20-003423 Shaddainah Lalanne vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, December 9, 2020.

Summary: AHCA did not abuse its discretion to deny Petitioner's application for an exemption from disqualification because Petitioner is ineligible to apply for an exemption since she is still on probation for a felony disqualifying offense.

P RELIMINARY S TATEMENT

By letter dated April 7, 2020, Respondent Agency for Health Care

Administration ( “Respondent” or “AHCA”) notified Petitioner Shaddainah

Lalanne (“Petition er” or “Lalanne”) that her request for an exemption from

disqualification for employment is denied. Petitioner timely protested the

denial and requested an administrative hearing.

On July 30, 2020, AHCA transmitted Petitioner’s request to the Division

of Administrative Hearings (“DOAH”), and the undersigned was assigned to

hear the case.

On September 10, 2020, the undersigned granted AHCA’s Motion for

Leave to Amend Agency’s Denial Letter. AHCA amended the disqualifying

offense to resisting an officer by a letter dated September 8, 2020. 1

On September 22, 2020, the final hearing was heard as scheduled.

At the hearing, Petitioner testified on her own behalf. Petitioner’s

Exhibits 1 through 5 were received into evidence. Respondent presented the

testimony of one witness: Vanessa Risch. Respondent’s Exhibits 1 and 2 were

received into evidence.

The undersigned took official recognition of sections 148 and 69 of the

California Penal Code and section 843.01, Florida Statutes.

The proceeding of the hearing w as recorded by a court reporter and

transcribed. A one - volume Transcript of the hearing was filed at DOAH on

October 15, 2020. The parties each filed a timely proposed recommended

1 Resp. Ex. 2.

order, which has been considered by the undersigned in the preparation of

th e Recommended Order.

References to the Florida Statutes are to the 2018 version, unless

otherwise indicated.

F INDINGS OF F ACT

1. AHCA is the state agency charged with protecting vulnerable persons ,

such as Medicaid recipients and the Medicaid program, an d , in that capacity,

it maintains discretion to approve or deny requests for exemption from disqualification.

2. Petitioner is seeking to work as a certified nursing assistant.

Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses

to prohibit her from working with AHCA - regulated facilities.

3. Petitioner’s background screening of February 5, 2020, identified the

following five criminal offenses: elder abuse/neglect; t respass (refuse to leave

property, peace officer’s request); and three counts of obstructing/resisting

executive officer with minor injury.

4. By letter dated February 5, 2020, AHCA notified Petitioner that she

was disqualified from employment due to the d isqualifying offense of

“04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter

also informed Petitioner that she may be eligible to apply for an e xemption

from d isqualification and how to apply.

5. On or around February 7, 2020, Peti tioner submitted a request for

exemption from disqualification and supporting documentation to AHCA.

6. By letter dated February 18, 2020, AHCA denied Petitioner’s request

for exemption.

7. On April 6, 2020, Petitioner submitted a second Application for

Ex emption (“exemption package”) to AHCA.

8. Petitioner’s exemption package contained documentation including

employment history, education/training, a criminal history report, arrest

reports, investigation reports, a California Department of Public Health

in vestigation report, and a 12 - month suspension of nurse assistant

certification.

9. By letter dated April 7, 2020, AHCA denied Petitioner’s request for

exemption , stating Petitioner is not eligible for the exemption based on the

following grounds:

A disqual ifying felony offense(s) and you have

not been lawfully released from confinement,

supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption.

Our records indicate you me t the above

criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399

10. Petitioner contested the denial and requested a formal administrative

hearing.

11. AHCA acknowledged the disqualif ying offense error in the denial

letter of April 7 , 2020, and corrected its denial letter. The corrected denial

letter dated September 8, 2020, deemed Petitioner not eligible for an

exemption based on the following grounds:

A disqualifying felony offense(s) and you have

not been lawfully released from con finement,

supervision, or nonmonetary condition imposed by

the court for the disqualifying felony 3 years prior to the date you applied for the exemption.

Our records indicate you met the above criteria

for the following:

Corrected Disqualifying Offense :

04/22/2017 SHERIFF’S OFFICE SAN DIEGO,

RESISTING AN OFFICER (California Penal

Code section 148,) Case Number CN372399.

Hearing

12. At hearing, Petitioner testified about the incident that occurred on

April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in

California. Petitioner explained that three police officers came to her job at

Fallbrook while she was working her shift and asked to speak to her outside

the facility about allegations of resident abuse.

13. Petitioner testified she refused to leave the facility upon multiple

instructions from the police to leave. Petitioner admitted that after an officer

told her several times he was going to arrest her, she told the police “you

don’t have a right to arrest me.” Petitioner detail ed how she did not allow the

police to put handcuffs on her because she believed the reports about her

were lies.

14. Ultimately, the incident escalated -- Petitioner testified that when she

did not allow the police to handcuff her, the three police officer s put her on

the ground, one put his knee on her back, and she was handcuffed. Petitioner

w eighed approximately 125 pounds when arrested. After the police got

Petitioner outside, the three police officers picked her up, put her in the

police car , and took her to jail.

15. Petitioner was charged with : elder abuse/neglect; trespass (refuse

to leave property, peace officer’s request); and three counts of

obstructing/resisting an officer, all stemming from the same April 22, 2017, incident.

16. The elder abuse and trespass charges against Lalanne were dismissed.

17. On January 30, 2018, Petitioner proceeded to a bench trial before a

judge on the resisting an officer charge. At trial, Petitioner was found guilty

and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case

number CN372399.

18. That same day, the judge sentenced Petitioner to three years’

probation 2 and community service for the resisting an officer conviction.

19. Subsequently, the County of San Diego , California, probation

department provided Petitioner a certificate of completion for completing her

three days of public work service on or about September 13, 2018.

20. Petitioner testified that she made a mistake when she did n o t listen to

the officers and it was a lesson for her. She also testified that she believed

there was no harm to the police and her offense is a misdemeanor not a felony.

21. Vanessa Risch (“Risch”), AHCA’s operations and management

consultant manager in the Background Screening Unit, testified that because Petit ioner’s offense occurred in California, AHCA had to evaluate the nature

of the offense, what occurred during the incident, and the final outcome of the

case to determine the correlating criminal offense in Florida.

22. Risch testified that she contacted t he California Clerk of Courts to

validate the outcome of Petitioner’s case and probationary status. Risch

testified that , through her investigation , she confirmed that Petitioner’s

probation started on January 30, 2018, and terminates on January 30, 2021.

23. Risch also detailed how AHCA converted Petitioner’s California

resisting an officer charge to a Florida resisting arrest with violence felony offense , after determining the officers in California had to force Petitioner’s

body to the ground after Peti tioner did not comply with the officers ’ repeated

instructions. AHCA concluded that Petitioner’s actions of opposing the three

2 The compelling evidence at hea ring supports Petitioner’s probationary sentence. The

undersigned finds that Petitioner failed to testify honestly and forthright regarding her

three - year probationary period. First, Petitioner denied knowledge of any probationary

period even though probat ion was listed on the sentencing documents Petitioner presented

as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally,

Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s

knowledg e of her probationary period.

officers is equivalent to the criminal offense of resisting arrest with violence

in Florida. Risch testified that resisting an of ficer with violence is a

disqualifying felony offense.

24. Risch testified further that AHCA ultimately concluded that Petitioner

was not eligible to apply for an exemption. Risch explained that Petitioner’s

current probationary status prohibited her from being eligible to apply for an

exemption because eligibility starts three years after Petitioner’s

probationary period for the disqualifying felony offense is terminated.

C ONCLUSIONS OF L AW

25. DOAH has jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57, Florida Statutes (2020).

26. In this matter, it is undisputed that , on January 30, 2018, Petitioner

was convicted in California of section 148(a)(1) of the Cal ifornia Penal Code ,

resisting an officer, which provides , in pertinent part:

Every person who willfully resists, delays, or

obstructs any public officer, peace officer, or an

emergency medical technician, as defined in

Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment.

27. The Florida Legislature provided AHCA the authority to determine if

an out - of - state offense is a “similar law of another jurisdiction” and covert the

out - of - st ate offense to Florida law under section 435.04(2) , Florida Statutes .

28. The undersigned is not persuaded by Petitioner’s argument that her

offense is equivalent to a Florida misdemeanor. Instead, the unrebutted

evidence supports AHCA’s conversion of Peti tioner’s California resisting an

officer offense to a Florida resisting arrest with violence offense.

29. Section 843.01 defines resisting arrest with violence and provides:

Whoever knowingly and willfully resists, obstructs,

or opposes any officer as de fined in s. 943.10 (1), (2),

(3), (6), (7), (8), or (9); member of the Florida

Commission on Offender Review or any

administrative aide or supervisor employed by the commission; parole and probation supervisor;

county probation officer; personnel or

representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by

offering or doing violence to the person of such

officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082 , s. 775.083 , or s. 775.084 .

30. Petitioner’s own testimony and admission demonstrates that

Petitioner repeatedly willfully opposed and obstructed three officers at the

facility from performing their duties. Additionally, the uncontradicted

evidence shows Petitioner’s actions caused three officers to have to put

Petitioner on the ground even though she only weighed approximately 125 pounds because she would not allow the officers to handcuff her on

April 22, 2017, which clearly falls within the parameters of section 843 .01.

31. By converting Petitioner’s California offense to a section 843.01

Florida offense, Petitioner’s conviction is deemed a disqualifying felony

offense pursuant to section 435.04(2)(mm). Because Petitioner is deemed

guilty of the Florida felony, resis ting arrest with violence, she is disqualified

from employment unless granted an exemption by AHCA.

32. Section 435.07 provides a process by which, under certain

circumstances, a person may seek an exemption from disqualification and

provides, in pertinen t part:

Exemptions from disqualification. — Unless

otherwise provided by law, the provisions of this

section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to

background screenings required under this chapter,

regardl ess 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 whi ch 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

felony[.]

33. In this matter, Petitioner fai ls to meet the statutory requirements to

seek an exemption. The evidence in the record shows Petitioner has not been

released from probation supervision for her resisting an officer offense.

Petitioner’s release date for probation termination is January 30 , 2021.

Therefore, Petitioner does not meet the criteria to apply for an exemption at this time because she is still under lawful supervision pursuant to section 435.07(1)(a)1. Accordingly, Petitioner’s request cannot be approved because she is ineligible to apply for an exemption from disqualification. Hence,

Respondent’s intended denial action does not constitute an abuse of its

discretion.

34. Before concluding, the undersigned notes that, despite an unfavorable

outcome in this proceeding, Petitioner is not precluded from seeking an exemption from disqualification at some future time when she meets the

requirements of section 435.07.

R ECOMMENDATION

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

R ECOMMENDED that the Agency for Healt h Care Administration, enter a final

order denying Shaddainah Lalanne’s, request for an exemption from disqualification.

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

County, Florida.

J UNE C. M CKINNEY

Administrative Law Judge

Di vision 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 Dec ember , 2020 .

C OPIES F URNISHED :

Shaddainah Sherly Lalanne

Apartment 206

6609 Woods Island Circle

Port St. Lucie, Florida 34952

(eServed)

Katie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 7

Tallahassee, Florida 32 308

(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

2727 Mahan Drive, Mail Stop 3

Ta llahassee, 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 for Health Care Administration

2 727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the r ight 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.