07-002589 Pinellas County Emergency Medical Services, Office Of The Medical Director vs. Anthony Stewart Status: Closed Recommended Order on Tuesday, December 11, 2007.

Summary: Petitioner properly revoked the wheelchair transport driver certificates of Respondents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY EMERGENCY )

MEDICAL SERVICES, OFFICE OF THE )

MEDICAL DIRECTOR , )

)

Petitioner , )

)

vs. ) Case No . 07 - 2587

)

STANLEY GAMMAGE , )

)

Respondent . )

)

PINELLAS COUNTY EMERGENCY )

MEDICAL SERVICES, OFFICE OF THE )

MEDICAL DIRECTOR, )

)

Petitioner, )

)

vs. ) Case No. 07 - 2588

)

TRECO MILLER, )

)

Respondent. )

)

PINELLAS COUNTY EMERGENCY )

MEDICAL S ERVICES, OFFICE OF THE )

MEDICAL DIRECTOR, )

)

Petitioner, )

)

vs. ) Case No. 07 - 2589

)

ANTHONY STEWART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was con ducted in th ese

consolidated c ase s on October 30, 2007 , in St. Petersburg ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Divisio n of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Desiree Demonbreun, Esquire

Ford and Harrison LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

For Respondents: Stanley Gammage, pro se

3490 Queensboro Avenue South

S t. Petersburg, Florida 33711

Treco Miller, pro se

1350 Franklin Street

Clearwater, Florida 33756

Anthony Stewart, pro se

Post Office Box 15101

St. Petersburg, Florida 33733

STATEMENT OF THE ISSUE

The issue in this case is whether the w heelchair t ransport

driver certifications of each of the Respondents should be

revoked.

PRELIMINARY STATEMENT

On or about March 27, 2 007 , the Pinellas County Emergency

Medical Services, Office of Medical Director (hereinafter,

"Director"), conducted an internal formal investigation to

determine if certain individuals - - including but not limited to

the three Respondents - - had fraudulently obtained w heelchair

t ransport d river certifications. As a result of the

investigation, Respondents , Stanley Gammage ("Gammage"),

Treco Miller ("Miller") , and Anthony Stewart ("Stewart") , had

their certifications revoked by the Director. Each Respondent

individually appealed , and the cases were forwarded to DOAH ,

where they were consolidated.

At the final hearing held in this matter, each Respondent

represented himself , pro se . Counsel for the Director offered

Exhibits 1, 2, 3a, 3b, 3c, 4a, 4b, 4c, 5, 6a , 6b, 6c, 7a, 7b ,

and 7c into evidence; each was accepted. Respondents did not

introduce any other documentary evidence. The Director called

two witnesses: David Lock, q uality a ssurance m anager for

Pinellas County Emergency Medical Services; and

Dr. La urie Romig, M.D., the m edical d irector. Each Respondent

testified on his own behalf , but did not call any other

witnesses. Petitioner asked that the record be kept open for

the purpose of submitting a portion of the transcript from the

preliminary hearin g held at the Office of the Medical Director.

The stated purpose of that submission was to rebut a statement

made by one of the R espondents at the final hearing. However,

no such evidence was submitted.

At the close of hearing , the parties advised the

un dersigned that a transcript of the final hearing would be

ordered. The parties were given ten days after the transcript

was filed at DOAH to submit proposed recommended orders. The

T ranscript was filed on November 19, 2007. As of November 29,

2007, only Petitioner had filed a P roposed R ecommended O rder; it

was duly - considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Director is responsible for, inter alia , providing

w heelchair t ransport d river certifications in Pinellas Coun ty.

2. Gammage, Miller , and Stewart were each certified by the

Director to be a w heelchair t ransport driver. Each of the

Respondents worked for Wheelchair Transport Service, Inc. (the

"Employer").

3. The process by which drivers obtain a certification

f rom the Director is as follows: The Employer hires an

individual to be a driver. It is the responsibility of the

Employer to make sure each driver applicant has been

fingerprinted. The Employer must also forward each driver's

application to the Florida Department of Law Enforcement

("FDLE") for a criminal background check. When the background

check is complete, the Employer must certify to the Director by

way of an affidavit that the applicant for certification:

(1) h as not been convicted of a felony; (2) h as not been

convicted of a misdemeanor directly related to his or her

employment; and (3) h as not pled nolo contendere to any charge

of felony. The Employer must also affirm that it has attempted

to contact the applicant's prior employers, that the applicant

is of good moral character , and that the Employer has contacted

three non - related individuals to attest to the applicant's

morality.

4. Once this process is complete, the Employer provides

the Director with the driver's application along with an

"Affidavit As To Background" for the driver. Upon receipt of

this information, the Director would issue a certification to

the applicant. The Director does not normally do an independent

background check on the applicants. Rather, it relies upon the

a ffidavit from the employing entity.

5. In January 2006 , the Director received a copy of an

anonymous letter that had been sent to a local hospital which

provided services to a large number of Veteran's Administration

patients. The letter alleged impropri eties by the Employer,

specifically that it was hiring unqualified drivers. The

qualifications of drivers are important to the Director because

drivers are transporting the most vulnerable members of society,

i.e. , the sick, weak, infirm , and elderly.

6. Based on the allegations in the anonymous letter, the

Director undertook an independent investigation. Despite its

limited financial resources, the Director performed a background

check on all drivers for the Employer. The investigation found

that seven drivers, including the three Respondents, had

disqualifying criminal histories.

7. For Gammage, the Employer had provided an affidavit to

the Director stating that Gammage met all the criteria for

certification and had no disqualifying criminal backgroun d. The

affidavit was signed by Gammage and by a representative of the

Employer. The affidavit was notarized, but it is unclear whose

signature was being affirmed by the notary.

8. Gammage, despite the representations in the affidavit,

did have a disqual ifying criminal history. He had two felonies,

a burglary in 1994 and a sale of cocaine conviction in 1997. He

served time in jail for at least one of the felonies.

Nonetheless, the Director relied upon the affidavit from the

Employer and issued Gammage a certification.

9. After receiving his certification, Gammage worked for

the Employer driving wheelchair transport vehicles for

approximately seven years. He has been recertified every two

years and has a clean employment record.

10. The affidavit for Miller also affirmed that a

background check had been done, that Miller had no felonies or

other disqualifying criminal history, and that he was of good

moral character. Miller's affidavit is not signed by the

Employer, but "Wheelchair Transport Service, Inc." is stamped or

typed on the signature line. The affidavit is notarized,

presumably affirming Miller's signature since it is the only

act ual signature on the affidavit.

11. Miller, too, actually had felonies in his background.

He was found guilty of dealing in stolen property in 1994.

Another felony charge, cruelty to a child, had been reduced to a

misdemeanor , but it may also be a disqualifying event due to the

nature of the crime.

12. Miller's application and affidavit were provided to

the Direct or, and a certification was duly issued.

13. Stewart also applied for certification through the

Employer. Stewart's affidavit affirmed his qualifications to be

a wheelchair transport driver, i.e. , the absence of a

disqualifying criminal history and that he was of good moral

character. The affidavit introduced into evidence was not

signed or stamped by the Employer, nor was it notarized.

According to Stewart, this was one of several affidavits he had

done for his Employer.

14. However, Stewart had a dis qualifying criminal history

as well. His record included battery on a police officer in

1991 and robbery with a deadly weapon in 1992. Despite this

fact, the Director issued a certification for Stewart. 1

15. All of the Respondents testified that they ha d told

the Employer about their criminal backgrounds, but the Employer

indicated to them that it didn't matter. All of the Respondents

believed that the Employer was able to "take care of the

problem" so that they could become certified. None of the thre e

Respondents directly told the Director that they had no criminal

history. In fact, under the certification process, it was

solely the Employer's duty to advise the Director.

16. It is clear the Employer - - not the Respondents - -

intentionally misled the Di rector concerning the criminal

history of the three Respondents. Nonetheless, the Director

continues to use the Employer to provide wheelchair transport

services because "they have changed the way they do things."

Apparently, the Employer now provides a n FDLE background check

along with the application and affidavit.

17. Gammage, Miller , and Stewart have proven they are good

employees. Each has a clean record with the Employer (Gammage

for seven years or more) , and each continues to work for the

Employ er outside Pinellas County.

18. The medical director was kind in her praise of the

three men, but firm in her stance that they were not eligible to

have wheelchair transport driver certifications.

CONCLUSIONS OF LAW

19. The Division of Administrative Hea rings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007) .

20. The Rules and Regulations of the Pinellas County

Emergency Medical Services Systems (th e "Rules") include the

following pertinent sections:

V. County Certification of Clinical

Personnel

A. Extension of Clinical Privileges

1. The Medical Director extends clinical

privileges for individuals to participate in

patient care as a part of the Pinellas

County EMS System through issuance of County

certification. These clinical privileges

may be extended to individual, EMTs,

paramedics, emergency medical dispatchers,

critical care transport nurses, critical

care transport paramedics, medical officers,

and EMS physicians, as well as to wheelchair

transport drivers. Eligibility to obtain

and maintain clinical privileges in the

Pinellas County EMS System shall meet both

State of Florida and Pinellas County

requirements, including those for level s of

patient contact as determined by the Medical

Director.

2. Compliance with the criteria for County

certification shall be maintained

continuously. If at any time a Count

certified individual fails to maintain all

requirements, this shall be cause fo r the

Medical Director to take corrective action

as outlined in Section XIII.

3. Provider agencies shall submit an

affidavit, using a form provided by the

Office of the Medical Director, in the form

of Exhibit A, which itemizes the background

checks that have been performed by the

provider agency and which results reveal

there are no causes for concern regarding

extension of clinical privileges.

* * *

J. Wheelchair Transport Drivers

1. Certification

Wheelchair transport drivers seeking to

obt ain initial County certification for

clinical privileges shall meet the following

requirements prior to participating in

transportation activities:

* * *

d. Submission by employer of a satisfactory

background check (same as required by the

Metro politan Planning Organizati on).

21. The affidavit adopted by reference in the Rules is

critical to the issue of whether the Respondents committed

fraud, so it is set forth in its entirety below:

AFFIDAVIT AS TO BACKGROUND

The undersigned duly authorized representative of

________ _______

("Provider")

hereby certifies as follows:

1. _________________ [EMT, Paramedic, CCTN, cir c le

one] ("Applicant") is currently employed by Provider

and has been employed since [Date] __________________.

2. In connection with the employment of Applicant,

Provider conducted such inquiries and investigations

necessary to determine that:

[a] Applicant has been fingerprinted by the

employing agency or supporting law enforcement

agency. Such fingerprint card has been transm itted

to the Florida Department of Law Enforcement criminal

history service unit; and

[b] Applicant (i) has not been convicted of a

felony, (ii) has not been convicted of a misdemeanor

directly related to his/her employment, or (iii) has

not pled nolo con tendere to any charge of felony; and

[c] The employing agency has attempted inquiry to

all former employers of the applicant preceding

application for county certification; and

[d] Applicant has good moral character and has been

determined in accordance with Section 633.34, Florida

Statutes, and FAC 4A - 37.036 regulations issued

pursuant thereto; and

[e] The employing agency has contacted three persons

(not relatives) from whom information relating to the

applicant's morality can be obtained.

3. In con nection with Applicant's application for

clinical privileges in the Pinellas County Emergency

Medical Services System ("EMS System"), Provider has

reviewed the inquiries and investigations described

in Paragraph 2.

4. Provider has found nothing in the in quiries and

investigations described in Paragraph 2, or

otherwise, which would give Provider reasonable cause

to believe that Applicant should be denied clinical

privileges in the EMS System.

Signed and dated this _ ___ day of _____ ____ _ , 19_ ____

[Provide r]

BY: _ _____________________

Sworn to before me this ___ day of _______, 19 ___.

____________________________

N OTARY

22. It is clear Respondents did not have the

responsibility of notifying the Director concerning their

criminal background. Rather , as set forth in the affidavit,

that was the responsibility of the Employer. Further, the

affidavit as created by Petitioner did not even include a place

for the applicant to sign; the Employer obviously added that

requirement to the affidavit unilateral ly. (The versions

admitted into evidence for each driver included a signature line

for them, as applicant.) There can be no finding of fraud as to

the Respondents as a result of the affidavits.

23. However, there was obviously fraud or deceit in the

fil ing of the affidavits to the Director, even if the fraud was

committed by the Employer rather than Respondents. Under

Section V. M. 3. a. of the Rules, the Director is allowed to

revoke certification if there is "fraud or deceit in applying

for or obtaini ng a clinical certification." There is no

explanation in the Rules as to who must commit the fraud, but it

is the Director's position that any fraud committed by any

person is sufficient to warrant revocation. Its interpretation,

although somewhat dracon ian under the present facts, is

reasonable.

24. Interestingly, the affidavit references

Subsection 633.34, Florida Statutes, which actually addresses

only firefighters, but includes this disqualification provision:

Any person applying for employment . . .

must:

* * *

(2) Neither have been convicted of a felony

or of a misdemeanor directly related to the

position of employment sought, nor have pled

nolo contendere to any charge of a felony.

If an applicant has been convicted of a

felony, such applicant must be in compliance

with s. 112.011(2)(b). If an applicant has

been convicted of a misdemeanor directly

related to the position of employment

sought, such applicant shall be excluded

from employment for a period of 4 years

after expiration of sentence. If the

sentence is suspended or adjudication is

withheld in a felony charge or in a

misdemeanor directly related to the position

or employment sought and a period of

probation is imposed, the applicant must

hav e been released from probation.

25. The Rules employed by the Director to revoke

Respondents' licenses do not include any similar exemption

provision. Nor do the Rules allow for exception after passage

of time following the felony conviction. Thus, the revocation

provision is a strict st andard and must be applied without

exception.

26. The licenses of each Respondent was revoked in

accordance with the Rules and done according to the procedures

outlined therein.

27. The absence of fraud on the part of the Respondents

themselves, individu ally, does not alter the fact that their

licenses must be revoked under the strictly construed Rules. 2

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Pinellas

County Eme rgency Medical Services, Office of the Medical

Director, revoking the certifications of each Respondent.

DONE AND ENTERED this 1 1 th day of December , 2007 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Adminis trative 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 Admin istrative Hearings

this 1 1 th day of December , 2007 .

ENDNOTES

1/ The affidavit upon which the Director relied to approve

Stewart's application was not introduced into evidence.

Therefore there can be no determination of whether it contained

false infor mation. However, for the reasons set forth herein,

that does not alter the C onclusions of L aw or R ecommendation in

this matter.

2/ Obviously, if the Director's office deems any of its Rules to

contain a forgiveness or exemption policy, it may take actio n to

rescind the revocation of Respondents' certifications

notwithstanding the findings herein.

COPIES FURNISHED :

Stanley Gammage

3490 Queensboro Avenue South

St. Petersburg, Florida 33711

Desiree Demonbreun, Esquire

Ford and Harrison LLP

101 East Ken nedy Boulevard, Suite 900

Tampa, Florida 33602

Treco Miller

1350 Franklin Street

Clearwater, Florida 33756

Anthony Stewart

Post Office Box 15101

St. Petersburg, Florida 33733

Laurie A. Romig, M.D., FACEP

Office of the Medical Director

Pinellas County Emergency Medical Services

12490 Ulmerton Road

Largo, Florida 33774

Robert Swain, Esquire

Pinellas County Attorney's Office

315 Court Street, 6th Floor

Clearwater, Florida 33756 - 5165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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.