Findings Of Fact Petitioner attended the University of Dayton in Dayton, Ohio, for five semesters beginning in 1966 and ending in 1969. In the first term of the 1967-1968 school year, Petitioner registered for five academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS PSY 201 INTRO PSYCHOLOGY C 3 6 HST 270 ECONOMIC HST OF U.S. D 3 3 ENG 205 MAJOR WORLD WRITERS F 3 0 MIL 201 SECOND YEAR BASIC F 1 0 POL 201 AMER. GOVT-NATL. W 3 0 HRS 10.0 PTS 9.0 AVE 0.9000 ACADEMIC DISMISSAL In the first term of the 1968-1969 school year, Petitioner registered for six academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS ENG 201 POETRY & THE NOVEL C 3 6 FRN 202 INTERM FRENCH II C 3 6 MIL 201 SECOND YEAR BASIC W 1 0 PHL 306 EPISTEMOLOGY F 3 0 POL 303 STATE AND LOCAL GOV F 3 0 POL 306 INTERNATIONAL LAW C 3 6 HRS 15.0 PTS 18.0 AVE 1.2000 ACADEMIC DISMISSAL Petitioner testified that these unsatisfactory grades were not the true evaluation of his academic performance. He claims that they were awarded by professors who refused to follow policies relating to unlimited cuts, attendance, withdrawal, and nonpayment/financial aid adopted by the university in the late 1960s. The record contains copies of the applicable university policies. However, there is no record evidence that the University of Dayton ever corrected Petitioner's transcript to reflect his alleged true academic standing. In 1992, Petitioner began attending Saint Thomas University in Miami, Florida, to complete his education and prepare for a teaching career. Petitioner discussed his prior academic history with a friend, Jeanette Gendron. Ms. Gendron was very concerned that the failing grades from the University of Dayton would adversely impact Petitioner's career in general and his application for a teaching certificate in particular. Petitioner was aware of Ms. Gendron's concerns as they discussed them over the years. Petitioner graduated from Saint Thomas University, Miami, Florida, in May of 1993 with a B.A. degree. On or about June 29, 1993, Petitioner filled out and executed an application for a Florida teaching certificate in the field of Social Science, grades six (6) through twelve (12). On said application, Petitioner signed the following sworn statement: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand the Florida Statutes provide for the revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to the application is true, correct, and complete. Petitioner was residing in Hollywood, Broward County, Florida, at the time he signed this statement. Petitioner filed this application with Respondent on or about June 19, 1993. In November of 1993, Petitioner was attending graduate school in Connecticut. In order to expedite the processing of his application, Petitioner asked his friend, Ms. Gendron, to search his personal records in Florida for a copy of his grade transcript from the University of Dayton. Ms. Gendron found the transcript and made a copy with the following alterations: (1) She changed the unsatisfactory grades to Bs and Cs; (2) She made corresponding changes in credit hours, quality points and grade point averages for two terms; (3) She eliminated the words "Academic Dismissal" for three terms; and (4) She eliminated the words "Readmitted to College of Arts and Sciences, Jan. 1968." After making these alterations on or about November 25, 1993, Ms. Gendron sent the transcript from Florida to Connecticut to Petitioner so he could send it to Respondent. There is no evidence that Petitioner asked Ms. Gendron to alter the transcript. However, Petitioner's testimony that he did not know about the alterations is not persuasive. He knew how Ms. Gendron felt about the bad grades and, according to Ms. Gendron's affidavit, he had the opportunity to review the transcript before he sent it to Respondent. Respondent even testified that: She (Ms. Gendron) told me she was doing it because she didn't like the look of them. She didn't like the grades. She thought that I would be doing better than that. And, we discussed this previously. I did discuss it over the years. About two years ago I discussed it with her, that what had happened, especially before May of 1993, I discussed it. The record copy of this first altered transcript appears to bear the seal of a Notary Public from Connecticut and the date "Nov. 30, 1993" typed in the lower left corner. Respondent received this transcript on or about December 7, 1993. On December 27, 1993, Ms. Gendron altered another copy of Petitioner's grade transcript from the University of Dayton. Using liquid paper and a stamp, she attempted to match the second transcript to the one she sent to Petitioner on November 25, 1993. However, there are obvious differences in the two altered transcripts. The second time she changed the words "Academic Dismissal" to "Academic Evaluation" for three terms. She also did not eliminate the words "Readmitted to College of Arts and Sciences, Jan. 1968." Ms. Gendron used a stamp to make it appear that the corrected transcript was officially approved and initialed by the University of Dayton Registrar. Ms. Gendron's affidavit states that she sent the second altered transcript directly to Respondent on December 31, 1993, and that Respondent should have received it in the first week of January, 1994. However, the alleged stamp and initial of the Registrar is dated January 5, 1994. The transcript also has the date "Jan. 5, 1994" typed in the lower left corner. Upon receipt of the second altered transcript, Respondent notified Petitioner of the differences in the documents. Petitioner asked the University of Dayton to send an official transcript directly to Respondent. On or about February 1, 1994, Respondent received an official transcript from the University of Dayton showing the failing grades for the first term of the 1967-1968 school year and the first term of the 1968-1969 school year along with the correct number of credit hours earned, quality points accumulated, and grade point average. In February of 1994, Petitioner filled out and executed a second application for a Florida teaching certificate in the field of Political Science, grades six (6) through twelve (12). On February 11, 1994, Petitioner signed the second application containing a sworn statement identical to the one set forth above in paragraph nine (9). Respondent received this application on February 15, 1994. By letter dated March 7, 1994, Respondent notified Petitioner that Professional Practices Service would review the official transcript from the university which differed from the original official transcript submitted on Petitioner's behalf. Respondent advised Petitioner that further processing of his application was pending clearance from Professional Practices Service. By letter dated June 24, 1994, Respondent informed Petitioner that his application for certification in Political Science (filed on February 15, 1994) was void and that Respondent would refund the $54 application fee. Respondent advised Petitioner that it was unnecessary to apply for certification in Political Science because that subject area was included in the broader field of Social Science. Respondent refunded the fee for the voided application by state warrant dated June 30, 1994. By Notice of Reasons dated July 12, 1994, Respondent informed Petitioner that his application for a Florida teaching certificate in the field of Social Science was denied. Petitioner worked as substitute teacher in Broward and Dade public schools in 1994 and earned good evaluations from his supervisors. He also taught Sunday School at St. Matthew Catholic Church where he serves as catechist. After receiving his B.A., Petitioner immediately began working towards a M.S. in guidance and counseling at Saint Thomas University. The record contains references from his professors emphasizing his potential as a teacher. Petitioner has completed all academic requirements to be qualified as a Social Science teacher. He has passed all required state teacher certification examinations. His application appears to be complete. Despite being otherwise qualified to hold a Florida teaching certificate, record evidence indicates that Petitioner knew the first two University of Dayton transcripts sent to Respondent incorrectly reflected his academic standing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying the Petitioner's application for a Florida certificate, such denial to be without prejudice to refile a future application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of March, 1995. SUZANNE F. HOOD, Hearing Officer 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 13th day of March, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Rejected. More of a conclusion of law than a proposed finding of fact. Reject Petitioner's assertion that he did not "willfully violate any rules and regulations of the district school board or state Board of Education." See paragraph 24. Rejected. More of a conclusion of law than a proposed finding of fact. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Respondent's Proposed Findings of Fact Accepted in paragraph 18 of this Recommended Order (RO) Accepted in paragraphs 9 & 18 of this RO. Accepted. Implicit in paragraphs 9 & 18 of this RO. Accepted in paragraph 24 of this RO. However, both of the falsified transcripts were submitted prior to the filing of the application dated February 11, 1994. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 2, 3, & 17 of this RO. Accepted in paragraph 19 of this RO. COPIES FURNISHED: Frank O'Neil Post Office Box 661 Hollywood, FL 33022-0061 J. David Holder, Esquire 1480 North Peidmont Way Tallahassee, FL Thomas Abrams, Esq. 1377 97th St. Miami, FL 33154 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2). In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1). In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs. A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2). By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2) Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
Findings Of Fact Based on the Respondent's admissions in the Election of Rights form and on the exhibits and testimony received at the hearing, I make the following findings of fact: The Respondent holds Florida Teacher's Certificate No. 554716 covering the subject of Spanish, issued September 29, 1986, and valid through June 30, 1991. At all times material hereto, the Respondent taught in the Hillsborough County, Florida, school district at Middleton Junior High School. On or about March 23, 1981, the Respondent was arrested by the Lumberton, North Carolina, Police Department and charged with forgery. On or about June 6, 1984, the Respondent submitted an Application for a Teaching Position to the Hillsborough County (Florida) Public Schools in which she certified that she had never been arrested for a criminal offense. On or about June 28, 1984, June 27, 1985, and July 23, 1985, the Respondent submitted applications for teacher's certificates to the Department of Education of the State of Florida in which she certified that she neither had been convicted, nor had adjudication withheld, of a criminal offense. On or about December 10, 1986, the Respondent was arrested by the Tampa (Florida) Police Department and charged with grand theft and uttering a forged instrument. On or about May 28, 1987, the Respondent entered a plea of guilty before the Circuit Court of Hillsborough County, Florida, to one count of grand theft in violation of Section 812.014(2)(b), Florida Statutes, and 18 counts of uttering a forged instrument in violation of Section 831.02, Florida Statutes. Said court thereupon adjudicated the Respondent guilty of said felonies and sentenced her to six months community control and four and one-half years probation. On or about February 23, 1988, the Respondent was arrested by the University of South Florida Police Department, Tampa, Florida, and charged with four counts of uttering a forged instrument. In or about May, 1988, the Respondent was adjudicated guilty by the Circuit Court of having violated the terms of her probation in violation of Section 948.06, Florida Statutes, and she was sentenced to three years in prison.
Recommendation Based on all the foregoing, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding the Respondent guilty of the violations described in the foregoing conclusions of law and permanently revoking the Respondent's Florida teaching certificate. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2993 The following are my specific rulings on all of the proposed findings submitted by all parties: Findings proposed by Petitioner Paragraphs 1 and 2: Accepted Paragraphs 3, 4, and 5: Rejected as not supported by clear and convincing evidence. (The evidence in support of these proposed findings does not even reach the level of competent substantial evidence.) Paragraphs 6, 7, and 8: Accepted. Paragraph 9: Rejected as not supported by clear and convincing evidence, and as contrary to the greater weight of the evidence. Paragraph 10: Rejected as irrelevant in view of the lack of proof regarding paragraph 9. Paragraphs 11 and 12: Accepted in substance, with some incorrect details modified. Paragraphs 13 and 14: Accepted. Paragraph 15: Accepted in substance with some unnecessary details omitted. Findings proposed by Respondent (None.) COPIES FURNISHED: Rosemary E. Armstrong and Catherine Peek McEwen 401 South Florida Avenue Post Office Box 3273 Tampa, Florida 33601-3273 Iris Locklear Zapata Florida Correctional Institution Post Office Box 147 Lowell, Florida 32663 Karen B. Wilde, Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Commission 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact Dwight S. Cenac, Respondent, holds certificate No. 3639 as a Certified Public Accountant in the State of Florida. On 2 September 1977 he requested an exemption from the continuing education program required of public accountants to retain their certificate (Exhibit 2). Therein he stated he was not practicing public accounting, the exemption was granted and Respondent's registration card has been endorsed with a statement that Respondent's certificate to practice public accounting in Florida is inoperative. Following his graduation from college in 1970 Respondent worked for the accounting firm of Ernst and Ernst for two years and attained his certificate in 1973. He was employed with Blue Cross of Florida from 1973 until 1977 when he was employed by a health care provider in Puerto Rico to help set up their procedures to improve Medicare and Medicaid payments for services they provided. His understanding of the Medicare regulations and procedures acquired while working at Blue Cross, coupled with the conditions he found in Puerto Rico, led Respondent to believe that many health care providers had need for special consulting in conjunction with their financial record keeping. Health Care Management Consulting, Inc. (HCMC) was formed in 1977 with Respondent as the sole shareholder. In order to acquaint providers with the services he proposed, Respondent prepared a proposal (Exhibit 1) which was sent to health care providers. As a certified public accountant he could not do this without violating the laws and regulations proscribing solicitation by Florida practitioners. In order to overcome this potential problem, Respondent, on 2 September 1977, (by Exhibit 2), notified Petitioner that he was no longer performing public accounting. As the owner and principal operator of HCMC, Respondent does not hold himself out as a CPA, such information is not included in his letterhead or business cards, office or telephone directory or in any public place. His certificates as a Certified Public Accountant are hanging on the wall of his office, but none of his clients ever visit his office. In addition to Respondent, HCMC employs two other consultants who previously worked for Blue Cross, as well as a secretary. Neither of the other two consultants is a certified public accountant, but both perform services for clients similar to those services performed by Respondent. They, as well as Respondent, obtained the special expertise they offer to health care providers while working in the intermediary field between the government and the provider. HCMC provides specialized services not provided by public accountants such as setting up books and records for health care providers, preparing cost reports, providing assistance in setting rates and general familiarity with Medicare rules and regulations. Many of the services provided by HCMC, inasmuch as they involve financial records, are the same type services provided by Florida practitioners. Respondent, by submitting the HCMC Proposal to hospitals, nursing homes and other health care providers is both advertising and soliciting business. HCMC has submitted copies of its Proposal (Exhibit 1) to over 300 hospitals in Florida, and has obtained business previously performed by Florida practitioners. In the Proposal (Exhibit 1) HCMC offers services on a contingent fee basis. These services offered include reimbursement and recoupment of Medicare funds, and the fee paid HCMC is a percentage of the additional funds obtained as a result of the services provided by HCMC. Many of HCMC's services involve increasing reimbursement to the health care provider from Medicare and Medicaid sources. No audits unrelated to Medicare or Medicaid are performed, and financial statements prepared by HCMC do not refer to generally accepted accounting principles and generally accepted auditing standards, nor do they purport to express or disclaim an opinion as to the fairness of the presentation. The work performed by Respondent as an employee of HCMC would not constitute the practice of public accounting if performed by a non-certified person. The other employees of HCMC providing consulting services to health care providers similar to that provided by Respondent, are not in violation of Chapter 473, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issue herein, Petitioner, Ronald R. Corum, Examinee Identification No. 200619, was a candidate for licensure by examination as a professional engineer, and the Board of Professional Engineers was and is the state agency in Florida responsible for the licensing of Professional Engineers and the regulation of the practice of professional engineering in the state of Florida. Petitioner sat for the October 1990, Florida Professional Engineer Licensure Examination (Principles and Practice of Engineering). This part of the examination is divided into a morning session and an afternoon session. The morning session requires the examinee to choose four essay questions from a choice of twelve essay questions and produce a numerical solution to each question. The afternoon session is multiple choice and the examinee has to solve four questions from a choice of twelve questions. Each of the questions, both morning and afternoon, are worth ten points (raw score) for a total maximum raw score of 80 points, with a minimum passing raw score of 48 points. Petitioner received a raw score of 47 points. Question 124 was one of the essay question selected by Petitioner to solve in morning session of examination. Question 124 consisted three parts, 124A, B and C which required the examinee to: compute the area of traverse (in acres) a five-sided polygon; compute the net area (in acres) in the land parcel after adding sector area AB and excluding sector area DE; and compute the length of curve DE (in feet). The problems posed by Question 124 are not uncommon in the day to day practice of professional engineering and are not particularly difficult to solve. Petitioner attempted to solve Part A by using the method of coordinates which is an acceptable method of determining the area of a traverse. However, the Petitioner made a fundamental error in applying the method, not a simple mathematical error, in that he did not return to the beginning point of the traverse which resulted in an unrealistic answer. The correct answer to Part A was 16.946 acres. The Petitioner calculated the area to be 126.12 acres. In attempting to solve Part B, the Petitioner misapplied a correct methodology by erroneously expressing the central angle of the area in degrees rather than in radians. A radian is equal to approximately 57 degrees and this resulted in substantial error in Petitioner's calculation. The correct answer was 17.607 acres. Petitioner's answer was 219.63 acres which was not possible in relation to the area the Petitioner had already calculated for the traverse in Part A. This was a very serious error, a fundamental error, not a mathematical error. The maximum raw score for question 124 was ten points. Petitioner received a raw score of two points. On review, Petitioner was again granted only two points out of ten possible points. The examinee's identity is not known to the scorer during the initial scoring or the review. Both question 124 and the scoring plan used in grading question 124 were approved by the National Council of Examiners of Engineers and Surveyors (NCEES). The scoring of question 124 was weighted so that Parts A and B were worth four points each, and Part C was worth two points. Petitioner correctly answered Part C and received two points. The Petitioner did not receive any points for Part A or Part B. The examinee was not aware of this weighting policy at the time of the examination. The scoring plan for question 124 which was used by the NCEES grader was set up in six (6) categories from 0 - 10 in two-point increments as follows: 10 - Exceptionally competent. 8 - More than minimum competence but less than exceptionally competent. 6 - Minimum competence. 4 - More than rudimentary knowledge but insufficient to demonstrate competence. 2 - Rudimentary knowledge. 0 - Nothing presented to indicate significant knowledge of the problem. Petitioner's use of acceptable methodologies in attempting to solve the problems of Parts A and B may indicate at least rudimentary knowledge and possibly more than rudimentary knowledge but insufficient knowledge to demonstrate competence which would have entitled Petitioner to at least two points on Parts A and B each. However, the unreasonableness and the impossibility of his answers and his failure to recognize the unreasonableness and impossibility of his answers coupled with his fundamental error in solving the problems of Parts A and B were such that the Petitioner did not demonstrate significant knowledge of the problems for Parts A and B. Therefore, any credit that would have been given for using acceptable methodologies in attempting to solve the problems would be negated by this lack of significant knowledge of the problems. Because of this lack of significant knowledge of the problems the scorer correctly adjusted Petitioner's score on Part A and Part B each to zero. Unreasonable answers result in credit being deleted, and this policy is uniform among all of the states. However, the examinee is not made aware of this policy at the time of the examination. There was no instruction or guide to indicate to the examinee that if the examinee recognized that any answer was unrealistic that the examinee should so indicate on the answer sheet. Likewise, there was no instruction or guide to indicate that the examinee would be more heavily penalized if the examinee did not indicate on the answer sheet that the answer was unrealistic. An examinee's inability to recognize an unrealistic answer and to so indicate on the answer sheet without specific instruction goes to the examinee's competence as a professional engineer. Therefore, Petitioner has not been treated unfairly by the lack of instruction or guide advising him to indicate his ability to recognize an unrealistic answer on the answer sheet. The NCEES scorer for question 124 attempted to award the same score to all examinees of the October 1990 examination who gave similar unrealistic answers to question 124 as did Petitioner without noting on the answer sheet that the answer was unrealistic. The examinees are not informed of how the scoring plan will be applied in advance of the examination or that the essay question will be scored in two- point increments only. There was no evidence that this information would be of significant benefit to the examinee. In fact, the Petitioner did allocate his time in attempting to solve question 124 similar to the weighting of the scoring plan, spending only a small part of the time on Part C. Part B should have identified the curved areas to be computed as segments, rather than sectors. Petitioner attempted to solve Part B as though it referred to segments, and did not raise this issue in the request for review. Petitioner's use of degrees rather than radians would have been equally erroneous in determining the area of a sector. There was no evidence to show that identifying the curved area as a sector rather than a segment had any effect on Petitioner's attempt to solve the problem. The official solution to Part B contained a typographical error made during the transcription of the grader's handwritten solution. This had no effect on the scoring of Part B. The solution cannot affect the answer given by the examinees, as the solution is only available after the examinee has completed the examination and is challenging the scoring. There is a lack of competent substantial evidence in the record to establish that the scores which Petitioner received on Part A and Part B of question 124 of the October, 1990 Professional Engineering Licensure Examination were incorrect, unfair or invalid, or that the examination, and subsequent review, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of his response to question 124 on the October 1990 Professional Engineer's Licensure Examination. DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (2); 2 (3); 3 (3); 4 (5); 5 (5); 6 (7); 7 (9); 8 (9); 9 (13); 10 (13); 11 (12); 12 (9); 13 (5); 14 (6); 15 (9); 16 (11); 17 (7); 18 (1); 20 (16); 21 (16) and 22 (18). Proposed finding of fact 19 is not supported by substantial competent evidence in the record but see finding of fact 11. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (2); 2 (3); 3 (4); 4 (5); 5 (6); 6 (6); 7 (7); 8 (8); 9 (9); 10 (12); 11 (11); 12 (15); 13 (9, 16); 14 (17); 15 (18). COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 David W. Persky, Esquire Spicola & Larkin 806 Jackson Street Tampa, FL 33602 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Shechet holds Certificate No. R-0573 as a certified public accountant practicing in the State of Florida, which he received by virtue of reciprocal status, having previously practiced in the State of Ned York. Shechet began his accounting career in 1924 and has practiced his profession continuously for the fifty-three years since that time. The records of the Board reflect that Shechet provided no evidence of the completion of any courses or studies that would give him credits towards the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On September 15, 1975, Shechet sat for an examination which was approved by the Hoard and given to practicing certified public accountants pursuant to applicable law requiring reestablishment of professional competency. Shechet received a score of 3 out of a possible score of 100. The established passing grade for the examination is 75. The examination consisted of 100 multiple choice questions, each with 4 responses. The approved method of answering the questions was to select one response and then, on the answer sheet, darken the circle corresponding to the letter assigned to the selected response. If more than one circle is darkened in a given set of responses, the answer is marked wrong. In each of the 100 answers, Shechet marked more than one response either by darkening, check mark or "X". On May 13, 1977, the State Board of Accountancy suspended Shechet's certificate R-0573 as a certified public accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting.
The Issue The issue is whether Petitioner is entitled to a permanent teaching certificate.
Findings Of Fact The first factual issue involves the application that is in dispute. There are a July 1994 application for a temporary, or two-year, certificate and a January 1994 application for a permanent, or five-year, certificate. The record contains the July 1994 application for a temporary certificate, but not the January 1994 application for a permanent certificate. The record also contains a temporary certificate issued by Respondent on November 28, 1994, and effective for two years starting July 1, 1994. It thus appears that Respondent granted the July 1994 application. As is apparent from the two notices of reasons, Respondent has also denied an application of Petitioner. The first Notice of Reasons, which is undated, but presumably precedes the demand for a hearing signed February 18, 1997, refers to Department of Education Number 603025, which is the number borne by the July 1994 application and July 1994 temporary certificate. The Amended Notice of Reasons filed April 17, 1998, also refers to Department of Education Number 603025. If the Department of Education Number is specific to an application, rather than an applicant, then the notices of reasons either mistakenly refer to Number 603025 or represent an attempt to deny an already-granted application. If the Department of Education Number is specific only to an applicant--i.e., Respondent assigns the same number to all applications submitted by the same applicant--then the number is useless in trying to identify the application that is the subject of this case. This case obviously arose in connection with the application that Respondent denied; the circumstances suggest that the denied application was the January 1994 application for a permanent certificate. Petitioner testified that she had a two-year temporary certificate from about August 1992 through about June 1994. (Tr. p. 30) She testified that in January 1994 she applied for a five-year permanent certificate (Tr. p. 31), although she later testified that the January 1994 application was for another two-year temporary certificate (Tr. p. 32). Most likely, Petitioner misspoke when she described the January 1994 application the second time as an application for another temporary certificate. More likely, she applied, as she first indicated, for a permanent certificate in January 1994. One would expect that, six months later with school about to recommence, Petitioner filed for another temporary certificate because Respondent had still not issued the permanent certificate for which she had applied in January 1994. This recommended order therefore treats the subject application as the January 1994 application for a permanent certificate. Resolution of issues regarding Petitioner's candor in the application process obviously would have been facilitated by the inclusion in the record of the January 1994 application, but, consistent with the parties' handling of the matter, the recommended order will address the contents of the July 1994 application on the assumption that Petitioner completed the two applications similarly in making this disclosure. Without regard to the confusion concerning the applications, for reasons explained in the conclusions of law, Respondent, in granting Petitioner's July 1994 application for a temporary certificate, necessarily determined, or should have determined, that Petitioner was of sufficient moral character as to be permitted to teach for another two years in Florida's public schools. Petitioner received her first teaching certificate in Massachusetts in 1974. This certificate allowed her to teach kindergarten through sixth grade. In 1978, Petitioner moved to Naples. Petitioner first became employed by the Collier County School District in 1987 when she taught homebased Head Start, which did not require a teaching certificate. The following year, Petitioner taught Head Start in the classroom until the law changed and required that a person in this position hold a certificate. So, sometime in 1988, Petitioner began working at Gulf View Middle School, where she worked as an teacher or aide for in-school suspension, a teacher or aide for students with learning disabilities, and an aide for students who were severely emotionally disturbed. In 1992, Petitioner transferred to Lely Elementary School, where she continued to work as the aide to the teacher who had taught severely emotionally disturbed students at Gulf View. This teacher now had a class of emotionally handicapped students. Starting in August 1992, when Petitioner obtained her first temporary two-year teaching certificate in middle school math, she worked out-of-field at Lely as a teacher for emotionally handicapped students. She continued to teach at Lely through the end of the 1994-95 school year. At the end of the 1994-95 school year, the Collier County School District terminated the emotionally handicapped unit at Lely and asked Petitioner to teach in varying exceptionalities at Manatee Elementary School for kindergarten through fourth grade. Agreeing to do so, Petitioner began the 1995-96 school year at Manatee, but transferred back to Lely when, after a couple of months, the Collier County School District reopened the emotionally handicapped program at Lely. Petitioner finished the 1995-96 school year at Lely. At this point, Petitioner had worked nine years for the Collier County School Board: five years as an aide and four years as a teacher of emotionally handicapped students. Petitioner had worked in the classroom for all but the first of these years. Prior to the start of the 1996-97 school year, Petitioner received a letter from the Collier County School District stating it was not renewing her contract. The letter contained no explanation for this action. However, Petitioner's second temporary certificate had expired, and the Collier County School District may have been concerned about Petitioner's certificate status. The record does not disclose Petitioner's employment during the 1996-97 school year. However, since November 1997, Petitioner has been employed by the David Lawrence Mental Health Center. She works as a behavioral technician at Golden Gate Middle School, which is a school of the Collier County School District. Petitioner works on campus as a peer group counselor with boys who have been removed from school for behavioral problems. Early in 1996, Petitioner had inquired of Respondent as to the status of her two-year-old application for a permanent certificate. There is no evidence in the record to suggest that Respondent had taken any of the actions contemplated by Section 120.60, Florida Statutes, that would prevent licensure by default on the January 1994 application. To the contrary, the most reasonable inference from the long period of inaction is that Respondent did not request additional information within 30 days of receipt of the January 1994 application. It is obvious that Respondent did not grant or deny the January 1994 application within 90 days of receiving it. In response to Petitioner's effort to reactivate her application, by letter dated March 1, 1996, one of Respondent's investigators requested from Petitioner a copy of the initial police report and her statement. In response to some information that Petitioner forwarded and possibly her complaint as to the slow progress in reviewing her application, Respondent's investigator wrote Petitioner a letter dated April 8, 1996. He wrote that he could "give no explanation as to why you were not contacted about this incident in 1994 since you did acknowledge it on your application. Applicants are required to acknowledge arrest/revocation incidents on all applications." The April 8 letter restates requests, made only weeks earlier, for a statement of Petitioner and a copy of the police report. The July 1994 application discloses that Petitioner had received a "citation" for an open house party, and the court had "terminated" the case withholding adjudication. The two quoted statements in the April 8 letter are important on the issue of licensing by default. These statements reveal that the subject application disclosed the open house party and that Respondent had not requested information of Petitioner for over two years. By letter dated March 29, 1996, Petitioner provided Respondent's investigator, as he had requested in his April 8 letter, with a statement explaining the court documents that evidently had already been sent to Respondent. This letter either was misdated "March" when it should have been "April" or it responded to the earlier request--still in 1996--for additional information. In part, Petitioner's March 29 letter states: The open house charge was issued four months after a teenager was taken to the hospital for stomach problems and it was discovered that alcohol had been consumed. There had been a total of five teens at my house on that night, two were my children. All four students drove/accompanied the ill one to the hospital with my knowledge and permission, with no thought or suspect [sic] of alcohol use by any of us. The incident involving the "open house party" took place during the evening hours of New Year's Eve, 1992, and predawn hours of New Year's Day, 1993. The only persons in attendance were Petitioner, her two sons, N. and M.; N.'s girlfriend, S.; and a couple of boys who were M.'s friends. N. and S. were 16 years old, and M. and his two friends were 14 years old. For a couple of months ending the preceding Thanksgiving, S. had lived with Petitioner and her two sons. Her mother had told her to leave her house for undisclosed reasons. Petitioner, who had known S. as a student when Petitioner taught at Gulf View Middle School, agreed to allow S. to live with her family, but ended this arrangement when S. and N. began sleeping together over Petitioner's objections. S. then moved in with an aunt. S. and N. continued to date after she moved in with her aunt. During Christmas break, N., M., and M.'s two friends had a soccer tournament in Miami, and Petitioner drove them back and forth each day of the tournament. On the final day of the tournament, New Year's Eve, S. attended the games with Petitioner and N.'s games. When the games ended, Petitioner drove N., M., S., and M.'s two friends back to Naples, where they arrived sometime around 10:00 p.m. On New Year's Eve, after returning home, N. frequently left the house to visit a girl babysitting across the street. In general, Petitioner and the children watched television and played cards. From this point, the material points of the stories begin to diverge. Only two of the six witnesses testified: S. and Petitioner. Petitioner may reasonably have elected not to require that her two sons testify in order to avoid the reopening of a more serious matter that developed later that evening. Respondent could not secure the testimony of M.'s two friends, one of whom reportedly resides in New York and the other in Orlando. S. testified that she drank openly in front of Petitioner to the point that she became so drunk that, on a scale of 0-10 for impairment, she was a 10. She described her behavior as "loud and obnoxious." She testified that she was falling down. Interestingly, S. testified on direct examination that she did not recall if M. or Petitioner drank, but N. was drinking. She later testified that everyone, including M., was drinking, but immediately changed this testimony back to the original assertion that she did not know if M. was drinking. S. admitted that her recollection of the events of the evening was highly imperfect and did not include such memorable events as a trip to the hospital later in the evening after midnight. Also, S. is biased against Petitioner. Initially, she testified that Petitioner had known that she and N. were sleeping together--knowing that such an assertion would paint Petitioner in a bad light--but later she testified that she and N. had surreptitiously entered each other's bedroom unnoticed by Petitioner. Petitioner testified that, before midnight, she discovered that a bottle of vodka was down "a little bit" beyond the level that Petitioner had left it, after consuming two drinks. Petitioner testified that she announced to the group that she was putting the bottle back and no one was to drink anything. Petitioner knew at the time that S. had already had an extremely serious alcohol-abuse problem. Her father had died from a drug overdose, and her mother was an alcoholic. While in sixth grade, S. had been in the alcohol rehabilitation program at the David Lawrence Mental Health Center due to her drinking. Petitioner testified that the boys were not acting different during the evening, but S. was. Petitioner testified that S. was giddy, falling down, complaining, prior to midnight, of physical illness. S. began to vomit repeatedly. Petitioner helped her shower, gave her some ice, and then put her to bed in the still-empty bedroom that she had vacated a month earlier. Initially, Petitioner had thought that S. was simply trying to get attention, perhaps jealous of N.'s visits to the girl babysitting across the street. When the vomiting began, though, Petitioner realized that S. was not acting to get attention. At some point after Petitioner had gone to bed, after having gotten S. to bed, M. entered S.'s bedroom and had sexual intercourse with her. S. testified that the sex act was nonconsensual. At some point well after the act of sexual intercourse between S. and M., N. determined that S. was so ill that she had to go to the hospital, so he informed his mother of the fact. Fatigued from her trips to Miami, Petitioner gave N. the keys to her car, and, with M. and his two friends, N. drove S. to the hospital, where she did not require much, if any, treatment for her intoxication and evidently received no treatment for the sexual assault of which she later complained. The evidence fails to establish that N. had drunk any alcoholic beverages that evening. Moreover, even if N. had drunk alcoholic beverages, there is no evidence that, when Petitioner gave him the keys to the car, he was in any way impaired. The next morning, after leaving the hospital and returning to her aunt's home, S. told her aunt that M. had raped her. S. later filed a complaint with law enforcement alleging sexual battery, but she dropped the charges five weeks later. It is impossible on this record to determine whether the act was consensual or not, although S. clearly believes that it was not. Relatively little time in the questioning of S. was devoted to this aspect of her testimony. M., who has not admitted even that he had sexual intercourse with S., did not testify. As already noted, S.'s credibility is undermined by her poor memory and bias. About six months later, also while intoxicated, S., now 17 years old, was sexually assaulted by her mother's ex- boyfriend, who was nearly 30 years old. She filed and, two years later, dropped charges of sexual battery in this case too. Petitioner finds this and the earlier incident involving M. as part of a pattern of behavior in which S. files false charges of sexual battery in remorse after drunken sexual intercourse. Perhaps, but on this record, it is as likely that the intoxicated S. is sexually exploited by predatory males, presses charges, and then lacks the strength to pursue the matter. Although any sexual intercourse between 14-year-olds and 16-year-olds is not conducive to their health or welfare, this record does not permit a finding that the much more grave behavior--rape--took place in this case. Further, nothing in the record suggests that Petitioner should reasonably have anticipated that M. would have sexual intercourse with S. later in the evening. To the contrary, S. had recently lived with the family for a couple of months without any such problem with M. or a relationship between S. and M. About ten days after the incident, Petitioner spoke with an investigating officer from the Naples Police Department. She said that she might have used "poor judgment" in allowing the minors to drink "a little" alcohol. She added, in her statement to the officer: . . . I spent most of the evening with [S.], put her in the shower, got her out of the shower. She threw up outside; she threw up in the bathroom; she threw up in the waste basket. It was excessive, you know. I did not understand it. I did not think she could have been drunk from what she had to drink unless you say--you say, you know that she is allergic. Petitioner later tried to explain that her reference to what S. had drunk that night was based on information obtained after the night in question. However, the statement does not support Petitioner's explanation of after-acquired information. She said, "I did not think she could have been drunk from what she had to drink . . .." The tense suggests that the thought was contemporaneous to the events taking place that evening. Given Petitioner's knowledge of S.'s serious problems with alcohol, Petitioner could not have failed to make the connection between S.'s drunken-like behavior, including vomiting, and her consumption of alcohol, although this does not mean that Petitioner had witnessed S. consume more than a small amount of alcohol. More in demeanor than in testimony, Petitioner displayed no great fondness for S. This is not surprising, given the complaint that S. made to the police. However, it is likely that Petitioner's relationship with S. had deteriorated by the time that Petitioner, having discovered that S. and N. were sleeping together in Petitioner's house, had told her to leave. By New Year's Eve, Petitioner was unlikely to cater to S. by serving her any alcohol or even tolerate her consumption of anything near the amount of alcohol it took to get her as sick as she did. It is more likely that Petitioner did watch S., and possibly N., consume "a little" alcohol, but then S. consumed much more alcohol without Petitioner's knowledge. When Petitioner later was charged with an open house party, she retained an attorney and decided to plead no contest to the charge. Withholding adjudication of guilt, the court imposed a fine of $100 and six months' probation and required Petitioner to be evaluated by a court counselor. Although Petitioner testified that she believed that M. had not had sexual intercourse with S. that evening, she wanted to spare M. the turmoil of a trial, which undoubtedly would have raise the issue of his actions with S. on that night and possibly exposed him to criminal liability. The sole problem with Petitioner's behavior on New Year's Eve is that she failed to take reasonable steps to stop S. from drinking the little quantity of alcohol, of which Petitioner was aware that S. had drunk. Many options were available to Petitioner: taking S. to her aunt's home, insisting that S. go to bed in Petitioner's room, removing all known alcohol to Petitioner's bedroom, or discarding all known alcohol. However, although these options would have protected Petitioner from criminal liability, none--not even the first-- would have necessarily prevented S. from drinking that evening. Petitioner's failure has a bearing on her liability for the violation of the law prohibiting open house parties, although, for reasons explained in the conclusions of law, her plea and the court's withholding of adjudication cannot serve as a basis of denial, in themselves. Petitioner's failure also does not constitute a failure to protect a student. Petitioner was not in the relationship of a certificate-holder dealing with a student when the activities took place, in Petitioner's home, on New Year's Eve. S. was present due to her relationship with N. and secondarily her relationship with Petitioner's family. This relationship was not a teacher-student relationship. Petitioner's sole role on the evening in question was as a parent or a parent to a friend of a guest in the home. The failure to prevent S. from drinking a little alcohol on New Year's Eve and her subsequent plea of no contest to a violation of the law against open house parties-- which, though perhaps a plea of convenience, was certainly warranted under the facts--do not constitute a failure of moral character, which requires consideration of a broader range of behavior. Petitioner has worked nine years for the Collier County School District without any reported problems. During the four most recent of these years, she has worked in the classroom with temporary certificates issued by Respondent, which granted the second temporary certificate following disclosure of the arrest for the open house party and, as noted in the conclusions of law, following a determination that Petitioner had sufficient good moral character to work with schoolchildren. After losing her job with the School District, Petitioner found a job with a mental-health center that effectively returned her to the classroom for at least one, and possibly two, years, including the most recent 1997-98 school year. Again, there have been no reports of problems. On this record, Petitioner has demonstrated sufficient good moral character to qualify for a permanent certificate. The statement in the March 17, 1996, letter that there was "no thought or suspect of alcohol use by any of us" means that Petitioner, her sons, and M.'s two friends did not suspect S. of drinking alcohol. This statement was untrue. No later than when S. started vomiting, Petitioner knew that S. had consumed alcohol. However, Petitioner had disclosed the incident. When considered in the larger context of the underlying disclosure, this isolated misstatement--the product of two years' self-justification--does not constitute dishonesty or fraud, which are better illustrated by an attempted concealment of the incident. One more matter requires factfinding. During the deposition of Petitioner, which Respondent's counsel conducted by telephone, Petitioner's counsel, who was present with Petitioner and the court reporter, passed notes to his client during the questioning without disclosing to Respondent's counsel that he was doing so. The affidavit of the court reporter asserts uncontrovertedly that counsel passed repeated notes to Petitioner during the deposition, sometimes while Petitioner was in the middle of an answer. As noted in the conclusions of law, this practice is an abuse of discovery. As for findings of fact, two points emerge. First, the note-passing has not undermined Petitioner's credibility as a witness. It is impossible to find a loss of credibility without knowing at least the questions or answers during which counsel passed notes to the witness. In passing, the administrative law judge agrees with Petitioner's counsel that it was unnecessary to bring up the gesture made by Petitioner in the direction of the telephone-- i.e., directed toward Respondent's counsel. Coarseness in the relative privacy of a deposition room occupied only by Petitioner, her attorney, and a court reporter is not grounds for denial. Such a gesture is no more likely to reveal a lack of credibility than an excess of frustration coupled with a problem in impulse-control that, in this setting, is minor. If frustration and minor impulsivity, these characteristics would not assist the factfinder in his factfinding responsibilities. Second, the note-passing, while an abuse of discovery, was almost certainly not material. The administrative law judge has resolved most of the nonultimate factual disputes in this case favorably to Respondent, such as whether Petitioner was aware that S. had consumed any alcohol. It is unlikely that a deposition free of note-passing would have resulted in the resolution of the remainder of the direct or ultimate factual disputes favorably to Respondent. As to direct facts, it is highly unlikely that, absent a timely note, Petitioner would have testified that she watched S. drink herself sick or that she knows that M. raped S. As to ultimate facts, it is equally unlikely that, absent a timely note, Petitioner would have admitted, for instance, that her acts and omissions constituted a lack of good moral character or that her misstatement in the March 17 letter constituted dishonesty or fraud.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a five-year permanent teaching certificate. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 14th day of July, 1998. COPIES FURNISHED: David Brooks Kundin Attorney at Law Post Office Box 430 Tallahassee, Florida 32302 Matthew K. Foster Brooks LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
