Findings Of Fact The Petitioner was convicted of second degree murder, and is presently serving a sentence in the custody of the State of Florida on that conviction. He is currently incarcerated at Glades Correctional Institution in Belle Glade, Florida. The Respondent is responsible for establishing "presumptive parole release dates" for prisoners such as the Petitioner. Petitioner was interviewed on July 19, 1979, for the purpose of setting his presumptive parole release date. By action dated August 8, 1979, the Respondent set the date at May 1, 1984. Petitioner requested a special review, but the Commission did not change its decision. The Respondent has adopted guidelines for setting presumptive parole release dates by rule. Chapter 23-19, Florida Administrative Code. The rule originally became effective March 20, 1979. When first promulgated, the guidelines established a "matrix" which provided that second degree murder fell within the offense severity rating of "VI--Greatest Most Serious." A prisoner convicted of second degree murder would have the presumptive release date computed according to the following matrix, which was set out at Rule 23-19.05, Florida Administrative Code: 18-39 months, if the inmate's salient factor score was 0. 38-59 months, if the inmate's salient factor score was 1. 58-79 months, if the inmate's salient factor score was between 2 and 6. 78-120 months, if the inmate's salient factor score was 7-11. The salient factor score is a number computed by looking at past criminal behavior. The Respondent has amended its Rule 23-19.05, and increased the offense severity rating of second degree murder from VI to "VII--Greatest Most Serious II." Under the amended rule, an inmate convicted of second degree murder has the presumptive parole release date computed according to the following matrix: 60-84 months, if the inmate's salient factor score was 0. 83-107 months, if the inmate's salient factor score was 106-130 months, if the inmate's salient factor score was 2 to 6. 129-183 months, if the inmate's salient factor score was 7 to 11. Petitioner's salient factor score was zero, and in accordance with the amended rule, his presumptive parole release date was set in the sixty to eighty-four month range, and specifically at the top of that range. The amendment to Rule 23-19.05 which changed the matrix time range for the offense of second degree murder is the subject of this rule challenge proceeding. Had the Petitioner's presumptive release date been computed according to the rule prior to the amendment, his presumptive parole release date would have been set in the eighteen to thirty-nine month range. The amendment to Rule 23-19.05 became effective June 25, 1979. The Respondent prepared a document entitled "Economic Impact Statement" in support of the amendment. The statement provided: The objective parole criteria rules to which this statement is attached, have been promulgated in response to legislation which demanded the same. See Chapter 78-417, Laws of Florida. Therefore, the economic impact, if any, presently flows from the statutes, not from the rules. In its notice of the amended rule published in the "Florida Administrative Weekly," the Respondent stated that the estimate of economic impact on all affected persons of the amendment was "$0." The instant rule challenge proceeding was initiated by a petition filed at the Division of Administrative Hearings on March 13, 1981. In adopting the amendment to its Rule 23-19.05, the Respondent Commission relied upon the collective experience of its individual members. This experience includes the Commissioners' experience in reviewing individual cases as well as each Commissioner's background. Neither the Commission nor its staff had any statistical data available. The Commission did not formally notify the Department of Corrections of the need for any statistical information, and it does not appear that the Department of Corrections provided any such data.
The Issue The issues to be determined are whether Respondent, Fred Joseph Turner, M.D., violated section 456.072(1)(c) and (x), Florida Statutes (2017), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact The Department of Health is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a medical doctor licensed by DOH since April 29, 1991. He holds license number ME59799. On or about July 21, 2015, the Grand Jury for the United States District Court, Middle District of Florida, issued an indictment against Respondent and Rosetta Valerie Cannata in case number 8:15-cr-264-T-23AAS, charging violations of Title 8, United States Code sections 1324(a)(1)(A)(v)(l) and 1324(a)(1)(B)(i), and Title 21 United States Code sections 841(a)(1), 841(b)(1)(C), and 846. The indictment also sought forfeiture of various items of value should Respondent be convicted. At some point, there was a superseding indictment, but that indictment is not of record in this proceeding. The case was tried by jury, and although it is unclear when the jury trial took place, an Order of Forfeiture entered October 13, 2017, states that a jury found Respondent guilty of six counts in the superseding indictment, and that the United States had established that Respondent had obtained $232,020.02 from the offenses for which he was convicted. The Judgment in Case Number 8:15-cr-264-T-23AAS was entered December 6, 2017. The Judgment indicates that a jury found Respondent guilty of counts one through six of the superseding indictment, as follows: Count I for conspiracy to distribute and dispense and cause the distribution and dispensing of oxycodone, hydromorphone, morphine, and hydrocodone, in violation of 21 U.S.C. sections 846 and 841(b)(1)(C); Counts II through V for distributing and dispensing and causing the distribution of hydrocodone (Count II), oxycodone (Count III), morphine (Count IV), and oxycodone and hydromorphone (Count V), in violation of 21 U.S.C. sections 841(a)(1) and 841(b)(1)(C); and Count VI for conspiracy to smuggle an alien into the United States, in violation of Title 8 U.S.C. section 1324(a). Count VI is irrelevant to the charges in this case. The Judgment sentenced Respondent to 151 months in federal prison, followed by 36 months of supervised release. It also provided that Respondent forfeited the items named in the preliminary Orders of Forfeiture, i.e., property up to $232,020.02. Respondent did not notify DOH or the Board of Medicine of his conviction. Controlled substances can only be prescribed by specified licensed health care providers, such as medical doctors, who hold a current drug enforcement agency (DEA) registration. Without a medical license and a DEA registration, a person cannot dispense or prescribe controlled substances, and therefore, could not commit the crimes for which Respondent was found guilty. Respondent responded at length to the charges in the Administrative Complaint. He vigorously disputes the basis for the conviction, but not the conviction itself. Respondent claims that the evidence against him is based upon alteration of records and test results by a DEA informant who worked in his office. However, from his statements, it is clear that the conviction was based upon activity occurring in his practice. The convictions for which Respondent has been convicted relate to the practice of medicine or the ability to practice medicine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent violated section 456.072(1)(c) and (x), and revoking his license to practice medicine. DONE AND ENTERED this 28th day of August, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 August, 2019. COPIES FURNISHED: Fred Joseph Turner, Jr. M.D. #62779-018 Federal Prison Camp 110 Raby Avenue Pensacola, Florida 32509 William Edward Walker, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Major Ryan Thompson, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Claudia Kemp, JD, Executive Director Board of Medicine Department of Health Bin C-03 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise Wilhite-St Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, 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, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of January, 2018.
Findings Of Fact In August of 1986, the Respondent, Randall G. Pass, was employed by the Department of Agriculture and Consumer Services in the Bureau of Weights and Measures as an agricultural specialist. His last day at work on this job was August 15, 1986. The Respondent did not report for work on the next regular work day, which was August 18, or on August 19 or on August 20, 1986, nor did he request any type of leave for August 18, 19 and 20, 1986. Neither the Respondent's supervisor nor the personnel department received any notification from the Respondent that he would not be at work on August 18, 19 and 20, 1986. On August 19, 1986, the Respondent's physician made a telephone call to the Chief of the Bureau of Weights and Measures, where the Respondent was employed, informing him that the Respondent had a drug problem, and inquiring what the State could do to assist the Respondent. There is no evidence that the Respondent was seen or treated by this physician on August 18, 19 or 20, 1986. In Exhibit 4, the Respondent's physician explains the Respondent's substance abuse problem. However, from this affidavit, it is found as a fact that the Respondent was not in inpatient care on August 18, 19 or 20, 1986, and that the physician had not told the Respondent not to work on August 18, 19 or 20, 1986. On August 25, 1986, the Department advised the Respondent by certified letter, return receipt requested, that his absence from work on August 18, 19 and 20, 1986, without authorized leave was deemed to be an abandonment of his position, and that his employment was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order terminating the employment of the Respondent, Randall G. Pass, from his position as an agricultural specialist with the Bureau of Weights and Measures in the Department of Agriculture and Consumer Services, for abandonment, pursuant to Rule 22-7.010(2), Florida Administrative Code. THIS RECOMMENDED ORDER entered on this February, 1987, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1987. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Room 512, Mayo Building Tallahassee, Florida 32399-0800 Roger L. D. Williams, Esquire Three Rivers Legal Services, Inc. 309 N.E. First Street Gainesville, Florida 32601 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301
The Issue Whether the Agency for Persons with Disabilities’ (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 Petitioner is a 33-year-old female residing in Lake City, Florida. Petitioner has three children, ages 19, 16, and and 12, from her first marriage. Her first husband is deceased. Petitioner was remarried in April 2015. Petitioner and her husband live with, and care for, her three children, as well as two young grandchildren and her seven-year-old niece. Between November 2015 and September 2016, Petitioner was employed at CARC, a residential group home licensed by the Agency.1/ Petitioner provided personal care to the residents, as well as transportation for the residents to doctor’s appointments, shopping, and occasionally to cash their personal checks. In her capacity with the group home, Petitioner had access to and responsibility for the group home van, as well as the corporate credit card for purchasing gasoline. Since being disqualified from employment serving Agency clients, Petitioner has been employed at “Still Waters,” a residential nursing home facility. She works 12-hour shifts, four days on, three days off. Petitioner testified that the hours make it too difficult to care for her children, grandchildren, and niece. Petitioner wishes to return to her employment in the group home as a direct service provider to clients of the Agency. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offense On May 23, 2005, Petitioner was arrested for forgery and grand theft, stemming from having cashed a forged check. The check was written for $391.83, payable to a third party and cashed by Petitioner at her bank. Petitioner pled guilty to both charges, which are third- degree felonies. In August 2005, the court withheld adjudication, ordered Petitioner to complete two years’ probation, and entered a final judgment for fines and costs in the amount of $373. Petitioner’s fines and costs were later converted to community service hours, which she completed. Petitioner was also required to pay restitution to the bank, which she satisfied. Petitioner completed probation timely on August 22, 2007. Petitioner was 21 years old at the time of the disqualifying offense. The details are sketchy. Neither Petitioner’s testimony nor her exemption questionnaire provide much of an explanation. The explanation in Petitioner’s exemption questionnaire indicates that a friend gave her a check from the friend’s employer, and Petitioner cashed it at Petitioner’s bank and kept the cash. She explained that she was young and dumb and did not know better. Petitioner’s testimony was brief, stating that she had been hanging around with the wrong crowd, and that a friend got a check from McDonald’s which Petitioner deposited in her own account. In the questionnaire, Petitioner indicated no one else was involved in the crime because “I did not tell on my friend.” She answered “n/a” to questions regarding the degree of harm to the victim or property (permanent or temporary), as well as whether there were any stressors in her life at the time of the disqualifying offense. When prompted in the questionnaire to provide any additional comments, Petitioner explained that she knew what she did was wrong; that she does not get in trouble any more; that she has three kids, and only has time to go to work, church, and home; and that she wants to take care of “my people,” which she enjoys. Subsequent Non-Disqualifying Offenses The Agency’s Exemption Review Summary lists two2/ non- disqualifying offenses subsequent to Petitioner’s disqualifying offense.3/ In March 2006, Petitioner was arrested for, and adjudicated guilty of, passing a worthless check to Publix in the amount of $76. On June 8, 2006, Petitioner was ordered to complete 12 months’ probation and pay restitution, court fines, and fees in the amount of $329. Petitioner’s probation was terminated on June 4, 2007, having satisfied all terms thereof. Petitioner wrote the check to Publix on October 3, 2005. Petitioner was 21 years old, caring for her seven-year- old, four-year-old, and infant children, and her husband was incarcerated. Petitioner testified, both in her questionnaire and at final hearing, that she wrote the check knowing she did not have the money to cover it because she needed food for her children and diapers for the baby. On February 20, 2012, Petitioner was charged with leaving the scene of a traffic accident. On March 15, 2012, Petitioner was adjudicated guilty and placed on six months’ probation, ordered to complete an eight-hour driver improvement course, and pay court costs and fines in the amount of $416. Petitioner was released from probation on August 14, 2012, having satisfied all probation conditions. Petitioner was 28 years old at the time of the incident. Petitioner was driving with a friend as a passenger, when she crashed her car in a ditch. Petitioner left her car in the ditch and contacted another friend to give them a ride home. The following day, the police came to her home and charged her with leaving the scene of an accident. Petitioner testified that she left the scene because she had no insurance, and that it was late and dark. No evidence was introduced to support a finding that any other vehicle was involved in the accident, or that the accident resulted in any property damage or injury. Educational and Employment History Petitioner graduated from high school in 2002. Petitioner completed the educational requirements to become a Certified Nursing Assistant (CNA) at Lake City Community College in 2004. However, Petitioner has not passed the written state board exam to become certified. Petitioner lists no employment history prior to 2011, although there is some evidence that she worked as a caregiver at a “cluster home” in Lake City in 2005. Petitioner worked as a caregiver in a group home known as “Open Heart” from January 2011 to October 2014. Petitioner was subsequently employed as a housekeeper with Holiday Inn in Lake City from February to November 2015. Petitioner left Holiday Inn to become a caregiver at CARC in November 2015. As noted previously, subsequent to Petitioner’s disqualification, she has been employed at a nursing home facility. Subsequent Personal History Petitioner divorced her first husband in 2014 and he is now deceased. Petitioner has full custody of all three of her children and has taken on the responsibility of her 19-year-old daughter’s two children, as well as her seven-year-old niece. In April 2015, Petitioner married her current husband Octavius, who is a 13-year employee of Red Lobster. Petitioner is active in her church where she sings in the choir, attends Tuesday night bible study and Wednesday night worship, and has her niece involved in a praise dance for children program on Saturdays. One of Petitioner’s sons is disabled. Petitioner reports that both sons play football and that she is, or has been, a team mom for the football team. Petitioner’s Exemption Request Petitioner’s exemption questionnaire is bereft of details. Most questions are answered in just a few words or are answered as “not applicable.”4/ Petitioner expresses remorse for her disqualifying and non-disqualifying offenses. However, it is not entirely clear that Petitioner understands the ramifications of her forgery offense, since she indicated there was no harm done by her passing of a forged check. Petitioner submitted five personal letters of reference with her exemption application. One is from one of her sons, another from a friend at church, and the remaining letters are from former co-workers at care-giving agencies. Each attests to her compassion for disabled persons and her sincerity in the care of those persons. Petitioner did not submit any letter of reference from a current or former employer or another individual in a position of authority. Petitioner did not offer any witness testimony or additional letters of reference at the final hearing. Ultimate Facts Petitioner’s recent employment history evidences her work ethic and emphasizes a passion for serving persons with disabilities. Petitioner’s personal references support a finding that she is committed to family and community, and has a heart for service. However, Petitioner’s disqualifying offense, and at least one of the subsequent non-disqualifying offenses, involves attempts to attain money to care for her family when times were tough. Petitioner’s failure to describe any stressors in her life at the time, and to clearly distinguish her circumstances at present, substantiates the Agency’s reticence to allow Petitioner to work with the most vulnerable clients. Petitioner has more dependents at present than she did when the disqualifying offenses occurred. The record contains few details of how her situation differs today from the past.
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 11th day of July, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 July, 2017.
The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 57-year-old female residing in Jacksonville, Florida. Petitioner wishes to open her own group respite care home for adults with developmental disabilities. As such, Petitioner seeks to become a direct-care provider to the Agency’s clients with developmental disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. For the last 29 years, Petitioner has been employed by Vistakon, a division of Johnson & Johnson Vision Care, Inc. Her current position is Distribution Operator II, fulfilling customer orders for shipping. Petitioner is a long-term member of Faith United Miracle Temple in Jacksonville, where she serves on the usher board, greets churchgoers on Sunday mornings, and teaches children’s Sunday school classes. Petitioner is involved in many community service projects including Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting her employer’s diversity and inclusion programs. The Disqualifying Offense On December 26, 2003, Petitioner, then known as Mamie Faith Fields, was arrested at her home and charged with domestic battery on her husband, Gregory Fields. Petitioner’s mother witnessed the incident. Petitioner was 44 years old at the time of the offense. The facts surrounding the incident are in dispute and there was insufficient reliable evidence for the undersigned to make any findings of fact relative to the details of the incident.1/ Petitioner pled no contest to the offense of domestic battery, was sentenced to eight months’ probation, and ordered to attend a batterer’s intervention course and pay court costs of $480. On June 26, 2004, Petitioner completed the Hubbard House First Step Program, a 24-class batterer’s intervention course. Petitioner’s probation was terminated early on July 26, 2004. Subsequent Non-Disqualifying Offense On May 8, 2007, Petitioner was involved in another physical altercation with Mr. Fields. The incident occurred while Petitioner was a right front-seat passenger in the vehicle Mr. Fields was driving. Petitioner was arrested and charged with domestic battery. The arresting officer observed scratches on Mr. Fields’ face and on the back of his right shoulder. The arresting officer observed no injury to Petitioner. Petitioner was 48 years old at the time of her arrest. The charges against Petitioner were dropped by the State Attorney’s Office and Petitioner was not prosecuted for any crime.2/ Subsequent Personal and Professional History Petitioner and Mr. Fields were divorced in 2011. Petitioner reported having attended six weeks of marital counseling with Mr. Fields, but the record does not support a finding of the timeframe in which the counseling occurred. Petitioner’s employment has not changed since the disqualifying offense. In 2014, Petitioner sought, and was granted, an exemption from disqualification from the Department of Children and Families (“DCF”). Her reported interest was in opening, or working in, a day care facility. By May 2015, Petitioner had completed over 50 hours of child care training, including child care facilities rules and regulations, early literacy, and family child care home certificates. Petitioner has not been employed with any child care provider subsequent to receiving the exemption from DCF. In response to questioning by the undersigned as to why Petitioner had not pursued employment with a DCF provider, Petitioner stated that there were “way too many restrictions” and that she had discovered that “if a kid says you hit them, an action could be taken against you.” Petitioner’s current interest is in opening a group home to provide respite care services for the Agency’s adult clients with developmental disabilities. Petitioner filed two previous applications with Respondent--in 2010 and 2014--for exemption from disqualification, but was denied both times. In 2016, Petitioner completed four courses required by the Agency for providers of direct-care services to its clients: Introduction to Developmental Disabilities; Health and Safety; HIV/Bloodborne Pathogens; and Zero Tolerance. The Agency has certified that Petitioner has completed a course required for providers in the Medicaid Waiver program. Earlier this year, Petitioner also completed HIPAA training and three hours of classroom training in “Personal Outcome Measures-Overview: Choices and Rights.” Petitioner’s Exemption Request The Exemption Questionnaire presented by the Agency to Petitioner listed three offenses to which she was to respond: the 2003 disqualifying offense, the 2007 non-disqualifying arrest, and an earlier 1994 arrest for aggravated battery/domestic violence. The 1994 offense involved Petitioner, then known as Mamie Faith Lundy, and her previous husband, John Lundy. The 1994 offense resulted in an arrest, but charges were later dropped and Petitioner was not prosecuted. In response to a request for her detailed version of the events of the 2003 disqualifying offense, Petitioner explained that “it was Christmas Day, my ex-husband was upset about me spending too much money. I didn’t want to hear him talk about it he got upset. We [had] guest[s] and it got out of control. Charges were dropped and we forgave each other.” Charges for the 2003 offense were not dropped and Petitioner pled no contest to domestic battery. The offense of battery requires an intentional touching of another person against their will, or intentionally causing harm to another person. See § 784.03(1)(a), Fla. Stat. (2015).3/ Petitioner’s version of the disqualifying offense does not contain any relevant detail regarding the offense. At hearing, Petitioner testified only that “he pushed me and I pushed him back.” In response to the question regarding the degree of harm to the victim or property, Petitioner stated “there is no property, no victim harm.” According to the observations of the police officer at the scene in 2007, Petitioner scratched her then-husband’s face and right shoulder. With regard to stressors in her life at the time of the disqualifying offense, Petitioner wrote “there were divorce[s] in both marriage[s].” With regard to current stressors, Petitioner revealed, “No current stressors. My support system is my family, God, children, job, friends, church family, Bible. I [am] living alone now.” When requested to list her educational achievements and training, Petitioner responded that she attends “Word of Life students’ bible school.” Regarding counseling she has received, she listed “Alison Behrens, six weeks.” Apparently Ms. Behrens is the marriage counselor she saw with Mr. Fields, but the record does not reveal whether the counseling was before or after the 2003 offense, or even after the 2007 non-disqualifying offense. The most relevant answer given by Petitioner on her exemption questionnaire was with respect to accepting responsibility, and expressing remorse, for her actions. Tellingly, Petitioner stated, “I feel very bad about my action, not to leave when people get upset. Try not to let people know what going on in my family. And I feel responsibility for let[ting] things go to[o] far. I feel very remorse about it. I’m very much ashamed as a mother, and a Grandmother that I allowed this to happen to me.” Petitioner’s explanation sounds more like regret for allowing others to learn the details of incidents involving battery on her husband, rather than remorse for losing her temper and striking out at another person. Furthermore, Petitioner’s statements express regret for what has happened to her, rather than harm she has inflicted on others. Similarly, at hearing, Petitioner testified that in 2003 she had left her home, but that her mother called her and asked her to return. Petitioner stated that it was a “mistake” for her to have returned to the house, but she did not describe as mistakes the actions she took upon her return. Along with her exemption application, Petitioner submitted two character reference letters.4/ Anthony Howard, an Elder in Petitioner’s church, described her as “kind, compassionate, and a hard working person” and applauded her commitment to the church as an active member, Sunday School teacher, and usher. A letter from Michelle Dunnam describes Petitioner as the “most kind hearted person I know” and applauds her volunteerism. The letter does not reveal how long she has known Petitioner or in what capacity. There is no record evidence of Ms. Dunnam’s relationship to Petitioner, whether family, friend, employer, or otherwise. Along with her request for a hearing, Petitioner submitted one additional character reference letter. Eric Mitchell, her employer’s Diversity and Inclusion Community Ambassador, submitted a “letter of appreciation” for Petitioner’s continuous service to the Jacksonville community through Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting the Employee Resource Groups in their message of diversity and inclusion and at her church. When asked if any of those who submitted character references were aware of her disqualifying offense, Petitioner was defensive and seemed concerned that someone at the Agency might reveal her background to them. Final Hearing At final hearing, Petitioner presented very little testimony and no witnesses on her behalf. Petitioner presented two additional character reference letters: One each from both of her ex-husbands. In his letter, Mr. Lundy described Petitioner as an excellent mother, caring, intelligent, motivated, and “more than capable of managing a group of people.” He cited her long-term employment and her involvement with the church as evidence of her dedication to family and community. He explained that Petitioner had asked for forgiveness and that they have forgiven each other. Mr. Fields wrote that Petitioner has expressed that she is truly sorry, that he has forgiven her, and that he hopes for her to have a successful life. Despite Petitioner’s obvious commitment to her church and community, Petitioner’s case for rehabilitation is thin. Petitioner was involved in a subsequent domestic battery incident, in which she caused minor injury to her husband, after completing a batterer’s intervention course. There is no evidence of Petitioner pursuing anger management or any other counseling subsequent to the 2007 incident. Furthermore, the 2007 incident took place in a car while Mr. Fields was driving, which put Petitioner, her husband, and other drivers at risk, a fact which was not acknowledged by Petitioner. Petitioner was not forthcoming with the details of any of the incidents in question, yet denied the details as recorded in the police reports. Petitioner was middle-aged when the 2003 and 2007 incidents occurred, thus eliminating any explanation on the basis of lack of maturity. Petitioner’s community volunteer work is laudable and she has reason to be proud of her service. However, the work does not demonstrate Petitioner’s ability to calmly handle day- to-day difficult situations with developmentally-disabled clients. Even Petitioner admitted that she has not encountered behavioral issues with the children in her Sunday school class because their “parents are right there.”
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 8th day of November, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 8th day of November, 2016.
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 Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1992, licensed as an insurance representative in the State of Florida holding 02- 15, 02-16, 02-18, and 02-40 licenses. In October of 1999, an indictment was filed against Respondent and others in United States District Court for the Southern District of Florida Case No. 99-8145 (Indictment). In Count One of the Indictment, the following was alleged: From at least as early as November, 1993, through on or about September, 1999, the exact dates being unknown, at West Palm Beach, Palm Beach County, in the Southern District of Florida and elsewhere, the defendants JOHN PHILIP ELLIS, SR., ROBERT KOCH, SHARON ALFONSO, MARK KENNEDY, JEFFREY POLLARD, HOWARD RICCARDI, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with each other, and with persons known and unknown to the Grand Jury, to defraud the United States by attempting to impede, impair, obstruct and defeat the lawful government functions of the Internal Revenue Service (IRS) of the Treasury Department in the ascertainment, computation, assessment and collection of revenue: to wit, income taxes. * * * In violation of Title 18, United States Code Section 371. Respondent pled guilty to the crime alleged in Count One of the Indictment. Based on Respondent's guilty plea, he was adjudicated guilty of said crime and, on January 23, 2002, given the following sentence: 21 months in prison, three years' probation following his release from prison, and a $100.00 fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order revoking Respondent's licenses pursuant to Section 626.611, Florida Statutes. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 18th day of November, 2004.
The Issue The issue is whether Petitioner’s application for a real estate sales associate license should be granted.
Findings Of Fact Petitioner is 36 years old. He has a bachelor’s degree and a master’s degree in environmental science. He also has a Juris Doctorate degree. Petitioner was licensed to practice law in Illinois in May 2002. His license was suspended in August 2006 by the Illinois Supreme Court as a result of the October 2005 criminal offenses discussed below. See Findings 12-14. The suspension of Petitioner’s license to practice law is for a period of 18 months and “until further order of the Court.” Thus, the suspension runs through at least February 2008. Petitioner is currently working part-time at a Barnes & Nobles bookstore in Tampa. Before that, he worked as an executive recruiter for several months. Before coming to Florida, Petitioner worked as an inspection and enforcement officer for the United States Environmental Protection Agency (EPA) in Illinois, and as an attorney and manager for title insurance companies in Illinois and Colorado. Petitioner has been offered a sales associate job by the Keller Williams real estate firm in the Tampa area. The offer is contingent upon the approval of Petitioner’s license application. Petitioner has a long history of alcohol and substance abuse, which he freely acknowledged in his testimony at the final hearing. He has been using illegal substances since his high-school years.2 Petitioner has four criminal offenses in his background, each of which involved alcohol. In June 1991, Petitioner was arrested in Indiana for driving under the influence (DUI). He pled guilty to the offense and spent four days in jail. Petitioner was 20 years old and in college at the time. In February 2004, Petitioner was arrested in Colorado for DUI with a blood-alcohol level of 0.17 percent, which was more than twice the legal limit. He pled guilty to the lesser offense of “driving while ability impaired” and was sentenced to probation and community service. In July 2004, Petitioner was arrested again in Colorado for DUI. He pled guilty and was sentenced to probation and community service. In October 2005, Petitioner was arrested at a concert in Boca Raton for possession of cocaine, criminal mischief (two counts), resisting arrest with violence, and battery of a law enforcement officer (three counts). The offenses were felonies. Petitioner testified that he does not recall any of the circumstances surrounding the incident because he was “extremely intoxicated” at the time. The police report of the incident, which Petitioner does not dispute,3 states that Petitioner punched a patron at the concert, punched a police officer, kicked another police officer, spit on a paramedic, damaged handcuffs and a police car, and was in possession of 0.5 grams of cocaine. The report also indicates that Petitioner was yelling, cursing, and acting belligerently throughout the incident. In January 2006, Petitioner pled no contest to the charges, and adjudication was withheld by the court. He was sentenced to 24 months of probation and 50 hours of community service; he was required to undergo an anger management class; and he was required to successfully complete a substance abuse treatment program and undergo random drug testing. Petitioner successfully completed his probation without incident and without any positive drug tests. An Order formally terminating Petitioner's probation was entered on March 15, 2007. Petitioner’s criminal offenses were not acts of youthful indiscretion or the result of momentary lapses of judgment. All of the offenses, except for the first DUI, were committed when Petitioner was in his 30’s and working in a professional capacity. Petitioner credibly testified that he has taken steps to turn his life around. He is active in a church group in the Tampa area, and he testified that he has not had a drink of alcohol or used illegal drugs since December 31, 2005. Petitioner does not currently attend Alcoholics Anonymous (AA) meetings, although he has done so in the past. He testified that he continues to live by AA’s principles and that he has a support system in place to help him remain completely abstinent from alcohol and drugs. There is no evidence that Petitioner committed any acts of fraud or dishonest dealing in connection with his work with the EPA or the title insurance companies. In October 2006, Petitioner applied for a real estate sales associate license. He was still on probation at that time. Petitioner fully disclosed his criminal history and the suspension of his license to practice law in Illinois in his license application. Petitioner’s license application was considered by the Commission at its meeting on December 13, 2006. Petitioner appeared at the Commission meeting with his attorney and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner’s license application. The denial was memorialized in a Notice of Intent to Deny dated January 3, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner’s criminal record, as revealed in the license application; the recent nature of Petitioner’s criminal offenses; the fact that Petitioner’s criminal history “shows a pattern and practice of criminal behavior over an extended period of time”; the fact that Petitioner “has not had sufficient time free of government supervision to establish rehabilitation”; and the suspension of Petitioner’s license to practice law in Illinois.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying Petitioner’s application for a real estate sales associate license. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of May, 2007.
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are severely developmentally disabled, pursuant to Section 435.07(7), Florida Statutes (1997).
Findings Of Fact Autumn Nichols is a 20 year-old woman living in her mother's home. She dropped out of school at age 16, and is currently studying to obtain a high school equivalency diploma (GED). Petitioner was arrested and charged with domestic violence-battery in October 1995. She was subsequently adjudicated delinquent in the circuit court (juvenile division) and was placed on community control for a year, attended a law awareness class and a jail tour, performed 25 hours of community service and participated in an anger management class. Petitioner successfully completed her sanctions. On or about October 10, 1995, Petitioner became involved in a verbal argument with her brother. The argument escalated into a physical fight. Petitioner made threats to kill her brother and attempted to get a knife. The police arrested her and she was placed in the Juvenile Detention Center. Two days later, Petitioner was hospitalized due to severe emotional problems. Following the hospitalization, Petitioner was in residential treatment at Devereaux treatment center. She remained at Devereaux for six months and then attended the out- patient program. The episode with her brother, when she was 17, was her last episode of violence. Petitioner no longer verbalizes her anger. Petitioner has never had violent episodes outside the home. Petitioner was diagnosed with bi-polar disorder. She has been hospitalized at least five times. Two of those hospitalizations were involuntary commitments (Baker Act). Petitioner, as recently as six months ago, checked herself into a residential treatment facility for depression. Petitioner's job experience has been limited due to her age. She worked for her mother caring for children in her mother's family daycare for one to two years in her early teens. When Petitioner was 18, she worked a summer job for her father in a restaurant, and at 19, Petitioner worked for three months as a telemarketer. In January 1998, Petitioner was hired by Tutor Time daycare center. She worked at the daycare for three months until she was disqualified from employment. Although Petitioner has demonstrated a sincere desire to work with children, she has failed to prove by clear and convincing evidence that she is rehabilitated. Insufficient time has elapsed since the incident, her mental health issues are too extensive and her work history is inadequate to show that she no longer presents a danger to children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a child care facility be DENIED. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1998. COPIES FURNISHED: Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Autumn Nichols 513 Teakwood Drive Altamonte Springs, Florida 32714 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
