00-004376 John Parks| J. P. vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, February 21, 2001.

Summary: Petitioner failed to appear at hearing and presented no evidence of his rehabilitation since he entered plea of guilty to charge that he committed a lewd and lascivious act. Recommended denial of request for exemption for disqualification from employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN PARKS, )

)

Petitioner, )

)

vs. ) Case No. 00-4376

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 4, 2001, by teleconference between Dade City and

Tallahassee, Florida, before Carolyn S. Holifield, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Tracey S. Cottle, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building Three, Suite 3426C

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Petitioner should be granted an exemption from

employment disqualification pursuant to Section 435.07, Florida

Statutes.

PRELIMINARY STATEMENT

By letter dated April 25, 2000, Respondent, the Agency for

Health Care Administration, advised Petitioner that his request

for an exemption from employment disqualification pursuant to

Section 435.07, Florida Statutes, was denied. Petitioner

challenged the denial and requested a formal hearing. The case

was referred to the Division of Administrative Hearings on

October 25, 2000.

The final hearing was initially scheduled for December 11,

2000. On November 8, 2000, Respondent filed a motion requesting

that the final hearing be continued. The motion was granted,

and the final hearing was rescheduled for January 4, 2001.

On November 8, 2000, the undersigned issued the Order of

Pre-Hearing Instructions (Order). In compliance with that

Order, Respondent filed a unilateral Pre-hearing Stipulation on

December 26, 2000. In the Pre-hearing Stipulation, Respondent

indicated that one issue of law to be determined at the final

hearing was whether Petitioner had waived his right to a hearing

by failing to timely request the hearing. This matter was

addressed at a pre-hearing conference held on December 29, 2000.

After extensive discussion, the parties agreed that the facts

relative to the issue of the timeliness of Petitioner's request

for hearing were disputed; that no stipulation could be reached

as to those facts; and that the issue would be litigated at the

final hearing. Also, during the pre-hearing conference,

Petitioner requested and Respondent agreed to make Sam Powers

and Alberta Granger, two employees of the Agency for Health Care

Administration, available to testify at the final hearing.

Pursu ant to the Order Granting Continuance and Rescheduling

the Hearing (Order Rescheduling Hearing), the final hearing was

scheduled to convene on January 4, 2001, at 10:00 a.m., at City

Hall, Commission Room, 38020 East Meridian Avenue, Dade City,

Florida. A copy of the Order Rescheduling Hearing was mailed to

Petitioner at his address of record on December 1, 2000.

Counsel for Respondent, the undersigned, and Respondent's

witness were present for the final hearing at the designated

time and place. However, Petitioner did not appear at the

hearing even though the undersigned delayed convening the

hearing by one hour to give Petitioner additional time to

arrive.

When the final hearing convened, counsel for Respondent

indicated that Respondent wanted to proceed with the case on the

merits and, thus, would concede or stipulate that Petitioner had

timely requested a hearing in this matter. During the

evidentiary part of the hearing, Respondent presented the

testimony of one witness, Glenda Ricks, a Background Screening

Unit Consultant with the Agency for Health Care Administration.

Respondent offered ten exhibits, all of which were received into

evidence. No testimony or evidence was presented by or on

behalf of Petitioner.

A Transcript of the proceeding was filed on January 22,

2001. Respondent filed a Proposed Recommended Order on

January 26, 2001. As of this date, Petitioner has not filed a

proposed recommended order.

FINDINGS OF FACT

1. Petitioner, John F. Parks (Petitioner), was employed at

Serenity West, an assisted living facility in Zephyrhills,

Florida, on or about January 3, 2000. While employed there,

Petitioner's duties included passing medications and dressing

and otherwise assisting residents with activities of daily

living.

2. Pursuant t o Chapter 435, Florida Statutes, the owner or

administrator of an assisted living facility is required to

conduct a level one background screening on all employees hired

on or after October 1, 1998, who perform personal services for

vulnerable persons. The purpose of background screening is to

protect the public welfare by preventing individuals that have

demonstrated behavior that may be harmful to vulnerable

individuals from working in Florida’s health care facilities.

3. Respondent, the Agency for He alth Care Administration

(Agency), conducted a level one background screening on

Petitioner which revealed that, in 1979, Petitioner had pled

guilty to the charge that he had committed a lewd and lascivious

act in violation of Section 798.02, Florida Statutes.

4. On or about April 7, 2000, the Agency notified

Petitioner and his employer that it had received information

that disqualified Petitioner from working as a caretaker of

vulnerable persons. Petitioner was also advised of his right to

seek an exemption from disqualification.

5. On or about April 13, 2000, Petitioner filed an

Application Request for Exemption from Disqualification

(Application).

6. The Agency's Application form required that the

applicant explain the reason for the employment disqualification

and provide a copy of the Florida Department of Law Enforcement

criminal history, the arrest report, and the court disposition

for any disqualifying violation.

7. Petitioner completed the Application and included, as

part of his application, copies of the arrest report and the

court disposition related to the disqualifying offense. The

documents submitted by Petitioner indicated that on April 4,

1979, he pled guilty to committing a lewd and lascivious act, a

second degree misdemeanor, in violation of Section 798.02,

Florida Statutes. According to those documents, Petitioner

entered the plea in the County Court in and for Hillsborough

County, Florida, in Case No. 79-2630.

8. On April 24, 2000, the Agency conducted an exemption

hearing on Petitioner's request for exemption from employment

disqualification. The following day, the Agency denied

Petitioner's request and advised him that as a result of the

denial, he continued to be "ineligible for employment in those

positions that require working with residents or patients of

nursing homes, home health agencies, assisted living facilities,

homemaker-companion-sitter services, or nurse registries."

9. Petitioner challenged the Agency's denial of his

request for exemption from employment disqualification and

requested a formal hearing. The Agency forwarded the request to

the Division of Administrative Hearings on or about October 25,

2000.

10. In the December 1, 2000, Order Granting Continuance

and Re-Scheduling Hearing, the final hearing was scheduled for

January 4, 2001. A copy of the Order was mailed to Petitioner

at his address of record, 5647 19th Street, Zephyrhills, Florida

33540.

11. Petitioner provided several letters of reference to

the Agency as part of his application for request for exemption.

These letters appeared to be from a neighbor, as well as former

colleagues and employers. The letters were favorable and

described Petitioner as dependable, a good worker, a valued

employee, and knowledgeable in his field. Most of the letters

spoke highly of his patience and kindness toward the residents.

12. Petitioner failed to appear at the hearing and no

evidence of his rehabilitation was presented. Therefore,

Petitioner is not eligible for or entitled to the exemption from

employment disqualification that he seeks.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to Subsection 120.57(1), Florida Statutes.

14. The Agency is the state agency authorized to grant

exemptions from employment disqualification if the applicant

meets the statutorily prescribed criterion. Section 435.07,

Florida Statutes.

15. Section 435.03(1), Florida Statutes, provides that all

employees required by law to be screened shall be required to

undergo level one background screening as a condition of

employment and continued employment. According to that

subsection, "level 1 screenings shall include, but not be

limited to employment history checks and statewide criminal

correspondence checks through the Florida Department of Law

Enforcement."

16. Subsection 435.03(2)(o), Florida Statutes, provides in

pertinent part the following:

(2) Any person for whom employment

screening is required by statute must not

have been found guilty of, regardless of

adjudication, or entered a plea of nolo

contendre or guilty to, any offense

prohibited under any of the following

provisions of the Florida Statutes or under

any similar statute of another

jurisdiction:

* * *

(o) Section 798.02, relating to lewd and

lascivious behavior.

17. In the instant case, it is undisputed that Petitioner

entered a plea of guilty to a lewd and lascivious act, a second

degree misdemeanor and a violation of Subsection 798.02(2),

Florida Statutes. This is a disqualifying offense and, thus, is

a basis for the Agency to deny Petitioner an exemption from

employment disqualification. Subsection 435.03(2)(o), Florida

Statutes.

18. Section 435.07, Florida Statutes, provides t hat the

Agency may grant an exemption from employment disqualification

to an individual who meets the statutory requirements for being

granted such exemption. Among the categories of offenses for

which the Agency may grant exemptions are "misdemeanors

prohibited under any of the Florida Statutes cited in this

chapter or under similar statutes of other jurisdictions."

Subsection 435.07(1)(b), Florida Statutes.

19. The evidence established that the offense to which

Petitioner pled guilty is a misdemeanor. Accordingly, even

though Petitioner pled guilty to that offense, the Agency has

the authority to grant him an exemption from employment

disqualification if he meets the burden of proof set forth in

Section 435.07, Florida Statutes.

20. Subsection 435.0 7(3), Florida Statutes, provides the

following:

(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.

21. Petitioner did not appear at the hearing. Moreover,

no evidence of rehabilitation was presented on his behalf.

Therefore, Petitioner failed to meet his statutory burden of

demonstrating by clear and convincing evidence that he should

not be disqualified from employment. Having failed to meet his

burden of proof, Petitioner is not eligible for or entitled to

an exemption from employment disqualification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is recommended that the Agency for Health Care

Administration enter a final order denying Petitioner's request

for an exemption from disqualification from employment.

DONE AND ENTERED this 21st day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of February, 2001.

COPIES FURNISHED :

Tracey S. Cottle, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building Three, Suite 3426C

Tallahassee, Florida 32308

John Parks

5647 19th Street

Zephyrhills, Florida 33540

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.