The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since January 29, 1993. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an undercover prostitution sting at Southwest 8th Street and 69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of May, 1999. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto, respondent, Charles P. Williams, was a counselor at South Miami Heights Elementary School (SMHES) in Miami, Florida. He was under a continuing contract with petitioner, School Board of Dade County (Board). Respondent has been a teacher or counselor in the school system since 1967. On August 19, 1987 the Board voted to dismiss Williams without pay effective that date for "immorality and misconduct in office." The action stemmed from respondent being arrested in May, 1987 and charged with possession of cocaine, a felony. A Notice of Specific Charges was later issued on November 30, 1987 setting forth the charges in greater detail. On the evening of Friday, May 22, 1987 the City of Miami Police Department assigned a special task force unit known as the Street Narcotics Unit (SNU) to conduct a reverse sting operation in an area of the city where narcotics were being sold. In such an operation, the police officers became the sellers of drugs and then arrested their customers. On this day, SNU selected the area around 15th Avenue and 68th Street, a "known narcotic area" of the city. The officers took over the complete block and "moved out" all known sellers and lookouts. The officers wore baggy street clothes and were given cocaine rock, powder cocaine and marijuana to sell to buyers. They also carried weapons and a badge, both hidden. One officer was Sharon Troy who was assigned the job of "selling" drugs on the east side of 15th Avenue and 68th Street. Officer Troy is an experienced officer who has participated in some ten to fifteen sting operations and has made approximately 150 to 200 arrests. Around 10:58 p.m. that evening, Officer Troy was approached by respondent who happened to be in the neighborhood. Williams asked Troy where he could find some narcotics. She replied, "Well, what do you want?" Williams said "cocaine." When offered a choice between rock and powder cocaine, Williams chose "rock." Officer Troy then sold him two "rocks" for $20 cash. After the exchange of money and drugs took place, Officer Troy identified herself as a police officer and arrested Williams. She immediately placed the $20 cash and the two rocks in an empty pocket. Williams was escorted by Officer Troy and another officer to a nearby apartment complex that had been converted into a temporary holding area. At the holding area, Officer Troy elicited certain information from Williams and filled out an arrest affidavit received in evidence as petitioner's exhibit 4. The money and drugs were placed in an envelope, the envelope was sealed with tape, and Officer Troy placed her name, the contents and the arrestee's name on the outside of the envelope. The envelope was then placed in an evidence box which was carried to the property unit of the Police Department. Williams was transported from the holding area to the Metro-Dade jail where he was fingerprinted, photographed and placed in a small cell with approximately twenty to thirty other arrestees. He remained there until Monday morning. After the evidence was taken to the property unit, Officer Troy retrieved the envelope, broke the seal and placed the money and drugs into two separate envelopes. The envelopes were resealed with evidence tape and given to the property specialist who placed them in the vault. The sealed envelope with the drug was not broken until the contraband was hand- delivered to the Metro- Dade laboratory on September 9, 1987. There, a Metro-Dade criminalist tested the substance and determined the rocks contained 0.2 grams of cocaine, a controlled substance. The envelope was resealed and remained in that posture until final hearing. The seal on the money bag was not broken until the bag was opened in the undersigned's presence at final hearing. Therefore, it is found that the chain of custody was not broken between the time of the arrest and the submission into evidence of the money and drugs. A few days after respondent's arrest, a Metro-Dade social worker heard a radio news report on a Spanish radio station, WQBA, concerning the arrest of an unnamed SMHES counselor. At SMHES, a few secretaries made comments about respondent's arrest and most of the faculty asked the principal about the matter. There was no television or newspaper commentary on the arrest nor was there any indication that students, parents or other community members were aware of the same. According to Dr. D. Patrick Gray, who has been accepted as an expert in the area of ethics and professional standards for educators, respondent's effectiveness as a counselor and employee of the Board has been seriously impaired by virtue of his arrest for possession of cocaine. This opinion was echoed by the school principal. It was also Dr. Gray's opinion that respondent has violated the standards of ethical conduct of the teaching profession. More specifically, Dr. Gray opined that Williams failed to maintain the respect and confidence of his colleagues, students, parents and other community members. Both at hearing and at a conference for the record, respondent denied that he purchased the drugs. Instead, he maintained that he was in the neighborhood that evening searching for a funeral home to ascertain the time of a family friend's funeral to be held on Saturday, May 23. According to Williams, Officer Troy approached him and, after asking what he was doing, without any cause handcuffed and arrested him for purchasing cocaine. Although there are two funeral homes within a few blocks of where Williams was arrested, his story is not deemed to be credible and is accordingly discredited. Williams received a satisfactory evaluation at SMHES for school year 1986-87. He was the school's only full-time counselor and worked with troubled students. Ironically, he was in charge of the school's "say no to drugs" program and the youth crime watch" program. His principal described him as having done a good job at school and characterized his work as "very satisfactory." There is no evidence of any prior disciplinary action against the licensee. Williams stated he loves the teaching profession and desires to continue teaching. He has successfully completed a court imposed "Self-help Program" which required, among other things, that respondent submit himself to a weekly test for drugs. After completion of the program, the court withheld adjudication of guilt and authorized the expunction and sealing of respondent's criminal record. Williams has taught for some twenty years, and during his recent suspension, has taken additional college course work to sharpen his education skills.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be suspended from his position for two years, said suspension to be retroactive to August 19, 1987. The remaining charge should be dismissed. DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.
