The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact Pertinent to this case, Petitioner, Harold Freeman, was employed by Troy Community Academy (Troy Academy) in April 1995.1 At the time, Troy Academy was not a contract provider of programs for youths for the Department of Juvenile Justice (DJJ) and, therefore, an employment screening pursuant to Chapter 435, Florida Statutes, was unnecessary.2 In early 1996, Troy Academy entered into a contractual arrangement with DJJ for the provision of programs for youths. Consequently, to be eligible for continued employment, Petitioner was required to submit information adequate to conduct a screening under Chapter 435, Florida Statutes. Apparently, at or about the same time, Troy Academy acquired a new fiscal agent, and Petitioner was required to submit a new employment application to be eligible for continued employment. That application was submitted on February 22, 1996.3 Among the information requested by the application was a response to the question "[h]ave you ever been convicted of any criminal offense other than traffic violations?" Petitioner responded by checking the box labeled "NO." Immediately above Petitioner's signature on the application was the statement "I certify that all statements made in this application are true and complete to the best of my knowledge. " To initiate DJJ's background screening process, Petitioner completed and submitted three documents: a Request for Preliminary FCIC/NCIC and HSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character form. Pertinent to this case, the Affidavit of Good Moral Character provided: As an applicant for employment as a caretaker with Troy Community Academy, I affirm that I meet the moral character requirements for employment as caretaker, as required by the Florida Statutes and rules, in that: * * * I have not been found guilty, regardless of whether adjudication was imposed or withheld, of any of the offenses listed below, or of any similar offense in another jurisdiction regardless of whether record is sealed or expunged; I have not entered a plea of guilty or nolo contendere (no contest), or had the court enter such a plea, to any of the offenses listed below, or to any similar offense in another jurisdiction regardless of whether the record is sealed or expunged. . . The offenses referenced above are the following sections and chapters of the Florida Statutes: * * * 25. 893 relating to drug abuse prevention and control if the offense was a felony or if any other person involved in the offense was a minor (this includes convictions for possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) Under the penalty of perjury, I attest that I have read the foregoing carefully and state that my attestation here is true and correct. (signed by Harold Freeman) SIGNATURE OF AFFIANT (Emphasis in original.) The affidavit was sworn to and subscribed before a Notary Public, State of Florida, on July 11, 1996.4 On August 14, 1996, DJJ completed its background screening and concluded that Petitioner was disqualified from working in a position of trust because he had, on May 30, 1990, pled guilty to, and was adjudicated guilty of, possession of cocaine, a third degree felony proscribed by Section 893.13(1)(f), Florida Statutes. As to the circumstances surrounding the criminal incident, the proof demonstrated that on June 13, 1987, Petitioner was observed by a Town of Palm Beach police officer seated in the driver's seat of a car with an expired tag. The officer approached the vehicle and requested Petitioner's driver's license. Petitioner initially denied having his license with him, and identified himself as Harold Foreman.5 He did so at the time because there were several warrants outstanding for driving while his license was suspended, and he did not want to be arrested. Eventually, Petitioner produced a paycheck stub with his name on it, and the police officer requested the desk to run both names in the computer. The officer was subsequently advised that a Palm Beach County warrant for a Harold Freeman was outstanding for violation of parole. While the party named in the warrant would subsequently prove not to be Petitioner, he was placed under arrest. Search of the vehicle incident to the arrest revealed a small plastic baggie containing a white powder residue in the console of the vehicle. Upon analysis at the station, the trace powder tested positive for cocaine. Petitioner remained in jail until July 4, 1987, when he made his first appearance in the County Court, Palm Beach County, Florida. At the time, the presiding judge advised Petitioner that formal charges had not been filed, and he was discharged. Petitioner was, however, advised that the State Attorney's Office might file charges at a later date. The State Attorney's Office did subsequently elect to file charges, and they were docketed in the Circuit Court, Palm Beach County, Florida, under Case No. 87-6302. Notice was mailed to Petitioner at his last known address, but returned undelivered. Indeed, Petitioner no longer resided at the address, and he did not learn that the charges had been filed until May 22, 1990. On May 22, 1990, during a "directive patrol" in Marathon, Florida, a Monroe County Sheriff's deputy ran a computer check on the Petitioner which revealed an outstanding warrant for his arrest based on the charges pending under Case No. 87-6302. Petitioner was arrested, returned to Palm Beach County, and jailed. Petitioner remained in jail until May 30, 1990, when he entered a plea of guilty to violating Section 893.13(1)(f), Florida Statutes, possession of cocaine, a third degree felony. Petitioner was adjudicated guilty, sentenced to a term of 26 days, accorded 26 days' credit for the period he had been incarcerated prior to imposition of sentence, and discharged. Following disqualification, Petitioner filed a request for exemption pursuant to Section 435.07, Florida Statutes, and was accorded an opportunity to submit information relevant to that request to an Exemption Committee of the Department of Juvenile Justice, Office of the Inspector General, on March 28, 1997. Among the information Petitioner chose to submit was a copy of his resume. (Respondent's Exhibit 6.) That resume purported to reflect Petitioner's professional experience and dates of employment; his education, which, according to the resume, included an Associate Degree in Business Administration from Miami Dade Community College; and, his military service in the United States Navy, which, according to the resume, spanned the period from July 1964 to July 1968, and culminated in an honorable discharge with the rank of Radioman First Class (E-6). Following review, the committee recommended to the Inspector General that DJJ approve Petitioner's request for exemption. The Inspector General, Perry Turner, was suspicious of Petitioner's claim to have attained the rank of Radioman First Class within four years of military service and requested a copy of Petitioner's DD214. Petitioner's DD214 confirmed the Inspector General's suspicions, and revealed that upon discharge Petitioner had not attained the rank of Radioman Fist Class (E-6). Rather, Petitioner had only attained the rank of Seaman Second Class (E-2). The DD214 further revealed that Petitioner's military service had only extended from July 7, 1964, to December 4, 1964, a period of less than five months, as opposed to the four years he claimed on his resume. Upon consideration of the matter, and most particularly the false representation regarding criminal convictions on Petitioner's employment application, the false representations on Petitioner's Affidavit of Good Moral Character, and the false representation on Petitioner's resume, the Inspector General was of the opinion that Petitioner had failed to convincingly demonstrate his entitlement to the requested exemption. Consequently, by May 1, 1997, the DJJ notified Petitioner that his request for exemption from employment disqualification had been denied. The notice further advised Petitioner that if he desired to challenge the denial he could request an administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner requested such a hearing, and these proceedings duly ensued. Consistent with the Inspector General's conclusion, the proof at hearing demonstrated that Petitioner had falsely represented his criminal history on his employment application of February 22, 1996 (Respondent's Exhibit 4), that Petitioner had falsely represented his criminal history on his Affidavit of Good Moral Character (Respondent's Exhibit 5), and that Petitioner had falsely represented his military service on the resume he submitted to DJJ. (Respondent's Exhibit 6.) Additionally, the proof further demonstrated that Petitioner had not completed the coursework required for an Associate Degree in Business Administration, as represented on his resume. Finally, the proof demonstrated that the dates of employment reflected for Petitioner's professional experience are false, having been adjusted by Petitioner to eliminate large and unexplained gaps between employment. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that following his conviction in 1990, Petitioner completed a drug rehabilitation program, including aftercare, at Camillus House (a homeless shelter), and has been continuously employed since that time at either Camillus House or Troy Academy. Petitioner has also been remarried for 4 years, and his wife is also involved in counseling as an employee of the Switchboard of Miami crisis line. While there are certain accomplishments in Petitioner's life since his conviction which weigh favorably, it must be concluded that the evidence of record demonstrating his recent deception of, and false representations to, his employer and DJJ provide a clearer insight into his character, and provide the more reliable evidence of whether rehabilitation has been shown. Given such proof, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that he should not be disqualified from employment or, stated differently, that he is currently rehabilitated and will not pose a danger or risk to the social, emotional, and intellectual development of the juveniles in his charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 5th day of November, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1997.
The Issue Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust, pursuant to sections 408.809 and 435.07, Florida Statutes,1/ should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM. This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes. The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07. Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM. In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death. Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014. The results of the June 17, 2014, teleconference are not at issue in this proceeding. Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014. A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly. A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing. Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences; Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption. Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014. After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied. Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed. Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver. Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was already being paid by her employer for the services she rendered. Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses. Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf. Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction. Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense. Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility. At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor. On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal. Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills. In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now. Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children. Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter. Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always favored her mother and did not believe the 2009 allegations against her mother. One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption. Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer. Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process. Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing. Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion. Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
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 8th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
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, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, 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 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E 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)
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issues are whether Respondent materially understated payroll in violation of Section 440.107, Florida Statutes (2003), and, if so, what penalty, if any, should be imposed against Respondent; and whether Respondent's workers are not employees defined in Section 440.02, Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a corporation domiciled in Florida and engaged in the business of stucco and plastering. On March 2, 2004, Petitioner's compliance officer conducted a random site inspection of a single-family residence under construction at 12061 Cypress Links Drive, Fort Myers, Florida. Two work crews were present on the construction site. One crew was finishing drywall seams inside the house. The other crew was applying stucco to the outside of the house. The compliance officer is the only employee for Petitioner who investigated and developed the substantive information that forms the basis of Petitioner's proposed agency action. Other employees calculated the actual amounts of the proposed penalties. On March 3, 2004, the compliance officer conducted a conference in his office with Ms. Sandra Gomez and Mr. Francesco Zuniga; and Mr. Juan Rivera and Ms. Licia Rivera. Mr. and Mrs. Rivera are the principal officers for Respondent. The compliance officer determined that the crew working inside the house worked for Mr. Zuniga and that the crew working outside the house worked for Ms. Gomez. The compliance officer further determined that Ms. Gomez and Mr. Zuniga were subcontractors for Respondent and that neither Ms. Gomez nor Mr. Zuniga had workers compensation insurance. The compliance officer issued stop work orders against Ms. Gomez and Mr. Zuniga that are not within the purview of this proceeding. The compliance officer determined that Respondent maintained workers' compensation insurance through the Hartford Insurance Company (Hartford) and took no action against Respondent except to issue an order for Respondent to produce its business records for the preceding three years (the business records) for audit by Petitioner. The compliance officer reported to Hartford that Respondent had uninsured subcontractors working for Respondent. The compliance officer also requested and received from Hartford a copy of the last premium audit report for Respondent (the audit report). On March 10, 2004, Respondent produced the business records previously requested by the compliance officer. The production of records fully satisfied the request issued by the compliance officer. The compliance officer determined there was a discrepancy between the audit report's description of employee duties and related information in the business records. The compliance officer determined that Respondent had materially understated or concealed payroll and had materially misrepresented or concealed employee duties by representing that Respondent was in the drywall business and not in the stucco business. On March 10, 2004, Petitioner issued Stop Work and Penalty Assessment Order Number 04-94-D6 (the Initial Order). The Initial Order alleged that Respondent violated Subsection 440.107(2), Florida Statutes (2003), by materially understating or concealing payroll and proposed a penalty equal to the greater of 1.5 times the premiums Respondent would have paid over the preceding three years or $1,000. Petitioner subsequently amended the Initial Order to charge Respondent with materially misrepresenting or concealing employee duties. Petitioner issued the Initial Order without conducting any further review of Respondent or its principals. The compliance officer told Mr. Rivera that it would not be helpful for Respondent to retain counsel and that counsel would only further delay release of the stop work order. The compliance officer did not provide Respondent with any information concerning methods of avoiding the penalty except for Respondent to provide proof of an exemption or proof of insurance for Respondent's subcontractors. The compliance officer did not advise Respondent that proving independent contractor status for some or all of Respondent's subcontractors before the effective date of statutory amendments on October 1, 2003, would reduce the proposed penalty against Respondent. The compliance officer did not interview the Hartford employee who prepared the audit report. The audit report was limited to the period from December 17, 2002, through December 17, 2003. The audit report stated that Hartford had not provided a copy to Respondent and had not audited Respondent's general ledger. The compliance officer did not identify or interview the Hartford employee who had responsibility for Respondent's account, the Hartford agent responsible for Respondent, or the Hartford underwriter. The compliance officer did not request Hartford's complete file for Respondent. The audit report included a copy of an exemption for a person identified in the record as Mr. Stinnett who was included in Petitioner's penalty calculation. The audit report and penalty calculation each identified Mr. Stinnett by the same social security number. On March 16, 2003, Petitioner amended the amount of the proposed fine to $526,593.44 pursuant to Amended Order of Penalty Assessment Number 04-094-D7-2 (the Amended Order). Petitioner issued a Second Amended Order of Penalty Assessment Number 04-094-D7-3 (the Second Amended Order) on March 23, 2004. The Second Amended Order reduced the proposed penalty to $90,131.51. Petitioner reduced the $526,593.44 fine proposed in the Amended Order by $426,461.91. The latter sum pertained to penalties assessed for the period preceding October 1, 2003, and for the period following December 31, 2003. The parties agree that statutory amendments authorizing Petitioner to issue a stop work order to an employer that materially misrepresents employee duties or materially understates or conceals payroll became effective on October 1, 2003, and cannot be applied to Petitioner retroactively. In addition, the parties agree that Hartford's audit report for Petitioner did not cover the period after December 31, 2003. Respondent paid the proposed fine of $90,131.51. On March 23, 2004, Petitioner issued a Release of Stop Work Order (the Release) that removed the Stop Work Order issued on March 10, 2004. In a Third Amended Order of Penalty Assessment Number 04-094-D7-4 (the Third Amended Order) dated May 26, 2004, Petitioner reduced the proposed penalty by $21,679.28 to $68,432.23. Petitioner discovered errors totaling $16,261.42 that occurred when employees input numbers to calculate the proposed penalties against Respondent. The remaining portion of the reduction in the amount of $5,417.86 was attributable to the deletion of Mr. Sinnett from the penalty calculation. In a Fourth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fourth Amended Order) dated June 1, 2004, Petitioner further reduced the proposed penalty by $1,531.97 to $66,926.00. Respondent provided additional information concerning exemptions for a few workers. On June 7, 2004, Petitioner issued a Fifth Amended Order of Penalty Assessment Number 04-094-D7-5 (the Fifth Amended Order) deleting the charge that Respondent materially misrepresented or concealed employee duties. Petitioner admits that Hartford committed errors in the audit report and in recording the description of duties that Respondent reported to Hartford. Mr. Rivera personally reported to the appropriate Hartford employee that Respondent's primary business was stucco and that Respondent hired subcontractors to perform drywall plastering. The Fourth Amended Order dated June 1, 2004, as amended by the Fifth Amended Order, remain at issue in this proceeding. The Fourth Amended Order proposes a penalty in the amount of $66,920.26. The Fifth Amended Order limits the grounds for the proposed penalty to the charge that Respondent materially understated or concealed payroll by excluding subcontractors from Respondent's payroll from October 1 through December 31, 2003 (the relevant period), and by excluding either subcontractors or independent contractors thereafter. If a worker included in the penalty calculation were an independent contractor, within the meaning of former Subsection 440.02(15)(d)1, Florida Statutes (2003), the worker should be excluded from the penalty calculation during the relevant period. Effective January 1, 2004, however, Subsection 440.02(15)(d)1, Florida Statutes (2003), no longer excluded independent contractors in the construction industry from the definition of an employee. Thus, a determination of whether a worker was an independent contractor is not probative of that portion of the proposed penalty covering any period after December 31, 2003. Prior to January 1, 2004, former Subsection 440.02(15), Florida Statues (2003), did not except subcontractors from the definition of an employee unless the subcontractor satisfied the definition of an independent contractor. Effective January 1, 2004, Subsection 440.02(15)(c)2, Florida Statutes (2003), excluded from the definition of an employee those subcontractors that did not satisfy the definition of an independent contractor if a subcontractor either executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. There is insufficient evidence to support a finding that subcontractors included in that part of the penalty assessment attributable to the period after December 31, 2003, either elected a valid exemption or otherwise secured payment for compensation coverage. These subcontractors would not be excluded from the definition of an employee after December 31, 2004, even if they were independent contractors. Except for constitutional arguments raised by Respondent over which DOAH has no jurisdiction, Respondent owes that part of the penalty attributable to any period after December 31, 2003. It is undisputed that the workers included in that part of the penalty assessment attributable to the relevant period were subcontractors. Respondent's ledger clearly treated those workers as subcontractors and reported their earnings on Form 1099 for purposes of the federal income tax. Petitioner treated those workers as subcontractors in the penalty calculation. The Workers' Compensation Law in effect during the relevant period did not expressly exclude from the definition of an employee those subcontractors who executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. Rather, former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to be an independent contractor to escape the definition of an employee. Former Subsection 440.02(15)(c), Florida Statutes (2003), required a subcontractor to satisfy all of the following requirements in former Subsection 440.02(15)(d)1, Florida Statutes (2003), in order for the subcontractor to be classified as an independent contractor: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. There is insufficient evidence to find that the workers included in that part of the penalty assessment attributable to the relevant period were independent contractors within the meaning of former Subsection 440.02(15)(d)1.a.-i., Florida Statutes (2003). Petitioner did not exceed its statutory authority by proposing a penalty of $66,920.26 in accordance with the Fourth Amended Order and Fifth Amended Order. Respondent previously paid a fine in excess of that proposed by Petitioner and is entitled to a refund of the excess penalty that Respondent paid.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order sustaining the allegations and penalties in the Fourth Amended Order and the Fifth Amended Order. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 13th day of August, 2004. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Susan McLaughlin, Esquire Law Offices of Michael F. Tew Building 800, Suite 2 6150 Diamond Center Court Fort Myers, Florida 33912 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees. Respondent is a corporation with its principal office 3981 North W Street, Unit 36, Pensacola, Florida 32505. At all relevant time periods, Respondent has been engaged in business as a contractor in the construction industry. On March 28, 2012, after receiving a public referral regarding alleged uninsured construction activity at 2544 North D Street in Pensacola, Florida (the Site), Department Compliance Investigator Angelia Brown visited the Site. Upon Ms. Brown's arrival, there were plumbers and a siding company at the Site. According to Ms. Brown, she also saw an individual attaching u- shaped metal clips between the inside beams and the roof and soffits of the house that was being constructed at the Site. The plumbers had a workers' compensation policy and the siding workers had exemptions from workers' compensation requirements. Ms. Brown spoke to the man who appeared to be attaching the metal clips. Based upon that conversation, Ms. Brown concluded that the man was a subcontractor and Respondent's employee. The evidence, however, does not support that conclusion. The man, whose name is apparently Robert Madron, was not called as a witness at the final hearing. According to Ms. Brown, Mr. Madron told her he had his own company. Ms. Brown, however, was unable to obtain information verifying that assertion. Further, while Mr. Howard had paid Mr. Madron prior to Ms. Brown's visit for unsolicited work Mr. Madron had performed for Mr. Howard, consisting of picking up trash and repairing some equipment owned by Mr. Howard, Mr. Howard denied that Respondent ever employed Mr. Madron. Rather than showing that Mr. Madron was a subcontractor with his own business or an employee of Respondent, the evidence adduced at the final hearing indicated that Mr. Madron, who was known as "Gomer" by Mr. Howard, was an unemployed, homeless person, living in nearby woods. Mr. Madron would often come to the Site and surrounding neighborhood looking for work and food. Mr. Howard was surprised that Ms. Brown had taken Mr. Madron seriously, because Mr. Howard believes that Mr. Madron's facial expressions and unbalanced, awkward gait are obvious indicators that Mr. Madron is unstable and has mental problems. Ms. Brown issued a Stop-Work Order to Mr. Madron the day of her first visit at the Site, March 28, 2012. The evidence presented at the final hearing, however, failed to show that Mr. Madron was ever employed by Respondent. The next day, March 29, 2012, Ms. Brown returned and observed four other individuals working at the Site. The individuals included Robert Jones, Charles Lyons, Martin Shaughnessy, and Allen Weeden. While Ms. Brown concluded that these individuals were Respondent's employees on March 29, 2012, the evidence shows that they were paid for the work that day by Pacesetter Personnel, an employee-leasing company. Aside from alleging that Respondent employed Mr. Madron, the Third Amended Order of Penalty Assessment is based upon Respondent's alleged employment and failure to provide workers' compensation coverage for Mr. Jones, Mr. Lyons, Mr. Shaughnessy, and Mr. Weeden. In addition, the Third Amended Order of Penalty Assessment alleges that Respondent employed its officer, Mr. Howard, during a lapse in Mr. Howard's exemption from workers' compensation. There was no testimony from Robert Jones, Charles Lyons, Martin Shaughnessy, or Allen Weeden offered at the final hearing and the evidence is otherwise insufficient to show that those individuals were employed by Respondent on March 29, 2012. The Department's investigator, Ms. Brown, further concluded that Pacesetter Personnel had not provided worker's compensation coverage for those four men on March 29, 2012. Her conclusion, however, was based on a conversation she said she had with Pacesetter Personnel. The Department did not offer the testimony from anyone at Pacesetter, nor did it offer any non- hearsay evidence to support Ms. Brown's conclusion that Pacesetter Personnel was not providing workers' compensation to those four individuals. Further, the only evidence that the Department offered to prove that Messrs. Jones, Lyons, Shaughnessy, and Weeden were ever employed by Respondent, or to support the Third Amended Penalty Assessment, consists of Mr. Howard's cancelled checks to those individuals. The Third Amended Penalty Assessment seeks an assessment for Robert Jones from January 1 to March 28, 2012. At the final hearing, Mr. Howard testified that Mr. Jones is a relative, and the payment to Mr. Jones was a loan to help Mr. Jones with moving expenses. There is no contrary evidence. The Third Amended Penalty Assessment provides an assessment for Charles Lyons for the periods from July 1, 2010 to December 31, 2010, and from January 1, 2011 to December 31, 2011. The assessment is based upon one check to Mr. Lyons in the amount to $480. Mr. Howard testified that Mr. Lyons had an exemption from workers' compensation. The Department presented no contradictory evidence. The Third Amended Penalty Assessment seeks an assessment for Martin Shaughnessy for several time periods based upon several checks from Mr. Howard. Mr. Howard testified that Mr. Shaughnessy had an exemption and the Department presented no contrary evidence. The Third Amended Penalty assessment also seeks an assessment for James Howard, individually, from July 17 to August 11, 2011, during which time there was a lapse in his certificate of exemption from workers' compensation. The evidence showed that, other than that 26-day lapse, Mr. Howard has maintained his exemption since 2003. The Department presented no evidence that Mr. Howard provided services to, or was paid by, Respondent during the time that his exemption had lapsed. The only evidence presented was a check from Respondent's checking account showing a payment to Mr. Howard's mother during the lapse period. Mr. Howard testified that the check was to reimburse his mother for the use of her American Express card to purchase materials and supplies. The Department presented no countervailing evidence. In sum, the evidence presented at the final hearing was insufficient to support the Stop Work Order or Third Amended Penalty Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers’ Compensation enter a final order dismissing the Stop-Work Order and Third Amended Order of Penalty Assessment issued against Respondent. DONE AND ENTERED this 28th day of June, 2013, 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 28th day of June, 2013.
The Issue Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
