20-003571 Edward Hollins vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, January 19, 2021.

Summary: Petitioner failed to prove by clear and convincing evidence that he is rehabilitated from his disqualifying offense.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E DWARD H OLLINS ,

Petitioner ,

vs. Case No. 20 - 3571

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

R ECOMMENDE D O RDER

Pursuant to notice, a formal administrative hearing was conducted via

Zoom on November 10, 2020, before Administrative Law Judge Garnett W.

Chisenhall of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Edward Hollins , pro se

Post Office Box 10516

Daytona Beach, Florida 32120

For Respondent: Katie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan D rive, Mail Stop 7

Tallahassee, Florida 32308

S TATEMENT OF T HE I SSUE S

Whether Petitioner demonstrated, by clear and convincing evidence, that

he is rehabilitated from his disqualifying offense; and, if so, whether the

Agency for Health Care Administ ration (ÑAHCAÒ or Ñthe AgencyÒ) would

abuse its discretion by denying PetitionerÔs request for an exemption from

employment disqualification, pursuant to chapter 435, Florida Statutes

(2020). 1

P RELIMINARY S TATEMENT

Chapter 430, Florida Statutes, pertains to Elder Affairs, and

section 430.0402(1)(a) requires that direct service providers undergo Level 2

background screening. Section 435.04(2) mandates that people convicted of

certain offenses are disqualified from holding positions that require a Level 2

b ackground screening. Via a letter dated July 17, 2020, AHCA notified

Edward Hollins that his request for an exemption from disqualification from

employment had been denied. In support of this decision, AHCA noted: (a)

the circumstances of the criminal inci dent for which an exemption was

sought; (b) the time period that had elapsed since the incident; (c) the nature

of the harm; and (d) Mr. HollinsÔ s history since the disqualifying incident.

The letter closed by informing Mr. Hollins of his right to challeng e the

AgencyÔs decision through a formal administrative hearing.

Mr. Hollins requested a formal administrative hearing, and AHCA

referred this matter to DOAH on August 11, 2020. The undersigned issued a

Notice scheduling the final hearing for October 16, 2020.

The undersigned experienced a scheduling conflict and issued an Order

on September 17, 2020, requiring the parties to provide additional, mutual

dates of availability for a final hearing between October 21, 2020, and

November 25, 2020. After receiv ing the partiesÔ response, the final hearing

was rescheduled for October 27, 2020.

1 Unless indicated otherwise, all statutory references will be to the 2020 version of the

Florida Statutes.

On October 20, 2020, the Agency filed a Motion requesting that the final

hearing be continued for 14 days. The undersigned granted that Motion and

ultimately rescheduled th e final hearing for November 10, 2020.

The final hearing was convened as scheduled. Mr. Hollins testified on his

own behalf and presented testimony from his wife, Lakesha H ollins.

PetitionerÔs Exhibit s 1 through 23 were accepted into evidence. AHCA

presen ted testimony from Dino Iampieri and Vanessa Rich. AHCA composite

Exhibit 1 and AHCA Exhibit 2 were accepted into evidence.

The one - volume Transcript from the final hearing was filed on

December 1, 2020. After being granted one extension, AHCA filed a ti mely

Proposed Recommended Order on December 18, 2020, that has been

considered in the preparation of this Recommended Order. Mr. Hollins did

not file a p roposed r ecommended o rder.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

matters subject to official recognition, and the entire record in this

proceeding, the following Findings of Fact are made:

1. Mr. Hollins graduated from the University of South Florida with a

bachelorÔs degree in accounting in 1992. He held a variety of positions before

finding employment in 2000 as an accountant with Jennings Environmental,

a waste management company.

2. When Waste Management purchased Jennings Environmental and

conducted an audit, it discovered that Mr. Hollins had used hi s position as an

accountant to facilitate an arrangement in which he and several of his co -

workers stole money from Jennings Environmental. Mr. Hollins ultimately

pled no contest to a charge of grand theft, a first - degree felony, and was

sentenced to five years in prison, 15 years of probation, and payment of

restitution.

3. Mr. Hollins was released from prison in 2007 and began working for an

excavation company in Daytona Beach, Florida. 2 He also became active with

his religious faith and founded the Ho pe Center, a place where young people

could gather to play sports and learn life skills. Mr. Hollins was involved with

the Hope Center from 2008 to 2009. He also began working as a manager at a

KrystalÔs restaurant.

4. When the Hope Center merged with a lo cal Police Athletic League,

Mr. HollinsÔ s involvement with the Hope Center ended because his past

felony caused him to fail a background check.

5. Mr. Hollins then began running a mentoring program out of his home

and taught young people how to manage the ir finances. However, he

discontinued the mentoring program in 2010 due to personal and professional

demands on his time.

6. Mr. Hollins left the restaurant industry in 2010 or 2011 in order to own

and operate a laundr o mat. That work continued until a new landlord raised

the rent beyond what he could afford.

7. In January or February of 2014, Mr. Hollins began working for RNR

Tire Express ( Ñ RNR Ò ), a company specializing in tires and custom wheels.

Mr. Hollins handled collections for RNR and repossessed me rchandise when

customers fell behind on their payments. Mr. Hollins testified that he left

RNR because the work was too dangerous.

8. Dino Iampiere was the RNR manager who hired Mr. Hollins, and he

testified as follows:

I want to say too that Ed is very charming, very

smart. When I first hired him, I was pretty excited

about him. I actually remember thinking that this

2 Mr. Hollins completed his probation on February 26, 2018, and has paid all of the

restitution owed to Waste Management.

was a guy that could probably move up through

promotions pretty quick with our company.

However, in a very short period of time, you know,

four or five months, we started noticing some

irregularities in that storeÔs collection. You know, if

weÔve got Ï we monitor based on what they close

and how many customers are past due. We also

know what our average customer agreement value

is, so we know how much money should be

collected, and the money that was being collected

didnÔt match the closing percentages that we were

seeing. It took quite a while and I had to go spend

quite a bit of time in the store to start figuring it

out, and one thing that came very clear was I

started having a lot of customers complain that

their payoff amount was not going down. Now,

sometimes Ï I hear that a lot, so at first that didnÔt

alarm me too much because a customerÔs agreeing,

for an example, if itÔs a thousand - do llar rent - to - own

agreement, they can pay it off at any time at a cash

sale price of half off, 50 percent off. So itÔs a $500

cash balance. They come in and make a $100

payment, that $100 doesnÔt come off their $500

balance. Half of that does. So Ï but then I started

having customers start bring me in some receipts

from before and show it to me. I started going wait

a minute, this doesnÔt look right, somethingÔs

irregular, somethingÔs wrong.

So, ultimately, what I ended up doing was I ended

up coming in and getting all of the field receipt

books from the counter area and the books that Ed

was using and started going through those one by

one in the computer, and what I started discovering

was that a customer would come in maybe to put

$100 down, for example, on getting a set of wheels

and tires installed on their car, but when the

agreement was typed up, it was typed up with

either zero dollars and done as a promotional code,

or it was done with maybe 20 bucks, but the other

80 was missing.

Same thing I foun d in the collections area. As he

was going out in the field and collecting payments

from customers, he would then come back and

either three time the account with a promotional

code, or he would pay partial money to the account

and then free time it. HeÔd do one or the other. This

hurts the customer double because when you free

time a customerÔs account, that doesnÔt apply

towards ownership. ItÔs just free time. ItÔs just

moving their agreement forward a week or two

weeks or whatever it is. So basically the paid

money didnÔt get applied to their account.

And once we discovered that, I found hundreds of

examples. And so we Ï I brought in a guy named

Ryan, he works at the corporate office . . . Ryan

came in Ï into the account managerÔs office with me

as my wi tness as I began to question Ed on the

money discrepancies and the missing funds and all

of these specific receipts. Ed was obviously very,

very nervous. He changed his story repeatedly. At

one point heÔd say, ÑOkay, yeah, I did it,Ò and then

he would turn around and say, ÑNo, I didnÔt do it.Ò

And this went on for probably a good 45 minutes to

an hour where we just finally Ï Ryan and I both got

so frustrated we just said, ÑAll right, listen, weÔre

going to end your employment today with RNR

and Ï and weÔre going to go ahead and seek legal

remedies.Ò

9. Mr. Iampiere estimates that Mr. Hollins stole $7,000 to $8,000. As for

the authoritiesÔ involvement in this incident, Mr. Iampiere explained as

follows:

So at that point, after I terminated Ed, we Ï I then

contacted the police department and started a

case . . . After a few months of a lot of work, we

were still going back through receipt books, it was a

very time - consuming, tedious task to go through

one by one, match up dates and all the stuff that

you g ot to do, the owner of RNR had decided that

since we had hundreds and hundreds and hundreds

of customers, the police wanted to now interview

and talk to each one of those customers in order to

solidify this case, and the owner, Larry Sutton, was

afraid tha t that would not be good on the business

and decided instead of filing charges, he was just

going to write this stuff off. We redid a bunch of

customersÔ agreements to credit them the money

that they had been missing and then just decided to

move forward.

The interesting thing I think is important to note,

A, when I interviewed Ed, I remember him talking

about the church and everything as well. It was one

of the things I was originally fond of him about.

But, also, when Ï after we did not file charges, the

detectives that were working the case called me

back, pleading with me to continue with those

charges because they said there had been other

businesses that had done the same thing and Ed

needed to pay a price. I went back to the owner,

tried to convince him. He did not want to do it. And

so it was water under the bridge at that point.

10. Mr. Iampiere was a compelling witness and his testimony regarding

Mr. HollinsÔ s tenure at RNR is credited.

11. After separating from RNR, Mr. Hollins spent three ye ars working as

a logistics specialist for U - Haul and earned several sales and service awards.

12. Mr. Hollins met his wife, Lakesha Hollins, in 2014. She founded and

runs a mentoring program called Arising Phenomenal Princess (ÑAPPÒ). APP

is a not - for - prof it organization Ñcreated to empower young ladies to live out

their full potential in Christ.Ò The organization works to enrich the lives of

young women between the ages of 7 and 21 by Ñproviding weekly Bible study,

career and college preparation, life skil ls training, peer to peer mentoring,

etiquette classes, self - esteem workshops, leadership training, and character

building.Ò

13. Mr. Hollins facilitated a partnership between APP and a church in

Daytona Beach, organized APPÔs finances, and eventually becam e APPÔs chief

financial officer.

14. After Mr. Hollins left U - Haul, he and his wife founded a daycare

facility called Cradles of Greatness. At the time of the final hearing in this

matter, Cradles of Greatness was caring for 40 children.

15. Mr. Hollins ha s completed a substantial amount of training relevant to

working in a daycare facility. He has earned certifications from the

Department of Children and Families (ÑDCFÒ) in the following areas : Health,

Safety, and Nutrition; Child Care Facility Rules & Reg ulations; Child Growth

and Development; Identifying and Reporting Child Abuse and Neglect;

Behavioral Observation and Screening; Understanding Developmentally

Appropriate Practices; and Preschool Appropriate Practices. Mr. Hollins also

has training in adu lt and pediatric first aid, CPR, emergency planning, child

safety and prevention, health and sanitation, precautions in transporting

children, safe sleep practices, and preventing child abuse and trauma.

16. Mr. HollinsÔ s position with Cradles of Greatness required him to

undergo a background screening. DCF initially determined that Mr. HollinsÔ s

grand theft conviction disqualified him from working in a position having

direct contact with children or vulnerable adults served by programs

regulated by DCF. Fo llowing a formal administrative hearing on

February 13, 2019, the Honorable Yolanda Y. Green determined via a

Recommended Order issued on March 27, 2019, that Mr. Hollins had shown

by clear and convincing evidence that he was rehabilitated from his

disqua lifying offense. 3

17. While the exact nature of the position he is seeking to hold with a

home healthcare company is not in the record, Mr. Hollins testified that he

was seeking to work as a chief financial officer. However, he has not

demonstrated by cl ear and convincing evidence that he is rehabilitated from

his disqualifying offense.

3 DOAHÔs case managem ent system does not indicate whether DCF has issued a final order

adopting or rejecting Judge GreenÔs recommendation.

C ONCLUSIONS OF L AW

18 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 435.07, Fla. Stat.

19. Section 430.04 02(1)(a) mandates that a Level 2 background screening

is required for direct service providers. Section 430.0402(1)(b) defines a

Ñdirect service providerÒ as:

A person 18 years of age or older who, pursuant to

a program to provide services to the elderly , has

direct, face - to - face contact with a client while

providing services to the elderly, has direct, face - to -

face contact with a client while providing services

to the client and has access to the clientÔs living

areas, funds, personal property, or person al

identification information as defined in s. 817.568.

The term includes coordinators, managers, and

supervisors of residential facilities and volunteers.

20. With regard to Level 2 screening standards, section 435.04(2) provides

that:

[t]he security ba ckground 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 under any of the following provisions of

state law or similar law of another jurisdiction . . .

21. Section 435.04(2) goes on to enumerate several offense s resulting in

employment disqualification, and section 435.04(2) (cc) refers to Ñtheft,

robbery, and related crimes, if the offense is a felony.Ò

22. Because Mr. Hollins pled no contest to a charge of grand theft, a fi rst -

degree felony, he is disqualified from being a direct service provider.

23 . However, section 435.07 authorizes an agency head to grant a person

otherwise disqualified under section 435.04 an exemption from

disqualification under certain circumstances. In that regard,

section 435.07 (3)(a) provides that:

E mployees seeking an exemption have the burden

of setting forth clear and convincing evidence of

rehabilitation, including, but not limited to, the

circumstances surrounding the criminal incident

for wh ich 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 p resent a danger if employment

or continued employment is allowed.

24. Clear and convincing evidence is a heightened standard requiring

more than a mere preponderance of the evidence. In re Graziano , 696 So. 2d

744, 753 (Fla. 1997). This evidentiary stand ard has been described as follows:

[C]lear 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 witnesse s 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 allegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)( quoting Slomowitz v. Walker , 429

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

25. Section 435.07(3)(c) provides that the agency headÔs decision to grant

or deny an exemption Ñmay be contested through the hearing procedur es set

forth in chapter 120. The standard of review by the administrative law judge

is whether the agency headÔs intended action is an abuse of discretion.Ò

26. Therefore, even if the applicant demonstrates rehabilitation, he or she

is only eligible for an exemption, not entitled to one. The agency head

possesses the discretion to deny an exemption request, but may not lawfully

do so if the denial would constitute an abuse of discretion. See J.D. v. DepÔt of

Child. & Fams. , 114 So. 3d 1127 (Fla. 1st DCA 201 3); see also Heburn v. DepÔt

of Child. & Fams. , 772 So. 2d 561 (Fla. 1st DCA 2000).

27. Under the highly deferential Ñabuse of discretionÒ standard, if

reasonable persons could differ as to the propriety of the agency action taken,

then the action is not unreasonable and there can be no finding of an abuse of

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

C onversely, if the agencyÔs denial of the exemption request is unreasonable,

then its action constitutes an abuse of discretion. See Canakaris , 382 So. 2d

at 1203 (discretion is abused when the action is arbitrary, fanciful, or

unreasonable).

28 . In reconciling the Ñabuse of discretionÒ standard mandated by

chapter 435 with the Ñde novoÒ proceeding provided by chapter 120, the F irst

District Court of Appeal has stated that while:

The ultimate legal issue to be determined by the

ALJ in a proceeding under section 435.07(3)(c) is

whether the agency headÔs intended action was an

Óabuse of discretion,Ô the ALJ is to evaluate that

que stion based on facts determined from the

evidence presented at a de novo chapter 120

hearing.

J.D. , 114 So. 3d at 1132.

29. The evidence does not clearly and convincingly demonstrate that

Mr. Hollins has been rehabilitated since the disqualifying offen se. While

Mr. Hollins carried his burden of proof in Judge GreenÔs case, there are at

least two facts that distinguish the instant case from Judge GreenÔs. 4 First,

4 Even if it were to be assumed that DCF granted an exemption to Mr. Hollins, that

exemption is not binding on AHCA in its decision on a request for exemption to act as a

Judge GreenÔs case involved Mr. HollinsÔ s effort to obtain an exemption so

that he could op erate a daycare facility, and there is no evidence suggesting

that Mr. Hollins is a danger to children. The other distinguishing factor is

that Judge Green did not have the benefit of Mr. IampiereÔs testimony.

Section 435.07(3)(a) requires an agency head to consider the applicantÔs

history Ñsince the incident,Ò and Mr. IampiereÔs credible testimony cast

considerable doubt on whether Mr. Hollins can be entrusted with othersÔ

money. Accordingly, AHCA would not be abusing its discretion by denying

Mr. Hollins Ô s request for an exemption from employment disqualification as it

relates to providing direct service to elderly clients, including access to their

funds, personal property, and personal identification information .

R ECOMMENDATION

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

R ECOMMENDED that the Agency for Health Care Administration deny Edward

HollinsÔ s request for an exemption from employment disqualification.

D ONE A ND E NTERED this 19th day of January, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

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

direct care provider to elderly clients. £ 435.07(5), Fla. Stat. (providing that Ñ[e]xemptions

granted by one agency shall be considered by subsequent agencies, but are not binding on the

subsequent agency.Ò).

Filed with the Cl erk of the

Division of Administrative Hearings

this 19th day of January, 2021 .

C OPIES F URNISHED :

Edward Hollins

Post Office Box 10516

Daytona Beach, Florida 32120

(eServed)

Katie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 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)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Bu ilding 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

T h omas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Bill Roberts, Acting General Counsel

Agency fo r Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shevaun L. Harris, Acting Secretary

Agency for 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 exceptions to this Recommended

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

case.