STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GADSDEN COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

v. ) CASE NO. 92-2375

)

CHARLIE C. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 21 and 22, 1992, in Quincy, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Deborah J. Stephens

Attorney at Law

The Ausley Law Firm

227 South Calhoun Street Tallahassee, Florida 32302

For Respondent: David Brooks Kundin

Attorney at Law Dobson & Kundin, P.A. Post Office Box 430

Tallahassee, Florida 32302 STATEMENT OF ISSUES

The issues are whether there were good and sufficient reasons to support the termination of Respondent, Charlie C. Davis (Davis), from his employment with the maintenance department of the Petitioner, Gadsden County School Board (the Board), and if not, whether Davis is entitled to relief, including back pay, reinstatement and attorney's fees and costs.

PRELIMINARY STATEMENT

This proceeding is predicated on the suspension and recommended termination of Davis by the Board on the recommendation of Robert H. Bryant, Superintendent of the Gadsden County School District, for the reasons stated in the letters of March 23 and 25, 1992.

The Board presented the testimony of Tomeka Mitchell, Tiesha Parker, Cheryl Denise Roberts, Lashea Alexander, Cecil Morris, Jr., Joseph R. Pace, James W. Brown, Jr., and Robert H. Bryant. The Board had Exhibits 1-6, 8, 9a, and 9b admitted in evidence, however Exhibit 9a has been excluded from consideration because Aquiana Delapierre failed to appear and testify and Exhibit 8 was

admitted as being a document reviewed by Bryant and not for the truth of the matters asserted.

Davis presented the testimony of Joseph R. Pace, Charlie C. Davis, Sr., Cecil Morris, Jr., Angela Reese, Phillip J. Hannah, Jr., and Mattie Mae Brown.

The transcript of the proceedings was filed on August 3, 1992. The parties both timely filed proposed findings of fact and conclusions of law on August 24, 1992. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department.

   
   

2. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian.

   
   

3. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian.

   
   

4. On March 23, 1992, Davis was suspended by the Superintendent with pay.

   
   

5. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board.

   
   

6. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them.

   
   

7. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief.

   
   

8. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14]

   
   

9. Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over.

10. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse.

    
    

11. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha.

    
    

12. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner.

    
    

13. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them.

    
    

14. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness.

    
    

15. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed.

16. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis'

    
    

    violation of Gadsden County Board Rule 5.112 which provides in pertinent part:

    
    

    1. Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to:

       
       

       * * *

       
       

       (h) Violation of law, State Board of Education Rules, or School Board Rules.

       
       

       Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised

       me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules.

       
       

17. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined.

    
    

18. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services.

    
    

19. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it.

    
    

20. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2,

    1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis.

    
    

21. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event.

    
    

22. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis.

    
    

23. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names.

    
    

24. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992.

    
    

25. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred.

    
    

26. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken.

    
    

27. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis.

    
    

28. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus

    and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class.

    
    

29. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed.

    
    

30. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen.

    
    

31. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident.

    
    

32. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

34. Davis was recommended for termination and was suspended without pay for violating Gadsden County Board Rule 5.112(1)(h) by making inappropriate and explicit sexual comments to female students in violation of an unspecified Gadsden County School Board rule. At no time in the proceeding was the rule allegedly violated identified or offered into evidence. Even if the Board had carried its burden of proof, this omission in pleading and in proof would mandate dismissal of the charges.

    
    

35. However, the burden of proof by a preponderance of the evidence is on the Board to show that Bryant's recommendation for termination was for just cause. The evidence fell woefully short of meeting that burden.

36. For the reasons set forth in the Findings of Fact, the testimony of Tomeka Mitchell, Tiesha Parker, Cheryl Roberts, and Lashea Alexander is contradictory, lacking in credibility, and unworthy of belief. Even HRS apparently did not believe the girls' stories regarding any inappropriate touch or attempt to disrobe on the part of Davis. The testimony of Davis was consistent, believable, and entitled to great weight, especially in light of his reputation for honesty and trustworthiness.

    
    

37. Section 230.33(7)(e), Florida Statutes, authorizes the superintendent to recommend suspensions by following the procedure stated therein and to recommend dismissal for non-instructional employees "under the terms prescribed" therein. Regrettably, neither party cited those prescribed terms and the undersigned was unable to find any reference in Chapter 230 to the terms or procedures for termination on a non-instructional employee. The only citation during the hearing or in the pleadings was to Rule 5.112(1)(h) of the Board's rules which requires that the Superintendent's recommendation for termination give good and sufficient reason therefore.

    
    

38. Bryant's reason given was neither good nor sufficient. It was not based on a complete investigation nor on a reasonable review of all of the facts that were gathered. At no time did Bryant even attempt to find out what Davis had to say about the incident. In fact, Bryant acknowledged that he never asked Pace or Brown who or what they believed after they had interviewed the parties involved. Instead he looked at only a part of the available information and decided on his own what evidence was relevant and which version of the events he was going to believe. Such a slipshod and inadequate investigation and determination by Bryant is inexcusable when a long-term and respected Board employee's reputation and livelihood stands to be forever destroyed.

    
    

39. It is a well-settled principle of employment law that an employee who is wrongfully terminated is entitled to back pay and reinstatement. Here Bryant has put forth the position that Davis' annual contract has expired and that Davis cannot be "reinstated," but instead must have his annual contract renewed. Further, Bryant took the position that a renewal cannot be ordered in this proceeding, but can only occur if Bryant recommends to the Board that Davis be given a new annual contract and the Board decides to follow that recommendation.

    
    

40. Essentially, the position taken by the Board through its counsel is that even if Davis is totally exonerated of these charges and no good cause existed for the termination, Davis has no remedy except for back pay to June 30, 1992. Such a position is unconscionable in light of the disregard shown to Davis by Bryant in making the recommendation for termination. Clearly, if these false allegations had never been made or had not been relied on by Bryant, Davis would have had his annual contract renewed, just like he had for the previous eighteen years. Any position to the contrary is fallacious and farfetched.

    
    

41. In light of the foregoing facts and conclusions, the Board has an obligation to restore Davis to the position he would have been in had this not occurred. Under the general principles of employment law, this obligation is arguably one of law. However, the greater obligation is the moral obligation to do what is right. In this case, the right thing to do is to renew Davis' annual contract for the 1992-1993 school year and to make Davis whole, as if these false allegations and this wrongful termination had not occurred. He is entitled to back pay from March 25, 1992, through the end of his annual contract for the 1991-1992 school year. Davis is also entitled to reinstatement to his former position, an annual contract for the 1992-1993 school year and back pay

    for that portion of the 1992-1993 school year when he was wrongfully non-renewed in his former position.

    
    

42. While it appears that Davis should also be awarded his attorney's fees and costs in this proceeding, entitlement to such an award has only been requested pursuant to Section 448.08, Florida Statutes. That section has no application in this proceeding and instead relates solely to actions for unpaid wages brought under the labor provisions of Chapter 448. The request for an award of attorney's fees must be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and

therein:

1. Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract.

   
   

2. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year.

   
   

3. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid.

   
   

4. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992.

DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board

1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22,

24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order.

2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5.

   
   

2. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence.

COPIES FURNISHED:

Robert H. Bryant, Superintendent Gadsden County School Board

Post Office Box 818 Quincy, FL 32351

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

Deborah J. Stephens Attorney at Law

The Ausley Law Firm

227 South Calhoun Street Tallahassee, FL 32302

David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430

Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

BEFORE THE

GADSDEN COUNTY SCHOOL BOARD

GADSDEN COUNTY SCHOOL BOARD,

Petitioner,

1. DOAH CASE NO. 92-2375

   
   

   CHARLIE C. DAVIS,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   Deborah J. Stephens, Tallahassee, attorney for Petitioner. David Brooks Kundin, Tallahassee, attorney for Respondent.

   CHARLIE C. DAVIS (Davis), an annual contract employee, was suspended with pay by now retired Superintendent Robert Bryant (Bryant), of the Gadsden County School System on March 23, 1992 for allegedly making inappropriate and explicit sexual comments to female students. Davis requested a formal hearing by the Gadsden County School Board (the Board). The Board transferred the Hearing to the Division of Administrative Hearings and an evidentiary hearing was held by a designated Hearing Officer on July 21 and 22, 1992.

   
   

   On September 23, 1992, the hearing officer issued her recommended order.

   Each party filed an exception. The parties did not file a transcript.

   
   

   1. We have reviewed the hearing officer's recommended order and accepted her findings of fact. Section 120.57(1)(b)10., Florida Statutes (1992).

      
      

   2. Furthermore, we agree with her analysis of the dispositive legal issues as stated in conclusions of law 32-37; 41 and adopt those conclusions.

      
      

   3. We modify the first sentence of conclusion of law #38 to read as follows:

      
      

      "It is a well-settled principle of employment law that an employee who is wrongfully terminated is entitled to back pay."

      
      

      The balance of paragraph #38 is accepted; therefore, paragraph #38, as modified, is adopted as the conclusion of law of the Board.

   4. We reject conclusions of law #39 and 40. We conclude that the Board has no legal or moral obligation to reinstate Davis after the expiration of his annual contract on June 30, 1992, or to renew that annual contract.

      
      

   5. Finally, we accept the recommendations of the hearing officer that Davis be awarded back pay for the period of March 25, 1992, until the expiration of his annual contract and that we deny Davis' request for attorney's fees and costs.

      
      

   6. All other recommendations made by the Hearing Officer are rejected.

Therefore, it is Ordered that:

1. The hearing officer's recommended order is adopted in part, rejected in part and modified in part, as stated above.

   
   

2. Charlie C. Davis shall be paid back wages for the period from March 25, 1992, until the expiration of his 1991-1992 annual contract on June 30, 1992.

   
   

3. The payroll records of Charlie C. Davis shall be corrected to reflect that he was employed until June 30, 1992 and Charlie C. Davis shall be paid or credited with all benefits that would have accrued to him during the full period of his employment until June 30, 1992 when his annual contract expired and was not renewed.

   
   

4. The personnel records of Charlie C. Davis shall be corrected to reflect that he was employed by the Gadsden County School Board until June 30, 1992, when his annual contract was not renewed. The personnel records shall not reflect that Davis was terminated or dismissed from his employment as a result of the matters determined in this proceeding.

   
   

5. Because Charlie C. Davis was not terminated from his employment with the School Board, the non-renewal of his annual contract does not and shall not disqualify him from applying for further employment with the Gadsden County School Board and he may seek further employment with the Board. In the event that Charlie C. Davis applies for such further employment the Superintendent may consider his application for employment.

   
   

6. Davis' request for attorney's fees and costs incurred in this administrative proceeding is denied.

THIS ORDER may be appealed to the appropriate district court of appeal. A notice of appeal must be received by the Board and the district court of appeal within 30 days from the date of this order. Except in cases of indigence, the court will require a filing fee and the Board will require payment for the record on appeal. Further explanation of the right to appeal is provided in Section 120.68, Florida Statutes and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Board within 15 days from the date of this Order. The motion shall state with particularity the points of fact or law allegedly overlooked or misapprehended by the Board, and shall not reargue the merits of the order.

IT IS SO ORDERED. POTTER, Chairman; DAVIS and CAMPBELL, concurred. JAMES dissented.

DONE AND ENTERED this 8th day of December, 1992.

William E. Potter Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this document was filed and a copy served by regular

U.S. Mail, on Deborah J. Stephens, Attorney at Law, The Ausley Law Firm, 227 South Calhoun St., Tallahassee, Fl 32302, David Brooks, Attorney for Respondent Davis, Dobson & Kundin, P.A., Post Office Box 430, Tallahassee, Fl 32302, and Clerk of the Division of Administrative Hearings this 8th day of December, 1992.

BY: CLERK

Docket for Case No: 92-002375

Orders for Case No: 92-002375