Findings Of Fact Petitioner proposes to erect nine signs along SR 29 advertising the Cypress Knee Museum located in Palmdale, Florida. The signs are unique in that they are comprised of tree limbs with letters one foot high also made from parts of limbs formed to make the letters which carry interesting messages regarding the Cypress Knee Museum. Many people would consider these proposed signs add to the beauty of the natural scenery bordering SR 29 and not to detract therefrom. SR 29 is a federal-aid primary highway. The location of the proposed signs is zoned agricultural. No effort has been made by Petitioner to get zoning changes for the proposed location for these signs.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Lyle Kehn's, employment as a custodian based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since August 28, 1995, Respondent has been employed by the School Board as a custodian. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). During the 2002-2003 and 2003-2004 school years, Respondent worked an evening shift at Cypress Lake High School. His job assignments included work at the Center for the Arts (the "Center"), which is a part of the Cypress Lake High School campus. During the 2003-2004 school year, S. B. was a junior at Cypress Lake High School. She studied theater at the Center. During the 2002-2003 school year, when she was a sophomore, B. had dated R. P., a junior at Cypress Lake High School. P. would stay late after school for band practice and met Respondent and began talking to him. R. P. told S. B. that Respondent was "cool" and had looked at pornographic magazines with him. R. P. introduced S. B. to Respondent, though S. B. never said more than "hi" to Respondent during the 2002-2003 school year. In December 2003, S. B. was cast in "All The World's A Stage," a play to be performed at the "Black Box," which was the theater contained within the Center. S. B. could not recall the precise dates of the performances, but she recalled that the play was performed from Thursday through Saturday on a week just before the winter break. On opening night of the play, the cast members were to report to the Black Box at 6:00 p.m. S. B. had planned to go home after classes ended at 2:00 p.m., but her mother was unable to pick her up that afternoon. Instead, S. B. chatted with friends for a few minutes after classes ended, then walked over to the Black Box. She went into the control booth, which contained the lighting and audio controls for the theater, to use the telephone there to call a friend. Respondent entered the control booth while S. B. was talking on the phone. He remarked on how dirty the booth was. B. responded that she was an actress, and it was not her job to clean the booth. Respondent replied that she should, nonetheless, clean up the mess in the control booth. Respondent then asked S. B. whether she had heard the song, "Stacy's Mom." This song, popular at the time, was about a boy dating a girl named Stacy, but preferring "Stacy's mom," who's "got it goin' on." The boy happily recalls mowing the lawn for Stacy's mom, who came out with just a towel on to show him a spot he'd missed. S. B. stated that Respondent smiled and nodded when he asked her about the song. S. B. found Respondent's question unsettling and ignored it, resuming her telephone conversation. After ending her telephone call, S. B. left the control booth and went to the dressing room where she happened upon a female friend. S. B. and her friend walked out to the theater lobby. Respondent entered the lobby from the outside. Respondent asked S. B. if she had talked to R. P. recently. S. B. and R. P. had ended their relationship in an acrimonious fashion the previous school year, as Respondent knew. S. B. answered, "Why would I talk to that asshole?" Respondent stated, "It's not his fault you're a slut," then laughed and began walking away. S. B. asked, "What did you say?" Respondent said, "You heard me" and walked away. S. B.'s friend shook her head and said, "Well, that was blunt." By this time, other cast members began arriving for the show that evening. S. B.'s friend went to the dressing room with the others, while S. B. remained in the lobby looking at cast photos from previous shows. Respondent walked back into the lobby. S. B. asked Respondent what R. P. had told him about her, but he would not say. S. B. dropped a pencil and bent to pick it up. Respondent said, "I've heard you like to bend over." S. B. walked into the theater, ending her interactions with Respondent. She testified that she never spoke to Respondent again. She did not believe the matter was a "big deal" at the time because she was more focused on the opening night of her play. S. B. did not report the incident to the school administration. On January 6, 2004, S. B. and a friend were looking for a three-ring binder that her friend had lost before the winter break. They asked John Hein, another custodian at Cypress Lake High School, whether he had found the binder. Mr. Hein told them that he had not seen a binder, but suggested that they ask Respondent, the evening custodian. S. B. said, "You mean the pervert?" In response to Mr. Hein's obvious confusion, S. B. stated that "everyone" knew that Respondent was a pervert and that he was "always making remarks to students." On the same date they were made, Mr. Hein reported S. B.'s comments to Rochelle Thimlar, an assistant principal at Cypress Lake High School. On January 9, 2004, Ms. Thimlar called S. B. to her office to discuss the situation. Ms. Thimlar had S. B. make a written statement. In her statement, S. B. briefly recounted the remarks that Respondent made to her and stated that Respondent looked at pornographic magazines with R. P., her former boyfriend. Ms. Thimlar forwarded S. B.'s statement to the school's principal, Tracy Perkins, who proceeded to call R. P. to her office. R. P. made a statement in which he admitted to bringing "inappropriate literature" to school and to sharing that literature with Respondent. R. P. stated that he and Respondent would joke around about "sexual humor." At his July 2004 deposition and again at the hearing, R. P. clarified that the "inappropriate literature" consisted of three magazines containing photographs of people engaged in sex acts. R. P. testified that Respondent looked at the magazines with him and that Respondent in no way voiced an objection or attempted to confiscate the magazines. To the contrary, Respondent asked R. P. whether he and S. B. engaged in the sex acts depicted in the magazines. R. P. testified that he would not have shown these magazines to any other adult. Finally, P. testified that he was not aware of S. B.'s statement to Ms. Thimlar at the time he made his statement to Ms. Perkins. On February 2, 2004, Ms. Thimlar asked S. B. to write a more detailed statement, preparatory to initiating a formal investigation of Respondent. This statement was consistent with the testimony recounted above. Ms. Thimlar then commenced efforts to contact S. B.'s mother to determine whether the student and her parents would cooperate with an investigation. On February 23, 2004, Ms. Thimlar finally spoke with S. B.'s mother, who stated that she wanted action taken immediately to remove Respondent from the campus. A formal complaint regarding Respondent's conduct was sent to Denise Phillips-Luster, the director of Equity and Recruitment for the School Board, on February 24, 2004. On the same date, the School Board suspended Respondent, with pay and benefits, pending the outcome of the formal investigation. In accordance with School Board policy and the SPALC Agreement, Ms. Phillips-Luster conducted the investigation and prepared an investigative summary of her findings. On March 18, 2004, a predetermination conference was held to allow Respondent to respond to the allegations. Prior to the predetermination conference, Respondent was provided a copy of the investigative summary. Respondent and his mother attended the predetermination conference and were each given an opportunity to speak and set forth Respondent's side of the story. Respondent denied knowing S. B. and denied every particular of her story. At the hearing in this matter, Respondent reiterated his denial. He testified that he cleans the Black Box at the end of his shift and would never have been there as early as S. B. alleged. As to the incident with R. P., Respondent testified that R. P. tended to hang around after school, trying to sneak into the band rooms to practice while he waited for his ride home. Respondent's job was to lock down the area to clean it. One afternoon, Respondent found R. P. in one of the band rooms eating and reading a magazine at the podium in the front of the room. Respondent told R. P. to leave the room. R. P. obeyed Respondent, but left his magazines on the podium. Respondent saw that they were pornographic magazines and took them to his supervisor. By letter dated April 28, 2004, from Georgianna McDaniel, the School Board's personnel director, Respondent was notified that probable cause had been found to believe the allegations were true and that a recommendation would be forwarded to the School Board that Respondent's employment be terminated. The Petition was served on Respondent on May 1, 2004. As initially served, the Petition alleged only the facts concerning the incident with S. B. At the time, the incident with R. P. was considered collateral to the main investigation because the investigators knew only that R. P. had shown Respondent "inappropriate literature" of some nature. The investigators believed that R. P.'s role, if any, would be to corroborate S. B.'s statements. It was only at R. P.'s deposition, taken July 26, 2004, that the School Board learned that the "inappropriate" material consisted of pornographic magazines containing photographic depictions of sex acts. This deposition caused the School Board to file a motion on July 27, 2004, to amend the Petition to include the charges related to Respondent's actions with R. P. Respondent has been reprimanded, warned, or cautioned for his behavior on at least eight previous occasions. On April 27, 1998, he received a letter of caution regarding comments and actions toward a female co-worker that could be interpreted as "suggestive," if not "sexual harassment," as alleged by the co-worker. On January 8, 2001, Respondent received a letter of reprimand for inappropriate, suggestive remarks to a female night school student. On four other occasions, Respondent has been reprimanded for inappropriate remarks and/or behavior toward co-workers, including a June 7, 2000, reprimand for discriminatory remarks he made to and about Spanish-speaking co-workers. Respondent denied making the remarks, despite the contrary statements of multiple witnesses. In the instant case, given Respondent's denial that he looked at pornography with R. P. or that he had ever even met B., the main question is the credibility of the witnesses. The story related by S. B. was credible, and no reason was presented at the hearing as to any motive she would have to invent her story. She barely knew Respondent, had no desire to press the case against him, and had nothing personal to gain by testifying against him. She did not think the incident was a "big deal" at the time and said little or nothing about it to her friends or parents. She did not complain to school officials. Rather, her off-the-cuff statement to another custodian that Respondent was a "pervert" caused the assistant principal to call her in for a conference. S. B.'s testimony concerning the incident with Respondent on opening night of "All The World's A Stage" is credited. Respondent's contrary testimony is not credible. Likewise, R. P. had no motive to invent a story about Respondent. In fact, given R. P.'s rancorous break-up with S. B. and the continuing animosity between them, his natural motive would more likely be to support Respondent and, thereby, put the lie to his former girlfriend's story. Further, R. P. appeared genuinely to like Respondent and was reluctant to testify against him at the hearing. Nevertheless, R. P. admitted looking at pornographic magazines with Respondent, as detailed above. R. P.'s testimony is credited. Respondent's contrary testimony is not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates Respondent, Lyle Kehn's, employment. DONE AND ENTERED this 21st day of February, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of February, 2005.
The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case. William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified that Respondent got along well with students and staff and greatly improved the school’s Spanish club. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers. Ms. Gruhn called Respondent "fair" and "upright." Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day. On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning. Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds. As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance. Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car. Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything. Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker. Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock." They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes. Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away. Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked. Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m. Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain. Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does. Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers. Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999. Construction was still going on in the main building. The actual construction was finished, but punch list items and cleanup were still under way. Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire. Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years. Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m. On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school. As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car. Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to his more precise recollection. Mr. Koedyker testified that he was estimating the times. Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire. Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response. Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle. Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school. Mr. Geddes testified that the fire did not delay the start of school. Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school. Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the bus drop-off point, but only 30 feet from the nearest point on the walkway. Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him. Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area. Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up." Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter. At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation. Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail. Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at 3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail. Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment. Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared. Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears. Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire. Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires. The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body. Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges. After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus. Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire. Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office. On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m. Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him. Mr. Leffin estimated they arrived at the school at about 6:15 a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart. The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car. Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes. Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire. After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers. Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet. Mr. Leffin estimated that the vehicle was parked about 30 feet from the walkway, and was about 50-75 feet away from the main building. While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire. Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire. Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car. Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant." Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation. During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs. Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later, Respondent appeared to be on the verge of breaking down, holding back tears. Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?" Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent. Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson. At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession. Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999. After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999. Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference. Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code. Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a co-worker, and as a volunteer ticket taker at basketball games. On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior. Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus. Mr. Baker testified that he saw Respondent again about 20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying. Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker. Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school." Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock. Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred. Mr. Baker testified that no one questioned him about the incident. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years. She has known Respondent professionally for five years, and described him as a very good teacher. On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car. When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth. After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire. Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking. Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of March, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT 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 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
