The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 15th day of June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government 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, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. 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 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
Findings Of Fact Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating." Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay. RECOMMENDED this 30th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33. 3.-4. Accepted but subordinate and unnecessary. 5.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used. 8.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the gesture was to roll down the window. Accepted and incorporated. The officer's misinterpretation of what he saw and heard is rejected as not proven. Accepted and incorporated. Rejected as not proven that the Respondent gestured for the officer to follow. 16.-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated. Rejected as not proven. 25.-26. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rejected as not proven that the wallet was in his coat pocket the whole time. Accepted; in part incorporated and in part subordinate to facts contrary to those found. Rejected as not proven that the matches were in his coat pocket the whole time. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated. 32.-34. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. (The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.) Accepted and incorporated. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640 Howard Hinesley Superintendent of Schools School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649-2942 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact On May 11, 1977, at an establishment advertised as Mr. Big Stuff's Bedroom, female topless dancers were observed either straddling customers legs or dancing between customers legs while either placing their breasts close to or touching the customers' faces. No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Central Florida Clubs. No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the dance, taken as a whole, appealed to prurient interests. Accordingly, it is found, as a matter of fact, that to the average person, applying contemporary community standards, the dominant theme of the dance presented at Mr. Big Stuff's Bedroom, taken as a whole, did not appeal to prurient interests. No evidence was introduced purporting to demonstrate whether Mr. Big Stuff's Bedroom was operated under the auspices of the licensee, Central Florida Clubs. Accordingly, it is found, as a matter of fact, that Mr. Big Stuff's Bedroom was not operating under the auspices of the licensee, Central Florida Clubs. On May 11, 1977, an unidentified person declared that if one drink were purchased, then a second drink, at a reduced price, would be provided for a waitress. No evidence was introduced as to the identity of the person nor purporting to establish that such person was an agent, servant or employee or entertainer of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the unidentified person was not an agent, servant, employee or entertainer of Central Florida Clubs. No evidence was introduced purporting to establish that Harold Ernest Squires, Jr., was an agent, servant or employee of Central Florida Clubs, or that Harold Ernest Squires, Jr., did knowingly permit one Joyce Marie Polakowski to loiter in or about the licensed premises for the purpose of begging or soliciting a person, customer or visitor, to purchase a beverage. Accordingly, it is found, as a matter of fact, that Harold Ernest Squires, Jr., was not an agent, servant or employee of Central Florida Clubs and that Harold Ernest Squires, Jr., did not knowingly permit Joyce Marie Polakowski or any other person to loiter in or about the license premises for the purpose of begging or soliciting a customer to purchase a beverage.
