STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HODGE PAVILION STEM ACADEMY (6402),

Petitioner,

vs.

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Respondent.

/

Case No. 14-1006SP

RECOMMENDED ORDER

On May 13, 2014, an administrative hearing in this case was held by video teleconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth L. Williams, Esquire

Atlantic Justice Law Group, PLLC Suite 106

118 East Jefferson Street Orlando, Florida 32801-1839

For Respondent: Bonnie Ann Wilmot, Esquire

Florida Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

The issue in this case is whether the Application to Participate in Educational Scholarship Programs submitted by the

Petitioner, Hodge Pavilion Stem Academy (6402), should be

approved.

PRELIMINARY STATEMENT

On October 30, 2013, the Petitioner, through its administrator Arthur Jenkins, filed an Application to Participate in Educational Scholarship Programs for the 2013-14 school year. By letter dated January 8, 2014, Commissioner of Education Pam Stewart (Respondent) notified Mr. Jenkins that the application was denied.

The Petitioner challenged the decision through a Petition for Administrative Hearing filed with the Respondent. On March 5, 2014, the Respondent forwarded the Petition to the Division of Administrative Hearings. The hearing was initially scheduled to commence on April 3, 2014, and, based on the unopposed motion of the Respondent, was rescheduled for May 13, 2014.

At the hearing, the Petitioner presented the testimony of four witnesses and had Exhibits 1 through 10 admitted into evidence. The Respondent presented the testimony of five witnesses and had Exhibits 1 through 13 admitted into evidence.

A Transcript of the hearing was filed on May 20, 2014. Both parties filed proposed recommended orders that have been reviewed in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The John M. McKay Scholarships for Students with Disabilities Program (McKay) and the Florida Tax Credit Scholarship Program (FTC) provide state funds to pay private school tuition to qualified students.

2. Private schools must apply to, and obtain approval from, the Respondent to participate in the scholarship programs. Approval of an application authorizes the private school to receive the scholarship funds. Individual scholarship checks are made payable to the parent of each qualified student and the name of the student’s private school. The parent endorses the check and provides it to the school.

3. In the spring of 2013, Mr. Jenkins and an associate, Ayesha Hackman, founded a private school identified as the “Harmon-Hodge STEM School.”

4. The Harmon-Hodge STEM School submitted an application to participate in the McKay and FTC programs. The Respondent approved the application.

5. Not long after the Harmon-Hodge STEM School was founded, Mr. Jenkins and Ms. Hackman began to disagree about the direction of the school. When Ms. Hackman sought to obtain control over the school, Mr. Jenkins announced to her that he was severing his ties with the school. At Ms. Hackman’s request, Mr. Jenkins agreed to continue his employment with the school.

   
   

6. During the summer of 2013, Mr. Jenkins and an associate, Tami Robinson, began to organize another private school, the Petitioner in this proceeding.

7. By August of 2013, Ms. Hackman consolidated her control of the Harmon-Hodge STEM School. She amended the corporate documents to designate herself as the chief executive officer, to identify Mr. Jenkins as the school principal, and to delete the hyphen from the school name (now identified as the “Harmon Hodge STEM School.”)

8. Students began attending the Harmon Hodge STEM School in August of 2013.

9. One month later, the school started accepting scholarship checks payable to the “Harmon-Hodge STEM School.”

10. Mr. Jenkins came into possession of an FTC scholarship check for $1,183.40, made payable to the parent of an enrolled student and to the Harmon-Hodge STEM School.

11. In early October of 2013, Mr. Jenkins opened an account at a Wells Fargo bank in the name of Harmon Hodge STEM School and deposited the check into the account. Mr. Jenkins designated only himself as the authorized signatory on the account and did not advise Ms. Hackman that he had opened the account.

12. Very shortly after the account was opened, Wells Fargo notified Mr. Jenkins that the account was being closed.

    
    

13. At the hearing, Mr. Jenkins testified that the account closure was related to a previous incident of identity theft involving his personal bank account.

14. Wells Fargo returned the deposited funds to Mr. Jenkins in the form of cash.

15. At the hearing, Mr. Jenkins testified that he used some of the cash to pay Harmon Hodge STEM School vendors who, he said, had not been paid by the school. No documentation was offered to support the testimony. Mr. Jenkins testified that the vendors did not present bills for services, and no receipts for payment were obtained from the vendors. Mr. Jenkins’ testimony is not credible.

16. Mr. Jenkins testified that he retained the remainder of the cash because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed

    Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use.

17. After the Wells Fargo account was closed, Mr. Jenkins came into possession of two FTC scholarship checks totaling

    $2,400 that were payable to the parents of enrolled students and to the Harmon-Hodge STEM School.

18. Mr. Jenkins then opened a bank account at Bank of America in October of 2013, again in the name of Harmon Hodge STEM School.

    
    

19. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise

    Ms. Hackman of the account.

    
    

20. As was the case with the Wells Fargo account, Bank of America notified Mr. Jenkins shortly after the account was opened that the account was being closed.

21. Mr. Jenkins testified that this account closure was also related to a previous incident of identity theft involving his personal bank account.

22. Bank of America returned the deposited funds to

    
    

    Mr. Jenkins in the form of a bank check made payable to Harmon Hodge STEM School.

23. Using the Bank of America bank check, Mr. Jenkins opened a third account, still in October of 2013, in the name of Harmon Hodge STEM School, this time at Chase Bank.

24. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise

    Ms. Hackman of the account.

    
    

25. Mr. Jenkins used a debit card issued on the Chase account to withdraw cash from the account and to spend the funds in the account.

26. Mr. Jenkins again testified that he used some of the cash withdrawn from the Chase account to pay Harmon Hodge STEM

    
    

    School vendors. No documentation was offered to support the testimony. Mr. Jenkins’ testimony is not credible.

27. Mr. Jenkins testified that he retained the remaining Chase deposit because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed

    Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use.

28. Towards the end of October, Ms. Hackman became aware of the unauthorized banking activity and filed a report with local law enforcement. Criminal charges were filed against Mr. Jenkins related to some of the banking activities referenced herein. The charges were pending at the time of the hearing.

29. On October 30, 2013, Mr. Jenkins submitted an application on behalf of the Petitioner seeking approval to participate in the McKay and FTC scholarship programs.

30. By letter dated January 8, 2014, the Respondent, aware of the banking activities referenced herein, notified Mr. Jenkins that the application was denied.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.56 and 120.57, Fla. Stat. (2013).1/

32. The Petitioner has the burden of establishing by a preponderance of the evidence that it is entitled to approval of

    
    

    the application. Fla. Dep’t of Transp. v. J.W.C. Co., Inc.,

    
    

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep’t of HRS,

    
    

    348 So. 2d 349 (Fla. 1st DCA 1977). The evidence fails to establish that the Application to Participate in Educational Scholarship Programs, filed by Mr. Jenkins on behalf of the Petitioner, should be approved.

33. Section 1002.39, Florida Statutes, establishes the McKay Program. Section 1002.39(7) provides that the Commissioner of Education may deny a private school’s participation in the McKay program if the Commissioner determines that the owner or operator of the school has operated an educational institution “in a manner contrary to the health, safety, or welfare of the public.”

34. Section 1002.395 establishes the FTC Program. Section 1002.395(11) provides that the Commissioner of Education may deny a private school’s participation in the FTC program if the Commissioner determines that the school has failed to comply with the requirements set forth therein. Section 1002.395(11)(a)2. provides that the Commissioner may deny participation if the owner or operator of the school has operated an educational institution “in a manner contrary to the health, safety, or welfare of the public.”

35. The evidence establishes that without authorization by the Harmon Hodge STEM School or by any person acting in an

    
    

    official capacity with the school, Mr. Jenkins opened bank accounts in the name of the school. He obtained scholarship checks of students enrolled in the Harmon Hodge STEM School and deposited them into the accounts he had opened. The evidence fails to establish that Mr. Jenkins was authorized to deposit the scholarship funds into the accounts he created or entitled to use the funds for any purpose.

36. The banking activities referenced herein were contrary to the welfare of the public and are sufficient to warrant denial of the application filed by Mr. Jenkins on behalf of the Petitioner to participate in the McKay and FTC scholarship programs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order denying the Petitioner's Application to Participate in Educational Scholarship Programs.

DONE AND ENTERED this 17th day of June, 2014, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 17th day of June, 2014.

ENDNOTE

1/ All references to Florida Statutes are to the 2013 modification, unless otherwise noted.

COPIES FURNISHED:

Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Kenneth L. Williams, Esquire Atlantic Justice Law Group, PLLC Suite 106

118 East Jefferson Street Orlando, Florida 32801-1839

Bonnie Ann Wilmot, Esquire Florida Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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.

Docket for Case No: 14-001006SP

Orders for Case No: 14-001006SP