The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of April, 2013.
The Issue An Administrative Complaint dated February 8, 1999, alleges that Respondent committed violations of Section 493.6118, Florida Statutes, when he performed armed security officer services without a proper license and when he failed to cooperate with an official investigation and gave false information regarding his identity and address. The issues in this proceeding are whether the alleged violations occurred and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Vance H. Britto, was licensed by the Florida Department of State as a security officer some time prior to 1993. His license expired and he was deemed ineligible for re- licensure because of an unpaid disciplinary fine. On August 27, 1998, at approximately 11:30 p.m., Richard Yates, an investigator with the Florida Department of State, conducted a pro-active investigation at Windhover Apartments in Orlando, Orange County, Florida. Investigator Yates was accompanied by his colleague, Ed Sundberg. The investigators approached an individual wearing a security officer's uniform and badge and carrying a 38-caliber revolver. They identified themselves and asked the individual for his name and security officer's license. The individual gave his name as David Wilson but said that his license was at his employer's office being laminated. Although he was in a white Ford sedan with security markings, the individual denied having his driver's license or social security card with him. He gave his address as 2203 Page Street in Orlando. He gave his supervisor's name as Ricky Heath and his employer as Security Enforcement Services, Inc. After a brief exchange with the investigators, the individual sped away in his vehicle. Investigator Yates made a note of the license plate and made further notes on an inspection checklist. When he returned to his office and described the individual and the encounter to his supervisor, and with the aid of a file photograph, Investigator Yates was able to identify the individual as Vance Britto, a former licensee. In 1998 and to the present time, Mr. Britto has not been licensed with either a "Class G" or "Class D" license. No one knew Mr. Britto at the Page Street address he gave the investigators and when they checked his address in the computer file they learned that he had not lived there in over two years.
Recommendation Based on the foregoing, it is RECOMMENDED: that the agency enter its formal order finding Respondent guilty of violating Sections 493.6118(1)(g) and (o), Florida Statutes, and assessing an administrative fine of $1,000. DONE AND ENTERED this 8th day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1999. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Vance H. Britto 6525 Pompeii Drive Orlando, Florida 32822 Honorable Katherine Harris Secretary of State Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250
The Issue The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53, Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the appropriate remedy.
Findings Of Fact Admitted Facts Per Joint Pre-hearing Stipulation Sure-Tek is an employer as defined by section 70-51, Pinellas County Code. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment. Additional Findings of Fact Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found. Diabetes Insipidus Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests, Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats, meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus. Employment at Sure-Tek Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at 400+ degrees. The room with the ovens is very hot, often 120 degrees or more. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately 10 employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of Ms. Turner's discrimination complaint. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much." Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/ When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally." Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner, Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point, Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner, Mr. Currie asked her to stay to train her replacement, which she refused to do. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary employee to cover for her so she could have the time off for her surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the call. Mr. Currie claimed that after the first few weeks, he started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by SureTek. Ms. Rodriguez was then fired, allegedly for performance problems.3/ Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result). Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired her--that it was not going to work out, with her diabetes. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800 to $2,500.00, but no evidence was presented to prove that there was an increase in SureTek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems with this account or that Ms. Turner's performance can be faulted at all. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove Mr. Currie's unsubstantiated claim. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him. While Ms. Turner was employed at SureTek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave. Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination. Appropriate Remedy Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times 40 hours per week). This evidence was not challenged by Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00 Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both her grandfather and father help her out financially, helping to pay her rent and her bills. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately 30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Sure-Tek Powker Coating, Inc., violated section 70-53, Pinellas County Code; Ordering Respondent to pay Petitioner, Rebecca Turner, the sum of $26,456.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Turner reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 22nd day of September, 2011.
The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 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 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent, a licensed real estate salesperson, committed the offenses alleged in the Administrative Complaint, and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent has been a duly licensed real estate sales person in the State of Florida at all times pertinent to this proceeding. Prior to March 31, 1997, Petitioner mailed to Respondent a renewal notice that reminded her that her license would expire on March 31, 1997. Accompanying the renewal notice was an insert that contained the following caveat: In order to renew, the RENEWAL NOTICE MUST BE RETURNED WITH THE APPROPRIATE FEE. By submitting the appropriate fee to the department, you are affirming that you have "COMPLETED" the required classroom education. Respondent submitted her renewal card along with the requisite fee without having completed a 14-hour continuing education course required by Rule 61J2-3.009, Florida Administrative Code. Respondent's license was thereafter renewed by Petitioner, effective March 31, 1997. Respondent discovered from a discussion with her broker that she should have taken the continuing education course before she submitted her renewal application. By letter dated June 12, 1997, Respondent advised Petitioner that she sent in the paperwork for the renewal of her license before she had taken the continuing education course. Respondent successfully completed the required 14-hour continuing education course on June 18, 1997. Respondent testified without contradiction that she did not intend to misrepresent the status of her continuing education.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner find Respondent guilty of violating the provisions of Sections 475.25(1)(e) and (m), Florida Statutes, and imposes an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of June, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Rosemary Nixon, pro se 6565 Parkview Drive Boca Raton, Florida 33433 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue The issue is whether Petitioner should revoke, suspend or otherwise discipline Respondent’s certification as a law enforcement officer pursuant to Section 943.1395(7), Florida Statutes.
Findings Of Fact Petitioner issued Certificate Number 91034 to Respondent on August 24, 1984. At all times material to this matter, Respondent worked as a patrolman for the City of Chiefland Police Department. During the last couple months of his active duty service, he was training to become a K-9 officer. In 1993, Petitioner issued a letter of guidance to Respondent and placed him on one year of probation after Respondent admitted that he had engaged in sex while on duty. On March 17, 1994, Henry W. Nicholson became Chief of Police in the City of Chiefland. In the summer of 1994, Michelle Hallman (formerly Michelle King) worked at ABC Pizza. She was eighteen years old at that time. On days that she was not working, Michelle sometimes went to ABC Pizza to help the other employees close up. On one such evening, Ms. Hallman met Respondent and Officer Hicks in the ABC Pizza Parking lot. They had a casual conversation in which Ms. Hallman joked that she would tell the Chief that Respondent had pinched her on the butt. Respondent laughed and replied that he would tell the Chief that Ms. Hallman dropped on her knees and begged. Respondent also told Ms. Hallman that he did not need that kind of trouble again. The Chief pulled into the parking lot while Ms. Hallman was talking to Respondent and Officer Hicks. The Chief needed to let Respondent know that he was not planning to go to K-9 training with Respondent that evening. About a month later, on June 10, 1994, Respondent was patrolling near a community center known as the Pine Land Center. He saw Ms. Hallman riding by in her car. He and Ms. Hallman pulled their respective cars into the parking lot of the community center and had another casual conversation. During this conversation, Ms. Hallman asked Respondent if he ever messed around. Respondent replied that because of his past problems he never went out with anyone unless the girl asked him. The next evening, June 11, 1994, Respondent began his shift at 6:00 p.m. He was scheduled to work a twelve hour shift. Early in the evening, Respondent saw Deputy Meeks, a deputy with the sheriff’s office. They agreed to eat supper together at the Subway around 11:00 p.m. As the evening progressed, Respondent answered several calls. Between 8:30 and 9:00 p.m. Respondent responded to a call involving a dog bite. After completing the matter involving the dog bite, Respondent saw Ms. Hallman at or near the Circle K. She told him she wanted to talk to him. They agreed to meet at a small public park known as Delma Lock. The park was near a school and a football field. A baseball game was in progress at a baseball field located between the Circle K and the park. The area of the park in which Respondent and Ms. Hallman met was dimly lit. Even so, Ms. Hallman felt like there were too many people around the park or driving by that might recognize her. Respondent suggested they go to the police station. Respondent parked his patrol car in front of the police station. When Ms. Hallman arrived she parked on the side of the building. They went in the side door and into Respondent’s office. There was no other person present in the building. Ms. Hallman told Respondent that she had been a witness to an automobile accident earlier in the day. Respondent and Ms. Hallman had been in his office just a few minutes when Deputy Meeks knocked on the back door of the police station. Respondent opened the door for Deputy Meeks who was ready to go to the Subway for supper. While Respondent and Deputy Meeks were eating their sandwiches at the Subway, Ms. Hallman came in to get a sandwich for a friend of hers. She carried on a brief conversation with Respondent. Sometime around midnight, Respondent spent a few minutes at the Midtown Jiffy visiting with a friend of his, Joan Schubert. From 12:46 to 12:56 a.m., Respondent checked on the alarm at the Senior Citizens Center. Respondent next saw Ms. Hallman near the Circle K. They agreed to meet back at the Delma Lock park. Once again there were too many people at the park for Ms. Hallman to be comfortable. Respondent suggested they meet at the Department of Transportation building. He told Ms. Hallman how to find the building. Ms. Hallman arrived at the designated building first. Respondent pulled into the driveway and told her to follow him. They drove behind the building and parked. Both of them got out of their cars. The area was well lit, but cars from the highway in front could not see what was going on. Respondent took off his gun belt and dropped his pants. Ms. Hallman dropped her shorts. They had sexual intercourse standing up and leaning against the trunk of Ms. Hallman’s car. After having sex, Respondent heard a radio call for Deputy Meeks to respond to a disturbance at Levy Norris’s house. The call originated around 1:35 a.m. The dispatcher explained that the Norris residence was across the road from the Catholic church and down an unpaved road beside Thompson’s garage. Respondent knew that Deputy Meeks was making the final loop of his patrol before going off duty at 2:00 a.m. Respondent was out of breath when he got to his radio. He called Deputy Meeks on the radio and asked him where he was coming from. Deputy Meeks replied that he was in Rosewood which was at least ten miles away. Respondent said that he was “right here at the church.” Respondent asked Deputy Meeks whether he should wait or go on to the Norris residence. Deputy Meeks told Respondent to go ahead and gave Respondent directions. Respondent left Ms. Hallman in the parking lot of the Department of Transportation building. She did not see him again. Respondent was enroute to the Norris residence by 1:38 a.m. He arrived on the scene at 1:42 a.m. It took him four minutes to get there. The Catholic church was used as a landmark to identify the road on which Levy Norris lived. It is located in the same vicinity as the Department of Transportation building where Respondent met Ms. Hallman. Later in June of 1994, Ms. Hallman went to Chief Nicholson to complain that another of his officers made derogatory comments about her which caused her to lose a prior job. Ms. Hallman said the same officer was attempting to get her fired from her current job by making derogatory remarks about her to her employer. In the course of investigating this complaint, Chief Nicholson learned that Respondent may have had an affair with Ms. Hallman. Chief Nicholson called Ms. Hallman and requested that she come to his office. At that meeting, Ms. Hallman denied that she and Respondent had sex. A day or two later, Ms. Hallman returned to Chief Nicholson’s office. She admitted that she had sex with Respondent. Respondent never included his interaction with Ms. Hallman in his duty log. Respondent gave sworn statements to Chief Nicholson on June 24, 1994 and July 1, 1994. When questioned, Respondent knowingly made false statements to mislead Chief Nicholson about his relationship with Ms. Hallman. Chief Nicholson concluded his internal investigation and decided to terminate Respondent’s employment. Chief Nicholson advised Respondent of his decision in a memorandum dated July 6, 1994 and received by Respondent’s counsel on July 25, 1994. The Chiefland City Commission, sitting as the City Personnel Review Board, conducted a hearing on August 29, 1997. Respondent’s employment with the City of Chiefland was terminated effective September 6, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that Petitioner enter a Final Order revoking Respondent’s law enforcement certification. DONE AND ORDERED this 8th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, FL 32301-1218 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether the Respondent, Cardinal Apartment Management Group, unlawfully discriminated against Petitioner, Guy Norris, on the basis of handicap.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent as a resident maintenance manager. At the appointed time and place of hearing, Petitioner failed to appear and present any evidence in support of his petition for relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be issued dismissing the Petitioner's charge of discrimination against Respondent. DONE and ENTERED this 19th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA D. DONNELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1991. COPIES FURNISHED: H. Alan Arfken, Esquire ARFKEN & ELLIOTT Flatiron Building, Suite 300 707 Georgia Avenue Post Office Box 6337 Chattanooga, Tennessee 37401 Guy Norris 5757 66th Street, North, Lot #33 St. Petersburg, Florida 33709 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
