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 Petitioner is entitled to an exemption from her disqualification to work in positions of special trust.
Findings Of Fact Petitioner applied to Respondent for a license to operate a child care center out of her home. Section 402.305(2), Florida Statutes, provides, in pertinent part, as follows: Personnel.--Minimum standards for child care personnel shall include minimum requirements as to: Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 402.305(2), Florida Statutes, as follows: All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony. The required background screening revealed that on August 3, 1993, Petitioner was found guilty by a jury of 15 counts of grand theft. Each of these counts was a third degree felony in violation of Section 812.014(1), Florida Statutes. 2/ For these felony offenses, Petitioner was incarcerated for a period of one year and placed on probation for a period of five years. Respondent notified Petitioner by letter dated May 28, 1999, that she ". . . may be [sic] ineligible for continued employment in a position of special trust working with children . . ." based on her conviction of 15 counts of grand theft. Section 435.07(1)(a), Florida Statutes, provides for the following exemption from the disqualification from employment in positions of special trust: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies committed more than 3 years prior to the date of disqualification. . . . Section 435.07(3), Florida Statutes, places the following burden on the person seeking the exemption from the disqualification: (3) In order for a licensing department 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 sufficient 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 continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. During the course of a lengthy investigation of a burglary ring spanning approximately four years, Petitioner was found to have in her possession at her home 3/ large quantities of stolen property from burglaries dating from 1987 to 1993. Petitioner was alleged to have purchased this stolen property, as opposed to having committed the actual burglaries. Respondent's letter dated May 28, 1999, advised Petitioner of her right to seek an exemption from her disqualification from employment in positions of special trust. Petitioner thereafter timely applied for such an exemption. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing on June 15, 1999, at which Petitioner appeared with witnesses. The three members of the screening committee were Susan K. Barton (Respondent's District Screening Coordinator), Laura Williams (a foster parent liaison employed by Respondent), and Laura Cohn (Respondent's District Legal Counsel). The members of the committee did not find Petitioner to be remorseful or forthcoming about her involvement in the criminal conduct that led to her felony convictions. Petitioner has a college degree in early childhood education. At the time of her arrest she was employed by the School Board of Palm Beach County. Because of her felony convictions, she lost that employment and has not been able to find comparable employment. At the formal hearing, Petitioner's only evidence as to her entitlement to an exemption was her own testimony. She presented no other witnesses and no exhibits. Petitioner testified that she was remorseful and that she had responded truthfully to the questions asked at the informal hearing by the members of the committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for an exemption from her disqualification from employment in positions of special trust. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1999.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Petitioner’s request for exemption from employment disqualification should be granted.
Findings Of Fact On April 30, 1996, James L. Wilson was arguing with his wife. Mr. Wilson’s stepson entered into the argument. The stepson was 15 years old. Mr. Wilson, using his open hands, pushed his stepson in the chest, causing his stepson to fall over a chair and onto the floor. This incident occurred in Richmond County, Georgia. As a result of Mr. Wilson’s action against his stepson, Mr. Wilson was arrested and charged with a misdemeanor offense of simple battery. On May 1, 1996, Mr. Wilson pled guilty to the simple battery charge before the court in Richmond County, Georgia, and was sentenced to 12 months' probation and ordered to pay a fine of $150. As conditions for his probation, Mr. Wilson was ordered to have no violent contact with his stepson and to pay $20 per month for probation supervision fees. Subsequently, Mr. Wilson’s relationship with his stepson greatly improved. Mr. Wilson and his stepson get along well with one another. In July 1997, Mr. Wilson began employment with Corrections Corporation of America (CCA) in the State of Florida to assist CCA in the establishment of a program for juveniles in Florida. He was transferred by CCA from the State of South Carolina where he worked with juveniles for CCA. CCA is a contract provider with the State of Florida, Department of Juvenile Justice (Department). Working in Florida, Mr. Wilson was a shift commander at CCA’s Okeechobee Youth Offender Camp in Okeechobee, Florida. As shift commander, he supervised six staff members, supervisors of two main shifts, and 50 juvenile offenders. Mr. Wilson worked directly with juveniles. Subsequently, Mr. Wilson became the assistant maintenance/training officer, training staff at CCA’s Okeechobee Redirect Center for Juvenile Offenders. Mr. Wilson worked directly with juveniles. Mr. Wilson was in a caretaker position with CCA at both locations. Being in the positions with CEA in Florida, Mr. Wilson was required to make application for a caretaker position with CCA. In conjunction with the application, the Department required Mr. Wilson to submit to a background screening conducted by the Department’s Background Screening Unit, Bureau of Investigations (Screening Unit). Only a Florida criminal history check was conducted by the Screening Unit, which revealed no criminal history for Mr. Wilson. As part of the background screening process, Mr. Wilson was required to sign and submit two notarized affidavits (Affidavit of Good Moral Character), which were dated July 7, 1997, and December 31, 1997, respectively. On both affidavits, Mr. Wilson indicated that he had no disqualifying offenses that would deem him ineligible to work in direct contact with juveniles. Listed on each affidavit, as one of the disqualifying offenses, was "battery, if the victim of the offense was a minor," which is the offense for which Mr. Wilson was convicted in May 1996 in Richmond County, Georgia. Neither affidavit stated as to whether the offense was a misdemeanor or felony. Before signing each affidavit, Mr. Wilson communicated with his supervisor at CCA. He explained to his supervisor about the misdemeanor and queried his supervisor as to whether he should indicate that he had a disqualifying offense. Mr. Wilson’s supervisor advised him that the focus of the affidavits was on felonies. Even though neither affidavit stated that the offenses were misdemeanors or felonies, Mr. Wilson indicated that he had no disqualifying offense. In completing the affidavits, Mr. Wilson had no intention to deceive. However, the responsibility was upon Mr. Wilson to complete the affidavits and to complete them accurately and honestly. He should have known to indicate on the affidavits that he had a disqualifying offense in the absence of the affidavits stating whether the offenses were misdemeanors or felonies. After Mr. Wilson began working in Florida with CCA, he was also required to undergo a state and federal fingerprint check. The fingerprint checks revealed the simple battery on his stepson and also revealed a 1995 arrest for a misdemeanor simple battery in the State of Georgia, which was nolle prossed. By letter dated February 22, 1999, Mr. Wilson was notified by the Screening Unit’s supervisor of his potential disqualification from employment based upon the two arrests revealed by the fingerprint checks. The letter included identifying information regarding the arrests. The Screening Unit's supervisor requested that Mr. Wilson submit certified copies of arrest reports, court dispositions, and other court documents regarding the two arrests. Mr. Wilson complied and subsequently submitted the requested information. The Department reviewed the information. The Department determined that Mr. Wilson was ineligible for continued employment in a position of special trust based upon the May 1, 1996, misdemeanor simple battery against his stepson. By letter dated April 29, 1999, the Screening Unit’s supervisor notified Mr. Wilson that he was ineligible and that he could request an exemption from disqualification. CCA was also notified simultaneously of Mr. Wilson’s ineligibility and was instructed to immediately remove him from direct contact with juveniles. CCA removed Mr. Wilson from direct contact with juveniles. Mr. Wilson requested an informal exemption hearing, which was held on June 8, 1999. The hearing was conducted by a committee of two individuals, who only had the authority to make a recommendation to the Inspector General who had final decision-making authority. In a report dated June 16, 1999, the committee recommended that, although Mr. Wilson had rehabilitated himself, his exemption be denied based upon his falsification of the two notarized affidavits. 1/ The committee’s recommendation, along with the entire background screening file, was forwarded to the Department’s Inspector General. After reviewing the recommendation and the file, the Inspector General denied Mr. Wilson’s request for exemption. The Inspector General denied the exemption on three grounds. First, Mr. Wilson’s falsification of the two notarized affidavits was proof of Mr. Wilson’s lack of good moral character and of rehabilitation. Second, an insufficient amount of time had elapsed since Mr. Wilson’s commission of simple battery on his stepson, a minor, to establish good moral character and rehabilitation. Third, Mr. Wilson failed to show that he had successfully completed his probationary period regarding his conviction of simple battery on his stepson. By letter dated June 22, 1999, the Inspector General notified Mr. Wilson that his request for exemption was denied.
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 denying James Wilson an exemption from disqualification of employment to work in a position of special trust or responsibility with it. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 January, 2000.
The Issue Whether Respondent abused its discretion by denying Petitioner’s request for an exemption that would allow employment in a position of special trust.
Findings Of Fact Petitioner seeks employment in a position of trust. Employment in positions of special trust requires background screening to verify that persons do not have disqualifying offenses that preclude their employment. Respondent is charged with the responsibility of verifying that persons who work in positions of trust are appropriately credentialed or meet the criteria for an exemption when background screening finds disqualifying offenses. In this case, Respondent reviewed Petitioner’s request for an exemption when it was determined that he was otherwise disqualified for employment. On March 3, 2000, Petitioner committed the criminal act of solicitation for prostitution. This criminal charge was resolved when Petitioner entered a plea of nolo contendere, was adjudicated guilty, and was sentenced to ten days detention and six months of probation. Respondent found this offense to be Petitioner’s first disqualifying offense. On January 30, 2008, Petitioner committed the criminal act of domestic violence. The charge was resolved when Petitioner entered a guilty plea, and was ordered to attend anger management classes and pay restitution, court costs, and investigative costs. Adjudication on the plea was withheld. Respondent determined this offense to be Petitioner’s second disqualifying offense. Petitioner does not dispute the factual allegations supporting the charges described in paragraphs 3 and 4. Petitioner maintains he is of good moral character and that the incidents of his past do not define the person he is. Petitioner’s witnesses agree that Petitioner should be allowed to work in a position of trust. In addition to disqualifying offenses, Respondent considered other incidents related to Respondent’s conduct. Prior to the offenses noted above, Respondent pled guilty to resisting arrest with violence. Subsequent to the offenses, Respondent incurred a number of traffic violations, including driving without a valid license. Finally, and of significant concern to Respondent, Petitioner has a verified finding of child abuse. Although the case was not prosecuted criminally, the Florida Department of Children and Families (DCF) maintains a verified report of sexual activity involving Petitioner with his minor step-child. Petitioner’s successful employment history includes work with Devereux’s Children’s Hospital (from 1993 until February 2009). Petitioner was terminated from this position due to his domestic violence conviction. From November 2011 to September 2013, Petitioner was employed by MC Assembly. Petitioner resides with two sons and is head of household. Petitioner completed anger management counseling after his conviction in 2009. There is no evidence that Petitioner uses or misuses drugs or alcohol. Petitioner expressed remorse for his behavior and blamed the domestic violence incident on a difficult home situation that got out of control. Respondent considers driving without a license a serious issue because persons who work in positions of special trust may be required to transport persons with developmental disabilities to medical appointments, educational or training opportunities, or activities. Respondent’s clients are persons who are extremely vulnerable. Many clients do not have the capacity to consent due to limited cognitive function. Additionally, Respondent’s clients are at risk for abuse, neglect, and exploitation because they may not be able to communicate and relate incidents of abuse, neglect or exploitation. Respondent’s clients cannot be served by persons who exhibit violence or uncontrolled behaviors. After reviewing Petitioner’s record, Respondent determined that an insufficient time has passed to assure that Petitioner will not revert to violent behavior if confronted with a stressful work experience. Petitioner has not provided evidence of rehabilitation other than the support of his friends. According to Clarence Lewis, the stressors in Petitioner’s life, together with the demands of the work environment, could put Respondent’s clients at risk since Petitioner has not demonstrated sufficient rehabilitation. Petitioner’s letters of reference did not document additional efforts at rehabilitation. There is no evidence that Petitioner has participated in counseling or treatment beyond the mandated anger management class dictated by the court. Persons seeking employment with vulnerable individuals must exercise good judgment. Based upon the totality of Petitioner’s submissions to the Agency to support the request for an exemption, Respondent concluded Petitioner did not establish by clear and convincing evidence that he is rehabilitated and able to work with Respondent’s vulnerable population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order denying Petitioner’s application for an exemption. DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 23rd day of February, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities Suite 380 4030 Esplanade Way Tallahassee, Florida 32399-0950 (eServed) Michael Sauve, Esquire Agency for Persons with Disabilities Suite S-430 400 West Robinson Street Orlando, Florida 32801 (eServed) James Walker 5812 Pinewood Drive Northeast Palm Bay, Florida 32905 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richart Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether the Petitioner, Alejandro S. Contreras, (Petitioner or applicant) is entitled to have his application for licensure as a general lines agent be granted.
Findings Of Fact The Petitioner is an applicant for licensure as a general lines agent. He is employed by the Twin Peaks Insurance Agency and is considered a valued employee. The Respondent is the state agency charged with the responsibility of regulating the insurance industry in Florida and must make determinations regarding the licensure of general lines agents. In January of 1988, when he was approximately 21 years old, the Petitioner purchased an automobile from “a friend.” Subsequently, the Petitioner was charged with possession of forged/fictitious registration or indicia of ownership of a motor vehicle. The Petitioner quickly discovered why the vehicle had been a good buy: it had been stolen. Regardless, after being charged, the Petitioner entered a plea of nolo contendere to the matter and the judge withheld adjudication, placed the Petitioner on a one-year probation, and imposed community service. The Petitioner successfully completed the terms of his probation. The crime, as charged, was a third-degree felony. Such felonies may be punishable with up to five years of imprisonment. Clearly, by acknowledging the wrong doing and taking responsibility for his actions, the Petitioner saved himself from a potentially harsher penalty. Since the incident described, the Petitioner has not been charged with any criminal conduct. The Petitioner is now 38 years of age, has worked at the insurance agency for the past year, and has successfully completed classes and training to become licensed. To that end, the Petitioner completed an application for licensure at the Department’s online website. According to Petitioner the form was completed at an early hour and he scanned the questions quickly. One of the application questions asked the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a 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? The Petitioner’s response was “no.” According to the Petitioner, he believed the question meant “had he been punished with a year in prison for anything.” In fact, the Petitioner has not been in prison for anything. He was, however, charged with a crime that could have been punished with one year in prison. He did, in fact, plead nolo contendere to that crime. His correct answer should have been “yes.” When the Department ran the background checks for licensure the incorrect answer was discovered and the Petitioner’s application was denied for giving a false response. Prior to his employment the Petitioner disclosed his past to his employer. He did not attempt to hide any information from the employer and was helpful in providing all requested information to the Department when the issue of the answer first arose. It took an exchange of several letters before the Petitioner comprehended the information and findings relied upon by the Department. In denying the licensure, the Department has deemed the Petitioner’s incorrect response a material misstatement, misrepresentation, or fraud in attempting to obtain the license. The Petitioner did not, however, understand the question on the application form and did not understand that he had incorrectly answered it. It is entirely possible that the Petitioner’s comprehension of English (or lack thereof) compounded the problem. Regardless, the Petitioner did not intend to misstate his criminal past. Further, such an effort would have been inconsistent with having disclosed the past to his employer. The Petitioner is hard-working and trusted by his employer and will be considered a loss if the license is not approved.
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 approving the application of the Petitioner. S DONE AND ENTERED this 28th day of January, 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 28th day of January, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alejandro S. Contreras 300 Northeast 12th Avenue, No. 405 Hallandale, Florida 33009 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
