ROSALYN THOMAS,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

vs.

Petitioner,

Case No. 17-5511

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

RECOMMENDED ORDER

A final hearing was held in this case on November 7 and December 18, 2017, by video teleconference at sites in Miami and Tallahassee, Florida, before the Division of Administrative Hearings ("DOAH"), by Administrative Law Judge ("ALJ") Robert L. Kilbride.

APPEARANCES

For Petitioner: Rosalyn Thomas, pro se

6250 Southwest 62nd Court Miami, Florida 33143

For Respondent: Lindsay W. Granger, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

Whether Petitioner proved by clear and convincing evidence that she has been rehabilitated from her disqualifying offense(s), and, if so, would it be an abuse of discretion for

the agency to deny her exemption application under section 435.07, Florida Statutes.

PRELIMINARY STATEMENT

In June 2017, Petitioner submitted a request to Respondent for an exemption from disqualification from employment.

Respondent conducted an investigation, including a hearing by telephone with Petitioner on June 13, 2017, to review and discuss her exemption application.

By letter dated August 4, 2017, Respondent advised Petitioner that her request for an exemption from disqualification, under section 435.07, was denied. Petitioner timely requested an administrative hearing, and the case was referred to DOAH.

The case was set for hearing on November 7, 2017, but was started, adjourned, and continued to December 18, 2017. At the final hearing held December 18, 2017, Respondent presented its case, followed by Petitioner.

Respondent presented the testimony of two witnesses during the course of the two hearings: Sherry Ledbetter and Kelly Goff. Respondent offered one exhibit into evidence, Petitioner’s agency exemption file, which was received into evidence as Respondent’s Exhibit R1-1 through R1-75 without objection. Petitioner testified on her own behalf and presented the testimony of two

witnesses: her brother, Jamvar Thomas, and a client, Yohandra Sota.

The proceedings were recorded, but neither party ordered a transcript. Following the end of the final hearing, the parties were given ten days to file their respective proposed recommended orders (PROs). Both parties timely filed either a proposed recommended order or a letter.

References to the Florida Statutes are to the 2016 version, unless otherwise indicated.

FINDINGS OF FACT

1. Agency for Health Care Administration ("AHCA") is the state agency required to conduct background screenings for employees who provide certain types of services related to health care under chapters 400, 408, and 429, Florida Statutes.

   § 408.809, Fla. Stat.

   
   

2. Petitioner seeks employment in a position providing services to residents of a health care facility or under a license issued by Respondent. As such, Petitioner is required to participate in Respondent’s background screening process pursuant to section 408.809.

3. Petitioner submitted to the required background screening, which revealed that in 2004, Petitioner was convicted of the felony offenses of grand theft and burglary, in violation of sections 812.014 and 810.02, Florida Statutes (2004)

   
   

   respectively, in Dade County, Florida, Case

   
   

   No. 132004CF030578C000XX. These offenses were used by the agency as the disqualifying offenses under chapter 435.

4. Petitioner was subsequently convicted of felony grand theft in 2007, in violation of section 812.014, Florida Statutes (2007), in Broward County Circuit Court, Case

   No. 062007CF013247A88810.

   
   

5. In 2013, Petitioner was convicted of theft in violation of section 812.014, Florida Statutes (2013), in Dade County, Florida, Case No. 132013CF0268560001XX.

6. The criminal convictions in 2004 disqualified Petitioner and made her ineligible for licensure or to provide services in a health care facility licensed by Respondent. She was disqualified unless she applied for and received an exemption from AHCA, pursuant to section 435.07.

7. In addition, Petitioner’s background check revealed that she was arrested in 1997 for Battery and Resisting Arrest; in 2009 for Petit Theft involving unemployment compensation, which was ultimately dropped; and in 2012 for retail theft.

8. Petitioner initially submitted an application for an exemption to Respondent in accordance with sections 408.809 and

   435.07 on June 9, 2017. She participated in a telephonic hearing to discuss her application conducted by Respondent on August 1, 2017.

   
   

9. Respondent’s witness, Kelley Goff, a health services and facilities consultant for the Agency’s Background Screening Unit, testified that she was the analyst assigned to Petitioner’s case and attended the telephonic hearing on August 1, 2017.

10. Respondent’s Exhibit R1-1 through R1-75, is AHCA's file for Petitioner’s exemption request. It contains: the exemption denial letter; internal agency notes; panel hearing notes from the August 1, 2017, teleconference; Petitioner’s criminal history; Petitioner’s exemption application; personal attestations; arrest affidavits; conviction records; probation records; court records; education records; and several letters in support of Petitioner’s requested exemption.

11. After the telephonic hearing and discussion, Respondent denied Petitioner’s request for an exemption by letter dated August 4, 2017. Subsequently, Petitioner requested an administrative hearing.

12. In making the decision to deny, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner and her explanations during the teleconference.

13. Respondent also considered Petitioner’s other arrests and convictions, in addition to the disqualifying offenses.

14. The history of Petitioner’s theft-related crimes and the recent 2012 and 2013 theft-related incidents were significant

    
    

    factors in Respondent’s decision to deny Petitioner’s application for exemption.

15. The agency concluded that Petitioner was not particularly candid during the August 1, 2017, teleconference, and that some of Petitioner’s statements during the teleconference conflicted with the police reports and other documentation in Petitioner’s exemption file. This was true particularly with respect to the 2012 retail theft incident at Home Depot, which Petitioner attributed to actions by a client during the teleconference.

16. During the telephone interview, Petitioner stated that she could not remember the arrests and/or convictions from the time period from 1997 through 2007.

17. Although Petitioner had some positive letters of recommendation, she did not have anyone speak on her behalf during the telephonic discussion in August 2017.

18. Based on Petitioner’s entire file and her responses during the teleconference, the agency concluded that Petitioner had not satisfied her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offenses.

19. Goff testified that, while preparing for the hearing, she researched Petitioner’s 2007 criminal case and discovered that Petitioner still owed outstanding fines in that case in

    
    

    Broward County, and felt that Petitioner was not eligible to apply for an exemption until those fees were paid.

20. During the final hearing Petitioner presented the testimony of her former client, Yohandra Sota. She testified that she had known Petitioner during the time of the 2012 incident of theft at Home Depot, that she was not with Petitioner during that time, and that she had never witnessed Petitioner involved in theft.

21. Sota testified that Petitioner is a nice person who does not do bad things and has never fought, fussed, or threatened her.

22. Petitioner testified on her own behalf and admitted that she has things on her record and is not happy with them. She explained that everyone does things that he or she does not necessarily have a choice over.

23. Petitioner explained that she is asking for a second chance to get her life back on track and to get her life together.

24. Petitioner explained that she was not aware of the outstanding fines and that when she went to Broward County Courthouse, they told her they could not find information on the case.

    
    

25. Petitioner further explained that she is raising her three grandchildren and needs to provide for them and that she is unable to do that without a job.

26. Petitioner stated that she is unable to work with her client because of this situation (the present disqualification).

27. Petitioner explained that everyone makes mistakes and no one is perfect and that she had a rough childhood and had to raise herself.

28. Petitioner then presented the testimony of her brother, Jamvar Thomas. He testified that he has seen Petitioner go through a lot of changes and that she has made some mistakes in her life. He felt that the fact that Petitioner asked for his help shows tremendous growth in her.

29. Thomas testified that Petitioner is trying to put herself in a position so that she will not have to go back to her old habits and that she needs a second chance.

30. Thomas stated that Petitioner has worked with Yohandra Sota for 15 years and helped Sota cope with her life.

31. Thomas testified that helping people has helped Petitioner become a better person and that Petitioner has paid for her past mistakes and has come a long way.

32. Thomas requested that Petitioner be given the opportunity to do the right thing and that granting the exemption would allow Petitioner to work in her field of expertise.

    
    

33. Although Petitioner professed that she was remorseful for her criminal convictions and wants to move forward with her life, the undersigned is not persuaded by clear and convincing evidence that (1) she is rehabilitated from her disqualifying offenses, or (2) that it would be an abuse of discretion for the agency to deny the exemption.1/

34. The undersigned finds that under the facts presented Petitioner has failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.

    CONCLUSIONS OF LAW

    
    

35. DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57, Florida Statutes.

36. 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 listed in that section and section 435.04, Florida Statutes. § 408.809(4), Fla. Stat.

37. Section 435.04 provides, in pertinent part:

    
    

    (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.

    
    

    * * *

    
    

    (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:

    
    

    * * *

    
    

    (z) Section 810.02, relating to burglary.

    
    

    * * *

    
    

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

    
    

    § 435.04(1) and (2)(z) and (cc), Fla. Stat.

    
    

38. Due to Petitioner’s 2004 convictions, she is disqualified from employment in a position requiring background screening under section 408.809 and chapter 435.

39. However, section 435.07 provides for exemptions from disqualifying offenses and states, in pertinent part:

    
    

    (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;

       
       

       * * *

       
       

       (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption.

       
       

       * * *

       
       

       (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. (Emphasis added).

       
       

       § 435.07(1)(a)1. and (b) and (3)(a)–(c), Fla. Stat.

       
       

40. Thus, pursuant to the exemption statute, Petitioner has the burden to show by clear and convincing evidence that she should not be disqualified from employment. § 435.07(3)(a), Fla. Stat.

41. The Supreme Court has stated:

    
    

    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)).

    
    

42. Carefully considering the circumstances surrounding Petitioner’s disqualifying offenses in 2004; the time that has

    
    

    elapsed since those incidents; the nature of the harm to the victims and the types of offenses involved; the nature of the subsequent criminal incidents in 2007, 2012, and 2013; and Petitioner’s testimony and demeanor during the final hearing, Petitioner (1) has not carried her burden to prove rehabilitation from her disqualifying offenses by clear and convincing evidence, nor (2) has she proven that it would be an abuse of discretion for the agency to deny her request.

43. Since the statute is designed to protect children and vulnerable adults, a claim for an exemption from disqualification 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)).

44. Even if Petitioner had carried her burden of proving rehabilitation, the agency still retains the discretion to deny an exemption as it properly did in this case. Phillips v. Dep't

    of Juv. Just., 736 So. 2d 118, 119 (Fla. 4th DCA 1999).

    
    

45. Thus, as frequently quoted, “even 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.

    
    

46. Because Petitioner has failed to present clear and convincing evidence that she should be granted an exemption from disqualification, Respondent’s decision to deny the application for exemption necessarily is not an abuse of discretion.

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 an exemption from disqualification for employment.

DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

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 12th day of January, 2018.

ENDNOTE

1/ The undersigned informed Petitioner on several occasions during both hearings that she had the burden of proving both prongs of the test under section 435.07 by clear and convincing evidence.

COPIES FURNISHED:

Rosalyn Thomas

6250 Southwest 62nd Court Miami, Florida 33143

Lindsay W. Granger, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7

Tallahassee, Florida 32308 (eServed)

Richard J. Shoop, Agency Clerk

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

Tallahassee, Florida 32308 (eServed)

Justin Senior, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Stefan Grow, General Counsel

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

Tallahassee, Florida 32308 (eServed)

Kim Kellum, Esquire

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

Tallahassee, Florida 32308 (eServed)

Thomas M. Hoeler, Esquire

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

Tallahassee, Florida 32308 (eServed)

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: 17-005511

Orders for Case No: 17-005511