The Issue Whether Respondent violated sections 408.809(1)(e), Florida Statutes (2010),1/ and Florida Administrative Code Rule 59A- 4.106(2) and (4)(x), as alleged in the Administrative Complaint (AC);2/ and whether the violations, if found, warrant the imposition of a conditional licensure rating and a $2,500.00 fine under section 400.23(7)(a) and (8)(b), Florida Statutes.
Findings Of Fact Petitioner is the regulatory authority responsible for the licensure of nursing homes and the enforcement of applicable federal regulations and state statutes and rules governing skilled nursing facilities pursuant to the Federal Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended); chapters 400, Part II, and 408, Part II, Florida Statutes; and Florida Administrative Code Chapter 59A-4. Further, Petitioner evaluates nursing home facilities to determine their degree of compliance with established state regulations as a basis for making the required licensure assignment. Marilyn Jones works for Petitioner as a health facility evaluator II. It is Ms. Jones's responsibility to ensure that healthcare facilities are in compliance with the rules and regulations concerning healthcare as it relates to nursing homes. Ms. Jones has passed the surveyor minimum qualification test (SMQT), which requires extensive training on how to conduct nursing home surveys. Based on her passing the SMQT, she is allowed to perform surveys or evaluate nursing homes by herself. Laurence Branch, Ph.D., is a distinguished professor emeritus from the University of South Florida. Dr. Branch was proffered as an expert in the evaluation of risk to elders. At all times material, Respondent was a licensed nursing facility under the licensing authority of Petitioner, operating a licensed 60-bed nursing facility in Bradenton, Florida. Respondent was required to comply with all applicable statutes and rules. Makissa Abner has been Respondent's human resource (HR) director since February 2009. It is her responsibility to ensure that background checks are completed on all the new hires. Respondent's administrator may also be involved with HR issues including criminal history checks. Eric Kingsley became Respondent's nursing home administrator in December 2010. As such, Mr. Kingsley oversaw the day-to-day operations of Respondent's facility. He participated in the survey conducted at Respondent's facility in April 2011, but was not involved with the hiring of employees prior to his arrival in December 2010. As part of her job, Ms. Abner was aware of Respondent's "Clinical Division Standards & Guideline" (Guideline), a three- page document issued in 2004, with a revision date of November 2009, regarding "Background Checks" for employees of Respondent. This Guideline sets forth Respondent's screening requirements for new employees as of May 2010. Those requirements included in part: STANDARD: All potential employees will have a background check completed prior to start of employment to ensure the safety and welfare of residents and staff. Criminal history screening is required for employees whose responsibilities require them to: Provide personal care or services to residents; Have access to resident living areas; or Have access to resident funds or other personal property GUIDELINES: No employee will begin work without a completed background check. . . . Administrators must assure that there are internal systems in the facility to maintain compliance. Pre-screening Job Applicants and assuring all employees have Background screening Drug screening Reference checks (2) completed Active & current license and or certification. Information must be obtained prior to allowing applicant/employee to care for our residents. Employee must complete application while onsite in facility. Consent for background will be obtained in writing. Information will be entered into a Background Screening system by HR or designee. Results will be obtained, reviewed by HR or designee for a disqualifying conviction, and kept in sealed envelope in human resource file, marked confidential. Any infractions identified on the report will be discussed with the prospective employee, documented on the background screening form and placed in the file. Any flags on report must be reviewed and approved by administrator and RDO. All out of state and those residing in state less than 5 years will have Level 2 background check completed. For those having met exemption status from prior offenses then final hiring decision must be decided by administrator and RDO. SCREENING REQUIREMENTS Level 1[5/] screening standards.--All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment . . . level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. Every person employed in a position for which employment screening is required must, within 5 working days after starting to work, submit to the employer a complete set of information necessary to conduct the screening. Employees who have not maintained continuous residency within the state for the five (5) years must complete a Level 2.[6/] Employees requiring a Level 2 screening may work in a conditional status for 180 days pending the screening results. * * * Standards must also ensure that the person: For employees and employers licensed or registered pursuant to chapter 400, . . . meets the requirements of this chapter. Has not committed an act that constitutes domestic violence as defined in s. 741.28. EXEMPTION PROCESS: Individuals found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited for Level 1 screening and for Level 2 screening are disqualified for employment as a nursing home employee in one of the three areas specified or serving as owner, administrator, or financial officer. The employee has the option to apply for an exemption from disqualification which, if granted, would allow him/her to provide personal services to residents or to serve as owner, administrator, or financial officer. In May 2010, Diane Davis expressed an interest in working for Respondent. Ms. Abner asked for and received from Ms. Davis an application and a completed fingerprint card. The fingerprint card was submitted to the appropriate agency. A short time later, Ms. Davis provided to Ms. Abner a "Background Report for Davis, Diane" with a print date of May 17, 2010, showing a "Report Summary" for "FL State Criminal Report" as "Clear" (background report). No one disputed this background report. Ms. Davis started working as a dietary assistant for Respondent's dietary section around June 1, 2010. At the time Ms. Davis was hired, the law allowed an employee who required a Level 2 background screening to begin work while the employer awaited the results of that additional background screening. The following excerpts from Respondent's dietary assistant job description provide the expectations for dietary assistants such as Ms. Davis: GENERAL PURPOSE: Provide assistance in food preparation and dining services in accordance to menus, diets and facility guidelines. Maintain clean and sanitary conditions in the kitchen and dining areas under the supervision of the Dietary Manager or Cook. QUALIFICATIONS: * * * Must be able to relate professionally and positively to resident and families and to work cooperatively with others. * * * ESSENTIAL JOB FUNCTIONS: A. FOOD PREPARATION AND SERVING Duties: Assist in the preparation and serving of meals and snacks; use portion control procedures. Assist in checking trays for menu and diet preferences and accuracy; ensure proper storage of foods and supplies. * * * F. RESIDENTS' RIGHTS AND POSITIVE RELATIONSHIPS FUNCTIONS Duties: Understand, comply with and promote all rules regarding residents' rights; promote positive relationships with residents, visitors and regulators, to include a professional appearance and attitude. (emphasis added). None of Ms. Davis's job duties called for her to take care of resident's property, resident's funds, or required her to go into a resident's room.7/ The job duties that Ms. Davis was expected to perform included preparing food, or help in preparing food for the residents, and making sure the dishes were clean, the kitchen was sanitary, the drinks were covered, and the food in the freezers was placed appropriately. None of the job duties or descriptions specify that a dietary assistant: will provide personal care or services to or interact with residents; will have access to resident living areas; or will have access to resident funds or other personal property. To have a qualification that, you "must be able to relate . . . positively with residents . . ." does not state that you will relate to residents, only that you have the ability to do so. Additionally, assisting in the "preparation and serving of meals and snacks" and "checking trays" does not state that a dietary assistant will be in direct contact with residents. In mid to late June 2010, Ms. Davis received a letter dated June 16, 2010, from Petitioner (Petitioner's Letter), with a subject line of "RE: 07/27/1974 Simple Assault, Portsmouth, Va Pd."8/ Ms. Davis brought Petitioner's Letter to Ms. Abner who placed it in Ms. Davis's personnel file. Petitioner's Letter acknowledged receipt of Ms. Davis's fingerprint card and advised Ms. Davis that her criminal history report regarding her "arrest and court case history was missing some information." Petitioner's Letter requested additional information regarding Ms. Davis's arrest report and the court disposition. It advised that Ms. Davis had to provide the requested information within 30 days (of June 16th) in order for Petitioner to determine whether Ms. Davis was eligible to work for a healthcare provider. In the event Ms. Davis did not meet this 30-day deadline, the entity that had requested the screening (Respondent) would be notified that Ms. Davis was not eligible for employment. Petitioner's Letter did not notify Ms. Davis that she was disqualified from employment at that time. Ms. Abner made a copy of Ms. Davis's unsigned, non- notarized response statement dated July 1, 2010 (Response Statement), and placed it in Ms. Davis's personnel file. After she notarized the Response Statement, Ms. Abner mailed it and believed that Ms. Davis (and Respondent) had complied with Petitioner's Letter. Ms. Abner did not receive any further communication from Petitioner with respect to this Response Statement.9/ Prior to August 1, 2010, Ms. Abner thought she was conducting her duties with respect to the background screening requirements in compliance with the law that was in effect at the time. Ms. Abner was well-aware that on August 1, 2010, the Florida law regarding personnel screening requirements changed to require Level 2 background screening for all personnel as required in section 408.809(1) and (2). Mr. Kingsley was unaware of any possible issue with Ms. Davis's employment; however, he was not the administrator at the time Ms. Davis was initially hired. On April 5, 2011, Ms. Jones conducted a survey of Respondent's facility.10/ During this survey, Ms. Jones reviewed Respondent's personnel records. When she reviewed Ms. Davis's personnel record, Ms. Jones saw just four items: Petitioner's Letter, the Level 1 criminal history (background report), Ms. Davis's completed June 3rd fingerprint card, and her Response Statement. Ms. Jones inquired about the status of the Level 2 background screening for Ms. Davis. Ms. Abner was initially unable to provide that information, but, following a computer check through Petitioner's website, Ms. Abner found that Ms. Davis received an exemption on March 14, 2011. Ms. Davis continually worked at Respondent's facility from June 1, 2010, through March 14, 2011, and beyond. Ms. Davis was not terminated or placed on suspension when, at the 180 days from her initial employment, Respondent had not received notification of the Level 2 background screening. Ms. Abner did not receive any notification from Petitioner that Ms. Davis had a disqualifying offense, which should have been forthcoming, if, in fact, there was a disqualifying offense. It is clear that Respondent did not follow up on Ms. Davis's Level 2 background screening. However, the law in effect on her hire date did not equate a simple assault to a disqualifying offense. Ms. Davis had to undergo the Level 2 background screening solely because she had not lived in Florida continuously for the preceding five years.11/ Petitioner presented Dr. Branch as an expert in risk assessment for the elderly. Dr. Branch provided insight into the risk associated with persons who have failed a background screening. Petitioner provided Dr. Branch the following documents for his review: the AC, the response to the AC, Ms. Abner's deposition and its attachments, the controlling statutes regarding background screening for Florida nursing homes in effect up to and after August 2010, the deficiency classification system and definitions in part II of chapter 400, and Petitioner's "statistics relating to the number of persons applying for positions in the healthcare community and requiring criminal history background screening and how many of those screenings were positive." Petitioner's statistics were for 250,000 people who applied for the criminal background screening clearance in Florida during a 14-month period. Of those applicants, nearly 10,000, or four percent failed the screening. Although an interesting study, the analysis did not measure whether the disqualifying offense (that caused the background screening failure) occurred one year ago, or 40 years ago or if there was more than one disqualifying offense involved. In the instant case, there is mention of Ms. Davis's arrest in Petitioner's Letter, a simple assault that allegedly occurred in 1974. However, there was no documentation or testimony of any court action regarding that arrest. Thus, there is uncertainty that an actual disqualifying offense occurred.12/ A simple assault does not qualify as a disqualifying offense, unless the victim was a minor. Based on Ms. Davis's age in 2010, when her Response Statement was mailed in, and her explanation of the event, she was, at the time of the alleged 1974 simple assault, 25 years of age. The age of the alleged victim was never proven. As such, there is no proof that the alleged simple assault is the more serious disqualifying offense. A simple assault is not a disqualifying offense under either statute. While recognized as an expert in his field and accepted as one in this case, the statistical analysis provided by Dr. Branch does not carry any significant weight. The statistical analysis fails to include all the relevant information. Further, in the instant case, there is no disqualifying offense; thus, the statistics provided are not persuasive. There was no testimony or evidence presented that any staff member re-applied for a Level 2 background check in December 2010. There was no testimony or evidence that any staff member first applied for an exemption in December 2010.13/ There was no testimony as to what "direct care" means. Further, there was no testimony as to what "personal care" means.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Respondent is not guilty of a Class II violation and re-issuing the license to reflect a standard license for the period previously issued as conditional. DONE AND ENTERED this 3rd day of April, 2012, 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 3rd day of April, 2012.
The Issue The issues in this matter are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s action to deny Petitioner's request for exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Petitioner seeks employment as a direct service provider for persons with developmental disabilities. Petitioner desires to work with Project Choice, LLC, a service provider the Agency regulates. The Agency is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. See § 393.0655(1), Fla. Stat. A “direct service provider” is a person who has direct contact with and provides services to an Agency client. See § 393.063(11), Fla. Stat. The Agency's clients are a vulnerable population consisting of those persons who are eligible for services and support for developmental disabilities. See § 393.063, Fla. Stat. Agency clients often have severe deficits in their ability to complete self-care tasks and communicate their wants and needs. Agency clients are at a heightened risk of abuse, exploitation, and neglect because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider is regarded as a position of special trust. The Agency relies on the Department of Children and Families, Background Screening Unit (the “Department”), to initially receive and screen requests for exemption from disqualification from individuals seeking employment as direct service providers. On June 28, 2015, Petitioner submitted a Request for Exemption, with attachments, to the Department. The Department subsequently forwarded Petitioner’s application to the Agency for review. To qualify as a direct service provider, Petitioner must comply with the employment screening requirement established in chapter 435. See § 393.0655(1), Fla. Stat. Petitioner's background screening revealed a criminal offense. In September 1978, Petitioner was arrested for felony possession of marijuana in the State of Texas. Petitioner pled guilty and was given a suspended sentence. The court deferred adjudication of guilt and placed Petitioner on two years of probation. At the final hearing, the Agency also produced evidence of several non-disqualifying criminal offenses Petitioner committed subsequent to her 1978 drug arrest. Petitioner was arrested for or convicted of the following crimes: 1) a misdemeanor conviction for Possession of Marijuana in 2005; 2) Bail Jumping and Failure to Appear in 2008; 3) Bail Jumping and Failure to Appear in 2010; and 4) Failure to Appear in 2013. In accordance with section 435.04(2), Petitioner’s criminal misconduct, as a “disqualifying offense,” disqualified her from working as a direct service provider for persons with developmental disabilities. Consequently, in order to be employed in such a capacity, Petitioner was required to seek an exemption from disqualification from the Agency. Therefore, Petitioner submitted to the Agency a Request for Exemption from her disqualifying offenses as provided in section 435.07. On February 4, 2016, the Agency issued a letter notifying Petitioner that it denied her Request for Exemption. The Agency denied Petitioner’s application because it did not believe Petitioner submitted clear and convincing evidence of her rehabilitation. At the final hearing, Petitioner testified on her own behalf. Petitioner expressed her desire to work as a caregiver for disabled persons. Petitioner described herself as a giving, helpful, and responsible person. Petitioner further explained that she is seeking a change in her career in light of her recent health challenges. She is also the sole supporter of her family. Petitioner believes that a job as a health care assistant for persons with developmental disabilities will allow her to take care of her family, as well as accommodate her physical limitations. Regarding her disqualifying offense, Petitioner explained that her 1978 felony arrest for marijuana possession occurred when she was only 19 years old. She explained that she had little life experience after growing up in a small town, and she had just started college in Houston. Her boyfriend asked her to carry a suitcase for him in her car on a drive back to college. Unfortunately for Petitioner, a state trooper stopped her car for speeding. Even more unfortunately for Petitioner, the state trooper searched her trunk. The state trooper found her boyfriend’s suitcase. And, inside it, the state trooper found marijuana. Petitioner claimed that she had no knowledge of the contents of her boyfriend’s suitcase. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding her four non-disqualifying offenses, Petitioner explained that her 2005 conviction for marijuana possession also involved a car trip near Houston. She disclosed that a friend asked her to carry some Christmas presents in her car. In a lamentable case of déjà vu, a state trooper stopped her car for speeding. The state trooper searched her trunk. The state trooper found her friend’s Christmas presents. And, inside a present, the state trooper found marijuana. Once again, Petitioner stated that she had no knowledge of the contents of her friend’s presents. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding the multiple bail jumping and failure to appear convictions, Petitioner explained that she had problems knowing when her court dates were scheduled. In expressing that she has rehabilitated from her disqualifying offense, Petitioner asserts that she has moved past her criminal misconduct, and her record is now clear. She has satisfied all fees, fines, and sentences from her criminal charges. Petitioner stated that she has learned not to expose herself to these bad situations. Furthermore, her crimes did not result in harm to any victims or property. Petitioner testified that there are no present stressors in her life, and she relies on her faith for inner guidance and strength. Petitioner has had a stable work history for the past six years. Petitioner also represented that she has taken several Agency training courses in order to become better prepared to work with disabled persons. Additionally, at the final hearing, Petitioner produced evidence that she voluntarily attended a faith-based, alcohol rehabilitation program in 2006. She sought assist from the rehabilitation program based on her concerns with her alcohol consumption. Petitioner asserted that the rehabilitation program was very helpful and successful. Petitioner also provided four letters of reference attesting to her good character. The letters were written by various individuals, including some in notable positions, who have known Petitioner for several years. The letters describe Petitioner as hard-working, caring, and nurturing. At the final hearing, the Agency presented the testimony of Jeffrey Smith, regional operations manager for the Suncoast Region. Mr. Smith oversees all services to persons with developmental disabilities in his jurisdiction. Mr. Smith’s responsibilities include reviewing requests for exemption from disqualifying offenses. Mr. Smith explained that the Agency serves vulnerable individuals who are highly susceptible to abuse, exploitation, and neglect due to their developmental disabilities. Many of the tasks direct service providers offer Agency clients involve financial, personal, and/or social necessities. Therefore, the Agency must ensure that direct service providers are detail- oriented and trustworthy. When considering a request for an exemption, the Agency must weigh the benefit against the risk of endangerment to its clients. Mr. Smith described the Agency’s process when reviewing a request for exemption from disqualification. Mr. Smith relayed that the Agency considers the disqualifying offense itself, the circumstances surrounding the offense, the nature of any harm caused to a victim, the history of the employee since the incident and, finally, any other evidence indicating that the individual will present a danger if employment is allowed. Specifically regarding Petitioner’s application, Mr. Smith explained that the Agency reviewed all of the documentation Petitioner provided in her Request for Exemption, including the various records documenting Petitioner's criminal history, her work experience, and her character reference letters. In addition to her criminal records, the Agency reviewed Petitioner’s driving record. Mr. Smith advised that a direct service provider will often be tasked to transport clients. Mr. Smith noted that Petitioner's driving record included several traffic related violations. He commented that these records show a pattern of questionable judgment by Petitioner. Mr. Smith further testified that the Agency considered Petitioner’s evidence of rehabilitation, including Petitioner’s statements submitted with her Request for Exemption and the letters of recommendation supporting her application. Mr. Smith explained that, based on its review, the Agency determined that Petitioner's criminal history indicates a pattern of poor judgment and a lack of acceptance of full responsibility for her actions. Petitioner’s repeated involvement with the criminal court system reflects a lack of remorse for her misconduct. In addition, the Agency found that Petitioner failed to disclose the full and complete details of her criminal offenses in her application. Mr. Smith testified that inconsistencies in Petitioner’s Exemption Questionnaire, including her unreported attendance at the alcohol rehabilitation program, called her truthfulness into question. Finally, Mr. Smith was concerned about the nature of Petitioner’s offenses (disqualifying and non-disqualifying), as well their close proximity in time with Petitioner’s application. Upon careful consideration of the record evidence, the undersigned finds that Petitioner did not demonstrate, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense from 1978. While Petitioner has made commendable strides to change her life, her repeated criminal proceedings since 1978 raise serious concerns, and some hesitancy, in finding that she has sufficiently established that she should be employed in a position of special trust with persons with developmental disabilities. Despite the fact that Petitioner's disqualifying and non-disqualifying offenses did not result in harm to another, they do demonstrate a failure to exercise good judgment and responsibility that cannot be discounted. Therefore, based on the evidence set forth, Petitioner has not met her burden of demonstrating that she has rehabilitated from her past disqualifying offense or proven that the Agency should grant her request for exemption from disqualification under sections 393.0655 and 435.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 17th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2016.
The Issue Whether the Petitioner, Francisco Luis Inguanzo (Petitioner), is entitled to have his application for licensure approved.
Findings Of Fact The Petitioner, Francisco Luis Inguanzo, is an applicant for licensure as a resident public all lines insurance adjuster. He filed an application with the Respondent on or about September 20, 2004. The Department is the state agency charged with the responsibility of regulating licensees and applicants for licensure such as the Petitioner. As such, the Respondent must interpret and administer the provisions of Chapter 626, Florida Statutes (2004). The application for licensure includes several questions that applicants must complete. More specifically, applicants must disclose law enforcement records and, to that end, the Department poses the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No The response the Petitioner provided to the foregoing question was in the negative (that is “No”). When the Department reviewed the Petitioner’s criminal history, however, it was discovered that the Petitioner was arrested and pled guilty to carrying a concealed firearm, a third-degree felony. The Petitioner did not accurately disclose the foregoing arrest and conviction Moreover, the Petitioner did not provide a credible explanation for why he failed to accurately answer the application question. The criminal charges against this Petitioner were resolved on September 10, 2002. After pleading guilty, the Petitioner was placed on one-year probation with various terms to be completed. The Petitioner successfully completed the terms of his probation on May 30, 2003. At the time he filed the application in the instant matter, the Petitioner knew or should have known that he had been charged with a serious crime, that he had resolved the criminal case, and that he was no longer on probation. The Petitioner did not fully disclose his criminal record to the Department. The Department’s application form makes it clear that the applicant’s criminal history must be disclosed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner’s application for licensure. S DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julio R. Ferrer-Roo, Esquire Julio R. Ferrer Roo, P.A. 8360 West Flagler Street, Suite 203A Miami, Florida 33144
The Issue Whether the first paragraph of the answer to Question 10 of the "Frequently Asked Questions" about "Volunteer and Employee Background Checks" posted on the Florida Department of Law Enforcement's (Department's) public website (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioner.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4), in violation of section 943.1395(7), Florida Statutes (2011), and if so, what penalty should be imposed for the violation(s) proven.
Findings Of Fact Respondent is a law enforcement officer certified by the Florida Criminal Justice and Standards Training Commission on July 30, 1986, and holds certificate number 102180. At the times material to the Administrative Complaint, Respondent was employed by the Escambia County Sheriff's Office (ECSO). He has since retired. On October 21, 2011, at 12:07 p.m., Respondent responded to a harassing telephone calls complaint at 1901 St. Mary Avenue. At that address, Respondent met with William Clark, who informed Respondent that Heather Tramuta's public defender had been calling Tramuta, Clark's girlfriend, inappropriately. Respondent spoke with Tramuta by telephone and generated Offense Report ECS01100F030535 (Offense Report 030535). The ECSO uses an integrated computer system called Smart Cops, produced by CTS Systems. The system includes several integrated database modules, including Offense Report, Master Name Index, Jail, Arrests, Evidence, and Case Management. An officer initiates an offense report by calling from the field to a Report Taker at the sheriff’s office, who inputs the information provided to him or her into the Offense Report module. Information is provided according to the questions in the program, starting with entering the type of report and location, and then filling in the names of the people involved, as well as any property at issue. The officer then provides a narrative for the report. The Report Taker inputs the information given, sometimes in shorthand form. He or she then goes back and “cleans it up,” correcting the spelling and grammatical errors, and then forwards the report to the Senior Report Taker, who reviews it and points out any additional errors. When all corrections are completed, the Senior Report Taker “finishes” the report and forwards it to the supervising officer for review. The supervising officer has a filter on his or her computer that indicates the different types of items to be tracked. For example, yellow indicates a pending report that has been approved, but officers are to follow up on the initial report. Purple means there is a warrant affidavit. Gray is a report still being corrected by the Report Takers. White is a report that is ready for the supervising officer’s approval. The Offense Report module is integrated with other modules in the Smart Cop system. For example, every name listed in an offense report is also listed in a Master Name Index (MNI). If someone knew the name of an individual involved in an incident but not the Offense Report number, they could access the Offense Report by accessing the MNI and querying that person’s name. The MNI will show every report in which that person has been involved, whether as a suspect, a victim, or a witness. Officers frequently access the MNI when preparing Offense Reports to obtain information on the individuals involved in the report they are initiating. The Offense Reports and MNI modules of Smart Cop are available to nearly all ECSO employees; other modules are available based on need. The State Attorney’s Office and Pensacola Police Department, as well as other law enforcement agencies throughout the region, have access to the information in the program through a module called Data Share. To access information through Data Share, agencies use a web portal hosted through the secure criminal justice information system from FDLE, and use that interface to log on and pull information from the database in a web format. However, it is not possible for someone to use Data Share to actually print an ECSO report in the same format that ECSO does. Smart Cops also has a report called a transaction log report. The transaction log report is a user-interfaced front- end report that identifies whenever someone has interfaced with the offense application in some way. A similar report can be run for accesses to the MNI. On October 21, 2011, Respondent accessed the Master Name Index Record of Heather Tramuta at 12:32 p.m. and 12:37 p.m. On October 21, 2011, at 3:30 p.m., Respondent contacted Report Taker Lori Trilone to initiate Offense Report 030535, which resulted in a logged access for Offense Report 030535. Because of the nature of the report, Respondent also contacted his supervisor, Sergeant Lisa Dixon, to advise her of the report he was initiating. Sergeant Dixon, in turn, alerted people in her chain of command that a report of a somewhat sensitive nature was coming through the system. On October 21, 2011, between 3:32 p.m. and 3:34 p.m., Report Taker Lori Trilone accessed the MNI record for Heather Tramuta eight times. These accesses occurred while Respondent was calling in the Offense Report 030535 to Trilone. On October 21, 2011, between 3:31 and 3:34 p.m., Sergeant Lisa Dixon, Respondent’s supervisor, accessed the MNI record of William Clark four times. These accesses were related to a separate inquiry by Mr. Clark that Lieutenant Joye, Sergeant Dixon’s supervisor, had directed her to handle, and were unrelated to Offense Report 030535. According to event logs for Offense Report 030535, Report Taker Lori Trilone worked on completing Offense Report 030535 on October 21, 2011, between 3:30 p.m. and 4:11 p.m. On October 21, 2011, Offense Report 030535 also was accessed through ECSO's computer program as follows: at 3:31 p.m. by Report Taker Darilyn Miller; at 3:55 p.m. by Detention Deputy Randall Bradshaw; at 4:13 p.m. by Sergeant Lisa Dixon; at 4:22 p.m. by Commander Ricky Shelby; at 4:55 p.m. and 5:53 p.m. by Sergeant Lisa Dixon; at 6:02 p.m. and 6:04 p.m. by Sergeant Alan Miller; and at 8:12 p.m. through 8:20 p.m. by Senior Report Taker Lori Scott as she updated and finished the report. Lori Scott marked Offense Report 030535 as finished at 8:20 p.m. on October 21, 2011. On October 22, 2011, Respondent accessed the MNI record of Heather Tramuta at 6:50 a.m. and 6:52 a.m. There were no other recorded accesses to the MNI records of Heather Tramuta or William Clark on October 21 or 22. Sergeant Lisa Dixon accessed and approved Offense Report 030535 on October 22, 2011, at 6:55 a.m. On approximately October 28, 2011, Offense Report 030535 was posted online on the website LEOAffairs.com. At that time, it was still confidential criminal justice information, as the matter remained under investigation at the time of the report's disclosure. Documents can be printed from Smart Cop in two formats. The older, “Legacy” format is text-based and contains no graphics. The newer “CTS” format is the default format and is windows-based, with different fonts and graphics, such as the sheriff’s star. There is conflict in the testimony as to whether a person could print an offense report in both formats in October 2011, when pulling the offense report from the MNI module. Regardless, the copy of Offense Report 030535 posted online was in the newer, CTS format. Sergeant Lisa Dixon saw Offense Report 030535 on LEOAffairs. She then notified her supervisor, Lieutenant Joye, of the posting. Lieutenant Scott Allday was directed by his Commander, Darlene Dickey, to see if he could find out how the post was released. Lieutenant Allday narrowed his “window” for purposes of determining accesses to Offense Report 030535 based on the text in the version that was posted. He determined that the posted version was the same as the version approved by Sergeant Dixon, except that there was no supervisor’s signature on the posted version: that portion of the report was circled but left blank. That window starts at 8:20 p.m. on October 21, when the report was finished by Lori Scott, and ends at 6:55 a.m. on October 22, when Sergeant Dixon approved it. Lieutenant Allday testified that he did not investigate past October 22, 2011, once he narrowed the window to the period described above. Lieutenant Allday’s decision to look only at this period of time is based on the text of the posted copy of the Offense Report 030535, and the lack of a supervisor’s signature. However, the quality of the posted copy is very poor. When asked whether the supervisor’s signature could have been whited out, no witness could refute that possibility. While it is not clear, the possibility that the signature was in fact whited out exists. If so, then it is possible that the window of time in which the document could have been accessed would widen to up to and include October 28, 2011. Lieutenant Allday spoke to Sergeant Dixon, Commander Shelby, Colonel Hardy, Lori Trilone, Lori Scott, Linda Aiken, Kelly Richards (an attorney), reporter Katie McFarland, Cheryl Gooden, and perhaps some others in the course of his investigation. Only one person told him that he or she had printed a copy of the report; none indicated they had disclosed the report to anyone. Colonel Hardy had printed a copy of the report, but he printed his copy on October 24, and his copy was printed in Legacy format as opposed to the CTS format posted online. When Lieutenant Allday asked Colonel Hardy about the report, the printed copy in Legacy format was still on his desk. Once an offense report is downloaded and printed, it can be copied and the date and time those copies were printed would not be known. Moreover, while the audit logs track accesses to the different components, they do not necessarily track saves. Someone could access the document, view it and save it to a thumb drive, and later print from the thumb drive. Only the access and view would be recorded on an audit log. Lieutenant Allday contacted the person in charge of LEOAffairs to see if he could provide the IP address of the site that uploaded the information to the website, and was unable to obtain that information. Respondent was interviewed during the investigation and admitted that he had printed a copy of Offense Report 030535, but denied providing it to anyone or posting it online. He indicated that he had shredded the report. Printing a report is not against ECSO policy. Respondent was not asked in the Internal Affairs’ interview whether he knew how to upload a document on a website. Respondent credibly denies knowing how to do so. Lieutenant Allday stated at hearing that he is familiar with Respondent’s computer skills, and would be surprised if Respondent knew how to upload a document to an online forum. No witnesses with whom Lieutenant Allday spoke told him that Respondent had given them a copy of the offense report. Consistent with his interview during the internal affairs investigation, Respondent testified credibly that he routinely printed copies of offense reports he has filed so that he had them for reference. He kept them in milk carton crates in the trunk of his patrol car. In January 2012, Respondent went on stress leave. Before turning in his patrol car, he removed all of his personal belongings, and shredded all of the copies of offense reports in the trunk of his car. Offense Report 030535 was one of many, possibly a few hundred, offense reports shredded at that time. Respondent was not aware of the internal affairs investigation and was not interviewed until after he shredded the documents and went on stress leave. There is clear and convincing evidence that Respondent is one of a few people who both accessed and printed Offense Report 030535. However, there is no real evidence to support the allegation that Respondent released the report to anyone or that Respondent posted the report online, or that Respondent lied during his internal affairs interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 10th day of October, 2013, 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 10th day of October, 2013.
The Issue Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes (2001). On or about June 12, 2001, Mr. Parker submitted his application for licensure as a real estate salesperson to the Commission. In the application, Mr. Parker answered "yes" to Question 9, which asks in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Mr. Parker attached to his application the results of a North Carolina criminal records check, which consisted of a cover sheet and three pages. Relevant to this proceeding, the information attached to Mr. Parker's application establishes the following: On May 26, 1994, Mr. Parker was found guilty of misdemeanor larceny; there is no indication that he received a sentence or paid a fine, court costs, or restitution. On June 29, 1995, Mr. Parker was found guilty of driving while impaired; he was sentenced to one year's unsupervised probation and paid either a fine or court costs in the amount of $160.00. On July 8, 1996, Mr. Parker waived trial on a charge of passing a worthless check; he paid either a fine or court costs in the amount of $60.00 and restitution in the amount of $76.30. On July 31, 1998, Mr. Parker was convicted of misdemeanor larceny; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $130.00. On June 12, 2000, Mr. Parker was found guilty of violating a domestic violence protective order; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $186.00. On August 6, 2000, Mr. Parker was charged with driving while impaired and driving without a license in his possession; trial was scheduled for February 21, 2001, but no disposition is indicated in the materials Mr. Parker provided. Mr. Parker admits to having driven while impaired in August 2000, but he has not been in trouble since his arrest on this charge. He completed an alcohol treatment program and has not consumed alcohol for one and one-half years. Mr. Parker understands that he has had problems in the past and believes that he has done better in the past two years. He moved to Florida in January 2001 in order to make a new life. At the time of the hearing, he was employed as a server at a restaurant. In that job, he routinely handles up to $1,000.00 in cash each day and always turns the money over to management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Robert L. Parker for licensure as a real estate salesperson. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of June, 2002. COPIES FURNISHED: Robert L. Parker 44 Douglas Drive Boynton Beach, Florida 33435 Donna K. Ryan, Esquire Department of Business and Professional Regulation Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
