The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) 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 Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care 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. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 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 22nd day of February, 2017.
The Issue The issue is whether Petitioner should be granted an exemption from disqualification from working in a position of special trust pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact At some point in time, Petitioner married Antonio Sharod Washington. They had two children. In July 1999, a judge in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered a Final Judgment of Injunction for Protection Against Domestic Violence (After Notice) against Petitioner pursuant to Section 741.30, Florida Statutes. The injunction states that it shall remain in full force and effect permanently or until further order of the court. The judge entered a similar injunction against Mr. Washington. After the injunctions were issued, Mr. Washington went to visit Petitioner at her apartment. Petitioner understood that Mr. Washington wanted a reconciliation. Based on her conversation with Mr. Washington, Petitioner petitioned the court to dissolve the injunction against Mr. Washington. Petitioner mistakenly believed that Mr. Washington had filed a similar petition to dissolve the injunction against her. On August 14, 1999, Petitioner went to Mr. Washington's apartment. At that time, Petitioner learned that Mr. Washington was living with another woman. Petitioner admitted during the hearing that she became angry and raised her voice but denied that any type of physical violence against another person occurred. A warrant was issued for Petitioner's arrest on September 23, 1999. On October 18, 1999, Petitioner was arrested pursuant to the outstanding warrant. Petitioner was charged with violation of the domestic violence injunction pursuant to Section 741.31, Florida Statutes. Petitioner admitted the following facts: (a) on November 18, 1999, Petitioner pled no contest to the charges against her; (b) the judge withheld adjudication of guilt; (c) the judge sentenced Petitioner to four months' probation, requiring her to participate in an anger control program and prohibiting any violent contact. In time Petitioner met a new friend who became her "significant other." The new friend is the father of Petitioner's third child. Petitioner began working as a caretaker of children at a private school in September 2001. Petitioner's new friend provided her with a motor vehicle so that she would have transportation to and from work. In order to maintain her job as a child care worker, Petitioner had to undergo Level 2 background screening. By letter dated November 29, 2001, the school advised Petitioner that she was ineligible for continued employment as a childcare worker due to her conviction for violating the domestic violence injunction and for engaging in criminal mischief. Petitioner continues to work for the school, performing cleaning services at night. She has no other employment. Petitioner regularly attends church. She has not violated the domestic violence injunction since she was arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from employment disqualification. DONE AND ENTERED this 10th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2002. COPIES FURNISHED: Tonya Washington 2707 Cobblestone Forrest Circle, West Jacksonville, Florida 32225 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a restricted barber and operating under the name of Miracles in Motion, located in Tampa, Florida. On May 9, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006030590 in the amount of $400. The fine, due to be paid by July 9, has not been paid. On October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058259 in the amount of $250. The fine, due to be paid by December 24, has not been paid. Also on October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058271 in the amount of $250. The fine, due to be paid by December 24, has not been paid. On October 24, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006063364 in the amount of $400. The fine, due to be paid by December 24, has not been paid. Respondent did not dispute the facts contained in these four Citations. Under the terms of the Citations, they, therefore, automatically became final orders 30 days after they were issued. Since Respondent has not paid those fines, he fails to be in compliance with four final orders of the Department. The total amount of fines not paid by Respondent pursuant to the four Citations involved in this proceeding is $1,300.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent is not guilty of violating Section 476.204(1)(i), Florida Statutes, and dismissing the Amended Administrative Complaint filed against him. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 11th day of May, 2009. COPIES FURNISHED: Robyn Barineau, Executive Director Barbers' Board Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elvis O'Neil Crooks 7117 Wrenwood Circle Tampa, Florida 33617
Findings Of Fact Effective July 18, 1982, Respondent has effectuated its Corrective Action-Procedure Index and Corrective Action-Policy ("the policy") which, by its own terms, ". . . defines appropriate corrective actions for resolving performance problems and violations of rules of conduct." In the "Statements of Policy" section of the document, the policy is made to apply to all District employees and is intended to ". . . provide all employees with responsible and considerate supervision, and treat all employees in a fair and uniform manner." The policy also provides that ". . . [u]nsatisfactory performance or conduct shall be subject to the corrective actions outlined in the following procedures. " The policy categorizes unsatisfactory behavior into performance, personal and disciplinary problems, within each of which categories supervisory personnel are required to follow specific procedures. Although supervisors may discipline an employee to a lesser extent than that provided in the policy for a particular infraction, as indicated above, one of the specific stated purposes of the policy is to treat all of Respondent's employees in a fair and uniform manner. Disciplinary actions are divided into four categories according to the seriousness of the offense. Potential penalties range from verbal warnings for less serious offenses to discharge for more serious violations. The policy does provide, however, that even for the least serious category of offenses, a supervisor is required at a minimum to give a verbal warning and counselling for a first offense. Specifically, with respect to categories of offenses and penalties, the policy provides as follows: General Regulations: Categories are determined by the seriousness of the offense. Offenses in each category are assigned disciplinary points, which shall remain in effect for the time limits shown. Points and time limits are cumulative through all categories. A total of 100 points in effect may be cause for termination. Voided actions shall be removed from the unit personnel file after each annual merit review. Category 1 Offenses: (15 points remain in effect for three months with each action except verbal warning) Being more than 10 minutes late to work without notifying the appropriate super- visor, or division office. Failure to notify the appropriate super- visor or division office of absence, due to sickness, within 10 minutes from the start of the normal work day. Unauthorized absence from work or work station. Failure to report any injury or accident to immediate supervisor. Transporting unauthorized persons in District vehicles. Interfering with the work activities of other employees. Maximum Penalties: First offense Verbal warning Second or third offense Written warning Fourth offense 1 day suspension Fifth offense 2 day suspension Sixth offense 3 day suspension Seventh offense 5 day suspension Eighth offense Discharge Category 2 Offenses: (25 points remain in effect for six months with each action) Failure to follow approved safety procedures in accordance with the District Accident Prevention Manual. Abuse of District property or equipment. Unauthorized use of District property or equipment. Operating a District vehicle or equipment in an unsafe manner. Failure to follow unauthorized instructions. Failure by a supervisor to make a written report of any employee accident involving injury or property damage, which has been properly reported. Possession or display of an unauthorized weapon while performing official District duties. Use of abusive language to a co-worker. Maximum Penalties: First offense Written warning Second Offense 3 day suspension Third offense 5 day suspension Fourth offense Discharge Category 3 Offenses: (50 points remain in effect for one year with each action) Use of abusive or threatening language to the public, or use of threatening lan- guage to a co-worker. Failure to perform an assigned duty. Carelessness or negligence in the per- formance of duty resulting in serious injury or property damage. Maximum Penalties: First offense 5 day suspension Second offense Discharge Category 4 Offenses: (100 points and immediate discharge pending investigation) Theft Refusing to perform assigned duties. Assault upon co-workers or the public. Possession of or consuming alcoholic beverages, non-prescribed narcotics or controlled substances during working hours. Intentionally falsifying any District record or destroying any record in violation of state law. Maximum Penalty: First Offense Discharge By Memorandum dated March 19, 1982, Petitioner was advised by Respondent that he was assigned 25 disciplinary points for failure to follow authorized instructions, a Category 2e offense under Respondent's above-stated policy. By Memorandum dated July 30, 1982, Petitioner, who had worked for Respondent for eight years, was terminated from his employment because he had accumulated an additional 100 disciplinary points, 25 more than that required for termination under Respondent's policy. Specifically, Petitioner was assessed the additional 100 disciplinary points as follows: 25 points for failure to follow authorized instructions by not filing a grievance, a Category 2e offense; 25 points for the use of abusive language to a co-worker, a Category 2h offense; and 50 points for use of abusive or threatening language to a member of the public, a Category 3a offense. In his eight-year tenure as an employee of the Respondent, Petitioner had never been disciplined prior to the memoranda of March 19, 1982, and July 30, 1982. It is undisputed that Respondent has not complied with the formal rulemaking requirements of Section 120.54, Florida Statutes, in adopting the challenged policy.
Findings Of Fact On February 18, 1992, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, 3-12, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Challenged Rule provides that "Possession of any other contraband" is an offense for which discipline may be imposed on inmates. The Challenged Rule also provides that the maximum penalty for this offense is 15 days of disciplinary confinement and loss of 30 days gain time. The Challenged Rule does not include a definition of "contraband." Rule 33-22.012, 3-1 to 3-11, Florida Administrative Code, designates the possession of certain specific items of contraband to be a ground for discipline and provides the maximum penalty therefore. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: . . . constitutes an invalid rule where the rule has exceeded its grant of authority as contain in 944.47, Florida Statutes (1991), in that the rule seeks to define contraband to be "any other contraband" not defined as such by enabling legislation contrary to Section 120.52(8)(b), Florida Statutes (1991). As matter of fact, the rule . . . goes beyond the statutory definition of contraband with the inclusive phrase "any other contraband" without more. . . . The Petitioner also alleged that the Challenged Rule is invalid pursuant to Section 120.52(8)(c), Florida Statutes, for essentially the same reason. The Petitioner further alleged that the Challenged Rule is vague and vest unbridled discretion in the Respondent because of the failure to define "any other contraband" in the Challenged Rule. Finally, the Petitioner alleged that the Challenged Rule is arbitrary and capricious because there is "no logical basis in fact to condemn legally lawful material as contraband with the phrase 'any other'. Rule 33-3.006, Florida Administrative Code, provides a definition of the term "contraband." There is, therefore, no reason to further define the term "contraband" used in the Challenged Rule. The reference to "any other" is merely an indication that the penalty provided for in the Challenged Rule is for the possession of any contraband (as defined elsewhere) other than contraband specifically listed in Rule 33-22.012, 3-1 through 3-11.
The Issue The issues in this case are whether Petitioner has provided clear and convincing evidence of rehabilitation from her disqualifying offense; and, if so, whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification from employment as a Medicaid provider.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons such as Medicaid recipients and the Medicaid program, and in that capacity, it maintains discretion to approve or deny requests for exemption. Petitioner is a licensed advanced practice registered nurse (“APRN”) and a certified nurse midwife who provided obstetric and gynecological care to Medicaid patients in Broward County, Florida, until she was disqualified from the Medicaid program. Petitioner is seeking to continue to provide obstetric and gynecological care to Medicaid recipients. She has a passion for working with obstetric Medicaid patients and wants to provide them the same opportunity for care as non-Medicaid patients. AHCA’S ACTION Petitioner applied for re-enrollment in the Medicaid program. After completing Petitioner's background screening, Petitioner's May 22, 2018, disqualifying felony criminal arrest and charge of larceny was identified. On February 4, 2019, by letter, AHCA informed Petitioner that the May 22, 2018, larceny offense disqualified her from working for a Medicaid healthcare provider, but that she could apply for an exemption. Petitioner self-reported her May 22, 2018, arrest to the Department of Health. On April 4, 2019, by letter, the Department of Health closed Petitioner’s case after an investigation without taking any disciplinary action against Petitioner’s license for the arrest. On July 31, 2019, Petitioner applied to AHCA for a Medicaid exemption. On October 15, 2019, AHCA closed Petitioner’s July application after Respondent determined the application was incomplete. That same month, Petitioner resubmitted the request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). EXEMPTION PACKAGE In Petitioner's exemption package, she listed her work history, which included the following employment: OB Hospitalist Group, from October 2017 to May 2019; First Class OBGYN, from June 2018 to present; Unified Medical Group, from October 2015 to October 2017; and Global OBGYN, from January 2013 to August 2018. Petitioner completed the education and training section of her exemption package by providing the answers that she had a master’s degree, completed training to become an APRN and a certified nurse midwife at Frontier University from 2009 to 2011, and provided her license number APRN 09190212. Petitioner also included a signed letter detailing her December 7, 2004, charge of permitting an unauthorized person to drive from Columbia County, Florida. She explained in the letter that she was charged after her brother drove her car while she was at work and had a fatal head on collision that claimed both his life and the other driver’s. In Petitioner’s exemption package, she included court records and dispositions for the following three criminal offenses: a 2004 misdemeanor, permit unauthorized person to drive, offense for which she successfully completed the six months’ probation after she paid her fines; a 2018 third- degree grand theft charge that was reduced to a misdemeanor petit theft when Petitioner pled to the offense; and a 2018 municipal ordinance petit theft charge that was dismissed. Petitioner also submitted letters of reference to support her application. The first letter dated August 23, 2019, was from Dr. Mitchell Spero (“Dr. Spero”), Petitioner’s treating psychologist. Dr. Spero stated in his letter that Petitioner had suffered traumatic events, she attended 27 individual psychotherapy sessions with him since June 18, 2019, and Garcia would not “ever again steal or demonstrate any negative behaviors worthy of any legal involvement.” The other letters supporting Petitioner’s application summarized how well-respected and knowledgeable Petitioner is in the profession as an APRN. Syed Rodriguez’s letter outlined how she has known Petitioner for over ten years, as Petitioner served as her preceptor. In her letter, she acknowledged Petitioner’s mistakes, but stated that the “medical profession needs more caring individuals like her” and that, “if given the opportunity, she can prove only excellence.” Another letter included in the exemption package was from Deline Somoza who grew up with Petitioner and referred to her as an amazing friend, mother, doctor, daughter, and, best of all, caretaker of anyone in need. Christina Kopingon, who worked with Petitioner for three years, stated in her letter in the exemption package that Petitioner “was an asset to our team and exhibited all the qualities necessary to safely and competently perform her role as a hospitalist certified nurse midwife.” The fifth letter Petitioner included in her exemption package was from Angela Melendez, who detailed how she worked with Petitioner for four years. She described Petitioner as knowledgeable, provides excellent patient care, skillful, and someone who she would trust “with my children as well as my own life.” TELEPHONIC EXEMPTION HEARING On December 18, 2019, as part of the exemption application process, Petitioner participated in an approximately 33-minute telephonic exemption hearing (“interview”) with Kelley Goff (“Goff”), a health services and facilities consultant at AHCA in the Background Screening Unit. During the interview, Garcia was honest about all her encounters with the law. Petitioner even offered to discuss her case that was expunged1 but Goff stopped Garcia and told her she did not have to because AHCA did not consider expunged cases, only sealed cases. In the interview, Petitioner explained the three criminal offenses Goff questioned her about. Garcia explained that the December 7, 2004, incident was when her brother took her vehicle while she was at work and had an accident that killed both him and the person in the other car he hit. Petitioner told Goff that because the vehicle was registered in her name, she was charged with permitting an unauthorized person to drive. She disposed of the case after going to court, and, under the advisement of a public defender, she accepted a plea to probation. Petitioner also admitted to Goff during the interview that she committed the larceny case on May 22, 2018. Petitioner explained to Goff 1 At hearing and in its proposed recommended order, AHCA asserts that Petitioner opened the door to explore Petitioner’s expungement case. The undersigned is not persuaded by AHCA’s position. During Petitioner’s interview, Goff specifically stopped Petitioner from discussing expungement and informed Petitioner that AHCA would not be considering any expungement in her case. Hence, expungement is a nonissue in this matter to which the undersigned cannot deliberate. that the case came about when she confessed that she had previously stolen scallops, steak, two laptops, and a raincoat when apprehended at Costco for stealing clothing on May 19, 2018, and that is how Costco was able to charge her with both cases. Petitioner told Goff that the disposition of the cases included the municipal ordinance case being dismissed and she pled to the larceny case that was amended to petit theft with one year’s probation and restitution of $1,198.00, which she paid back, and her probation was terminated early. During the interview, Petitioner also showed remorse and explained to Goff three separate times that she had made poor decisions to steal and that, obviously, there was no excuse for her actions. She told Goff she was very disgusted with her decisions. Petitioner described how she had a patient that died in her arms, which killed her soul and really hurt her, and she started making poor decisions and, unfortunately, stealing was one of them. Petitioner told Goff that she has been in counseling for it all and has learned how to deal with her stress now. Petitioner conveyed to Goff that seeing Dr. Spero has been an amazing help for her to understand how to deal with the trauma that has gone on in her life. Petitioner specified that in addition to her brother dying from the accident, and the patient dying in her arms, she had seven losses in ten years, including her mother who had died two and one-half years ago from suicide. She explained in the interview that she had never stopped going to counseling with Dr. Spero and was still currently in counseling because it “helps me.” Petitioner also told Goff how she had started a women’s support group, which focused on postpartum depression. She explained that the group meets on third Thursdays to discuss issues and listen, so the women will not feel alone. After the telephonic interview and discussion, AHCA denied Petitioner's request for an exemption by letter dated December 20, 2019. The letter provided the following grounds for the denial: [Agency] has considered the following factors including but not limited to: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed; and found that you have not provided clear and convincing evidence of your rehabilitation as required by Florida Law. Although Heyn, AHCA’s unit manager for the Background Screening Unit, played no role in reviewing Petitioner’s application, the interview, recommending or making the decision to deny Petitioner’s exemption, Heyn signed the form denial letter and sent it to Garcia at the direction of AHCA’s secretary. AHCA’s secretary also did not make the decision to deny Petitioner’s exemption. Subsequently, on February 11, 2020, Petitioner requested an administrative hearing contesting her denial. HEARING At hearing, Dr. Laviniu Anghel (“Dr. Anghel”) testified that Petitioner has been employed with him as a mid-wife since 2016. He credibly explained that Petitioner is one of his best employees and that he had no concerns regarding her work performance. Dr. Anghel pointed out that Petitioner is even one of the most highly rated providers in his practice on social media. Dr. Anghel testified that he retained Petitioner at his office as an employee even though she is unable to treat Medicaid patients because of her disqualification. Dr. Anghel stated that Petitioner told him about her 2018 arrest, and he was surprised because he did not expect her to steal out of a store. He also testified Petitioner has access to all types of things with his two practices, but she has never stolen from him and he trusts her like a sister. Dr. Anghel further testified that Petitioner told him she regretted stealing. At hearing, Jeremy Kroll (“Kroll”), Petitioner’s criminal defense attorney, also testified. He explained that he initially represented her on the notice to appear case, but there was an ongoing investigation regarding Petitioner’s incident on May 7, 2018, and he ended up representing her on both cases. He explained that the notice to appear, Case 2018-1031M030A, was a municipal case brought by the Town of Davie, charging Petitioner with a misdemeanor of petit theft for stealing four pairs of shorts, two pairs of shoes, and some t-shirts from Costco, to which all the items were recovered. Kroll told how the Town of Davie’s prosecutor dropped the municipal case on July 16, 2018, after Petitioner successfully completed the terms of her pre- trial diversion program that required Petitioner to pay a $350.00 fine and continue ongoing treatment with Dr. Spero. Kroll also testified about Petitioner’s disqualifying offense case he handled. He affirmed Petitioner’s interview explanation with Goff, and Kroll testified that when Petitioner received the notice to appear for the municipal case, Costco went back through store footage from May 7, 2018, and discovered Petitioner stole two laptops. Petitioner was arrested and turned herself in on May 22, 2018, for the third-degree felony grand theft charge. Kroll confirmed Petitioner’s interview that Petitioner pled to a lesser offense of misdemeanor theft, was placed on 12 months of probation, paid the restitution for the two laptops, and continued her psychotherapy with Dr. Spero. Kroll testified that Petitioner immersed herself in therapy with Dr. Spero and received support from Erik Stuehrenberg (“Stuehrenberg”) and his wife. She was also remorseful from day one and took full responsibility for her actions. He described Garcia as having a “true desire to avoid any sort of future conduct even remotely close to [the thefts].” Kroll credibly acknowledged that significant trauma in Petitioner’s background played a role in her actions as she had explained in her interview. Kroll detailed some of the traumatic incidents, such as the accident where she broke 21 bones in her back, and had to learn to walk again, and her pregnancy loss in 2013 as a result of domestic violence. He further explained that he provided a letter to the prosecutor from Dr. Spero with Petitioner’s forensic evaluation. Kroll stated he believed that “the State Attorney’s Office, to their credit, recognized as sort of a trigger, she lost as part of her job as a midwife, she lost one of the mothers that delivered and then lost her own mother almost one after another” and that the theft was a cry for help. Kroll also testified, as Petitioner had explained to Goff in her interview, that “there was a period of time where Garcia was so committed to her patients and to her livelihood that she wasn’t as committed to keeping herself healthy as she should have, and I think she regained that balance as part of this whole process.” At hearing, Stuehrenberg, a Davie police officer, testified that he helped Petitioner through the criminal process after she told him about the 2018 theft. He testified that he was shocked by her arrest. However, Petitioner was remorseful, admitted she made a mistake, and asked for help. Stuehrenberg made clear that Petitioner noticed things were going on in her life that triggered her, and she took the necessary steps to address her problems. Stuehrenberg explained that he sent her to Dr. Spero to talk about the things going on in her life because he knew the doctor would help her sort things out since he was familiar with Dr. Spero’s capabilities, and since he had visited him on occasion for help. He also explained how he and his wife served as a support system to help Petitioner. Goff also testified at the hearing that she has no formal training processing applications but has processed numerous applications over the years that her supervisors had reviewed and approved. Goff explained that she was assigned Petitioner’s application and she follows the statutes and rules when processing an application. Goff also explained that an application starts the review process for an exemption. Goff testified about Petitioner’s interview and reviewed the limited handwritten notes she had taken from the 33-minute interview. Goff testified that the only thing in Petitioner’s background that might have concerned her is the 2018 arrest, but “it’s not up to me to make that decision.” She testified that Mary Mayhew, AHCA’s secretary, decides the exemptions. Goff also addressed her Exemption Decision Summary (“summary”) that she created after the interview and it became part of Petitioner’s application file that was forwarded for review when determining Petitioner’s exemption application. Goff testified that when addressing Petitioner’s criminal offenses, she summarized the three offenses. The summary contained errors, lacked details, and page 1 contained identical answers to the Exemption Decision Summary dated October 15, 2019, when Petitioner’s first case was closed.2 Goff admitted at hearing that she failed to specify on the summary that the 2004 arrest was neither a disqualifying offense nor that the May 19, 2018, municipal charge was dismissed. Goff also testified that she failed to note that Petitioner was currently employed, had healthcare training, or was licensed on page 1 of the summary, even though Petitioner had provided the correct information on her application regarding her employment with First Class OBGYN, training, and licensure status as a certified nurse midwife. At hearing, Dr. Spero testified about Petitioner’s care, diagnosis, and treatment. He credibly discussed Petitioner’s psychological evaluation.3 Dr. Spero explained that he began treating Petitioner on June 18, 2018. He acknowledged she had informed him about two thefts within a 12-day period in May 2018. Even though Dr. Spero could not remember specifically what 2 Resp.’s Ex. 2. 3 Pet.’s Ex. 11. was stolen, he testified that the other theft was “also from Costco involving two laptop computers.” Dr. Spero explained, as part of his psychology practice, he evaluates individuals to determine whether they have been rehabilitated. Dr. Spero testified that he performed a lot of psychological testing to gain insight and direction for Petitioner’s treatment. He determined she was depressed, anxious, had suffered post-traumatic stress disorder several times, and had emotional issues. Dr. Spero summarized some of Petitioner’s events that led to her trauma, including an abusive relationship and numerous losses including a brother, mother, grandmother, stepsister, best friend, and boyfriend. He also concluded that Petitioner’s level of stress exacerbated when she lost a patient because of an embolism and Petitioner’s actions of stealing during the 12-day period were isolated incidents of behavior, out of her character, based on triggered events. Dr. Spero testified that he tested Petitioner multiple times and she does not have a propensity to steal, but the level of stress of loss, including her mother, who committed suicide; grandmother; her stepsister, who overdosed; and the loss of a patient traumatized her and caused the behavior. Dr. Spero also credibly confirmed that Petitioner was still in treatment with him at the time of the hearing and he believes that she is “without any hesitation 100 percent rehabilitated” because he has taught her to deal with her trauma and stress. Petitioner also testified at hearing and explained that she worked at First Class OBGYN full time since 2018, and was a licensed healthcare worker, as she had put on her application. She explained that she had worked at Bethesda Memorial East, but stopped working there after she was disqualified from working with Medicaid patients. At hearing, Petitioner admitted getting caught leaving the Costco after she stole shorts, shirts, and shoes in May 2018, as she had told Goff during the interview. Petitioner credibly explained that while being questioned by the Costco employee that apprehended her, she confessed to also previously stealing laptops, scallops, steak, and a rain jacket, which she was later arrested for and charged with a felony. She testified that she was never charged for taking all the items like the scallops and steak and verified that she turned herself in on the felony charge and spent a night in jail, which she felt was eye awakening and not a “life that I could ever, ever want to live.” Petitioner credibly and persuasively explained that 2018 was a traumatic year for her after she lost her first patient. She testified about how she felt guilt about the patient’s death and grieved after her death. Petitioner conceded that she was not in a good place mentally after the death. Petitioner further testified that she contacted Stuehrenberg and told him what she had done, and he told her to go to Dr. Spero, a licensed professional, for help. Petitioner described how she started seeing Dr. Spero in June 2018 and was still having individual counseling with him as of the date of the hearing. Petitioner pays for each visit. She elaborated how Dr. Spero has helped her tremendously and she has been able to forgive herself, gotten better, and found methods to deal with stress. Petitioner also testified that she started a women’s postpartum depression group as she had discussed in her interview with Goff. She explained that women need someone to talk to and by her being in a domestic altercation when she was pregnant and losing her son at 15 weeks after being hurt badly, she understood the group’s needs and thought she could help them. She founded the women’s group to provide an outlet for release for women who might need it. Petitioner also credibly testified that she has volunteered for about five years with Power Buddies, an organization that helps disabled individuals compete in marathons by pushing them in strollers. She explained that she could relate to the kids because she was hit by a drunk driver and fractured 21 bones, had a head injury, and had to learn to walk again, so it is rewarding to her when she pushes the competitors over the finish line in their strollers. FINDINGS OF ULTIMATE FACT Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her misdemeanor disqualifying offense of petit theft and that she will not present a danger to the Medicaid patients with whom she would have contact with as a certified nurse midwife. Petitioner has shown that she is a responsible individual by successfully holding jobs in the healthcare field as a certified midwife handling prenatal visits, gynecological visits, labor, and postpartum care and treatment for more than seven years without incident, and as a nurse prior to that. All her employment has been in positions where she cared for patients, and no evidence was presented that Petitioner was a danger while doing so. Petitioner’s current supervisor, Dr. Anghel, corroborated Petitioner’s exemplary work record. Also, the compelling letters4 show, by all accounts, Petitioner is well-respected, knowledgeable, caring, the best caretaker, an asset, excellent, and skilled in her field. Petitioner was honest and forthright at hearing. Petitioner demonstrated by credible and compelling evidence that she had a traumatic ten years comprised of, among other events, the following: an accident where she had to learn to walk again; and seven close deaths, including her brother who died in a fatal car accident where Petitioner was charged with the offense, her mother who committed suicide, grandmother, stepsister who overdosed, and the death of her first patient, who died while in her care. Petitioner was not able to hold it together any longer after her first patient died in her arms in 2018, and Petitioner’s trauma caused her to function in an unhealthy mental state. 4 Resp.’s Ex. 7. Petitioner’s traumatic state triggered out-of-character behaviors, including stealing out of Costco twice during a 12-day period in May 2018. Those who knew Petitioner well, such as Stuehrenberg and Dr. Anghel, were shocked and surprised by Petitioner’s actions. Petitioner was immediately remorseful by her behavior and sought help from Dr. Spero in June 2018. Petitioner’s municipal ordinance case was dismissed, and her sole disqualifying offense of larceny was reduced to a misdemeanor petit theft after the prosecutor was provided Dr. Spero’s letter documenting Petitioner’s trauma. Petitioner successfully completed her 12-month probation early by paying restitution and complying with the terms. After evaluating Petitioner, Dr. Spero taught Petitioner how to deal with trauma and stress at the one-on-one counseling sessions. Even after Petitioner’s criminal case was over and prior to applying for an exemption, Petitioner continued to pay and voluntarily attend counseling with Dr. Spero because she recognized the benefits of the treatment. Petitioner has worked hard to address her issues and get her mental health together. Petitioner has complied with her psychological treatment, adhered to the recommendations of Dr. Spero, and continued to obtain psychotherapy through the date of the hearing, which comprised a period of over two years. Petitioner has demonstrated a genuine commitment to improving her life and that she has been rehabilitated. Additionally, Petitioner’s application package that was forwarded to the decision-maker to make a determination on her exemption request was not completely accurate. The summary contained errors and lacked complete details such as: Petitioner’s lengthy successful professional career in the healthcare field was left off page 1 of the summary, which states “No Employment History”; the summary failed to identify Petitioner’s sole disqualifying offense, a misdemeanor petit theft; lists the municipal charge on page 1 without indicating a dismissal disposition; page 2 of the summary fails to distinguish disqualifying and non-disqualifying offenses; and neither the permitting unauthorized person to drive offense nor the municipal ordinance offense are identified as non-disqualifying offenses. Petitioner is also active in her community with the women’s support group she founded and Power Buddies. 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.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order granting Petitioner, Jennifer Garcia’s, request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 14th day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2020. COPIES FURNISHED: Ginger Barry Boyd, Esquire Nelson Mullins Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 (eServed) Jamie B. Gelfman, Esquire Nelson Mullins Broad and Cassel 1 Financial Plaza, Suite 2700 Fort Lauderdale, Florida 33394 Susan Sapoznikoff, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner's suspension in March 2004 and subsequent dismissal in March 2004 were not, in fact, imposed in consequence of her gross insubordination (which insubordination Respondent allegedly used as a pretext for the adverse employment actions), but rather were in truth retaliatory acts taken by Respondent because Petitioner had filed a charge of discrimination against Respondent.
Findings Of Fact The Order Relinquishing Jurisdiction contained a statement of undisputed material facts, which provided as follows: A. [a.] [Petitioner Diane] Scott [("Scott")] was employed as a teacher's aide in the Monroe County Public School System for approximately 13 years. The [Monroe County School] Board [(the "Board"), which is the governing body of Respondent Monroe County School District,] suspended [Scott] without pay in March 2004 pending termination for just cause. Scott timely requested a formal hearing. [b.] On August 18, 2004, Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings ("DOAH") conducted a formal hearing in DOAH Case No. 04-2060 to determine whether Scott's employment should be terminated. Judge Meale issued a Recommended Order on October 25, 2004, holding, on the basis of extensive findings of fact, that Scott had "repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs." Judge Meale recommended that the Board terminate Scott's employment for just cause, i.e. gross insubordination. [c.] On November 16, 2004, the Board entered a Final Order adopting Judge Meale's Recommended Order in its entirety. Scott did not appeal the Final Order. B. [d.] In November 2004, Scott filed with the FCHR and the EEOC a Charge of Discrimination, signed November 12, 2004 (the "Charge"), wherein she alleged that the Board had retaliated against her for having filed an earlier charge of discrimination. The Charge was received by the FCHR on or about November 22, 2004, and docketed as Charge No. 150-2005-00405. [e.] In the Charge, Scott stated the "particulars" of her claim against the Board as follows: I am black. I filed a charge of discrimination under 150-2004-00146. In retaliation, Respondent placed papers in my fie [sic] that pertained to someone else and papers that were not signed by me. In further retaliation, Respondent placed me on suspension. I believe all of the above occurred in retaliation for filing the aforementioned charge in violation of Title VII of the Civil Rights Act of 1964, as amended.[1] Scott also alleged that the unlawful retaliation took place between the dates of August 18, 2004, and August 24, 2004.2 [f.] . . . Charge No. 150-2004-00146 (the "Prior Charge"), which allegedly triggered the Board's allegedly retaliatory acts, had been brought against the Board in November 2003. . . . [To repeat for emphasis,] the retaliation claim asserted in the [present] Charge is based on alleged adverse employment actions that the Board took, allegedly, in response to Scott's filing the Prior Charge in November 2003. [g.] In her Charge Scott alleged that the Board's unlawful retaliation consisted of (a) placing papers in her personnel file that didn't belong there and (b) putting her on suspension. Regarding the allegedly spurious papers, . . . [f]ive . . . are . . . documents pertaining to another teacher's aide in Monroe County whose name is "Diane M. Scott." (Petitioner Scott is also known as Diane Hill Scott but not, so far as the record reveals, as Diane M. Scott.) The papers relating to the "other" Diane Scott are: (1) an Oath of Public Employee form dated December 20, 1996; (2) an Employer's Statement of Salary and Wages dated April 24, 2001; (3) an Employer's Statement of Salary and Wages dated March 13, 2002; (4) a Civil Applicant Response dated December 20, 1996, which notes that the individual (identified as "Diane Marie Scoh") had failed to disclose a prior arrest; and (5) a copy of the school district's anti-discrimination policy, apparently signed by the other Ms. Scott on August 23, 2002. [h.] In addition to these five papers, Scott claims that her personnel file contained an unsigned copy of the school district's anti-discrimination policy, bearing the handwritten note "Diane Hill Scott refused to sign——8/24/00." Scott asserts that before last year's administrative hearing, she had never seen this particular document. Because of that, she alleges, its presence in her file is evidence of discriminatory retaliation. [i.] Regarding the alleged retaliatory suspension [on which the Charge is based in part], Scott [actually] was referring to three separate suspensions: (1) a three-day suspension in May 2003; (2) a three-day suspension in October 2003; and (3) the suspension in March 2004 that was part and parcel of the proceeding to terminate Scott's employment. It is undisputed that Scott was in fact suspended from employment on each of these three occasions. However, [by] a letter to Scott from the Director of Human Resources dated October 3, 2003, [the Board had] formally rescind[ed], as the product of "error and miscommunication," the three-day suspension Scott was to have served that month. [j.] On April 26, 2005, the EEOC issued a Dismissal and Notice of Rights on Scott's Charge against the Board. In this notice, the EEOC stated that it was unable to determine whether the Board had violated Scott's civil rights. Thereafter, on May 12, 2005, the FCHR issued Scott a Right to Sue letter. Scott timely filed a Petition for Relief ("Petition") with the FCHR on June 6, 2005. The FCHR immediately transferred the Petition to DOAH, initiating the instant action. The undersigned hereby adopts the foregoing as findings of fact. Following the principle of estoppel by judgment (discussed in the Conclusions of Law below), it is found that, prior to being suspended from employment in March 2004, Scott repeatedly had refused to obey direct orders; she had been, in other words, grossly insubordinate at work. The evidence in the record is insufficient to persuade the undersigned——and consequently he does not find——that the Board used Scott's gross insubordination as a pretext for taking adverse employment actions, namely suspension and dismissal, against Scott. The evidence is likewise insufficient to establish, and thus it is not found, that the Board in fact suspended and discharged Scott in retaliation for filing the Prior Charge. It is determined, therefore, as a matter of ultimate fact, that the Board did not unlawfully retaliate against Scott when it terminated her employment on the ground that she had been grossly insubordinate, which misbehavior constitutes just cause for firing a teacher's aide, see §§ 1012.01(2)(e) and 1012.33(1)(a), Fla. Stat., and hence is a legitimate, non- retaliatory basis for taking adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Monroe County School District not liable to Diane Scott for retaliation or unlawful discrimination. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of May, 2006.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing revoke respondent's license number 83209-2. It is further recommended that upon proof of counseling or other rehabilitative measures taken by respondent, the Board exercise its discretion to relicense respondent with examination after a period of six months has elapsed. Respectfully submitted and entered this 28th day of April, 1977, in Tallahassee Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson, R.N. Licensing and Investigative Coordinator Florida State Board of Nursing 6501 Arlington Expressway Bldg. B. Jacksonville, Florida 32211 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Patrick V. Clancy, Esquire 2420 Garfield Street Hollywood, Florida 33020
