19-003696 Chan Gobin vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, October 10, 2019.

Summary: Petitioner failed to demonstrate rehabilitation by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHAN GOBIN ,

Petitioner,

Case No. 19 - 3696

vs.

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administ rative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing on September 10 , 2019, by video teleconferencing in

Ft. Pierce and Tallahassee, Florida.

APPEARANCES

For Petitioner: Chan Gobin, pro se

5839 No rthwest Drill Court

Port St. Lucie, Florida 34986

For Respondent: Lindsay Worsham Granger, Esquire

Agency for Health Care Administration

Building 1, Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner ' s request for

exemption from disqualification from employment in a position of

trust should be granted .

PRELIMINARY STATEMENT

By letter dated May 30 , 2019, the Agency for Health Care

Administration ( " AHCA " ) notified Petitioner that his " request

from disqualification from employment and/or from enrollment as a

Medicaid provider under Section 435.07, Florida Statutes, is

DENIED. " Respondent timely prot ested the denial and requested an

administrative hearing.

On July 11 , 2019, AHCA transmitted Respondent ' s letter to

the Division of Administrative Hearings ( " DOAH " ) , and the

undersigned was assigned to hear the case . The final hearing was

heard on Septem ber 10 , 2019 , as scheduled .

At the hearing, the undersigned granted Agency's Corrected

Request for Official Recognition. Petitioner presented the

testimony of two witnesses: Roshina Lakram and himself.

Petitioner did not present or submit any exhibits into the record

at the hearing. Respondent presented the testimony of two

witnesses: Vanessa Risch and Isabelle Kalms . Respondent ' s

Exhibits 1 through 6 were received into evidence.

The proceeding was recorded by a court reporter but not

transcribed . The parties each filed a timely proposed

recommended order, which ha s been considered by the undersigned

in the preparation of the Recommended Order.

Unless otherwise indicated, all statutory references are to

Florida Statutes (2018).

FINDING S OF FACT

1. AHCA is a state agency required to conduct background

screenings for individuals who provide certain types of

healthcare related services under chapters 400, 408, and 429,

Florida Statutes. § 408.809, Fla. Stat.

2. Petitioner is seeking to become owner o f a license d

nurse registry for pediatric and special needs care . As such,

Petitioner is required to have a background screen ing check

pursuant to section 408.809 . Petitioner is interested in the

field because his daughter was born with several disabilit ies.

3. After completing Petitioner ' s background screening ,

Petitioner ' s 2011 disqualifying felony criminal offense s of

owning , operating , or maintaining an assisted living facility

without a license were identified .

4. On March 6, 2019, Petitioner submi tted a request for

exemption from disqualification, which included the exemption

application and supporting documentation ( " exemption package " ).

5. In Petitioner ' s exemption package, he listed his work

history , which includ ed the following employment : Ho me Reach,

LLC , from April 2013 to October 2013; Five Star Ho me Health from

October 2013 to M arch 2014; unemploy ment from March 2014 to

August 2014; Home Reach, LLC , from August 2014 to August 2018 ;

and a leave of absence from Home Reach, LLC , starting

Augu st 2018.

6. Petitioner also detailed his plans to comply with AHCA ' s

law s and regulations in his exemption package . He explained that

he has retained a consult ant, Elisabeth Jean - Baptiste ( " Jean -

Baptiste " ) , to assist him. She is the d irector of the FEDE N

Healthcare Education Institute , an entity that provides

continuing legal and regulatory education in the healthcare

fi e l d.

7. Petitioner included in his exemption package

documentation that he complet ed a 12 - hour Adult Family Care Home

course , which co ver ed the rules and regulations for running a

healthcare business .

8. On May 15, 2019, as part of the exemption application

process, Petitioner participated in a telephonic exemption

hearing with AHCA . After the telephonic hearing and discussion,

AHCA d enied Petitioner ' s request for an exemption by letter dated

May 30, 2019. Subsequently, Petitioner requested an

administrative hearing.

Disqualifying Offense s

9. On May 26, 2011 , Petitioner was arrested and charged

with a two - count felony of operating, o wning , or maintaining an

assisted living facility without a license .

10. Petitioner ' s criminal charges stem from him operating

Heaven Sent Group Home , which he labeled " sober living " houses.

At the two facilities Petitioner owned and operated, medicatio n

was distributed , and daily activities for the residents were

performed without being license d as an assisted living facility.

11. On June 27, 2011, AHCA also charged Petitioner by

Administrative Complaint in Case No. 20110013 6 7 for operating

Heaven Sen t Group Home, which was the same unlicensed

assisted living facility subject matter as the criminal Case

No. 2011CF001679A.

12. On or about September 20, 2011, Petitioner pled no

contest in Case No. 2011CF001679A to the two felony counts of

operating, o wning , or maintaining an assisted li ving facility

without a license . The court withheld adjudication and sentenced

Petitioner to three years of probation, 100 hours of community

service, court costs, and fine s .

13. On January 25, 2012, AHCA issued a Fi nal Order in Case

No. 2011001367 , imposing a $99,000.00 fine for Petitioner ' s

unlicensed activity.

14. By letter dated October 2, 2013, Petitioner was

notified that he completed his terms of probation and was no

longer under the supervision of the Departm ent of Corrections for

Case No. 2011CF001679A.

Hearing

15. At hearing, Petitioner explained that he opened two

facilities in 2007 to help the underprivileged . His residents

included those that were released from incarceration or mental ly

ill and did not have place to live. He testified that most of

his residents came from the court s or were referred by New

Horizons.

16. Petitioner denied receiving any AHCA notices sent to

him regarding his operating the two unlicensed assisted living

facilities prior to the 2011 cease and desist on Heaven S ent

Group Home . Petitioner further claimed that he did not know he

needed a license for the facilities he was running.

17. Petitioner did admit that he was completely responsible

for his wrongdoings and not being edu cated and aware of the rules

and regulations regarding operating a group home or an assisted

living facility.

18. During the final hearing , Petitioner present ed the

testimony of Roshina Lakram , who testified that she knew

Petitioner for 30 years and that he had been helping people

struggling with drugs and mental illnesses with his sober living

homes.

19. Vanessa Risch ( " Risch " ), the health services and

facili ties c onsultant manager for AHCA ' s Background Screening

Unit, testified at hearing that in maki ng the decision to deny

Petitioner ' s exemption , AHCA considered Petitioner ' s entire case

file including exemption application, education and training

records, personal letters of support, personal attestations, one

employment reference letter, and Petition er ' s explana tions during

the telephonic exemption hearing.

20. AHCA concluded that Petitioner was not particularly

candid during the May 15, 2019, tele phonic hearing , because

Petitioner failed to mention prior to and during the

teleconference that he has the outstanding AHCA fine in the

amount of $99,000.00 from his unlicensed activity from Case

No. 2011001367 .

21. Although Petitioner had some positive letters of

recommendation, his failure to be candid and honest in addition

to his lack of effort to make any payments toward the outstanding

AHCA fine was a major consider ation in the denial of Petitioner ' s

exemption. Risch testified that Petitioner failed to meet

section 435.07(3)(a) and had not demonstrated by clear and

convincing evidence that he was reh abilitated.

22. At hearing, Petitioner also failed to readily admit

that he owed the $99,000.00 fine to AHCA when testifying . First,

Petitioner did not own up to currently owing the monies, then

testified that maybe it happened while his daughter was in the

hospital, and finally inquired about a payment plan. At the tim e

of the hearing, Petitioner had not paid any amount towards the

fine nor attempted to negotiate a payment plan agreement with

AHCA to pay off the delinquent fine.

Findings of Ultimate Fa ct

23. Upon careful consideration of the entire record, the

undersigned finds that Petitioner was both credible and

passionate in his testimony about his future and not wanting to

work for other individuals for the rest of his life . He even

testified tha t since it was America , he wanted his own. However,

Petitioner failed to testify convincingly regarding the monies

owed to AHCA . He was dismissive about his past instead of being

honest and forthright regarding the outstanding $99,000. 00 . Such

lack of c andor and accurateness regarding the delinquent AHCA

fine establishes Petitioner ' s ineligib ility for an exemption from

disqualification because he has not demonstrated by clear and

convincing evidence that he has been rehabilitated .

CONCLUSIONS OF LAW

24. DOAH has jurisdiction over the subject matter and

the parties to this action in accordance with sections 120.569

and 120.57, Florida Statutes (2019) .

25. Section 408.809 authorizes Respondent to conduct

background screenings under certain circumstances t o assure that

those seeking positions within the authority of AHCA have not

committed disqualifying offenses listed in that section and

section 435.04 . § 408.809(4), Fla. Stat.

26. Section 4 08.809(4) , which establishes level 2

background screening requi rements, provides:

(4) In addition 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

contendere 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:

(a) Any autho rizing statutes, if the offense

was a felony.

27. Because Petitioner pled to the criminal felony charge s

of operating , owning , or maintaining an assisted living facility

without a license , he is disqualified from employment as a direct

service provider u nless granted an exemption by AHCA pursuant to

section 435.07 .

28. Section 435.07 provides:

Exemptions from disqualification. —— Unless

otherwise provided by law, the provisions of

this section apply to exemptions from

disqualification for disqualifying of fenses

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 disq ualified

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, supervision, or nonmonetary

condition im posed by the court for the

disqualifying felony[.]

* * *

For the purposes of this subsection, the term

" felonies " means both felonies prohibited under

any of the statutes cited in this chapter or

under similar statutes of other jurisdictions.

* * *

(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 ha ve the burden of setting

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 na ture 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 employee ' s 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 t he

agency ' s intended action is an abuse of

discretion.

29. Pursuant to this statute, Petitioner, as the applicant

for an exemption, must demonstrate his rehabilitation by clear

and convincing evidence. This is a heightened standard,

requiring more proo f than a mere preponderance of the evidence.

This standard requires that the evidence be found credible, the

facts to which the witnesses testify be distinctly remembered,

the testimony be precise and explicit, and the witnesses be

lacking in confusion as to the facts at 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 allegations sought to be established. In re: Davey ,

645 So. 2d 398, 404 (F la. 1994); Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

30. In this matter, it is not necessary to make a

determination as to whether AHCA abused its discretion in its

initial determination to deny an exemption from disqualification .

In stead, f or the reasons discussed above in paragraph 23 , the

compelling evidence at hearing did not establish Petitioner ' s

rehabilitation by clear and convincing evidence . Accordingly,

since Petitioner failed to demonstrate rehabilitation, AHCA did

not abu se its discretion in denying his request for exemption

from disqualification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Agency for Health Care Administration

enter a final order upholding its den ial of Petitioner ' s request

for an exemption from disqualification for employment .

DONE AND ENTERED this 10th day of October , 2019 , in

Tallahassee, Leon County, Florida.

JUNE C. MCKINNEY

Administrative Law Judge

Divisio n 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 10th day of October , 2019 .

COPIES FURNISHED:

Chan Gobin

5839 Northwest Drill Court

Port St. Lucie, Florida 34986

Lindsay Worsham Granger, Esquire

Agency for Health Care Administration

Building 1, Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Rich ard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 323 08

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tall ahassee, Florida 32308

(eServed)

Thomas M. 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.