The Issue The Petitioner has applied for exemption from disqualification for licensure as a foster parent. The Respondent has denied the application. The issue in the case is whether the Petitioner’s request for exemption from disqualification should be approved.
Findings Of Fact On April 26, 1991, Joan Goldhammer (Petitioner) entered a plea of nolo contendere to the offense of grand theft in Case Number 91-1131, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. As a result of her plea, the Petitioner was placed on probation for 15 years, was ordered to complete 250 hours of community service, and was ordered to continue with counseling. The court withheld an adjudication of guilt. The Petitioner was also ordered to make restitution in the amount of $24,408 to the victim of the theft. The Petitioner continues to make restitution and has approximately five more years of scheduled payments before restitution will be completed. The Petitioner’s probationary period is continuing. She has performed the required community service requirement and has completed the counseling. There is no evidence that the Petitioner’s compliance with the terms of her probation has been other than appropriate. Early in 1999, the Petitioner began the process of becoming licensed by the State of Florida as a foster parent. The impetus for her application to become licensed as a foster parent was the suggestion by her pastor that she foster a child with whom the pastor was familiar. She completed the application process. Both she and her husband completed a state-mandated training course (MAPP-Model Approach to Partnership in Parenting). As part of the application process, the Petitioner was fingerprinted and a criminal background check was conducted. The Petitioner’s uncontradicted testimony was that she disclosed the 1991 incident to investigators at the time of the application process. The Respondent asserts that the information was revealed as a part of the criminal background check. There is no evidence that the Petitioner ever attempted to conceal the 1991 incident. Licensure as a foster parent is a "position of special trust" as defined by Florida statute. Based on the 1991 incident, the Respondent notified the Petitioner that she was disqualified from holding a "position of special trust" and therefore was ineligible for licensure as a foster parent. The Petitioner filed a request for exemption from the disqualification. By letter dated March 23, 1999, the Respondent denied the request for exemption from disqualification. The March 23 letter cites the statute that governs the granting of exemption from disqualification. As grounds for the denial of her request for exemption, the letter states as follows: It is the District’s policy that individuals currently serving a probation sentence, recently released for less than one year (misdemeanor offense), or for less than three years (felony offense), cannot demonstrate that they meet this standard. Consequently, your request for exemption from disqualification has been denied. There is no credible evidence supporting the policy stated in the March 23 letter. The Respondent’s sole witness acknowledged that the District Administrator established the District Five policy, and that each of the Department’s 15 District Administrators may have established different policies. The statute governing exemptions from disqualification provides that the applicant must provide "sufficient evidence of rehabilitation" and includes specific factors that should be considered. At the time of the 1991 offense, the Petitioner was a single mother, was newly divorced, was raising three children, and was financially needy. For various reasons, she was unable to take advantage of public assistance programs. Her employment provided access to the financial records and accounts of her employer. She took advantage of the situation and embezzled money from her employer, to whom she continues to make restitution. Other than the 1991 incident, the Petitioner has had no criminal involvement. Although the embezzlement was clearly illegal and inappropriate under any circumstances, the sole harm to the victim of her crime was financial loss. She has consistently met her obligation to make restitution of the money she embezzled. There is no evidence of any kind that the Petitioner currently poses, or has ever posed, a danger to any child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Joan Goldhammer for exemption from disqualification. DONE AND ORDERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of August, 1999. COPIES FURNISHED: David L. Partlow, Esquire David L. Partlow, P.A. Transworld Center, Suite 210 4100 West Kennedy Boulevard Tampa, Florida 33609-2244 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner should be granted an exemption from disqualification for failure to meet minimum screening requirements for good moral character as specified by Section 409.175(2)(h), Florida Statutes (1995).
Findings Of Fact On May 11, 1986, an officer from the Office of Sheriff, Jacksonville, Duval County, Florida, arrested and charged Petitioner with battery on a spouse, a violation of Section 784.03, Florida Statutes, a first degree misdemeanor. The incident arose when Petitioner's wife, Keturah Latimer, took the family car to arrange a visit between Petitioner's stepson and the stepson's father. Angered by his wife's actions, Petitioner struck her with his fists causing considerable bruising to her forehead and head. He was twenty-eight years old at that time. Petitioner spent thirteen days in jail and was released on bond. The record does not indicate the exact disposition of the case. However, Petitioner admits that he struck his wife. He also expressed remorse for his behavior. Petitioner has a clean record subsequent to this incident in May of 1986. He is now thirty-eight years old. Petitioner is raising his stepson, Demetrius, as his own son. Petitioner and his wife are attempting to adopt Lashon, the daughter of a family friend. Respondent's protective services staff placed Lashon in the Latimer's home when Lashon was three weeks old. Lashon is now three years old. The Respondent's protective supervision staff conducted a home study which found the Petitioner's home to be an appropriate placement for Lashon. Petitioner has been employed for the past nine (9) years with Premier Plastering doing stucco work. Petitioner attends church occasionally at Macedonia Baptist Church and his wife and children attend We're for Jesus Church. The Latimer's have been married for seventeen (17) years and have three (3) sons of their own; they have had no involvement with Respondent's protective investigations staff. Petitioner and his family attended and completed Respondent's training for prospective foster parents.
Recommendation Based upon the findings of fact and the conclusions of law, it is, recommended that Respondent enter a Final Order granting Petitioner an exemption from disqualification from employment as a family foster home parent. DONE and ENTERED this 19th day of July, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1996. APPENDIX The following constitutes the undersigned's rulings on the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact. 1-10. Accepted in substance and as restated in Findings of Fact 1-12 of this Recommended Order. The undersigned agrees with Respondent's findings of fact but not with the proposed conclusions of law. The testimony presented by the Latimers was very persuasive. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Lawrence D. Latimer 1608 Golf Forest Drive Jacksonville, Florida 32205 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent is guilty of having obtained a real estate license by fraud, misrepresentation, or concealment in violation of Subsection 475.25(1)(m), Florida Statutes (2004). Whether Respondent is guilty of failure to comply with Florida Administrative Code Rule 61J2-2.027(2), and, therefore, is in violation of Subsection 475.25(1)(e), Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes (2004). At all times material, Respondent was a licensed Florida real estate sales associate, issued license number 3019284 in accordance with Chapter 475, Florida Statutes (2004). Petitioner has jurisdiction over disciplinary proceedings for the Florida Real Estate Commission (Commission). Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. On or about August 6, 2001, Respondent submitted to Petitioner an application for licensure as a real estate salesperson. Respondent signed a sworn affidavit on the application which indicated that Respondent carefully read the application, answers, and the attached statements, if any, and that all such answers and statements were true, correct, and complete to his knowledge without any evasions or mental reservations. Question 9 on the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no Contest), even if adjudication was withheld: This question applies to a violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent marked the "Yes" box on the application in response to this question and provided insufficient or no explanation for the incidents in his criminal history. Respondent signed the "Affidavit of Applicant." Respondent's signature was duly notarized, and the application was submitted. Relying on Respondent's incomplete representations, Petitioner issued Respondent a Florida real estate salesperson's license. Petitioner subsequently performed a background check and discovered the following: In 1998, Respondent was adjudicated guilty of DUI. In 1987, Respondent was adjudicated guilty of possession of a controlled substance. In 1986, Respondent was adjudicated guilty of driving under the influence of liquor. In 1985, Respondent was adjudicated guilty of driving a motor vehicle while his license was suspended. In 1985, Respondent was adjudicated guilty of simple assault and battery. Respondent failed to include the above-mentioned adjudications on his application for licensure. Petitioner's Exhibits 2, 3, 4, 5, and 6 are copies of court documents demonstrating that Respondent was adjudicated guilty in each unreported offense. Respondent testified that he failed to report the adjudications until August 20, 2003. However, Respondent's reporting of the adjudications occurred after Petitioner discovered them and prompted Respondent to explain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order declaring Respondent has been found guilty of violating Subsection 475.25(1)(m), Florida Statutes (2004), and Florida Administrative Code Rule 61J2-2.027(2), and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint, and suspending Respondent's license until June 30, 2005, and requiring that Respondent pay a $1,000 fine. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of June, 2005. COPIES FURNISHED: James P. Harwood, Esquire Department of Business and Professional Regulation Hurston Building North Tower Suite 801N 400 West Robinson Street Orlando, Florida 32801 Michael G. Nichola, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801
The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact In or about April 1999, Petitioner, Darlene Renfroe, submitted a State of Florida Employment Application to Respondent, Department of Juvenile Justice (Department), for employment as a group treatment leader, a caretaker/direct contact position. Among the information sought on the application was a response to the question "[h]ave you ever been convicted of a felony or a first degree misdemeanor?" Petitioner respondent "yes" to the question and elaborated that she had been convicted of "Possession of Control[led] Substance" in Miami, Florida, on April 1, 1986. Accompanying the application was a copy of the Indictment filed in the United States District Court, Southern District of Florida (Case No. 85-937CR-Scott) which charged that on or about November 23, 1985, at Miami International Airport, Dade County, Florida, Petitioner knowingly and intentionally imported into the United States (Count I), and knowingly and intentionally possessed with intent to distribute (Count II), at least one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as to Count I, and Title 21, United State Code, Section 841(a)(1), as to Count II. The application was also accompanied by a three-page handwritten letter signed by Petitioner which offered her explanation of the events leading to her conviction. The position for which Petitioner applied, group treatment leader, is a position of special trust which requires, as a condition of employment, a successful background screening process to exclude the possibility that Petitioner was ever found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to certain enumerated disqualifying offenses under Florida law or similar offenses in another jurisdiction. If the screening process reveals a disqualifying offense, the applicant is not qualified for employment unless a request for exemption (pursuant to Section 435.07, Florida Statutes) is approved. Notably, among the disqualifying offenses is a violation of "Chapter 893 relating to drug abuse prevention and control if the offense was a felony . . . (. . . includ[ing] charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)," an offense for which Petitioner (as disclosed by her application) had been convicted. To complete the Department's background screening, Petitioner also completed and submitted three additional documents: a Request for Preliminary FCIC/NCIC and DHSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character.1 On May 27, 1999, the Department completed its background screening process. That process revealed (consistent with Petitioner's disclosure) that on April 1, 1986, Petitioner pled guilty to and was adjudicated guilty of the offense of "knowingly and intentionally import[ing] into the United States from a place outside thereof, a Schedule II controlled narcotic substance, that is a quantity of cocaine, at least one kilogram, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as charged in Count I of the Indictment. Count II of the Indictment was dismissed upon motion of the United States attorney. As a penalty for such offense, Petitioner was committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three years and six months. Petitioner served a two-year term of confinement at Women's Federal Correctional Institute, Lexington, Kentucky (released April 1, 1988), followed by a six- month term at a half-way house and then was discharged. Upon completion of its background screening, the Department concluded that (based on her conviction for importation of cocaine) Petitioner was disqualified from working in a position of trust; however, by letter of June 7, 1999, the Department accorded Petitioner an opportunity to request an exemption pursuant to Section 435.07, Florida Statutes. That letter reasonably advised Petitioner of her obligation to demonstrate by clear and convincing evidence that she had been rehabilitated and that she would not present a danger if accorded employment in a position of special trust. Among the items requested for Department review (in passing on a request for exemption) were the following:2 A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.). And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well-being of juveniles. A statement as to whether you have been involved in any other criminal offenses either prior or subsequent to the commission of the disqualifying offense. * * * Letters of support/recommendation from others indicating that you are of good moral character. If you were placed on probation/community control, certified documentation of successful completion of probation/community control. A statement as to what you believe you have to offer to juveniles and why you want to work with the Department of Juvenile Justice or a Provider Facility. Petitioner duly requested an exemption from disqualification and submitted the requested documentation to the Department. Upon review, Petitioner's request for exemption was denied. The Department's expressed rationale was stated in its Inspector General's letter of August 1, 1999, as follows: In order to reach a decision on your request, I have reviewed your criminal history and the supporting documentation you submitted. Based upon a careful review of all documentation, compelling evidence does not exist which would lead me to grant you an exemption. Therefore, your request is denied. As a criminal justice agency, this department has to exercise great care and caution in selecting those persons who are allowed to work with the juveniles entrusted to our care and custody. The letter further advised Petitioner of her right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption. Petitioner filed a timely request for such a hearing and these proceedings duly-followed. Consistent with the Inspector General's conclusion that Petitioner had failed to convincingly demonstrate her entitlement to the requested exemption, the proof at hearing demonstrated that the crime to which Petitioner pled guilty and for which she was convicted ("knowingly and intentionally importing . . . a Schedule II controlled substance, that is a quantity of cocaine, at least one kilogram") gravely violated moral sentiment or accepted moral standards of the community, such that it could reasonably be said that Petitioner committed a crime of gravity involving moral turpitude.3 It may also be said, consistent with the Inspector General's observation, that Petitioner's explanation of the circumstances surrounding the criminal incident (as set forth in her letter of May 25, 1999, contained in Respondent's Exhibit number 1) appears, at best, fanciful. Finally, given the nature of the offense and Petitioner's age at the time (28 years), her conduct can hardly be characterized as youthful intemperance. 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 Petitioner successfully completed (with apparent good behavior) her term of incarceration; that she committed no other transgression; and that she has been continuously employed since her release (most recently by the State of Florida, Landmark Learning Center, as a behavior program associate, assisting and training mentally retarded children). Moreover, since January 1997, Petitioner has been licensed by the State of Florida, Department of Children and Family Services, to operate a foster home and currently has four children (two boys and two girls) under her care. Finally, among those who know her, Petitioner is considered truly remorseful for her misconduct, is believed to present a good role model for the youths she services, and is considered a reliable and trustworthy member of her community. While there are certainly accomplishments in Petitioner's life since her conviction which weigh favorably, it must be concluded (as urged by the Department) that the gravity of her offense, as well as her lack of candor regarding the circumstances surrounding the criminal incident, do not permit a conclusion to be drawn, with the requisite degree of certainty, that Petitioner stands rehabilitated. Stated differently, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that she is currently rehabilitated and will not pose a danger or risk (if allowed employment) to the social, emotional, and intellectual development of the juveniles in her 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 14th day of January, 2000, 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 (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 14th day of January, 2000.
The Issue Whether the Agency for Health Care Administration’s (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Respondent is required to conduct certain background screenings for employees who provide 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 such services to residents of a health care facility licensed by Respondent, and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809, Florida Statutes. Petitioner submitted to the required background screening, which revealed that in 2006, Petitioner was adjudicated delinquent for the felony offense of Aggravated Battery with a Deadly Weapon, in violation of section 784.045, Florida Statutes, in Franklin County, Florida, Case No. 06000033CJAXMX. In 2010, Petitioner was charged with Child Abuse and Child Neglect, but pleaded guilty to Contributing to the Delinquency of a Minor, in Duval County Circuit Court, Case No. 162010CF002633AXXXMA, in violation of section 827.04, Florida Statutes. The two above-referenced criminal convictions render Petitioner disqualified and ineligible to provide the listed services in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07, Florida Statutes. In addition, Petitioner’s background check revealed that she was arrested in 2014 for Battery, although the charge was dismissed, and Petitioner pleaded no contest to Disorderly Conduct, in Gulf County Court, Case No. 14-100MM. Petitioner was also arrested in 2014 for two (2) counts of Aggravated Battery with a Deadly Weapon, but those charges were dismissed. However, Petitioner pled no contest to the offense of Affray, in Gulf County Court, Case No. 14-179-CF. Petitioner initially submitted an application for exemption to the Agency in accordance with sections 408.809 and 435.07, on or about April 21, 2017, and participated in a telephonic hearing conducted by Respondent on June 13, 2017. Respondent’s witness, Sherry Ledbetter, the operations and management consultant manager for the Background Screening Unit, testified that she attended the telephonic hearing on June 13, 2017. Following the telephonic hearing, Respondent denied Petitioner’s request for an exemption by letter dated June 19, 2017, and Petitioner subsequently requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that, in making the decision to deny the exemption request, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, as well as her explanations of her past offenses. Ms. Ledbetter also testified that the instant denial was separate from, and did not impact, any exemption that Petitioner may receive for her Certified Nursing Assistant (CNA) license through the Florida Department of Health. As explained by Ms. Ledbetter, once there is a disqualifying offense or conviction, Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Indeed, Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Ms. Ledbetter testified that Respondent also considered the circumstances surrounding Petitioner’s most recent arrests, even though the charges were not disqualifying under the law. She further testified that the recency of those 2014 incidents was a large factor in Respondent’s decision to deny Petitioner’s application for exemption. Ms. Ledbetter noted that some of Petitioner’s statements conflict with the police reports and other documentation in Petitioner’s exemption file, particularly with respect to the 2010 Contributing to the Delinquency of a Minor conviction. Petitioner’s child, who was four months old at the time, was discovered to have a broken leg and a broken arm. At the telephonic hearing, Petitioner was unable to explain what happened and blamed the injuries on the babysitter, although no proof was presented that the babysitter was charged with a crime related to this incident. When determining to deny the exemption request, the Agency was aware of the fact that Petitioner had taken court- ordered anger management courses in 2006, and again in 2014. In summary, Ms. Ledbetter testified that, based on Petitioner’s entire file and her responses during the teleconferences, Petitioner had not satisfied her burden of proving, by clear and convincing evidence, her rehabilitation subsequent to her disqualifying offenses. Petitioner testified on her own behalf and explained how her past does not define her today, and that she is a changed person. She explained that she has grown up a lot, and has learned to love herself. She also stated that she has learned how to be honest with herself, and to take responsibility for her actions. Petitioner explained that in 2015, her mother had lung cancer and was in hospice. She acknowledged that this experience with her mother was the pivotal moment in her life that changed her. Petitioner professed that she wants nothing more than to help people, and would do so if granted the exemption. Specifically, Petitioner would like to return to her work helping elderly adults. Petitioner called as a character witness her friend since high school, Sheila Long, who testified that Petitioner has grown up a lot, is a good mother, and is trying to be a better person. Petitioner successfully completed a CNA course in March 2017. Included with Petitioner’s application for exemption from disqualification were several letters of reference, all lauding Petitioner’s good character and geniality. Three of those letters attested to her successful employment in recent years, including two from representatives of the Eisenhower Center, a rehabilitation facility where Petitioner worked as a CNA until her disqualification. A third, from the assistant manager at the Walmart where Petitioner had been employed, praised Petitioner’s pleasant and courteous demeanor, and her honesty in revealing her criminal background. Although Petitioner appeared genuinely remorseful for her criminal convictions and has clearly made an effort to turn her life around, due to the recency of some of the offenses, it cannot be concluded that she is rehabilitated and should not be disqualified from employment. Petitioner has thus failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
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 an exemption from disqualification. DONE AND ENTERED this 28th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 November, 2017. COPIES FURNISHED: Lindsay Worsham Granger, Esquire Agency for Health Care Administration Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Nicole Henry 1609 Chatham Road Jacksonville, Florida 32208 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of February, 2005.
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
The Issue This issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2001).
Findings Of Fact Petitioner is a single male. He is the father of one child. At all times material to this proceeding, Petitioner was attempting to resolve child custody issues with the mother of Petitioner's child. Petitioner wanted to have physical custody of his child at least 50 percent of the time. In March 2002, Petitioner was arrested and charged with Battery/Domestic Violence against the his child's mother. In August 2002, the State Attorney's Office in Volusia County, Florida, filed a nolle prosequi in the criminal case against Petitioner. Petitioner applied for a position as a guitar teacher at Respondent's school. The application package included a Release of Information Agreement form and a Florida Department of Law Enforcement (FDLE) Volunteer & Employee Criminal History System (VECHS) Waiver Agreement and Statement form. Respondent directed all prospective employees to sign the forms so that Respondent could request a criminal history background report. The application package also contained fingerprint cards. Respondent used the fingerprint cards to complete criminal history background investigations on new employees. Petitioner never went to the local police station to complete the fingerprint cards. In order to maintain its accreditation, Respondent must comply with the By-Laws/Standards of the Florida Council of Independent Schools (FCIS). § 3.4.4 of the FCIS Accreditation Standards state that "[a]ll newly hired full and part-time employees must submit to a background check." At all times pertinent here, Ms. Dana Tate was Respondent's principal. Ms. Tate also was a single parent. Ms. Tate interviewed and hired Petitioner as a part- time guitar teacher in September 2002. Ms. Tate did not know anything about Petitioner's marital status when she hired him. Ms. Tate was especially pleased to hire Petitioner because the school had a difficult time hiring male teachers. Petitioner began working without signing the criminal history consent/waiver forms. Instead, Petitioner gave Respondent oral consent to check his criminal history background. During the hearing, Petitioner admitted that one of Respondent's secretaries asked him about turning in the fingerprint cards. Petitioner explained to the secretary that he had visitation time with his child during the time that the police station was available to take his fingerprints. Petitioner was a competent music teacher. Respondent has never questioned Petitioner's qualifications to teach guitar. However, another teacher was always present with students in Petitioner's classes. On one occasion, Respondent assigned Melonie Donnally to sit in Petitioner's class. Ms. Donnally was in the process of getting a divorce. During the class, Ms. Donnally and Petitioner shared their personal experiences in circuit court regarding custody of their children. Petitioner told Ms. Donnally that he had never married the mother of his child but that he had lived with her for many years. Petitioner also stated that he was trying to get 50 percent physical custody of his child. According to Petitioner, Ms. Donnally was shocked to learn that Petitioner was seeking physical custody of his child. The conversation ended when Petitioner suggested that Ms. Donnally share physical custody of her children with her husband. During the hearing, Ms. Donnally did not remember the details of the above-referenced conversation with Petitioner. However, she admitted that she had to fight for 50/50 shared parental responsibility with her ex-husband. There is no evidence that Ms. Donnally communicated the substance of her conversation with Petitioner to Ms. Tate or anyone else at the school. Acting on Petitioner's oral consent Ms. Tate requested FDLE to provide her with criminal history information on Petitioner. Ms. Tate received a report from FDLE on September 27, 2002. The report revealed Petitioner's arrest for battery/domestic violence. Ms. Tate decided to terminate Petitioner's employment based on the arrest report. On September 27, 2002, Ms. Tate confronted Petitioner about his arrest for battery/domestic violence in the school office. Ms. Tate told Petitioner that she was terminating his employment and gave him a final pay check. Petitioner explained that the criminal case against him had been dismissed. Because Ms. Tate was not willing to accept Petitioner's explanation, he became angry, speaking loudly and expressing his frustration with the system. Petitioner's body language became menacing. Because Ms. Tate wanted to end the conversation, she agreed to take a look at letters from Petitioner's girlfriend regarding the incident leading to Petitioner's arrest. Petitioner told Ms. Tate that he had other documents in his car that would support his explanation of the incident with his girlfriend. He left the building to retrieve the documents from his car. Ms. Tate was not comfortable with Petitioner being in the building. When Petitioner returned with his documents, Ms. Tate requested that he wait outside until she could copy the documents. Before leaving the premises, Petitioner told Ms. Tate that the school would be sorry about terminating his employment because he intended to make it public. Ms. Tate was alarmed about the disturbance that Petitioner had created at the school. She called the police. However, Petitioner left the campus before a police officer responded to Ms. Tate's call. On or about October 2, 2002, Petitioner called Ms. Tate on the telephone. Once again Petitioner was loud and intimidating, asking to speak to Ms. Tate's supervisor. Petitioner stated that Ms. Tate was an unreasonable woman with too much power. Petitioner also told Ms. Tate that he intended to picket in front of the school because Respondent was discriminating against him. Ms. Tate disconnected the call. After the telephone call a police officer was informed about the disturbing telephone call. The police officer subsequently left Petitioner a voice-mail message. During the hearing, Ms. Tate admitted that she eventually received some letters allegedly written by Petitioner's girlfriend. However, Ms. Tate based her September 27, 2002, decision to discharge Petitioner on the criminal history report. His behavior at the school and on the phone subsequent to the receipt of the report confirmed her decision. Despite the discussion between Petitioner and Ms. Donnally or any conversation that Petitioner had with Respondent's secretary about child custody, Ms. Tate was unaware that Petitioner was an unmarried father who was seeking physical custody of his child. Ms. Tate did not learn these facts until after she confronted Petitioner about his criminal history background report. Petitioner testified that Ms. Tate expressed her concerns about Petitioner's lifestyle problems in addition to his criminal history background report. Petitioner 's testimony in this regard is not credible. It is undisputed that Respondent replaced Petitioner with another male guitar teacher. There is no record evidence about the replacement teacher's marital status. There is no competent evidence that Respondent knowingly allowed any other person with a criminal arrest record, male or female, married or unmarried, to work at the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 4th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Cataldo 417 Nautilus Avenue Daytona Beach, Florida 32118 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
