, 826 (Fla. 1997). An agency head abuses his or her discretion within the meaning of section 435.07 when the “intended action” under review “is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the [agency head]. If reasonable [persons] could differ as to the propriety of the [intended] action . . . , then it cannot be said that the [agency head] abused [his or her] discretion.” Canakaris v.
Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
“An exemption from a statute, enacted to protect the public welfare, is strictly construed against the person claiming the exemption.” Heburn v. Dep’t of Child. & Fams., 772 So. 2d
561, 563 (Fla. 1st DCA 2000).
The essence of “rehabilitation” within the meaning of section 435.07(3)(a) is that an applicant thereunder would “not present a danger if employment or continued employment is allowed.”
The Agency’s intent to deny Petitioner’s exemption request is not unreasonable. The evidence indicates that Petitioner failed to provide to the Agency all relevant mental health records, that he has neither participated in nor sought

individual counseling as recommended by Dr. Henley, and that there are material gaps in his mental health records which make it difficult to discern whether Petitioner has appropriately resolved the psychological issues that caused or contributed to the commission of the disqualifying offense. While Petitioner is commended for the successful completion of his college course work, as well as the terms and conditions of his court ordered probation, these positive accomplishments are insufficient to demonstrate rehabilitation when considered against the totality of the evidence.
On the instant record, it cannot be said that “no reasonable person would take the view adopted” by the Agency in denying Petitioner’s request for exemption from disqualification. Succinctly stated, Petitioner has failed to establish that the reasons offered by the Agency in denying his request for exemption, are arbitrary, fanciful, or unreasonable. Accordingly, Petitioner has failed to meet his burden of proving by clear and convincing evidence that the Agency’s decision to deny his exemption request was an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Agency for Health Care Administration, enter a final order denying Petitioner’s request for exemption.

DONE AND ENTERED this 17th day of January, 2020, in Tallahassee, Leon County, Florida.

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2020.

ENDNOTES

1/ All subsequent references to Florida Statutes will be to 2019, unless otherwise indicated.

2/ Petitioner and his girlfriend have two children together, and the girlfriend has three children from a previous relationship. The disqualifying offense pertains to Petitioner’s biological child from a relationship that pre-existed his domestic arrangement with his girlfriend. Collectively, these are the children that were removed from Petitioner’s home following his arrest on June 28, 2013. The “victim” in the underlying disqualifying offense is Petitioner’s biological child from the previous relationship. As for the “victim,” Petitioner relinquished his parental rights with respect to the child.

After some period of time, the other children were reunified with Petitioner and his girlfriend.

COPIES FURNISHED:

John P. Miller

8436 Quarter Horse Drive Riverview, Florida 33578 (eServed)

Susan Sapoznikoff, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3