Findings Of Fact At all times relevant hereto Petitioners were inmates incarcerated at Lake Correctional Institution (LCI) are affected by the challenged rule, and have standing to bring the rule challenges here involved. Respondent stipulated that neither PPD No. 4.07.05, LCIOP No. 84-3, nor Form 50-16 was promulgated as rules pursuant to the provisions of Chapter 120, Florida Statutes. Prior to receipt of incoming legal mail or sending out legal mail, inmates at LCI are required to sign Form 50-16 acknowledging mailing or receipt of such mail. Some testimony was submitted that on occasion inmates received their legal mail opened contrary to established procedures and directives. Also, one witness testified that he had not always received returned receipts for registered mail. Those parts of PPD 4.07.05 (Exhibit 2) and LCIOP No. 84- 3, which involve action to be taken either by inmates or Department of Corrections personnel, are identical to, or a paraphrasing of, similar provisions in Rules 33-3.03 through 33- 3.12, Florida Administrative Code. Those sections not directly relating to action taken or to be taken constitute internal management memoranda which have no application outside LCI.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether the denial of her request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Parties Petitioner is a 49-year-old female who has requested that Respondent grant her an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, so that she can become employed as a caretaker for developmentally disabled individuals. Respondent is the state agency charged under chapter 393, Florida Statutes, with meeting the needs of children and adults having developmental disabilities. These disabilities include intellectual disabilities, autism, Down syndrome, cerebral palsy, spinal bifida, Phelan-McDermid syndrome, and Prader-Willi syndrome. Developmentally disabled persons have cognitive impairments and physical limitations that render them extremely vulnerable and highly dependent on their caregivers. Respondent fulfills its mission, in part, through direct service providers, who provide nursing, personal care assistance, transportation, companionship, in-home support, and a range of other caregiving services to persons having developmental disabilities. Because developmentally disabled individuals are extremely vulnerable, they are susceptible to potential harm or exploitation by persons providing care or other services. Therefore, such service providers are subject to level 2 employment screening pursuant to chapter 435. See § 393.0655, Fla. Stat. Petitioner's Disqualifying Offense and Other Offenses Petitioner committed her disqualifying offense on or about March 11, 2001——over 17 years ago.3/ According to the complaint/arrest affidavit that was included as part of Respondent's Exhibit 2, the file on Petitioner's request for an exemption, Petitioner assaulted and battered a 14-year-old girl during an altercation that had escalated from verbal to physical. Petitioner was charged with aggravated child abuse. According to the Finding of Guilt and Order Withholding Adjudication/Special Conditions entered by the Circuit Court for the Eleventh Circuit in and for Miami-Dade County, Florida, Petitioner was found guilty of aggravated abuse of a child, a first-degree felony. Adjudication was withheld and Petitioner was sentenced to one year of probation. As a condition of her probation, Petitioner was required to participate in an anger management program. She completed this requirement. In December 2002, Petitioner violated her probation by using marijuana. For this violation, her probation was extended another six months. On or about October 11, 2011, Petitioner was detained for retail theft and was charged with petit theft. The only official document in the record, other than Petitioner's application, is a comprehensive case information system record entry stating that the court withheld adjudication on this charge.4/ The record does not show that Petitioner pled guilty or nolo contendere to this offense. Evidence Adduced at the Final Hearing Petitioner testified regarding her disqualifying offense. According to Petitioner, she had a disagreement with her neighbor and her neighbor's daughter. A few days later, when she went to the store, her neighbor and her neighbor's daughter accosted her in the parking lot and physically attacked her, so she defended herself. She acknowledged in her testimony at the final hearing that the physical altercation had occurred and that she had been arrested and charged with aggravated child abuse. However, she claimed that her public defender had agreed to a guilty plea without her concurrence, and that adjudication had been withheld for that charge. She insisted that had she understood that "withholding adjudication" entailed entering a guilty plea, she would not have agreed to that course of action. Due to having committed the disqualifying offense, Petitioner lost her employment. She testified that she became depressed and used marijuana. She acknowledged that in doing so, she had violated her probation. She testified, credibly, that she has not used drugs since 2003. There is no evidence to the contrary in the record. Petitioner acknowledged that she was arrested for petit theft in 2011, but she testified, credibly, that she did not steal anything. She explained, persuasively, that she had gone to the store with her neighbor and that when they arrived, they went their separate ways. As they left the store together, the store's security personnel detained them and accused them of shoplifting. Petitioner's neighbor, had, in fact, shoplifted items, and ultimately was required to pay restitution; however, Petitioner was not so required. The undersigned finds Petitioner's testimony regarding the 2011 petit theft incident credible. Petitioner has completed formal training in specialized types of medical care. She is a certified phlebotomist, a certified medical assistant, and a patient care technician. She is also certified or has taken courses in Basic First Aid/CPR/AED for adults and children, recognizing and reporting elder abuse, patients' rights, medical documentation, and American Heart Association Basic Life Support. In 2015, Petitioner received an exemption from disqualification from employment from the Agency for Health Care Administration ("AHCA"), and currently is eligible to be employed as a direct or indirect service provider for programs for vulnerable persons administered by that agency. However, she is seeking an exemption in this proceeding specifically so that she can be employed in a position working with disabled individuals. Petitioner testified, credibly, that she has not had any additional encounters with the criminal justice system since receiving the exemption from AHCA, and there is no evidence to the contrary in the record. Jacqueline Snyder testified regarding Petitioner's character, compassion, and competence in caring for her (Snyder). Snyder met Petitioner when she nursed Snyder's husband. After Snyder's husband passed away, Snyder was able to procure Petitioner's services through a home health agency, and then through a private contract arrangement. In that role, Petitioner helped care for Snyder during an illness, and assisted Snyder in performing a range of daily life activities, including bathing, cleaning house, and performing other life-related activities. Snyder spoke glowingly of Petitioner's character and compassion in caring for her. On cross-examination, Snyder acknowledged that she was aware of Petitioner's disqualifying offense, but testified that she believed Petitioner's version of the event and observed that, in any case, AHCA would not have granted Petitioner an exemption if she posed a threat to vulnerable individuals. Allison Scott, Petitioner's neighbor, also testified on her behalf. Scott testified, credibly, that Petitioner is actively engaged in community and church activities, such as conducting clothing drives for children, and that she has a passion for caring for the elderly and disabled. Scott was aware of Petitioner's disqualifying offense, but believes that she deserves a second chance, particularly since that offense happened so long ago. Petitioner's neighbor, Julia Mendez, also testified on Petitioner's behalf. Mendez has been Petitioner's neighbor for over eight years. Mendez testified, credibly, that Petitioner tries to counsel, and serve as a role model for, neighborhood children. She credibly testified that she had never seen Petitioner exhibit the type of behavior with which she was charged in 2001, and that, in her view, Petitioner deserves a second chance. As part of her application for the exemption, Petitioner submitted several letters of support which supplement, explain, and support the testimony presented by Snyder, Scott, and Mendez. The letters from persons for whom Petitioner has previously cared for described her as a competent, organized, compassionate, reliable, and trustworthy caregiver. A letter from Worldwide Support Services Corporation, a Medicaid waiver provider, through whom Petitioner provided services, described Petitioner as understanding, helpful, compassionate, caring, efficient, detail-oriented, extremely competent, and an asset to the industry. Tom Rice testified on behalf of Respondent. Rice has been employed by Respondent for approximately 15 years and currently serves as a program administrator over regional supports within Respondent's Division of Operations. In this position, he oversees, among other things, the processing of background screening exemption requests. Rice explained that in reviewing an application for exemption to determine whether the applicant is rehabilitated, Respondent considers the applicant's version of events and considers whether the applicant has accepted responsibility for, and is remorseful, honest, and forthright regarding, the disqualifying offense and any subsequent offenses; and whether, since the disqualifying offense, the applicant has been a good, law-abiding citizen. Respondent also reviews the applicant's arrest reports, court records, letters of recommendation, confidential investigative summaries prepared by the Department of Children and Families investigators ("CIS reports"), and traffic records. After reviewing Petitioner's application, Respondent determined that Petitioner's request for an exemption should be denied. Rice explained that Respondent's decision was based on several factors. First, Respondent was concerned about the nature of the disqualifying offense because it entailed a crime of physical violence.5/ Rice noted that many of Respondent's clients may be prone to physically violent behavior, or may themselves be vulnerable to physically violent caretakers. Second, Rice testified that in Respondent's view, Petitioner's versions of her disqualifying offense and the 2011 petit theft offense,6/ as described in the application, were different from the descriptions in the complaint/arrest affidavits in her criminal record. Rice testified that in Respondent's view, these differences indicated that Petitioner did not take responsibility for her actions in having committed these offenses. Rice also noted the existence of "multiple" CIS reports discovered during the background screening of Petitioner, including one CIS report that showed "some indicator" of financial exploitation of vulnerable adults.7/ Rice stated that these reports caused Respondent concern that Petitioner may be physically violent toward, or exploitive of, Respondent's developmentally disabled clients. Rice noted that Petitioner's background screening also showed that Petitioner had a traffic infraction involving driving on a suspended license, which, in Respondent's view, indicated Petitioner's failure to abide by the law. Rice stated that Respondent did not give any significant weight to the letters of reference that Petitioner submitted as part of her exemption application because none of those letters was from an employer, and all of them were from friends or family members. However, on redirect examination, Rice acknowledged that the record did, in fact, contain letters of reference from persons and entities other than friends and family. He did not testify, however, that Respondent duly considered these letters of reference in evaluating Petitioner's application for an exemption. In response to a question from Respondent's counsel, Rice testified that he was concerned about Petitioner's behavior exhibited during the final hearing——specifically, that Petitioner vehemently denied having voluntarily pled guilty to the disqualifying offense, vehemently denied having engaged in any kind of abusive behavior giving rise to the CIS reports, and vehemently denied that she herself had engaged in shoplifting that led to the petit theft charge. Rice noted that dealing with developmentally disabled persons is often stressful and that he would be concerned that because of her display of emotion at the final hearing, Petitioner would not be able to exhibit a calm demeanor when dealing with developmentally disabled clients. Findings of Ultimate Fact Upon a careful and considered review of the competent substantial evidence in the record of this proceeding, the undersigned determines that Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. The undersigned recognizes that Petitioner's disqualifying offense was a crime involving physical violence. However, as noted above, over 17 years have elapsed since Petitioner committed her disqualifying offense, and she has not been arrested for, or charged with, any crimes involving physical violence since that time. The undersigned finds that Petitioner's non-violent conduct for the past 17-plus years——which included periods during which she cared for elderly persons who were limited in their life activities——constitutes strong evidence that she can be trusted to deal with vulnerable persons in a non-violent manner. The undersigned does not find Petitioner's version of the disqualifying offense presented at the final hearing inconsistent with the applicable complaint/arrest affidavit in the exemption application file. To the contrary, Petitioner acknowledged that she had engaged in a physical altercation with her neighbor's daughter and expressed regret at having done so. However, as she was entitled to do, she also sought to explain the circumstances surrounding her disqualifying offense and to further explain that she did not intend to plead guilty and would not have done so had she understood that such plea was being entered by her attorney. Additionally, as noted above, the undersigned finds credible Petitioner's version of the circumstances surrounding her arrest in 2011 for petit theft. The undersigned does not agree that Petitioner's attempt to explain the circumstances surrounding this arrest as failing to take responsibility for her actions. To this point, as discussed above, the "police report" to which Rice referred in his testimony was not part of Petitioner's application file. Rather, the document to which Rice referred concerned an arrest that occurred on July 28, 1989.8/ That document does not support the position that Petitioner failed to take responsibility for her 2011 offense. The undersigned finds Petitioner's explanation of her 2011 offense credible, and finds Rice's testimony unpersuasive because it is not supported by other evidence in the record. Additionally, the CIS reports in Respondent's Exhibit 2 do not constitute competent substantial evidence of Petitioner's lack of rehabilitation in this proceeding. Those reports are hearsay that does not fall within any exception to the hearsay rule, so they cannot be used as the sole basis for finding that any of the events specifically addressed in the reports happened or that any of the statements contained in those reports is true.9/ § 120.57(1)(c), Fla. Stat. Because Respondent did not present any other evidence independently establishing the occurrence or truth of any of the matters addressed in the CIS reports included in Respondent's Exhibit 2, neither they nor Rice's testimony about them are afforded any weight in this proceeding. It is further noted that in 2015, Petitioner received an exemption from AHCA, which also conducts level 2 background screening to determine whether an applicant would constitute a danger to children and vulnerable adults. AHCA's determination that Petitioner would not pose a danger to such vulnerable persons, while not determinative in this case, is probative and is persuasive evidence that Petitioner is rehabilitated from her disqualifying offense. Finally, it is noted that at the final hearing, Petitioner vehemently denied that she had engaged in any conduct addressed in the CIS reports, and she displayed strong emotion while explaining the circumstances surrounding her disqualifying offense and the 2011 petit theft arrest. The undersigned does not find Petitioner's conduct at the final hearing indicates that she would engage in physically or emotionally violent conduct while working with Respondent's clients. Rather, the undersigned finds Petitioner's non-violent conduct over the past 17-plus years to be far more indicative of her future behavior than her emotional responses to cross-examination10/ during the final hearing. In sum, the competent, substantial, and persuasive evidence in the record of this proceeding establishes that Petitioner is rehabilitated from her disqualifying offense, and that she will not present a danger to developmentally disabled individuals if her request for an exemption from disqualification from employment is granted. Because the evidence establishes that Petitioner is rehabilitated from her disqualifying offense, the undersigned determines that denial of her request for an exemption would constitute an abuse of Respondent's discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 30th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 30th day of May, 2018.
The Issue The issues are whether Tunstall has ever been convicted of a felony, whether Tunstall has ever been convicted of a crime involving moral turpitude, and whether Tunstall falsified his application.
Findings Of Fact Leonard P. Tunstall made application for licensure as an unarmed and armed security guard to the Department of State. His application was received by the Department in February of 1981. The application indicates it was signed by Tunstall on October 29, 1980. Question #13 on the application was answered "no," as indicated by a check mark. When he originally received the application, Tunstall filled it out up to Question #13. He had not completed that question because he lacked all the data. Subsequently, Albert Simmons, his supervisor, stopped by Tunstall's residence and picked up the application, which Simmons completed with assistance from Tunstall's girlfriend. Neither Simmons nor Tunstall's girl friend had knowledge of Tunstall's record. Subsequently, Tunstall advised Simmons about his arrests, and Simmons told him that his arrests would not disqualify him. Tunstall signed the application with the understanding that his arrests would be disclosed. However, Simmons was subsequently fired, and Tunstall's application was found by Simmons' successor who submitted it with the arrests undisclosed. Tunstall's application, Respondent's Exhibit 1, indicates that answers to Questions #1 through #12 were hand-written, Question #13 was answered by placing a check mark in the "no" block, and answers to Questions #14 through #17 were type-written. Simmons was the notary who authenticated Tunstall's signature. Tunstall further testified that he began work for Florida Merchant Police in June of 1979, as a uniformed rail crossing guard. In approximately January of 1980, he was assigned to work at an unarmed security guard post. It was after this that he was given an application for licensure by the company. Tunstall's FBI records reveal the following arrests and convictions: 1939 - Disorderly conduct, NJ (Fined) 1940 - Disorderly conduct, NJ (Fined) 1947 - Burglary and attempted larceny, NJ (Felony conviction, sentenced to 1 to 2 years - served 8 months) 1958 - Assault and battery, NJ (Fined) 1958 - Disorderly conduct, NJ (Fined) 1960 - Burglary, NJ (Felony conviction, sentenced to 2 to 3 years) 1975 - Keeping a house of ill fame, FL (Dismissed) Tunstall testified that his civil rights had been restored in New Jersey, but he could not introduce any documentation to support his testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation, the Hearing Officer recommends that Leonard Tunstall's application for licensure as an armed guard be denied, and recommends that Tunstall's application for licensure as an unarmed guard be granted. DONE and ORDERED this 24th day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 24th day of July, 1981. COPIES FURNISHED: Mr. Leonard P. Tunstall Suite 996 12555 Biscayne Boulevard North Miami, Florida 33181 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Curtis Dorman, Petitioner, submitted his application for a Class "D" unarmed security guard license to the Department of State, Respondent, on or about March 13, 1985. The application sought information about arrests, and Petitioner indicated on the application that he had been arrested in 1961 for driving under the influence, in 1963 for buying stolen property and in 1972 for carrying a weapon. It is further shown on his application that a fine was imposed for the arrest in 1961, but that he was found not guilty of the 1972 offense, and that adjudication was withheld in the 1963 incident involving buying stolen property. Respondent denied Petitioner's application based upon information it received indicating that Petitioner had been arrested twelve times between 1949 and 1982. These arrests were enumerated in a letter of denial dated May 23, 1985, and included three arrests for driving under the influence, one for drunkenness, one for prowling, two for assault, one for contempt of court, one for resisting arrest, two for carrying or possessing a concealed firearm, and one for possession of stolen property. The most recent arrest listed in the letter of denial was on March 30, 1982, for possession of stolen property. Prior to this arrest, Petitioner had not been arrested since 1974 when it was indicated that he had been arrested once each for resisting arrest and possession of a firearm. Respondent offered no evidence to support all of the matters asserted in the letter of denial, and the letter itself is not sufficient to establish the truth of the matters asserted therein. Evidence received as a result of the hearing shows that Petitioner was acquitted of a 1963 charge of aggravated assault, found not guilty of carrying or possessing a concealed firearm in 1974, adjudication was withheld in 1970 on a similar charge, and he was placed on unsupervised probation for six months in 1982 resulting from his arrest for the possession of stolen property. These are the only arrests established in the record. Concerning the 1982 offense, Petitioner bought four cartoons of stolen cigarettes and was charged with grand theft, second degree. This charge was then reduced to petit theft, adjudication was withheld, and he was placed on six month's non-reporting probation. Petitioner did not indicate his 1982 arrest on his application, but instead showed this offense as occurring in 1963 and that adjudication had been withheld. He testified that it was not his intent to conceal this offense when he completed his application, but that he simply made a mistake about the date. Based upon his demeanor at the hearing, Petitioner's testimony in this regard is credible. It is unlikely he would have intentionally misrepresented the date of this offense and still correctly revealed the offense itself and its disposition.
Recommendation Based upon the foregoing it is recommended that Petitioner's application for a Class "D" unarmed security guard license be granted. DONE and ENTERED this 13th day of September 1985, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1985. COPIES FURNISHED: James C. Brannen, Esquire 6371 Southwest 36th Street Miami, Florida 33155 James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32301 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Thomas G. Tomasello General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32301 =========================================================== ======
The Issue The issues in this matter are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s action to deny Petitioner's request for exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Petitioner seeks employment as a direct service provider for persons with developmental disabilities. Petitioner desires to work with Project Choice, LLC, a service provider the Agency regulates. The Agency is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. See § 393.0655(1), Fla. Stat. A “direct service provider” is a person who has direct contact with and provides services to an Agency client. See § 393.063(11), Fla. Stat. The Agency's clients are a vulnerable population consisting of those persons who are eligible for services and support for developmental disabilities. See § 393.063, Fla. Stat. Agency clients often have severe deficits in their ability to complete self-care tasks and communicate their wants and needs. Agency clients are at a heightened risk of abuse, exploitation, and neglect because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider is regarded as a position of special trust. The Agency relies on the Department of Children and Families, Background Screening Unit (the “Department”), to initially receive and screen requests for exemption from disqualification from individuals seeking employment as direct service providers. On June 28, 2015, Petitioner submitted a Request for Exemption, with attachments, to the Department. The Department subsequently forwarded Petitioner’s application to the Agency for review. To qualify as a direct service provider, Petitioner must comply with the employment screening requirement established in chapter 435. See § 393.0655(1), Fla. Stat. Petitioner's background screening revealed a criminal offense. In September 1978, Petitioner was arrested for felony possession of marijuana in the State of Texas. Petitioner pled guilty and was given a suspended sentence. The court deferred adjudication of guilt and placed Petitioner on two years of probation. At the final hearing, the Agency also produced evidence of several non-disqualifying criminal offenses Petitioner committed subsequent to her 1978 drug arrest. Petitioner was arrested for or convicted of the following crimes: 1) a misdemeanor conviction for Possession of Marijuana in 2005; 2) Bail Jumping and Failure to Appear in 2008; 3) Bail Jumping and Failure to Appear in 2010; and 4) Failure to Appear in 2013. In accordance with section 435.04(2), Petitioner’s criminal misconduct, as a “disqualifying offense,” disqualified her from working as a direct service provider for persons with developmental disabilities. Consequently, in order to be employed in such a capacity, Petitioner was required to seek an exemption from disqualification from the Agency. Therefore, Petitioner submitted to the Agency a Request for Exemption from her disqualifying offenses as provided in section 435.07. On February 4, 2016, the Agency issued a letter notifying Petitioner that it denied her Request for Exemption. The Agency denied Petitioner’s application because it did not believe Petitioner submitted clear and convincing evidence of her rehabilitation. At the final hearing, Petitioner testified on her own behalf. Petitioner expressed her desire to work as a caregiver for disabled persons. Petitioner described herself as a giving, helpful, and responsible person. Petitioner further explained that she is seeking a change in her career in light of her recent health challenges. She is also the sole supporter of her family. Petitioner believes that a job as a health care assistant for persons with developmental disabilities will allow her to take care of her family, as well as accommodate her physical limitations. Regarding her disqualifying offense, Petitioner explained that her 1978 felony arrest for marijuana possession occurred when she was only 19 years old. She explained that she had little life experience after growing up in a small town, and she had just started college in Houston. Her boyfriend asked her to carry a suitcase for him in her car on a drive back to college. Unfortunately for Petitioner, a state trooper stopped her car for speeding. Even more unfortunately for Petitioner, the state trooper searched her trunk. The state trooper found her boyfriend’s suitcase. And, inside it, the state trooper found marijuana. Petitioner claimed that she had no knowledge of the contents of her boyfriend’s suitcase. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding her four non-disqualifying offenses, Petitioner explained that her 2005 conviction for marijuana possession also involved a car trip near Houston. She disclosed that a friend asked her to carry some Christmas presents in her car. In a lamentable case of déjà vu, a state trooper stopped her car for speeding. The state trooper searched her trunk. The state trooper found her friend’s Christmas presents. And, inside a present, the state trooper found marijuana. Once again, Petitioner stated that she had no knowledge of the contents of her friend’s presents. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding the multiple bail jumping and failure to appear convictions, Petitioner explained that she had problems knowing when her court dates were scheduled. In expressing that she has rehabilitated from her disqualifying offense, Petitioner asserts that she has moved past her criminal misconduct, and her record is now clear. She has satisfied all fees, fines, and sentences from her criminal charges. Petitioner stated that she has learned not to expose herself to these bad situations. Furthermore, her crimes did not result in harm to any victims or property. Petitioner testified that there are no present stressors in her life, and she relies on her faith for inner guidance and strength. Petitioner has had a stable work history for the past six years. Petitioner also represented that she has taken several Agency training courses in order to become better prepared to work with disabled persons. Additionally, at the final hearing, Petitioner produced evidence that she voluntarily attended a faith-based, alcohol rehabilitation program in 2006. She sought assist from the rehabilitation program based on her concerns with her alcohol consumption. Petitioner asserted that the rehabilitation program was very helpful and successful. Petitioner also provided four letters of reference attesting to her good character. The letters were written by various individuals, including some in notable positions, who have known Petitioner for several years. The letters describe Petitioner as hard-working, caring, and nurturing. At the final hearing, the Agency presented the testimony of Jeffrey Smith, regional operations manager for the Suncoast Region. Mr. Smith oversees all services to persons with developmental disabilities in his jurisdiction. Mr. Smith’s responsibilities include reviewing requests for exemption from disqualifying offenses. Mr. Smith explained that the Agency serves vulnerable individuals who are highly susceptible to abuse, exploitation, and neglect due to their developmental disabilities. Many of the tasks direct service providers offer Agency clients involve financial, personal, and/or social necessities. Therefore, the Agency must ensure that direct service providers are detail- oriented and trustworthy. When considering a request for an exemption, the Agency must weigh the benefit against the risk of endangerment to its clients. Mr. Smith described the Agency’s process when reviewing a request for exemption from disqualification. Mr. Smith relayed that the Agency considers the disqualifying offense itself, the circumstances surrounding the offense, the nature of any harm caused to a victim, the history of the employee since the incident and, finally, any other evidence indicating that the individual will present a danger if employment is allowed. Specifically regarding Petitioner’s application, Mr. Smith explained that the Agency reviewed all of the documentation Petitioner provided in her Request for Exemption, including the various records documenting Petitioner's criminal history, her work experience, and her character reference letters. In addition to her criminal records, the Agency reviewed Petitioner’s driving record. Mr. Smith advised that a direct service provider will often be tasked to transport clients. Mr. Smith noted that Petitioner's driving record included several traffic related violations. He commented that these records show a pattern of questionable judgment by Petitioner. Mr. Smith further testified that the Agency considered Petitioner’s evidence of rehabilitation, including Petitioner’s statements submitted with her Request for Exemption and the letters of recommendation supporting her application. Mr. Smith explained that, based on its review, the Agency determined that Petitioner's criminal history indicates a pattern of poor judgment and a lack of acceptance of full responsibility for her actions. Petitioner’s repeated involvement with the criminal court system reflects a lack of remorse for her misconduct. In addition, the Agency found that Petitioner failed to disclose the full and complete details of her criminal offenses in her application. Mr. Smith testified that inconsistencies in Petitioner’s Exemption Questionnaire, including her unreported attendance at the alcohol rehabilitation program, called her truthfulness into question. Finally, Mr. Smith was concerned about the nature of Petitioner’s offenses (disqualifying and non-disqualifying), as well their close proximity in time with Petitioner’s application. Upon careful consideration of the record evidence, the undersigned finds that Petitioner did not demonstrate, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense from 1978. While Petitioner has made commendable strides to change her life, her repeated criminal proceedings since 1978 raise serious concerns, and some hesitancy, in finding that she has sufficiently established that she should be employed in a position of special trust with persons with developmental disabilities. Despite the fact that Petitioner's disqualifying and non-disqualifying offenses did not result in harm to another, they do demonstrate a failure to exercise good judgment and responsibility that cannot be discounted. Therefore, based on the evidence set forth, Petitioner has not met her burden of demonstrating that she has rehabilitated from her past disqualifying offense or proven that the Agency should grant her request for exemption from disqualification under sections 393.0655 and 435.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 17th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 June, 2016.
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.
Findings Of Fact Respondent is the agency responsible for conducting background screenings for employees of health care facilities under Chapter 400, Florida Statutes. Petitioner is licensed as a certified nurse's assistant. She began working as a nurse's aide at a nursing home in February 2000. 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: In 1986, Petitioner was convicted of felony grand larceny (shoplifting) and sentenced to confinement in a state correctional facility for two years. In 1990, Petitioner pled nolo contendere, was convicted, and sentenced to eleven months, twenty-nine days in county jail for shoplifting (grand retail theft.) In 1995, Petitioner pled nolo contendere, was convicted, and sentenced to probation for shoplifting (felony petit theft.) 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. 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.
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
The Issue Among the issues in this case are: Whether a court order sealing records of a criminal prosecution bars action by a school board against its employee on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as an employee of petitioner had been reduced? Whether petitioner can discipline an employee for "immorality" occurring before employment began? Whether petitioner can discipline an employee for "immorality" now that Section 231.36, Florida Statutes (1981) has been amended to delete "immorality" as such as grounds for dismissal or suspension?
Findings Of Fact After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood. THE ARREST The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants. The only other bedroom in the apartment seemed to be unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers. EFFECTIVENESS In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981. PROPOSED FINDINGS CONSIDERED Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the petition for dismissal filed against respondent. DONE AND ENTERED this 25th day of January, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1983. COPIES FURNISHED: Charles T. Whitelock, Esquire 1244 Southeast Third Street Ft. Lauderdale, Florida 33316 Richard H. Frank, Esquire Mark F. Kelly Law Offices of Frank & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606 William T. McFatter Superintendent of Schools The School Board of Broward County, Florida 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 =================================================================
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this proceeding is whether Petitioner should be granted an exemption from employment disqualification.
Findings Of Fact The Agency for Persons with Disabilities provides services to disabled clients. As part of its responsibilities, the Agency oversees the background screening process of caregivers, as well as any exemptions should a caregiver be disqualified by his or her background. Towards that end, the Agency’s primary concern in considering requests for exemption is the health and safety of the clients served by the Agency. Petitioner applied for an exemption from disqualification pursuant to section 435.07, Florida Statutes (2015). The application included two letters of recommendation regarding Petitioner’s character. Those letters were from people who knew Petitioner in the community or around town, but were neither detailed nor informative about the extent of their knowledge, the length of time the writers had known Petitioner, or any rehabilitation efforts by Petitioner. Additionally, the application for exemption included Petitioner's explanation of the events surrounding her multiple criminal convictions. In her explanation and at hearing, Petitioner admitted her criminal history but attempted to blame the other parties involved in the events that led to the police being summoned. Although she claimed remorse in her application, Petitioner did not appear particularly remorseful about her criminal past. Ms. Lynne Daw received and reviewed Petitioner’s exemption application packet prepared by the Department of Children and Families. The exemption packet contained the application; the requestor’s criminal history; information and questionnaires from the applicant; educational background and references; any documents that the applicant wished to submit on his or her behalf, as well as information that the background screening office had obtained, such as Florida Department of Law Enforcement reports; and other law enforcement documents. Ms. Daw testified to the steps followed and individuals who reviewed Petitioner’s request for an exemption. The evidence showed that the Department complied with its review process and ultimately determined to deny Petitioner’s request for an exemption from disqualification. Petitioner began her criminal activity on January 11, 2009, when at a local bar in Gretna, she engaged in a verbal altercation with her “live-in” boyfriend who was also the father of her son. The altercation caused both to be escorted from the bar, where the affray continued in the parking lot with the police eventually being summoned. During the altercation, Petitioner attempted to pepper spray the boyfriend by reaching around the police officer who was between them with a can of pepper spray in her hand. Petitioner was arrested and entered a plea of nolo contendere to domestic assault, a second-degree misdemeanor, on January 28, 2009. The plea was accepted by the court. Adjudication was withheld and a fine of $200.00 was imposed. From the court records, Petitioner completed the terms of her sentence in 2009 when she paid the fine. Petitioner attributed the altercation to the bad break-up she and her boyfriend were going through at the time or had just gone through. The conviction for domestic violence was the only disqualifying offense in regards to Level 2 background screening. However, around February 15, 2013, Petitioner was intoxicated at a local bar “screaming at the top of her lungs” and threatening to discharge a weapon. The police were again summoned to the bar. Petitioner continued to engage in a verbal altercation with another woman over some past love interest and threw her keys at her. She was arrested, placed in handcuffs, slipped out of them and continued to yell. Ultimately, she was charged with disorderly conduct and resisting an officer without violence. Petitioner entered a plea of nolo contendere to the charge of disorderly conduct. The court accepted the plea, withheld adjudication and imposed a fine. From the court records, Petitioner has made payments on the imposed fine, but has not paid the fine in full and has not completed her sentence. At hearing, Petitioner blamed the incident on the other women and indicated that somehow such behavior was less serious because the people involved all knew each other. More troubling is that Petitioner denied using and/or misusing alcohol in her application for exemption when her record clearly demonstrates that she does use alcohol to the point that it has led to at least one criminal conviction. The evidence showed that Petitioner, who was 35 at the time of hearing, was 32 years of age at the time of her last conviction, three years ago, and 28 at the time of her disqualifying domestic violence conviction, seven years ago. She currently works as a security officer and holds a certificate as a certified nursing assistant. Evidence showed that she has not received any exemptions from disqualification for these professions. Although Petitioner claims that she now only goes home to take care of her three children, the evidence did not demonstrate that she has removed herself from the rowdy drinking and bar life she has lived in the past. In this case, the good character of Petitioner was not attested to by character witnesses, who knew the Petitioner on both a personal and professional level. As indicated, the two reference letters were not helpful on the issue of character or rehabilitation. As noted, the evidence showed that Petitioner’s disqualifying crime occurred seven years ago. However, the evidence was insufficient to demonstrate that, since her conviction, she has rehabilitated herself to the extent she has either controlled her use of alcohol or her anger. To her credit, Petitioner is taking care of her young disabled daughter. But, such evidence covering only a short period of time does not on these facts constitute clear and convincing evidence of rehabilitation. Given these facts, the denial of the exemption is consistent with and supported by the evidence adduced at the hearing. The Department did not abuse its discretion in denying an exemption to Petitioner. As such, the Petitioner’s request for an exemption from disqualification should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner an exemption from employment disqualification. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of May, 2016. COPIES FURNISHED: Shamika Williams 91 Henry Drive Gretna, Florida 32332 Tracie Hardin, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
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 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
