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 to be resolved in this proceeding concern whether, because of a prior regulatory and criminal history, the Petitioner is entitled to licensure in Florida as a nonresident life, health and variable annuity agent.
Findings Of Fact The Petitioner, Eugene P. Kent, at times pertinent hereto was a licensed insurance agent in South Dakota. He was apparently an agent or broker for the Independent Community Banker's Association of South Dakota and engaged in the insurance business with regard to the various group benefits coverage for that association. Apparently in 1995, he become involved in a dispute between the Independent Community Banker's Association of South Dakota and United of Omaha Life Insurance Company. This dispute, the exact nature of which is not of record in this case, resulted in the Petitioner being charged with mail fraud by the United States Attorney for the District of South Dakota. He was prosecuted for mail fraud and ultimately was convicted by jury verdict on or shortly after October 26, 1996. He was sentenced to two years' imprisonment. The Petitioner believed that evidence existed in the home office of United of Omaha Life Insurance Company, which would exonerate him, and that his counsel during the criminal prosecution had, for unknown reasons, failed to subpoena and obtain such evidence for use in his criminal trial. He obtained new counsel who was successful in obtaining the evidence in question, which indeed proved to be exculpatory. It resulted in the presiding judge in the criminal case vacating the order of conviction, resulting in the Petitioner's release from incarceration. Because of his conviction, the insurance departments of South Dakota, as well as North Dakota and Nebraska, had revoked his insurance licenses, based upon the criminal conviction. On October 26, 1996, during the progress of the criminal trial referenced above, the Petitioner and his wife became concerned that she would not have funds to pay for his counsel, to operate her home and the business and to pay for her son's alcohol rehabilitation expenses if the jury returned a guilty verdict resulting in his incarceration. Consequently, on that day, the Petitioner made a withdrawal from his business account, drawn upon the Kent Insurance, Inc., account in the amount of $9,900, by writing a check on that account. On the same day, the Petitioner went to a different branch of the same bank and negotiated a second check on this same account also made payable to him, again, in the amount of $9,900, drawn upon the Kent Insurance, Inc., business account. The bank officer upon the occasion of the second withdrawal that same day told him that a currency transaction report would have to be filed. The Petitioner readily agreed to file the report and assisted the bank officer in completing and executing the transaction report. Thereafter, the United States Attorney secured an indictment of the Petitioner, during his incarceration for the earlier criminal conviction, before it was vacated by the trial judge. He prosecuted the Petitioner for "attempting to cause a financial institution not to file a report." During the pendency of this second criminal proceeding, the Petitioner remained incarcerated from the earlier proceeding, which was later vacated. Because of this, his counsel in the second criminal proceeding advised him to plead guilty to the second charge in return for a light penalty, because his counsel believed that if he attempted to litigate the second criminal matter to trial, he would have difficulty convincing a jury of his innocence because he was already incarcerated on the earlier mail fraud charge. Consequently, on May 20, 1998, the Petitioner pled guilty to attempting to cause a financial institution not to file a report. He was sentenced to five months' imprisonment as a result of that plea, which ran concurrently with the sentence imposed on February 24, 1997, regarding the mail fraud charge. After release, he was sentenced to supervised release for a period of approximately two years. The preponderant evidence in this proceeding shows that the Petitioner did not attempt to defraud the federal government or to prevent the bank involved from filing the report. Upon being informed of the requirement of filing the report, he freely consented and helped execute the report form involved at his bank. The funds he withdrew with the two checks were his funds from an account over which he had ownership and signatory authority. There is no evidence that the funds in the account withdrawn by the Petitioner had been obtained through an criminal alleged enterprise or that the Petitioner contemplated using them for such a purpose. The post-conviction evidence that was obtained by the Petitioner and his counsel resulted in the judge vacating the first conviction for mail fraud. This new evidence was also the basis for the South Dakota Insurance Regulatory Agency reinstating his licensure. Ultimately, the other states which had revoked his licensure reinstated his licenses. The Petitioner is now similarly licensed in 17 or 18 states. He applied for licensure as a non-resident life, health, and variable annuity agent in Florida and that application was denied by the Department due to his criminal history and the prior administrative actions against his licensure in the other states. That denial resulted in this proceeding. The other states which have since either reinstated his licensure or licensed him did so with knowledge, as reported by the Petitioner, of his prior criminal and administrative proceedings. The Department has a rule listing various crimes (in Classes A, B, and C) such that, if a petitioner has been so convicted, then that petitioner cannot be licensed for periods of times stated in that rule. Class A crimes listed in that rule carry the longest period of time during which licensure is prohibited with a waiting period extending as much as 15 years. The Division of Licensing of the Department decided that the crime involved herein was a "Class A crime." The rule allows the Department to analogize the crime of which a petitioner or applicant has been convicted with one of the crimes listed in this rule if the crime, of which an applicant was convicted, is not itself listed in the rule. The Division of Licensing thus decided to classify the crime of "attempting to cause a financial institution not to file a report" as analogous to "defrauding the government" or "obstruction of justice." The Petitioner was not charged with either defrauding the government or obstruction of justice and was not convicted of those crimes. Although the stipulation of facts between the Petitioner and the United States Attorney, attendant to the Petitioner's plea in the second federal criminal case (Petitioner's Exhibit G), shows that the Petitioner knowingly attempted to avoid the reporting requirement imposed by Title 31 U.S.C. § 5313(a) on the bank for currency transactions of more than $10,000 in one day, there is no persuasive evidence that he did so for any illegal purpose or fraudulent intent, or intent to in any way "obstruct justice," or engage in dishonest conduct. There was no demonstrative harm to the public nor was there any "victim" of his purported crime. If the Petitioner had truly wanted to conceal the transaction or induce the bank to fail to report it, he could simply have presented the second $9,900 check on another day for cashing, or had his wife negotiate such a check on a different business day. Instead, when told by the bank employee, on presenting the second check, that a currency transaction report would have to be filed, he freely assented and assisted in the preparation of the report form; even the above-referenced stipulation of facts attendant to his criminal plea shows this. There was no requirement that a report be made until the second check was negotiated on the same day. The Petitioner's testimony in evidence, including the fact that 18 states have licensed him or re-instated his licensure since the criminal and administrative proceedings at issue herein, with knowledge of those proceedings, shows preponderantly that his crime did not "involve moral turpitude" and that he is fit and trustworthy for engagement in the practice of insurance. The crime to which he pled did not involve any significant, rational relationship or nexus to the two "analogized crimes" involving "obstruction of justice" or "defrauding the government" for purposes of the Department's rule cited below. Two affidavits, admitted as Petitioner's Exhibits J and K, as corroborative hearsay, in accordance with Section 120.57(1)(c), Florida Statutes, bear out this finding and are worthy of quotation. The first affidavit is that of attorney James L. Volling, the Petitioner's counsel for purposes of appeal and post-conviction challenge to his first conviction, and his counsel for purposes of the second criminal case. Mr. Volling practices in Minneapolis, Minnesota, and is admitted to practice by the Minnesota Supreme Court, as well as by the United States District Court for the District of Minnesota and for the District of North Dakota. He is also admitted to practice in the courts of appeal for the District of Columbia Circuit, the Eighth Circuit and the Fifth Circuit, as well as the United States Supreme Court. He testified in pertinent part as follows: Following Mr. Kent's conviction on two counts of mail fraud, I was retained to represent him for purposes of appeal and post-conviction challenge to the conviction as well as in connection with a second case brought against him. Upon reviewing the facts and the law in Mr. Kent's case, I became convinced that his conviction was defective and inappropriate. Ultimately, the trial court agreed and his petition for post-conviction relief was granted and his conviction and sentence were vacated. The government chose not to appeal that decision which I believe clearly would have been upheld by the United States Court of Appeals for the Eighth Circuit. During the pendency of post-conviction proceedings in Mr. Kent's case, the government brought a second case against Mr. Kent involving allegations of an attempt to avoid currency transaction reporting requirements. In my view, these allegations were petty at best, especially considering that the bank involved did file a currency transaction report and Mr. Kent expressly permitted them to do so. Mr. Kent was simply withdrawing his own money and there was no claim that those funds were the product of any illegal activity [or for any illegal purpose]. The government's second case was only technical in nature and, in my view, would not have been charged in any other jurisdiction with which I am familiar. Indeed, the assistant United States attorney representing the government told me that the only reason the government brought the second case was their concern that Mr. Kent's conviction in the first case would ultimately be overturned, which of course it was. With regard to the currency transaction reporting matter, Mr. Kent elected to enter a plea bargain to avoid further expense and burden, and which did not augment the punishment that had been given to him in the first case. I have no doubt that, if Mr. Kent, had not been convicted in the first case so that he would not have had that stigma at the time of the second case, he would have elected to try the currency transaction reporting case rather than to enter into a plea agreement. It was after that plea agreement, that the conviction and sentence in Mr. Kent's first case were vacated. I have known and dealt with Eugene Kent for approximately five years now. During that entire time, he has always been a man of his word. He has done exactly what he said he would do and has told me the truth in every respect. I have great respect and admiration for Mr. Kent as person and as a client. I believe he has suffered unfairly throughout this entire ordeal, but he has remained steadfast and persevered through some truly difficult times. I have been proud to serve as his legal counsel, and I would recommend him unhesitatingly to anyone in terms of employment or any business relationship. The second affidavit is by Mark F. Marshall. Mr. Marshall is now a lawyer and at times pertinent hereto has been admitted to the practice of law by the South Dakota Supreme Court. He has been in the active practice of law since 1981. At times pertinent hereto from January 1, 1996, until August 1, 2000, Mr. Marshall served as a United States Magistrate Judge for the District of South Dakota. Mr. Marshall testified pertinently as follows: From January 1, 1996 until August 1, 2000, I served as a United States Magistrate Judge for the District of South Dakota. In my capacity as a United States Magistrate Judge, I conducted the initial appearance and detention hearings in a matter styled the United States of America v. Eugene P. Kent, CR. 96-40002-01. Over the objection of the United States, I ordered Mr. Kent released on conditions. A copy of the Order Setting Conditions of Release, as well as Mr. Kent's Appearance Bond in the Amount of $100,000.00 is attached hereto as Exhibits A and B respectively. [released on a non-surety bond requiring no security.] In my capacity as a United States Magistrate Judge, I conducted a hearing on the Defendant's Motion to Dismiss in a matter styled the United States of America v. Eugene P. Kent, CR. 97-40111. [the currency transaction prosecution.] I denied the Defendant's Motion to Dismiss as I believed that an issue of fact existed as to the Defendant's intent. While I believed that it would be improper to dismiss the case because of that issue, I also know that if I had been the finder of fact I would have found the Defendant not guilty of all of charges in the indictment. Perhaps more so than any defendant who appeared before me, Mr. Kent comported himself with grace, dignity, and the utmost of integrity with regard to both criminal cases. Since being exonerated from all underlying criminal counts regarding this matter, Mr. Kent has asked me to submit an affidavit on his behalf. Initially, I was reluctant to do so not because Mr. Kent was unworthy of support, but because I was concerned about whether doing so would reflect adversely on my former judicial office. I have concluded that the interests of justice compel me to provide this affidavit on behalf of Mr. Kent. I am firmly of the belief that Mr. Kent committed no criminal acts in either of the cases venued in the United States District Court for the District of South Dakota and as such he should not bear the stigma of any criminal record. I have been a member of the South Dakota Board of Pardons and Paroles since July of 2002. During my tenure as a member of the Parole Board, I have reviewed hundreds of applications for pardons. I have reviewed all public filings in Mr. Kent's civil actions arising from his conviction as well as all filings in the criminal action itself. Based on my experiences as a Parole Board member, my knowledge of Mr. Kent individually and professionally, and as well as my knowledge of the role that pardons serve in the state and federal judicial system, I believe that Mr. Kent is an unusually worthy applicant for such extraordinary relief. It is my personal belief that Mr. Kent poses no threat to society whatsoever. Society's interests, as well as those of Mr. Kent, would be well served by granting him the relief he seeks . . . . Dated this 11th day of November, 2003.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petitioner be granted licensure. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of September, 2004. COPIES FURNISHED: 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 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Eugene P. Kent 1209 West 37th Street Sioux Falls, South Dakota 57105
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of June, 1987.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since January 29, 1993. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an undercover prostitution sting at Southwest 8th Street and 69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of May, 1999. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
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 denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent's certification as a firefighter should be revoked.
Findings Of Fact Respondent, James F. Mathis, is a certified firefighter. On April 7, 1997, Respondent pled guilty to the charge of unlawful sexual battery upon a child under the age of 16, contrary to Section 800.04(3), Florida Statutes. Respondent was sentenced to 180 days in jail, ten years' probation, no contact with the victim, no allowance for early termination of probation, admission to sex offender treatment, and payment of court costs. However, adjudication was withheld. Respondent presented evidence to show: the factual basis for the charge; his rehabilitation; the unlikelihood of a repeat offense; how his plea of guilty came to Petitioner's attention; Respondent's dedication and commitment to quality service as a firefighter; the quality of Respondent's service as a firefighter; and the desire of the Bayshore Fire Protection and Rescue Service District and the local community to have the benefit of Respondent's services as an employed firefighter. Petitioner did not contest Respondent's evidence but took the position that the evidence was irrelevant. As reflected in the Conclusions of Law, it is agreed that the evidence was irrelevant, and no additional findings are necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order revoking Respondent's certification as a firefighter. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 20th day of October, 2000. COPIES FURNISHED: Terrence F. Lenick, Esquire Post Office Box 430 Bonita Springs, Florida 34133 James F. Mathis 11260 Shirley Lane North Fort Myers, Florida 33917 Lisa S. Santucci, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
