20-003051 Natalia Wiltshire vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, November 9, 2020.

Summary: Petitioner failed to prove that the Agency abused its discretion when denying Petitioner's request for exemption from disqualification to work in a position of special trust.

P RELIMINARY S TA TEMENT

Petitioner submitted to the Agency for Health Care Administration

(Agency) a request seeking an exemption from being disqualified to work in a

position of special trust. By correspondence dated June 3, 2020, Petitioner was advised by the Agency that her application was denied. Petitioner filed a

request for administrative hearing, and on July 7, 2020, the Agency forwarded Petitioner’s request to the Division of Administrative Hearings for

a final hearing.

At the final hearing, Petitioner, in additio n to testifying on her own

behalf, offered testimony from Dominique Norton, Matthew Saunders, and

Odalis Bravo. Vanessa Risch testified on behalf of the Agency. Petitioner’s

Exhibits 1 through 4 were admitted into evidence. Agency Exhibits 1 through 148 we re also admitted into evidence.

A single - volume Transcript of the final hea ring was filed on October 5,

2020 . Each party timely filed a Proposed Recommended Order, and the same

were considered in the preparation of this Recommended Order.

F INDINGS OF F AC T

1. By correspondence dated June 3, 2020, the Agency informed Petitioner

that her request for exemption from disqualification was denied after

consideration of the following factors:

a. the circumstances surrounding the criminal

incident for which an exem ption is sought;

b. the time period that has elapsed since the

incident;

c. the nature of the harm caused to the victim;

d. a history of the employee since the incident; and

any other evidence or circumstances indicating that

the employee will not prese nt a danger if continued

employment is allowed; and [that Petitioner did not ] provide clear and convincing evidence of

rehabilitation as required by Florida Law.

2. Petitioner admits “that based upon an incident occurring on March 17,

2017, [she] was char ged with two counts of battery and one count of assault.”

3. Petitioner admits that she “was sentenced to 12 months of probation

starting on December 13, 2017.”

4. Petitioner admits that her “probation was terminated unsuccessfully on

September 21, 2018, d ue to a probation violation.”

5 . Petitioner admits “that a charge for an offense under section 784.03,

Florida Statutes, is disqualifying for employment in facilities or as a provider

licensed through the Agency for Health Care Administration.”

6 . Petition er admits “that the trespass offense occurring on April 5, 2018,

occurred inside or on the premises of Brevard Health Alliance.”

7 . Petitioner admits “that the trespass offense occurring on April 5, 2018,

involving the Petitioner occurred at a health care facility.”

A. D ISQUALIFYING O FFENSE A ND S UBSEQUENT C RIMINAL H ISTORY

8. On or about April 17, 2017, Petitioner was charged with two counts of

battery, in violation of section 784.03 , Florida Statutes , and one count of

assault, in violation of section 784.01 1. The charges resulted from an

altercation, which occurred on March 17, 2017, where Petitioner directed

verbal threats towards, and made physical contact with, a woman and her minor son.

9. On or about December 4, 2017, Petitioner pled nolo contendere to the

charged offenses, and on December 13, 2017, the County Court, in and for

Brevard County, Florida, found Petitioner guilty of the said offenses, withheld adjudication, and placed Petitioner on supervised probation for a

period of 12 months. The terms of Petitioner’s probation required, in part,

that she complete an eight - hour anger management course and “not be

employed to supervise or to take care of children with disabilities.” 1

10. On or about April 5, 2018, Petitioner, while on probation, was arreste d

and charged with the misdemeanor offense of “trespass in a structure or

conveyance,” in violation of section 810.08(1), Florida Statutes. On

September 21, 2018, Petitioner entered a plea of nolo contendere, was

adjudged guilty, and was convicted of the c harged offense. During this same

court appearance , Petitioner also entered a plea of guilty to the charge that

she violated the terms of her probation which were imposed as a result of the

March 2017 altercation. Because Petitioner violated the terms of he r probation, the court adjudicated Petitioner guilty, convicted her of the battery

and assault charges, and terminated as “unsuccessful” Petitioner’s probation.

11. On or about February 1, 2019, Petitioner filed a “Motion to Withdraw

Plea after sentencing , or in the Alternative, to Resentence the Defendant”

(motion to resentence) , because of difficulty that she was having in securing

employment. The court granted Petitioner’s motion, and on May 30, 2019,

entered two Orders. The first Order found Petitioner guilty of the April 5,

2018, offense of “trespass in structure or conveyance” and withheld

adjudication thereof. The second Order found Petitioner guilty of the battery and assault charges, withheld adjudication, and placed Petitioner on

supervised probat ion “for a period of 5 days.” On June 18, 2019, the court

entered an Order of Completion of Probation and noted therein that Petitioner had completed the terms of her probation, which included paying court costs and fines, and completing anger management a nd parenting

classes.

12. On or about April 9, 2019, while her “motion to resentence” was

pending before the court in Brevard County, Petitioner was arrested in

1 Petitioner was supervising a child with a disability when she battered and assaulted the

individuals on March 17, 2017.

Osceola County and cited once again for trespassing. 2 Petitioner entered a

plea of nolo conten dere, and by Order entered on or about July 2, 2019, the

court adjudicated Petitioner guilty and placed her on supervised probation for

six months. The terms of Petitioner’s probation required, in part, that she

perform 40 hours of community service and co mplete an eight - hour anger

management course. On or about December 8, 2019, Petitioner’s probation

was extended, and on March 18, 2020, after Petitioner successfully completed all terms of her probation, the cour t entered an “Order Terminating

[Petitioner’ s] Probation.”

B. E VIDENCE OF S UGGESTION O F R EHABILITATION

13 . Petitioner, in support of her suggestion of rehabilitation, offered

multiple letters of reference. A common theme is present throughout the

letters, to wit: that Petitioner is compassionate; de dicated; smart; has a great work ethic; and is a pleasure to work with. These are, without question,

admirable qualities.

1 4 . A s previously noted, Petitioner, as part of the adjudicatory process

associated with the disqualifying and subsequent offenses, co mpleted 16

hours of anger management sessions, and a four - hour parenting class. On or

about June 16, 2017, Petitioner completed a 40 - hour training course in

behavioral analysis principles, which, according to the certificate, satisfies

the training require ment “for the [Registered Behavior Technician]

credential.” Petitioner offered no evidence of voluntary civic or community service.

2 Petitioner became ups et with staff at a medical clinic when she perceived that she had been

disrespected. Petitioner refused to leave the medical clinic after being instructed to do so.

C ONCLUSIONS OF L AW

15. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. §§ 120.569, 120.57(1), and

435.07, Fla. Stat. (2020). 3

16. Section 435.07 , Florida Statutes, provides , in part, as follows:

Exemptions from disqualification. — Unless

otherwise provided by law, the provisions of this

section apply to exempt ions from disqualification

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 a gency 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

confineme nt, supervision, or nonmonetary

condition imposed by the court for the disqualifying felony;

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under similar

statutes of other jurisdictions for which the

applicant for the exempt ion has completed or been

lawfully released from confinement, supervision, or nonmonetary condition imposed by the court;

3. Offenses that were felonies when committed but

that are now misdemeanors and for which the

applicant for the exemption has complet ed or been

lawfully released from confinement, supervision, or

nonmonetary condition imposed by the court; or

4. Findings of delinquency. For offenses that would

be felonies if committed by an adult and the record

3 All subsequent references to Florida Statutes will be to the 2020 version , unless otherwi se

indicated.

has not been sealed or expunged, the exem ption

may not be granted 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 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 bur den 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 nature of th e 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 cr ime is not

a disqualifying offense.

(c) The decision of the head of an agency regarding

an exemption may be contested through the hearing proced ures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s i ntended action is an abuse

of discretion.

17 . Section 435.04 provides, in part, as follows:

(2) The security background investigations 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 guilty to, or

have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited unde r any of the following provisions of

state law or similar law of another jurisdiction:

* * *

(j ) Section 784.011, relating to assault, if the victim

of the offense was a minor.

(k) Section 784.03, relating to battery, if the victim

of the offens e was a minor.

There is no dispute that Petitioner’s violation of sections 784.011 and 784.03

disqualify her from working in a position of special trust.

18. Petitioner bears the burden of proving by clear and convincing

evidence that she should not be di squalified from employment, and is,

therefore, ent itled to the exemption sought. § 435.07(3)(a), Fla. Stat.

19. In considering Respondent’s intended action of denying Petitioner’s

exemption request, the undersigned must consider whether the agency head

a bused his or her discretion when passing on Petitioner’s request. The “‘abuse

of discretion’ standard is highly deferential.” 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 s ection 435.07 when the “intended action” under

review “is arbitrary, fanciful, or unreasonable, which is another way of saying

that discretion is abused only where no reasonable [person] would take the

view adopted by the [agency head]. If reasonable [pers ons] could differ as to

the propr iety of the [intended] action .. . , then it cannot be said that the

[agency head] abused [his or her] discretion.” Canakaris v. Canakaris , 382

So. 2d 1197, 1203 (Fla. 1980).

20. “An exemption from a statute, enacted to prot ect the public welfare, is

strictly construed against the person claiming the exemption.” Heburn v.

Dep’t of Child. & Fams. , 772 So. 2d 561, 563 (Fla. 1st DCA 2000).

21. The essence of “rehabilitation” within the meaning of section

435.07(3)(a) is that an applicant thereunder would “not present a danger if

employment or continued employment is allowed.”

22. The Agency’s intent to deny Petitioner’s exemptio n request is not

unreasonable. The evidence demonstrates that since committing the

disqualifying offens es, Petitioner, on a near annual basis, continued to

engage in criminal activity through April 2019. It is significant that

Petitioner’s last contact with the criminal justice system occurred

approximately one year prior to the submission of her Applicatio n for

Exemption from Disqualification. While Petitioner is commended for possessing a strong work ethic, and being a smart and compassionate person, these positive attributes are insufficient to demonstrate rehabilitation when considered against the totali ty of the evidence.

23. On the instant record, it cannot be said that “no reasonable person

would take the view adopted by the Agency ” in denying Petitioner’s request

for exemption from disqualification. Succinctly stated, Petitioner failed to

establish th at the reasons offered by the Agency in denying her request for

exemption are arbitrary, fanciful, or unreasonable. Accordingly, Petitioner

failed to meet her burden of proving by clear and convincing evidence that

the Agency’s decision to deny her exempti on request was an abuse of

discretion.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent, the Agency for Health Care

Administration, enter a final order denying Petitioner’s request for exemp tion.

D

ONE A ND E NTERED this 9th day of November , 2020 , in Tallahassee, Leon

County, Florida.

L INZIE F. B OGAN

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 9th day of November , 2020 .

C OPIES F URNISHED :

Katie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Ma il Stop 3

Tallahassee, Florida 32308

(eServed)

Dwight O neal Slater, Esquire

Cohn Slater, P.A.

3689 Coolidge Court , Unit 3

Tallahassee, Florida 32311

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire Agency for Health Care Administration

27 27 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Bill Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shevaun L. Harris, Acting Secretary

Agency fo r Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exce ptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.