STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEVETTE CLARK, )

)

Petitioner, )

)

vs. ) Case No. 00-3554

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on November 6, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Shevette Clark, pro se

7488 Wren Drive

Tallahassee, Florida 32310

For Respondent: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible for exemption from disqualification from employment in a nursing home under Section 435.07(3), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated June 28, 2000, Respondent Agency for Health Care Administration (Respondent) advised Petitioner Shevette Clark (Petitioner) that her request for exemption from disqualification under Section 435.07(3), Florida Statutes, was denied. According to the letter, Petitioner continued to be ineligible for employment in positions that require working with residents or patients of nursing homes, home health agencies, assisted living facilities, homemaker-companion-sitter services, or nurse registries.

Petitioner requested a formal hearing on July 19, 2000.

Respondent referred this request to the Division of Administrative Hearings on August 30, 2000.

A Notice of Hearing dated September 11, 2000, scheduled this case for hearing on November 6, 2000. At the hearing, Petitioner testified on her own behalf and offered three exhibits that were accepted into evidence. Respondent presented the testimony of one witness and offered two composite exhibits that were accepted into evidence.

The Transcript of the hearing was filed on December 4, 2000. Respondent filed a request to extend the time for filing proposed orders by one day. This request was granted by order dated December 11, 2000.

Respondent filed its Proposed Recommended Order on

December 15, 2000. Petitioner did not file proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Respondent is the agency responsible for conducting background screenings for employees of health care facilities under Chapter 400, Florida Statutes.

2. Petitioner is licensed as a certified nurse's assistant. She began working as a nurse's aide at a nursing home in February 2000.

3. A subsequent level 1 background screening revealed that Petitioner has an extensive criminal history including, but not limited to, the following violations of Section 812.014, Florida Statutes:

   1. In 1986, Petitioner was convicted of felony grand larceny (shoplifting) and sentenced to confinement in a state correctional facility for two years.

   2. In 1990, Petitioner pled nolo contendere, was convicted, and sentenced to eleven months, twenty-nine days in county jail for shoplifting (grand retail theft.)

   3. In 1995, Petitioner pled nolo contendere, was convicted, and sentenced to probation for shoplifting (felony petit theft.)

      
      

4. During the hearing, Petitioner admitted to the above- referenced crimes. She fully discussed her history of theft and shoplifting which began when she was a young woman. She

   attributed her initial involvement in shoplifting to the improper influence of older women.

5. Petitioner expressed her desire to work as a nurse's assistant so that she could earn a living and pay her bills. She did not present any persuasive evidence of remorse for her crimes or demonstrate rehabilitation sufficient to warrant exemption from disqualification at this time.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

7. Section 400.215, Florida Statutes, states as follows, in pertinent part:

   1. The agency shall require background screening as provided in chapter 435 for all employees or prospective employees of facilities licensed under this part who are expected to, or whose responsibilities may require them to:

      1. Provide personal care or services to residents;

      2. Have access to resident living areas; or

      3. Have access to resident funds or other personal property.

   2. Employers and employees shall comply with the requirements of 435.05.

      1. Notwithstanding the provisions of s. 435.05(1), facilities must have in their possession evidence that level 1 screening has been completed before allowing an employee to begin working with patients as provided in subsection (1). . . .

8. Section 435.03, Florida Statutes, states as follows in relevant part:

   1. All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.

   2. Any person for whom employment 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 prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction.

   
   

   * * *

   
   

   (r) Chapter 812, relating to theft, robbery, and related crimes, if the offense was a felony.

   
   

9. Under Chapter 400, Florida Statutes, and Section 435.07(3), Florida Statutes, Petitioner must prove by clear and convincing evidence that she should not be disqualified from employment in positions of trust and responsibility. Her burden includes the presentation of

   . . . 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.

   
   

   Section 435.07(3), Florida Statutes.

   
   

10. Petitioner has not met her burden of proving that she should be exempted from disqualification from employment in a position of trust and responsibility. She offered no evidence of rehabilitation other than serving time for her offenses. Petitioner showed no genuine remorse for her crimes. In fact, Petitioner denies that she was shoplifting in 1995, even though she was subsequently convicted of felony petit theft. Petitioner's testimony that she has turned her life around is not persuasive.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order denying Petitioner's request for exemption from disqualification.

DONE AND ENTERED this 27th day of December, 2000, in

Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 27th day of December, 2000.

COPIES FURNISHED:

Shevette Clark 7488 Wren Drive

Tallahassee, Florida 32310

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Building 3, Suite 3116

2727 Mahan Drive

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: 00-003554

Orders for Case No: 00-003554