17-005130 William T. Crowley vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, March 16, 2018.

Summary: Petitioner failed to demonstrate that he was entitled to an exemption from disqualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. CROWLEY,

Petitioner,

vs. Case No. 17 - 5130

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

January 25, 2018 , in Tallahassee, Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Willie T. Crowley, pro se

16341 Heathrow Dr ive

Tampa, Florida 33647

For Respondent: Antonio Lozada, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 7

Tallahassee, Florida 32308

STATEMENT OF ISSUE

The issue is whether Petitioner should be exempt from

disqualification for employment in a position of trust, pursuant

to section 435.07, Florida Statutes. 1/

PRELIMINARY STATEMENT

In June 2017, Petitioner submitted a request for exemption

from disqualification to Respondent, Agency for Health Care

Administration ( AHCA or Respondent). AHCA conducted a

telephonic hearing with Petitioner on August 2, 2017. By letter

dated August 10, 2017 (Denial Letter), AHCA notified Petitioner

that his request for an exemption from disqualification was

denied. The Denial Letter advised Petitioner that he had

21 days from receipt of the Denial Letter to request an

administrative hearing.

Petitioner , through counsel, timely requested an

administrative hearing. On September 18 , 2017, AHCA referred

this matter to DOAH . An administrative hearing was originally

scheduled for November 20, 2017, but, following the granting of

Petitioner's counsel's Motio n to Withdraw as C ounsel and rulings

on AHCA's Motion to Compel and Petitioner's Motion to Continue,

this case was contin ued and rescheduled for January 25, 2018.

At the final hearing, AHCA proceeded first to explain its

position, even though Petitioner , a s applicant for an exemption

from disqualification, had the burden of persuasion . AHCA

presented the testimony of Samantha Heyn, the manager of AHCA's

background screening unit, and offered 20 exhibits, all of which

were received into evidence as Exhibits R - A through R - T.

Petitioner testified on his ow n behalf, relied on the exhibits

offered by AHCA, and offered five records of other applicants

for exemptions, which were marked and received into evidence as

composite Exhibit P - 1, over AHCAÓs objection.

The proceedings were recorded but no transcript was

ordered. P roposed recommended orders were due February 5, 2018,

and both parties timely filed their respective Proposed

Recommended Orders, which were considered in the preparation of

this Recommended Or der.

FINDINGS OF FACT

1. AHCA is authorized to conduct certain background

screenings for employees providing specific types of services

within health care facilities licensed by AHCA. See

§ 408.809 (1)(a) , Fla. Stat. ( employees subject to screening) ;

§ 408.803(9) , Fla. Stat. (definition of ÐlicenseeÑ) .

2. Petitioner was required to participate in RespondentÓs

background screening process because he sought employment in a

position providing direct services to residents of a health care

facility licensed by AHCA under c hapter 400, Fl orida Statutes .

3. Petitioner underwent the required background screening ,

which revealed:

a. On or about May 6, 1996, in Case

No. 1995MM007600, Petitioner was adjudicated

guilty of Battery under section

784.03(1)(a) 1 . , Florida Statutes. At the

time of this offense, Petitioner and Teresa

Poole, the alleged victim, resided together

or shared the same dwelling.

b. On or about May 15, 2002, in Case

No. 2002CF000065, Petitioner pled no contest

to Battery under section 78 4.03(1)(a) 1 . , a

misdemeanor. Adjudication was withheld.

A t the time of this offense, Pet itioner was

residing with or was sharing the same

dwelling with Eri ca Goode, the alleged

victim .

c. On or about July 6, 2009, in Case

No. 2009MM000294, Petitioner pl ed no contest

to Battery under section 7 84.03(1)(a) 1 .

Christine Crowley, the alleged victim, and

Petitioner are related by blood and have

previously resided together in the same

dwelling. Christine Crowley is PetitionerÓs

biological sister.

4. Each of the above - referenced battery charges

constitutes Domestic Violence under section 741.28, Florida

Statutes.

5. Under sections 435.04(3) and 408.809(4)(e), Florida

Statutes, the above - referenced criminal offenses disqualify

Petitioner from providing services in a health care facility

licensed by AHCA , unless AHCA grant s Petitioner an exemption

pursuant to s ection 435.07 .

6. In addition to his dis qualifying offenses, Petitioner's

background screening revealed :

a. On or about September 18, 1998, in Case

No. 1998CF000638, Petitioner was arrested for

Aggravated Battery under section

784.045(1)(a)1 . A lthough Petitione r was not

ultimately convicted, a t the time of this

charged offense, Petitioner was residing with

or had previously resided with the alleged

victim, Christina McCullum , in the same

dwelling. A conviction of t his charge would

constitute Domestic Violence under section

741.28 .

b. On or about September 21, 1998, in Case

No. 1998CT003202, Petitioner pled no contest

to Driving While License Suspended (With

Knowledge) under section 322.34(2), Florida

Statutes . Petitioner maintains that he did

not actually have knowledge.

c. On or about February 1, 1999, in Case

No. 1999CT00187, Petitioner was adjudicated

guilty of Driving While License Suspended

(With Knowledge) under section 322.34(2) .

Petitioner maintains that he did not

actually have knowledge.

d. On or about February 24 , 1999, in Case

No. 1998CT004442, Petitioner was adjudicated

guilty of Driving While License Su spended

(With Knowledge) under section 322.34(2) .

Petitioner maintains that he did not

actually have knowledge.

e. On or about January 25, 1999, in Case

No. 1999CF000264, Petitioner was arrested for

Burglary under section 810.02(3)(b) and

Battery under section 784.03(1)(a)1 . At the

time of th ese offense s , Petitio ner had

previously resided with the alleged victim,

Christina McCullum, in the same dwelling.

I f convicted, t his charge would constitute

Domestic Violence under section 741.28 .

f. On or ab out April 14, 1999, in Case

No. 1999MM000766, Petitioner was arrested

for Assault under section 784.011 .

Petitioner was not ultimately convicted.

g. On or a bout July 14, 1999, in Case

No. 1999CF2483, Petitioner was arrested for

Aggravated Battery under section 784.045 .

Petitioner was not ultimately convicted.

At the time of this alleged offense, the

Petitioner had previously resided with the

alleged victim, Christina McCullum , in the

same dwelling. If convicted, this charge

would constitute Domestic Violence under

section 741.28.

h. On or about December 12, 1999, in Case

No. 1999CF000727 (later transferred to

1999MM002249), Petitioner was arrested for

Ba ttery under section 784.03(1)(a)1. and

Resisting without Violence under section

843.02. At the time , Petitioner had

previously resided with the victim, Christina

McCullum in the same dwelling. The battery

charge constitutes Domestic Violence under

section 741.28 . Petitioner was adjudicated

guilty of the above - referenced Resisting

without Violence charge and sentenced to a

year of probation with a special condition of

completion of a BattererÓs Intervention

Program .

i. On or about July 30, 2002, in Case

No. 2002MM007400, Petitioner was charged for

giving a worthless check under section

832.05(2), but the charges were ultimately

dismissed.

j. On or about November 5, 2003, in Case

No. 2003CF000692, Petitioner was charged

with Aggravated Battery under section

784.045(1)(a)1 . Petitioner was not

ultimately convicted.

k. On or ab out March 18, 2004, in Case

No. 2004CF000185, Petitioner was charged

with Dealing in Stolen Property, under

section 812.019(1) . Petitioner was not

ultimately convicted.

l. On or about June 3, 2009, in Case

No. 2009CF000362, Petitioner was charged with

Burglary under section 810.02(3)(c) and Petit

Theft under section 812.014(3)(a), Florida

Statutes . Petitioner was not ultimately

convicted. At the time of the above -

referenced charges , Petitioner was the former

spouse of , and had previously resided with ,

the alleged victim, Erica Goode/Crowley in

the same dwelling.

m. On or a bout June 26, 2009, in Case

No. 2009MM000678, Petitioner was arres ted

for Battery under section 784.03(1)(a) 1 . and

Disorderly Conduct (Affray) under section

870.01(1) . Petitioner was not ultimately

convicted.

n. On or about July 9, 2009, in Case

No. 2009MM000721, Petitioner was charged

with violating a No Contact Order issued by

the first appearance judge in the case

referenced above . Petitioner was not

ultimately convicted.

o. On or abo ut August 21, 2009, in Case

No. 2009MM000922, Petitioner was arrested

for Battery under sec t ion 784.03(1)(a)1 .

Petitioner was not ultimately convicted.

At the time of this arrest, Petitioner was

residing in the same dwelling with the

alleged victim, M ichelle Vanhoose.

p. On or about January 2011, in Case

No. 2010CF000620, Petitioner was adjudicated

guilt y of Aggravated Stalking under section

784.048(3), Florida Statutes.

7. Licensed professionals under the Department of Health

may work at a facility licensed by AHCA , if granted an exemption

by the Department of Health, but may only work within the scope

of that profess ional license, unless AHCA itself grants the

applicant an exemption.

8. Petitioner does not have an active license or exemption

from disqualification from the Department of Health.

9. Petitioner does not dispute that he has disqualifying

offenses and subsequent criminal history, but claims his

application and entire file support his rehabilitation by clear

and convincing evidence.

10. AHCA received PetitionerÓs application fo r exemption

in accordance with s ections 408.8 09 and 435.07, on or about

June 15, 2017. AHCA conducted a telephonic hearing with

Petitioner on August 2, 2017.

11. During the telephonic hearing, in addition to

discussing the results of PetitionerÓs background screening, a s

evidence of his rehabilitation, Petitioner pointed out tha t he

has been working, getting an education, and has not been

arrested in six years. Petitioner also submitted several

positive letters of recommendation from close friends and

family.

12. After the telephonic hearing, AHCA denied PetitionerÓs

request for an exemption and sent Petitioner the Denial Letter ,

signed by AHCAÓs m anager for the Background Screening Unit,

Samantha Heyn , on behalf of AHCA .

13. Although Ms. Heyn did not attend AHCAÓs telephonic

hearing with Petitioner , she previously spoke to Petitioner in a

phone call about his exemption request .

14. In making the decision to deny PetitionerÓs

application, Ms. Heyn and pertinent AHCA staff with the

background screening unit considered PetitionerÓs entire ca se

file, including all submissions received from Petitioner and his

explanations during the teleconferences .

15. AHCA also considered the time elapsed since the

offense s , the nature and harm to the victim s , the circumstances

surrounding the offense s , Petitioner Ós history since the

offense s , and all other supporting documen tation provided by

Petitioner before deciding to deny Petitioner's request for

exemption from disqualification.

16. Petitioner testified that he has ambitions to work as

a licensed health care professional.

17. During the administrative hearing, P etitioner

testified that he is in his current predicament because of

vindictive people falsely accusing him of crimes , and AHCA

personnel who have labeled him a criminal. Similarly, during

his earlier teleconference with AHCA, Petitioner stated that he

was in his current situation due to racism, labeling, vindictive

people out to destroy him, and other factors out of his control .

18. PetitionerÓs statements at the initia l teleconference

with AHCA were conflicting as to w hether the courses he took for

battererÓs intervention and a nger management were court - ordered,

conditions of a plea deal with prosecutors, or fully voluntary

outside of the criminal justice system. Petitioner was arrested

for violent and domestic crimes after taking each course.

19. While Petitioner has stated that he takes full

responsibility for his actions, his other statements at the

teleconference and at the administrative hearing reflect a lac k

of candor and an unwillingness to accept responsibility for his

past criminal episodes .

20. While the letters of recommendation from close family

and friends, successful educational pursuits, and a clean record

for the last six years demonstrate progress toward

rehabilitation, this fairly recent success does not annul

Petitioner 's extensive criminal history, lack of candor, and

unwillingness to accept responsibility.

21. The records of successful exemption applicants offered

by Petit ioner were not helpful to PetitionerÓs case. The

criminal backgrounds were not the same as PetitionerÓs and the

evidence was insufficient to permit a useful comparison between

the facts and circumstances of those applicants with those of

Petitioner .

22. In view of all of the evidence, it is found that

Petitioner failed to meet his burden to prove by clear and

convincing evidence of rehabilitation when he presented his case

to AHCA, and the evidence presented at the final hearing failed

to demonstrate that AHCA abused its discretion in denying

Petitioner Ó s request for exemption .

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties and the subject

matter of this proceeding under s ections 120.569 and 120.57,

Florida Statutes.

24. S ection 435.04 provides:

(1)(a) All employees in positions designated

by law as positions of trust or

responsibility shall be required to undergo

security background investigations as a

condition of employment and continued

employment. For the purposes of this

subsection, security background

investigations shall include, but not be

limited to, fingerprinting for all purposes

and checks in this subsection, statewide

criminal and juvenile records checks through

the Florida Department of Law Enforcement,

and federa l criminal records checks through

the Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

** *

(3) The security background investigations

under this section must ensure that no

person subject to this section has been

found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guilty to, any offense that constitutes

domestic vio lence as defined in s . 741.28,

whether such act was committed in this state

or in another jurisdiction.

§ 435.04 (1) and (3), Fla. Stat.

25 . Section 408.809(4) (e) states:

(4) In additi on to the offenses listed in

s. 435.04, all persons required to undergo

background screening pursuant to this part or

authorizing statutes must not have an arrest

awaiting final disposition for, must not have

been found guilty of, regardless of

adjudication, or entered a plea of nolo

con tendere or guilty to, and must not have

been adjudicated delinquent and the record

not have been sealed or expunged for any of

the following offenses or any similar

offense of another jurisdiction:

* * *

(e) Section 741.28, relating to domestic

violence.

26 . Section 741.28 (2) and (3) states:

(2) ÐDomestic violenceÑ means any assault,

aggravated assault, battery, aggravated

battery, sexual assault, sexual battery,

stalking, aggravated stalking, kidnapping,

false imprisonment, or any criminal of fense

resulting in physical injury or death of one

family or household member by another family

or household member.

(3) ÐFamily or household memberÑ means

spouses, former spouses, persons related by

blood or marriage, persons who are presently

residing together as if a family or who have

resided together in the past as if a family,

and persons who are parents of a child in

common regardless of whether they have been

married. With the exception of persons who

have a child in common, the family or

househo ld members must be currently residing

or have in the past resided together in the

same single dwelling unit.

27. PetitionerÓs 1995, 2002, and 2009 battery charges

constitute domestic violence as defined in section 741.28 and

are disqualifying offenses.

28 . Section 435.07 allows for exemptions from disqualifying

offenses to be granted, providing in pertinent part:

Unless otherwise provided by law, the

provisions of this section apply to

exemptions from disqualification for

disqualifying offenses reveale d 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 l awfully

released from confinement, supervision, or

nonmonetary condition imposed by the court

for the disqualifying felony;

* * *

(3)(a) In order for the 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 settin g forth clear and 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 ac tion is an abuse of

discretion.

29 . Additionally, Florida Administrative Code Rule 59A -

35.090 provides that :

(c) The individual shall bear the burden of

setting forth clear and convincing evidence

of rehabilitation which includes any

information indicating the individual

presents no danger to the safety or well

being of others. The individual must present

such evidence as arrest reports, court

dispositions, parole/probation information,

and reference letters from employers, and/or

personal refere nces. Other documents that

may be included are records of successful

participation in a rehabilitation program,

further education or training, community or

church involvement, special awards or

recognition or testimony by self or others.

* * *

(e) In deciding whether to grant or deny an

exemption request, [AHCA] shall consider

factors such as the facts and circumstances

surrounding the disqualifying offense(s), the

nature of the harm to the victim, whether the

individual is on probation or parole, w hether

restitution has been made, other offenses on

the criminal history record and the length of

time since the last offense, the history of

the person since the disqualifying

offense(s), work experience, personal

references, performance evaluations,

prob ation or parole violations, education,

other evidence of rehabilitation, and the

honesty and candor of the disqualified

individual.

(f) Any exemption granted by [AHCA] is

limited to the information provided at the

time of application and the disqualifying

offense or offenses committed prior to the

date of the request for exemption.

30. While the three - year per iod described in section

435.07 (1)(a)1 . had elapsed by the time Petitioner applied for an

exemption , the statute does not require that the exemption be

granted merely because three years have passed since Petitioner

completed his probation in 2016 , from his conviction in 2011 .

31. In addition , Petitioner's criminal history subsequent

to his disqualifying offense s , even if not disqualifying

offenses or result ing in convictions, are relevant and are

properly considered in deciding whether Petitioner has been

rehabilitated. See § 435.07(3)(b), Fla. Stat.; F la. Admin. Code

R . 59A - 35.090(4)(e) .

32. In his request before AHCA, Petitioner ha d the burden

to show by clear and convincing evidence that he should not be

disqualified from employment because he has been rehabilitated .

Id. ; see also Sledge v. Dep ' t of Child. & Fam. , 861 So. 2d 1189,

1193 (Fla. 5th DCA 2003) (applicant h as burden of

rehabilitation ).

3 3 . The Florida 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. The 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

allega tions sought to be established.

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

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

34. A claim for exemption must be strictly construed

against the person claiming the exemption. Heburn v. DepÓt of

Child. & Fam. , 772 So. 2d 561, 563 (Fla. 1st DCA 2000) (citing

State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d DCA 1976)).

35. Considering P etitionerÓs lengthy criminal history

spanning from 1995 through 2011, the domestic and violent nature

of repeated offenses, and PetitionerÓs unwillingness to take

responsibility for his actions, notwithstanding recent success

in education and avoiding brushes with the law, Petitioner did

not create a Ðfirm belief or conviction, without hesitancyÑ that

he is r ehabilitated.

36. Ð [ E] ven if rehabilitation is shown, the applicant is

only eligible for an exemption, not entitled to one.Ñ J.D. v.

Dep Ót of Child. & Fam. , 114 So. 3d 1127, 1131 (Fla. 1st DCA

2013) . Respondent has the discretion to deny an exemption

notwithstanding a showing of rehabilitation, as long as it

articulates its rationale for the denial. Id.

37. The ÐÒabuse of discretionÓ standard is highly

deferential.Ñ E.R. Squibb & Sons v. Farnes, 697 So. 2d 825, 826

(Fla. 1997). An agency head abuses his or her discretion within

the meaning of section 435.07 when the Ðintended actionÑ under

review Ðis arbitrary, fanciful, or unreasonable, which is another

way of saying that discretion is abused only where no reasonable

[person] wo uld take the view adopted by the [agency head]. If

reasonable [persons] could differ as to the propriety of the

[intended] action . . . , then it cannot be said that the [agency

head] abused [his or her] discretion.Ñ Canakaris v. Canakaris,

382 So. 2d 11 97, 1203 (Fla. 1980).

38. Furthermore, Ðthe court shall not substitute its

judgment for that of the a gency on an issue of discretion.Ñ

§ 120.68, Fla. Stat. (2014); Thomas v. DepÓt of Juv. Just. ,

730 So. 2d 809 (Fla. 3d DCA 1999); Int Ó l. Union of Police Assns.

v. State Dep Ó t of Mg mt. Serv s . , 855 So. 2d 76, 82 (Fla. 1st DCA

2003).

39. The First District Court of Appeal has clarified that

the determination of rehabilitation is factual in nature, but

the determination of whether the withholding of an exempt ion is

an abuse of discretion is legal in nature. J.D. , 114 So. 3d

at 1133.

40. Under the facts and law in this case, the clear and

convincing evidence does not support a finding that Petitioner

has been rehabilitated, and it is concluded that AHCA did not

abuse its disc retion in denying PetitionerÓs request for

e xemption.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is recommended that Respondent enter a final order

denying PetitionerÓs request for an exempt ion from

disqualification for employment.

DONE AND ENTERED this 16th day of March , 2018, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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

t his 16th day of March , 2018 .

ENDNOTE

1/ All references to Florida Statutes are to the current version

unless otherwise indicated. Petitioner's application is

governed by the law in effect at the time the final order is

issued. See Ag. for Health Care Admin. v. Mt. Sinai Med. Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997)(agency must apply law in

effect at the time it makes its final decision).

COPIES FURNISHED :

Willie T. Crowley

16341 Heathrow Drive

Tampa, Florida 33647

(eServed)

Antonio Lozada, Esquire

Agency for Health Care Administration

2727 Mahan Dr ive, M ail S top 7

Tallahassee, Florida 32308

(eServed)

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 Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas Hoeler, 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.