17-003896 Nicole Belinda Henry vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, November 28, 2017.

Summary: Petitioner failed to show by clear and convincing evidence that she is rehabilitated. Further, AHCA did not abuse its discretion when denying Petitioner's request for exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICOLE BELINDA HENRY,

Petitioner,

vs. Case No. 17 - 3896

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case on

September 21, 2017, via video teleconference at sites in

Tallahassee and Jacksonville, Florida, before W. David Watkins, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Pe titioner: Nicole Henry, pro se

1609 Chatham Road

Jacksonville, Florida 32208

For Respondent: Lindsay W orsham Granger, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 7

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration Ós (Agency)

intended decision to deny PetitionerÓs application for exemption

from disqualification for employment is an abuse of the AgencyÓs

discretion.

PRELIMINARY STATEMENT

By letter dated June 19, 2017, the Agency issued its notice

of agency action by which it informed Petitioner that her request

for exemption from disqualification was denied. As a result,

Petitioner was deemed ineligible to Ðbe employed, contract with,

be licensed, or otherwi se authorized toÑ serve Agency clients.

In the letter, the Agency reported its determination that

Petitioner had Ðnot provided clear and convincing evidence of

[her] rehabilitation as required by Florida Law.Ñ

Petitioner filed her Request for Administrat ive Hearing with

the Agency on June 26, 2017, which request was referred to the

Division of Administrative Hearings on July 11, 2017. The

undersigned was assigned the matter, and by notice dated July 25,

2017, scheduled the final hearing for September 21, 2017 .

At the final hearing, Petitioner testified on her own behalf

and offered the testimony of one additional witness, Sheila Long.

Respondent presented the testimony of Sherry Ledbetter, the

AgencyÓs o perations and m anagement c onsultant m anager of th e

Background Screening Unit. RespondentÓs Exhibits R1 through R3

were admitted in evidence.

The proceedings were recorded, but the parties did not order

a transcript thereof. Respondent timely filed a Proposed

Recommended Order, which has been conside red in preparing this

Recommended Order. Petitioner did not make any post - hearing

filings.

Unless otherwise noted, all references to the Florida

Statutes are to the 2017 version.

FINDING S OF FACT

1 . Respondent is required to conduct certain background

s creenings for employees who provide specific types of services

within health care facilities licensed under c hapters 400, 408,

and 429, Florida Statutes. § 408.809, Fla. Stat.

2 . Petitioner seeks employment in a position providing such

services to reside nts of a health care facility licensed by

Respondent, and, as such, is required to participate in

RespondentÓs background screening process pursuant to s ection

408.809, Florida Statutes.

3 . Petitioner submitted to the required background

screening, which revealed that in 2006, Petitioner was

adjudicated delinquent for the felony offense of Aggravated

Battery with a Deadly Weapon, in violation of s ection 784.045,

Florida Statutes, in Fra nklin County, Florida, Case

No. 06000033CJAXMX.

4 . In 2010, Petitioner was charged with Child Abuse and

Child Neglect, but pleaded guilty to Contributing to the

Delinquency of a Minor, in Duval County Circuit Court, Case

No. 162010CF002633AXXXMA , in violation of s ection 827.04, Florida

Statutes .

5 . The two above - referenced criminal convictions render

Petitioner disqualified and ineligible to provide the listed

services in a health care facility licensed by Respondent unless

Petitioner receives an exemption from Respondent, pursuant to

s ection 435.07, Florida Statutes.

6 . In addition, PetitionerÓs background check revealed that

she was arrested in 2014 for Battery, although the charge was

dismissed, and Petitioner pleaded no contest to Disorderly

Conduct, in Gulf County Court, Case No. 14 - 100MM.

7 . Petitioner was also arrest ed in 2014 for two (2) counts

of Aggravated Battery with a Deadly Weapon, but those charges

were dismissed. However, Petitioner pled no contest to the

offense of Affray , in Gulf County Court, Case No. 14 - 179 - CF.

8 . Petitioner initially submitted an appli cation for

exemption to the Agency in accordance with s ections 408.809

and 435.07, on or about April 21, 2017, and participated in a

telephonic hearing conducted by Respondent on June 13, 2017.

9 . RespondentÓs witness, Sherry Ledbetter, the o perations

and management c onsult ant m anager for the Background Screening

Unit, testified that she attended the telephonic hearing on June

13, 2017.

10 . Following the telephonic hearing, Respondent denied

PetitionerÓs request for an exemption by letter dated June 19,

2 017, and Petitioner subsequently requested an administrative

hearing.

11 . At the administrative hearing, Sherry Ledbetter

testified that, in making the decision to deny the exemption

request, Respondent considered PetitionerÓs entire case file,

including all submissions received from Petitioner, as well as

her explanations of her past offenses.

12 . Ms. Ledbetter also testified that the instant denial

was separate from, and did not impact, any exemption that

Petitioner may receive for her Certified Nursing Assistant (CNA)

license through the Florida Department of Health.

13 . As explained by Ms. Ledbetter, once there is a

disqualifying offense or conviction, Respondent is legally

authorized to consider all subsequent arrests or convictions,

even if those ar rests or convictions are not disqualifying

offenses. Indeed, Respondent considered PetitionerÓs subsequent

arrests and convictions during the review of PetitionerÓs

application for exemption. Ms. Ledbetter testified that

Respondent also considered the ci rcumstances surrounding

PetitionerÓs most recent arrests, even though the charges were

not disqualifying under the law. She further testified that the

recency of those 2014 incidents was a large factor in

RespondentÓs decision to deny PetitionerÓs applica tion for

exemption.

14 . Ms. Ledbetter noted that some of PetitionerÓs

statements conflict with the police reports and other

documentation in PetitionerÓs exemption file, particularly with

respect to the 2010 Contributing to the Delinquency of a Minor

conv iction. PetitionerÓs child, who was four months old at the

time, was discovered to have a broken leg and a broken arm. At

the telephonic hearing, Petitioner was unable to explain what

happened and blamed the injuries on the babysitter, although no

proof was presented that the babysitter was charged with a crime

related to this incident.

15 . When determining to deny the exemption request, the

Agency was aware of the fact that Petitioner had taken court -

ordered anger management courses in 2006, and again i n 2014.

16 . In summary, Ms. Ledbetter testified that, based on

PetitionerÓs entire file and her responses during the

teleconferences, Petitioner had not satisfied her burden of

proving , by clear and convincing evidence , her rehabilitation

subsequent to he r disqualifying offenses.

17 . Petitioner testified on her own behalf and explained

how her past does not define her today, and that she is a changed

person. She explained that she has grown up a lot, and has

learned to love herself. She also stated that she has learned

how to be honest with herself, and to take responsibility for her

actions.

18 . Petitioner explained that in 2015, her mother had lung

cancer and was in hospice. She acknowledged that this experience

with her mother was the pivotal moment in her life that changed

her.

19 . Petitioner professed that she wants nothing more than

to help people, and would do so if granted the exemption.

Specifically, Petitioner would like to return to her work helping

elderly adults.

20 . Petitioner called as a character witness her friend

since high school, Sheila Long, who testified that Petitioner has

grown up a lot, is a good mother, and is trying to be a better

person.

21 . Petitioner successfully completed a CNA course in

March 2017.

22 . Included with P etitionerÓs application for exemption

from disqualification were several letters of reference, all

lauding PetitionerÓs good character and geniality. Three of

those letters attested to her successful employment in recent

years, including two from r epresen tatives of the Eisenhower

Center, a rehabilitation facility where Petitioner worked as a

CNA until her disqualification. A third, from the a ssistant

m anager at the Walmart where Petitioner had been employed,

praised PetitionerÓs pleasant and courteous dem eanor, and her

honesty in revealing her criminal background.

23 . Although Petitioner appeared genuinely remorseful for

her criminal convictions and has clearly made an effort to turn

her life around, due to the recency of some of the offenses , it

cannot b e concluded that she is rehabilitated and should not be

disqualified from employment. Petitioner has thus failed to meet

her burden of proof by clear and convincing evidence that she

should be granted an exemption from disqualification.

CONCLUSIONS OF LAW

24 . The Division has jurisdiction over the subject matter

of, and the parties to, this proceeding pursuant to sections

120.569 and 120.57(1), Florida Statutes.

25 . Section 435.04 provides, in pertinent part, that:

(1)(a) All employees required by law t o be

screened pursuant to this section must

undergo security background investigations as

a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through th e

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(2) The security background investiga tions

under this section must ensure that no

persons subject to the provisions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guil ty to, or have been adjudicated

delinquent and the record has not been sealed

or expunged for, any offense prohibited under

any of the following provisions of state law

or similar law of another jurisdiction:

* * *

(i) Chapter 784, relating to assault,

battery, and culpable negligence, if the

offense was a felony.

* * *

(jj) Section 827.04, relating to

contributing to the delinquency or dependency

of a child.

26 . Due to PetitionerÓs 2006 and 2010 convictions, she is

disqualified from employment in a position requiring background

screening under s ection 408.809 and c hapter 435.

27 . Section 435.07 establishes a process by which persons

with criminal offenses in their backgrounds, that would

disqualify them from acting in a position of special trust

wo rking with children or vulnerable adults, may seek an exemption

from disqualification. That section provides:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqua lification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

(1)(a) The head of the appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervisio n, or nonmonetary

condition imposed by the court for the

disqualifying felony;

* * *

4. Findings of delinquency. For offenses

that would be felonies if committed by an

adult and the record has not been sealed or

expunged, the exemption may not be grant ed

until at least 3 years have elapsed since the

applicant for the exemption has completed or

been lawfully released from confinement,

supervision, or nonmonetary condition imposed

by the court for the disqualifying offense.

* * *

(3)(a) In order for th e head of an agency

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 clear a nd convincing

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

employment or continued employment is

allowed.

(b) The agency may consider as part of its

deliberations of the employeeÓs

rehabilitation the fact that the employee

has, subsequent to the conviction for the

disqualifying offense for which the exemption

is being sought, been arrested for or

convicted of another crime, even if that

crime is not a disqualifying offense.

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended decision is an ab use of

discretion.

28 . Thus, pursuant to statute, Petitioner has the burden to

show by clear and convincing evidence that she should not be

disqualified from employment. § 435.07(3)(a), Fla. Stat.

29 . The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witness must

be lacking in confusion as to the facts in

issue. Th e evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowit z

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

30 . An exemption from a statute enacted to protect the

public welfare is strictly construed against the person claiming

the exemption. Heburn v. Dep't of Child. & Fams. , 772 So. 2d

561 (Fla. 1st DCA 2000).

31 . The abuse of discretion standard of review set forth in

section 435.07(3)(c) has been described as follows:

If reasonable men could differ as to the

propriety of the action taken by the trial

court, then the action is not unreasonable

and ther e can be no finding of an abuse of

discretion. The discretionary ruling of the

trial judge should be disturbed only when his

decision fails to satisfy this test of

reasonableness.

The discretionary power that is exercised

by a trial judge is not, however , without

limitation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

of the judge nor in an inconsistent manner.

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980); Kareff

v. Ka reff , 943 So. 2d 890, 893 (Fla. 4th DCA 2006)(holding that,

pursuant to the abuse of discretion standard, the test is

Ðwhether any reasonable personÑ could take the position under

review).

32 . The Agency has a heightened interest in ensuring that

the popu lation being protected by chapter 408, i.e., vulnerable

children and adults, is not abused, neglected, or exploited. In

light of that mission, the Legislature has imposed a heavy burden

on those seeking approval to serve this vulnerable population

when th ey have disqualifying offenses in their past.

33 . The undersigned concludes that Petitioner did not

provide enough evidence to prove her rehabilitation clearly and

convincingly. The circumstances surrounding PetitionerÓs

criminal incidents, the brief tim e that has elapsed since the

incidents in 2014, and the nature of the harm to the victims,

cast doubt on PetitionerÓs rehabilitation.

34 . Because Petitioner has failed to present clear and

convincing evidence that she should be granted an exemption fro m

disqualification, RespondentÓs decision to deny the application

for exemption necessarily is not an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denyin g

PetitionerÓs request for an exemption from disqualification.

DONE AND ENTERED this 28th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 28th day of November , 2017 .

COPIE S FURNISHED:

Lindsay Worsham Granger, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Nicole Henry

1609 Chatham Road

Jacksonville, Florida 32208

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counse l

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoe ler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.