The Issue Whether existing Rule 21F-20.009, Florida Administrative Code, is, as a matter of law, an invalid exercise of delegated legislative authority.
Findings Of Fact There were no findings of fact to be made.
The Issue In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact Respondent, Brian Vincent Burns ("Burns"), at all times material to this matter, was a certified general contractor subject to the regulatory jurisdiction of the Petitioner. Burns was first licensed on October 26, 1981. Petitioner issued Burns license number CGO 020464. Burns' license expires on August 31, 2012. Action Restoration Inc. ("Action"), is and was, at all times material in this matter, the company where Burns is qualified. On October 24, 2007, Brian Burns-Action Restoration entered a Contractor Agreement ("Contract") with owner, Donnell Bryant, to construct a bathroom addition at Bryant's residence located at 3314 NW 23rd Court, Lauderdale Lakes, Florida 33311. Burns admitted at the hearing that the Contract failed to include any written disclosure statement explaining consumer's rights under the Florida Homeowner's Construction Recovery Fund. The Contract provided a draw schedule detailing the amount of the payment and at which points during the project payments were to be made to Action. The total contract price was $36,000. Per Bryant's Contract, Bryant paid the first draw of $6000.00 down at contract signing and Action started the job. During the job, Burns followed the critical path method. The method consisted of each step of the job being completed before the next could take place because each built upon the other. Action applied for a permit to build the bathroom addition on the house under Burns' contractor's license and became the contractor of record for the project. Action began the job in November 2007. It included excavating, obtaining the soil test, forming up the plywood to form the concrete, putting the rebar in, and pouring. On November 26, 2007, Bryant paid Action $7,250 as draw two when the footing was completed. The next step of the project was the block. Burns hired three workers to pour the concrete block. On or about December 20, 2007, Action put the truss anchors in the wet concrete. On or about December 21, 2007, Action completed the tie beams and was paid $8000.00 for draw three of the contract. At some point, Burns and Bryant agreed to change the trusses to make them more energy efficient and structurally sound for windstorms. The design change delayed the job being finished by the deadline. During December 2007, there was a period when Burns did not return Bryant's phone calls. Bryant was very anxious for the bathroom addition project to be completed and became angry at Burns when he couldn't reach him. Bryant thought Burns had abandoned his job when he didn't see Burns from around the Christmas holiday until after the new year. After the new year, in January 2008, Bryant met with Burns and a third party, Walsh. At the meeting, Bryant determined that Walsh was the foreman for Action who oversaw the work. Walsh never worked for Burns or Action and has never been paid by either. Burns had only met Walsh in 2007 and worked on one previous project with him. Burns knew Walsh to be a mason. From the meeting, Bryant understood that the initial contract work had been transferred to Walsh to complete the bathroom addition project Action had contracted for originally. As a result, Bryant stopped paying Burns and agreed to pay Walsh the remaining sum of $14,000.00 on the contract. After the meeting, Burns continued to work on the Bryant contract off site. He worked to get the new trusses design approved so that the work could move forward at the residential site. Around January 17, 2008, Burns took the new trusses design to the truss shop professional engineers to do the drawings. After approval, Burns took the design to the architect, which was approved on February 1, 2008. Then, Burns processed the drawing though the City of Lauderdale, which approved them on February 18, 2008. After approval by the City of Lauderdale, Burns called Bryant several times, and Bryant never returned his call or responded. Burns never returned to the Bryant residence to work on the job because he thought a new contractor had been hired to complete the job in Action's place. Action had only completed 50% of the job on the contract at the time. Plumbing, electric, duct work, and stucco were left to be done for the bathroom addition to be completed. During the period when Burns was getting the new trusses design approved, Bryant paid Walsh $4000.00, with check number 5761 as a draw, on February 15, 2008. The Contract was amended and stated, "$Total owe $14,000-$4000.00 2/15/08>New Balance $10,000" Walsh's signature was by the total with "pd 5761 2/15"1 Burns admitted at hearing that Action was still the contractor of record because the permit remained open for the project in his name. Burns said, "I made an error in judgment in not going to see to it that it was closed out." Walsh continued to work on Bryant's bathroom addition and got paid monies until June 2008. As Walsh completed portions of the job, Bryant paid him the following: $800 on April 18, 2008, for the wall and tile; $3,500 on June 3, 2008, for the construction of the bathroom; and $325 on June 9, 2008, for the stucco for the bathroom. Walsh also was paid for other construction work beside the bathroom addition for Bryant. Bryant never heard from Walsh again after paying him $325.00 with the June 9, 2008, check. He contacted him numerous times to no avail. The job was not completed. On December 30, 2008, Bryant signed a contract with Complete Property Repair to complete the bathroom addition Action had started. The contract amount was for $36,800. The contract included redoing some of the previous work completed by Action and some upgrades including a two-person Jacuzzi and travertine rock instead of tile. The Charges: In Count I, Petitioner charges Respondent with abandoning a construction project in which the contractor is engaged or under contract as a contractor in violation of section 489.129(1)(j), Florida Statutes. In Count II, Petitioner charges Respondent with failing to include a written statement explaining the consumer's right's under the Florida Homeowners' Construction Recovery Fund in the contract with Donnell Bryant in violation of Section 489.1425(1)(d)1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondent guilty as charged in Count I of the Administrative Complaint, imposing as a fine of $2,500, and placing Burns' license on probation for a period of one year; (b) finds Respondent guilty as charged in Count II of the Administrative Complaint, imposing a fine of $250.00; and (c) not imposing any restitution since it was not proven in this matter at hearing. DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2011.
The Issue This is a license discipline proceeding in which, on the basis of facts alleged in a First Amended Administrative Complaint, Petitioner seeks to take disciplinary action against Respondent. It is alleged that Respondent violated Section 386.204, Florida Statutes, “by and through Section 386.207(3), Florida Statutes,” by allowing patrons to smoke in an enclosed indoor workplace.
Findings Of Fact The parties have stipulated to the fourteen paragraphs of findings of fact which follow. Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Old Cutler Oyster Company, Inc., d/b/a Old Cutler Oyster Company. Respondent holds license number 22-20655, Series 4-COP, issued by Petitioner. Michael Pace is the President of Respondent and holds 100 percent of the stock of Respondent. Lisa Tyrell was the manager and person in charge at Respondent’s licensed premises on July 9, 2003. Ms. Tyrell is currently employed by Respondent as a manager. Ms. Tyrell called Michael Pace on the telephone, then gave the receiver to Fernandez (Special Agent), who explained to Mr. Pace that violations of the Florida Clean Indoor Air Act were occurring on the licensed premises. On July 9, 2003, Special Agent Fernandez issued an Official Notice of Warning to Ms. Tyrell as a result of observing patrons smoking which, he claimed, was in violation of the Florida Clean Indoor Air Act. On August 15, 2003, Special Agent Fernandez issued a Notice to Comply to Mr. Pace and told him that he had thirty days to comply with the notice or administrative charges would be filed. The notice alleged a violation of the Florida Clean Indoor Air Act by “allowing patron to smoke cigarettes on 4-COP SRX licensed premises.” Special Agent Fernandez visited the licensee a third time on September 18, 2003. At all times material hereto, Respondent held a valid retail tobacco products dealer permit issued by Petitioner. At no time did Special Agent Fernandez observe any of Respondent’s employees smoking within Respondent’s business premises. No patron received a citation for violating the Florida Clear Indoor Air Act. On July 9, on August 15, and on September 18 of 2003, Special Agent Fernandez observed patrons smoking tobacco products within Respondent’s licensed premises.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing the First Amended Administrative Complaint and denying all relief sought by the Petitioner. DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 24th day of September, 2004.
The Issue The issue presented herein involves whether or not Respondent failed to properly maintain its licensed premises by, inter alia, failing to scrape and repaint bathrooms ceilings, facia boards; failure to repair or replace worn furniture; failure to keep appliances clean and in good repair; failure to keep air conditioners in a safe condition; failure to repair or replace screens as needed and failure to keep premises clean and free of debris, weeds, abandoned vehicles or the grass properly cut as is more particularly set forth in the Notice to Show Cause filed herein.
Findings Of Fact Based upon my observation of the Petitioner's witness, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. G. Williamson, N. Singham and O. Jones are the owners of and operate the business establishment involved herein which does business as the 441 Motel located at 1001 Southwest 40 Avenue, Plantation, Florida. The 441 Motel is licensed as a public lodging establishment and has been assigned License Control Number 16-2470-H. A routine inspection of the licensed premises of the 441 Motel was made by Petitioner's agent on August 8, 1983. As a result of that inspection, a Notice to Show Cause was entered on August 10, 1983, citing the following violations: 2/ violation of Rule 7C-1.03(1), by a failure to scrape and repaint the bathroom ceiling in Room #15. violation of Rule 7C-1.03(1), by a failure to scrape and repaint facia boards. violation of Rule 7C-3.01(6)(7)(9), by a failure to repair or replace worn furniture as needed including chairs, couches and tables. violation of Rule 7C-3.01(8), by a failure to keep appliances clean and in good repair in the kitchens. violation of Rule 7C-1.03(1), by a failure to keep air conditioners in safe condition in that there were no front covers. violation of Section 509.221(8), Florida Statutes, by a failure to repair or replace screens as needed. violation of Rule 7C-1.03(7), by a failure to keep premises clean and free of debris and weeds or the grass properly cut. violation of Section 509.221(2), Florida Statutes, by a failure to remove an old abandoned car from the licensed premises. Petitioner's inspector, Henry W. Tilghman, made a reinspection of the licensed premises on the day prior to the hearing herein, i.e. April 23, 1984,and at the time of his arrival at 2:45 p.m. and departure at 3:45 p.m., the manager was not on the premises. Inspector Tilghman conducted an outside inspection of the licensed premises and found that the facia boards needed to be scraped and repainted at the west end of the building; that grass and weeds needed to be cut at the rear of the property and at the west and east end of the licensed premises; that there were several old abandoned cars on the property and that the premises were littered with debris, weeds and old furniture. Inspector Tilghman could not conduct an inside inspection of the licensed premises, however he was able to determine that the Respondents had not scraped and repainted the bathroom ceilings; had not repaired or replaced worn furniture in several of the rooms and had failed to keep the appliances and the air conditioners in safe and good condition. (Petitioner's Composite Exhibit 3.) As stated, Respondents, or a representative on their behalf, did not appear at the hearing to contest or otherwise dispute the violations set forth in the Notice to Show Cause filed herein dated August 10, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Department of Business Regulation, Division of Hotels and Restaurants, enter a Final Order imposing a $200.00 fine against the Respondent (licensees) for each of eight (8) violations set forth herein above for a total amount of $1600. RECOMMENDED this 21st day of June, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.
The Issue The issue presented herein concern whether or not the Respondent failed to maintain apartments that he owns situated at the 2563 Northwest 13th Court in good repair; free of vermin; failed to keep the premises and yard clean; failed to keep the garbage in proper receptacles and to keep the license for the premises displayed in a conspicuous place as is more particularly set forth in the Notice to Show Cause filed herein dated January 3, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, George A. Williamson, is the owner of several apartments known as the 13th Court Apartments in Ft. Lauderdale, Florida. Those apartments are licensed by the Petitioner, Division of Hotels and Restaurants and has been assigned control number 16-3079-H. (Stipulation of the parties.) On November 22, 1983, petitioner's inspector, Daniel J. Stallone, made a routine inspection of the Respondent's apartments involved herein and found that the roof leaked in apartment number 2, that the toilet leaked in apartment number 7, that there were several torn and missing screens and that garbage and refuse were strewn all around the premises and needed attention. (Petitioner's Exhibit 1.) In addition, inspector Stallone could not find the license displayed in a conspicuous place as is required pursuant to Rule 7C-1.02(1), Florida Administrative Code. On December 8, 1983, Inspector Stallone made a callback inspection and found that none of the above-referred violations had been corrected or otherwise complied with by Respondent. Inspector Stallone issued a Notice of violation citing the Respondent with non-compliance with Rule 7C-1.02(4), 7C-1.03(1), (5), and (7), Florida Administrative Code and Section 509.221(8), Florida Statutes. (Petitioner's Exhibit 2.) Copies of the reports for the November 22 and December 8, 1983 inspections were sent to Respondent by certified mail, return receipt requested. (Petitioner's Exhibit 3.) On January 24, 1984, Inspector Stallone made a subsequent inspection and found that the roof leak had not been repaired on the premises. Additionally, he noted that there were broken screens in several apartments and that there was garbage strewn around the premises. (Petitioner's Exhibit 4.) Inspector Stallone made another inspection of the premises on July 20, 1984 and found that all of the violations for which Respondent had been cited in earlier inspections had been complied with with the exception of a roofing leak. That leak is now repaired. (Respondent's testimony and Exhibit 1.) Rosa Mae Spivey, a tenant at the apartments, has resided there for approximately seven years and is responsible for the overall maintenance and cleaning for the apartments. The structure has a flat roof. As of March 30, 1984, apartments 2, 4 and 5 were patched by Cherokee Roofing of Ft. Lauderdale, Florida. Ms. Spivey cleans the grounds surrounding the premises approximately three times per week and has had the screens repaired or replaced at least three times since she has served as manager of the apartments. Respondent paid Cherokee Roofing $475 on April 2, 1984 to repair the roof for the apartments. Respondent has placed a large dumpster for the tenants to utilize for garbage and other debris from their apartments. Respondent retains the services of a plumber, a carpenter, a general laborer and a painting and cleanup employee who responds to complaints as they are made. Respondent admits to an approximately four-month delay in correcting the roof inn repairs however, he states that due to the large number of repairs brought abort by uncaring tenants, he attempts to prioritize the repairs and schedules them as soon as practicable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner issue Respondent a written reprimand admonishing him for failure to timely correct violations for which he has been cited and request that he continuously maintain his premises in a clean and sanitary condition as required by pertinent rules and statutes. RECOMMENDED this 3rd day of December, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1984. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 George Williamson 1113 Southeast 3 Avenue Ft. Lauderdale, Florida 33316 Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent failed to make reasonable effort to protect a student from conditions harmful to learning, or to the student's mental or physical health or safety, in violation of section 1012.795(1)(j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1.; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in a chapter 120 administrative hearing if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 633378, covering the areas of Early Childhood Education, Elementary Education, and English for Speakers of Other Languages (ESOL), which is valid through June 30, 2024. At the time of the allegations in the Administrative Complaint (in the fall of 2017), Respondent was employed as a first-grade teacher at Millennia Gardens Elementary School (Millennia Gardens) in the Orange County 4 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. School District (School District). Respondent had just begun teaching first grade at Millennia Gardens that school year (2017-2018). Respondent has been employed by Orange County Public Schools (OCPS) since November 7, 1988. Before the 2017-2018 school year, she was a classroom teacher for only four years early in her career, teaching kindergarten at Pines Hills Elementary School from 1990 to 1994. For the next nine years, Respondent taught ESOL "pull-out" sessions for small groups of students who were learning English. The students would be taken out of their regular classrooms to work with Respondent for about 45 minutes per day, and then they would return to their regular classrooms. In 2003, Respondent became the curriculum compliance teacher for the ESOL program. She explained that this primarily involved paperwork, parent meetings, and student testing. Her job was classified as a non- classroom position. She did some work with small groups of students, usually on an informal basis. Instead of all-day responsibility for a full classroom, she would work with four or five students for thirty-minute sessions. Prior to the 2017-2018 school year, Respondent had been working at Grand Avenue Primary Learning Center in the ESOL curriculum compliance position for ten years. Respondent offered in evidence the annual performance evaluations for her last five years in this non-classroom position, showing she achieved overall ratings of effective or highly effective.5 Grand Avenue Primary Learning Center closed after the 2016-2017 school year. The School District placed Respondent at Millennia Gardens, where she was assigned to a first-grade classroom teaching position because there was an opening. Respondent did not request the assignment, nor did 5 Respondent did not offer her performance evaluations as a classroom teacher in evidence, from either the four-year period in the early 1990s or any period since her return to the classroom in August 2017. Respondent described her evaluation for 2018-2019, testifying that her overall evaluation was "needs improvement," with an "unsatisfactory" rating for student learning gains. She said no annual evaluations were done for the 2019-2020 school year due to the COVID-19 pandemic and the change to remote online classes. There is no record evidence as to Respondent's evaluation for the 2017-2018 school year at issue here. Millennia Gardens select Respondent following an interview process to fill the opening, but the placement was made and Respondent took the position. Respondent's re-entry into classroom teaching after a 23-year hiatus was challenging, primarily because of new technologies incorporated into teaching. Millennia Gardens was a new school, having opened in 2016, and it was fully digital in 2017. Her classroom had a Smart Board she was supposed to use to teach, and the students had individual devices (tablets or laptops). Respondent admitted she was slow to adapt to technology. The students were accustomed to digital experiences in the classroom, but Respondent often resorted to "old school" methods. The students became antsy and impatient with her fumbling and shying away from technology she was supposed to use. Some aspects of classroom teaching, however, were not new. First graders, Respondent knew, could present management challenges. As she put it, first graders all have their moments. While her students were on their best behavior for the first couple of weeks of the school year—what she called the "honeymoon" period—that ended by September 1, 2017, when Respondent began having to call for assistance from the "School Wide Assistance Team," referred to as the SWAT team. Her calls, logged by the front office, were sporadic at first, then more frequent beginning in late September 2017. Respondent's first-grade classroom was relatively small in terms of physical space and number of students (17 or 18 students in the fall of 2017). Among Respondent's 17 or 18 students were J.C., K.R., P.C., and R.D.6 Respondent described K.R. and P.C. as troublemakers—the two students most consistently engaging in disruptive behavior, and the ones for whom she would resort to calls for SWAT assistance. As for the other two, Respondent described R.D. as "a bright kid" who did not initiate trouble but would sometimes join in the disruption started by K.R. and P.C.; and Respondent described J.C. as a happy child most of the time, though on occasion, 6 These four students were all in Respondent's classroom until October 12, 2017, when K.R. was transferred to another first-grade class at Millennia Gardens taught by Ms. Rivera. something would set her off and she would talk back or refuse to follow instructions. J.C. was described by a Millenia Gardens assistant principal and the master principal7 as a very smart, articulate little girl. Inside Respondent's classroom was a bathroom designed for one occupant, with a single toilet and sink. Respondent's rule to control bathroom traffic was to require a student to raise his or her hand and receive Respondent's permission to go to the bathroom. Respondent knew that, in defiance of her rule, sometimes more than one student would go into the bathroom at the same time. Respondent acknowledged that there were multiple occasions when P.C. and K.R. would run into the bathroom together to hide when they were in trouble. (These occasions would have been before October 12, 2017, when K.R. was transferred to another class.) Another time, two girls went into the bathroom together to share chewing gum. When Respondent noticed multiple students going into the bathroom together, she would order them out, unlocking the door if necessary. Although Respondent knew that sometimes multiple students went into the bathroom together—a risky, potentially dangerous situation given the lack of any supervision—Respondent did not employ special procedures or increase her vigilance to ensure she would be aware of, and thwart, attempts by multiple students to disappear into the bathroom. In Respondent's small classroom, heightened vigilance would have meant keeping eyes on, and knowing the whereabouts of, all students—particularly the troublemakers. Respondent's classroom was set up so that from anywhere in the classroom, she would have been able to account for the whereabouts of her students. The student desks were grouped in five clusters. Four clusters had four desks pushed together, with two desks side-by-side facing two more 7 As "master principal," Ms. Lynaugh was principal of two schools in the 2017-2018 school year: Millenia Elementary School and Millenia Gardens. She was aided by two assistant principals at Millenia Gardens: Michelle Carralero and Sandra McGraw. desks side-by-side. The fifth cluster had three desks, with two desks pushed together facing each other and the front of a third desk pushed up to the side of the two desks. Respondent's desk was in the far corner of the classroom, diagonally across the room from the classroom door. Her desk faced out to the classroom, although she testified that she rarely sat at her desk, which was covered with papers in wild disarray, some half falling off the desk's surface. On November 1, 2017, Respondent gave her students an assignment to write about something they had done the previous day. While circulating, Respondent noticed J.C.'s paper. On one side, J.C. wrote: "Last night I had fun. First, Next. Movie." However, on the other side of the paper, a picture was drawn of a shape—possibly a face—with two hearts, the word "Love" next to the hearts, and immediately below, the words, "I like to have sex." Respondent asked J.C. why she wrote that, referring to the note about "sex." J.C. responded that she did not write it. However, Respondent saw that the words appeared to be in J.C.'s handwriting, comparable to J.C.'s writing on the same paper responding to the assignment. Respondent took the paper away from J.C. and wrote J.C.'s name and the date on it. However, she did not immediately report it or show the paper to an administrator, to the school counselor, or to J.C.'s parents that day, November 1, 2017 (a Wednesday), nor on Thursday, November 2, 2017, or Friday, November 3, 2017. It was not until after the school day on Friday that Respondent decided to leave a note for the school counselor, along with J.C.'s paper, in the counselor's mailbox. Her note said: "Mr. Gonzalez, I wanted you to see what J.C. wrote on the attached paper. Could you please speak with her sometime? Thank you! Jane Meister." Respondent explained: I had intended to discuss it with our guidance counselor in person, but I was, you know, we had a lot of meetings that week and I was having issues with my leg that I was not able to arrange to catch him within a reasonable period of time. So then I wrote a note asking him to discuss this with J.C. and put it in his mailbox. (Tr. 466-67). Respondent admitted she knew the counselor may well have already left for the weekend, which turned out to be the case. It was not until late morning on Monday, November 6, 2017, that the counselor, Mr. Gonzalez, checked his mailbox and found J.C.'s paper with Respondent's note. Although Respondent had not acted with any sense of urgency, Mr. Gonzalez did. He described J.C.'s note about sex as a red flag. As he and other witnesses explained, it is not normal for a first grader to use the word "sex," so J.C.'s "sex" note raised concerns about what was going on in the student's school life, family life, or community life.8 Mr. Gonzalez immediately notified assistant principal Sandra McGraw about the two notes (J.C.'s "sex" note and Respondent's note asking him to speak with J.C. "sometime"). Ms. McGraw asked Mr. Gonzalez to follow protocol and speak confidentially to J.C. about it. That afternoon, Mr. Gonzalez took J.C. out of Ms. Meister's classroom and escorted her to his office to speak to her privately. Once in the office, he asked her about the note, showing it to her. J.C. said that she did not write the note, but she also said that there were three boys involved in getting her to write the note and helping her with the spelling. She identified the three boys as R.D., P.C., and K.R. Mr. Gonzalez testified that J.C. seemed distressed and was not very forthcoming, so he did not prolong the interview. He returned J.C. to the classroom after five minutes. Mr. Gonzalez then spoke separately with each of the three boys about J.C.'s note. Each of them denied pressuring J.C. to write the note about "sex." 8 Respondent asserted otherwise in her PRO. Respondent offered this statement to suggest that J.C.'s "sex" note may not have been cause for concern: "Children of 6 and 7-year-olds [sic] begin to be curious about sex at this age." (Resp. PRO at 33). More boldly, Respondent asserted: "Children of 6 and 7-years old engage in exploratory sexual play. This is normal." (Resp. PRO at 35). These statements were not supported by citations to record evidence; there is no record support. All the credible record evidence was to the contrary. Mr. Gonzalez also spoke briefly to Respondent that afternoon, reminding her that she was required to report the "sex" note to the Department of Children and Families' (DCF) abuse hotline. She responded, "I know." She had not yet reported the "sex" note to DCF; she testified she did not call the abuse hotline to report the "sex" note until told to do so.9 Mr. Gonzalez updated Ms. McGraw and suggested that she might want to try to follow up with J.C. He testified that both Ms. McGraw and Ms. Carralero spoke with these children a lot—he called them "go-to" persons for the young students—and he thought J.C. might be more comfortable speaking to a female about the "sex" note. Ms. McGraw followed up with J.C., as suggested. On November 7, 2017, she took J.C. out of Respondent's class and brought J.C. to her office to talk. Ms. McGraw testified credibly that she already had an established rapport with J.C. and that J.C., like other students, tended to open up to and talk easily with Ms. McGraw. To encourage this, Ms. McGraw had a comfortable set-up in her office, including a beanbag for children to sit on. Ms. McGraw's purpose in talking to J.C. was to follow up about the "sex" note. She let J.C. get comfortable on the beanbag, then asked J.C. to tell her about it. To Ms. McGraw's surprise, J.C. opened up and volunteered information about a different subject: an incident in the bathroom in Respondent's classroom. J.C. told Ms. McGraw that she did not know how it happened, she thought she had locked the door, but three boys—K.R., P.C., and R.D.—followed her into the classroom bathroom. She told Ms. McGraw 9 Respondent claimed that when she called the DCF abuse hotline to report the "sex" note, someone told her the report did not meet DCF's criteria. Her testimony regarding what she was told is hearsay that would not be admissible over objection in a civil action and that neither supplements nor explains any admissible evidence. It is insufficient to support a finding of fact and no finding is made on this subject. that one boy stood guard at the door, while the other two got her down to the floor and held her down, doing inappropriate things to her.10 Ms. McGraw testified credibly that when J.C. told her about the bathroom incident, the first thing Ms. McGraw asked J.C. was where Ms. Meister was when J.C. went into the bathroom. J.C. responded that Ms. Meister was in the classroom. Ms. McGraw had J.C. write down what she was able to, but all she wrote was the names of the three boys. Ms. McGraw did not belabor the matter, as she wanted to speak with the three boys before the end of the day (November 7), contact the students' parents, and report the incident to OCPS officials, to DCF, and to the Orange County Police Department. Ms. McGraw had the three boys taken out of class and put in separate rooms. She spoke with each boy separately. Each boy admitted to a bathroom incident of some kind, and two of the boys admitted that J.C. was touched inappropriately. K.R. admitted that he and P.C. followed J.C. into the bathroom, P.C. touched her on her "private part," and J.C. tried to stop him. K.R. admitted to touching J.C.'s belly, and J.C. pushed him back. R.D. said that P.C. and K.R. went into the bathroom while J.C. was using it, and they tried to kiss her and jump on her. P.C. only said something about playing in the bathroom. Each boy wrote a short statement, signed by Ms. McGraw. K.R. had difficulty writing what he had said—he was not very good at writing yet—so Ms. McGraw arranged for Mr. Gonzalez to assist by writing down what K.R. said. When assisted statements are taken, the practice is to bring in a witness to ensure that what the recorder writes down accurately reflects what the witness said. Ms. McGraw started off as a witness to this 10 Ms. McGraw's testimony regarding what J.C. told her supplements and explains the credible testimony of both J.C. (by deposition admitted in lieu of hearing testimony) and R.D. (who testified at the hearing). It also refutes Respondent's position, raised before the hearing as the rationale for allowing expert testimony, that improper and suggestive interview techniques used in investigating the bathroom incident shaped the children's statements about the incident. See Response to Petitioner's Daubert Motion (filed Aug. 21, 2020). assisted-statement process, but was called away (because the students' parents whom she had called had arrived to speak with her) and the other assistant principal, Michelle Carralero, took her place as the witness. Mr. Gonzalez wrote down K.R.'s exact words except in one or two instances where he paraphrased what K.R. said without changing the meaning. Ms. McGraw testified that, like with J.C., her first question to R.D. and to K.R. after they each described a bathroom incident like what J.C. had described was where Ms. Meister was when the bathroom incident occurred. They each reported that Ms. Meister was in the classroom.11 Before the end of the school day, Ms. McGraw also spoke briefly with Respondent to let her know they were now looking into a bathroom incident involving J.C., K.R., P.C., and R.D. Respondent declined to talk about the incident, but commented that it would not be the first time that multiple students had been in the bathroom together. Ms. McGraw's testimony regarding what she was told by J.C. and the three boys on November 7, 2017, was generally consistent with her sworn statement provided to the Orlando Police Department later that same day.12 11 Ms. McGraw's testimony regarding what the three boys said to her about the bathroom incident on November 7 and the written statements produced and/or signed by the boys that day supplement and explain admissible evidence in the form of R.D.'s and J.C.'s testimony. 12 Respondent's PRO inaccurately stated that Ms. McGraw's written police statement "did not contain J.C.'s statements to her" and instead, Ms. McGraw wrote about what was said to others in interviews. (Resp. PRO at 11, ¶ 49). To the contrary, Ms. McGraw's statement reported what J.C. told her about the bathroom incident: "On Thursday, November 7th, as a follow-up, I pulled J.C. from her classroom to ask[ ] her more about the ["sex"] note. Then, J.C. preceded [sic] to tell me about what happened to her in the restroom. … According to J.C., there were three boys who entered the restroom. One boy, R.D., was in there blocking the door and the other two boys, P.C. and K.R., took turns holding her down and getting on top of her." (Pet. Ex. 19, Bates p. 66; children's names replaced with initials). Ms. McGraw did not include in her written police statement the fact that J.C. (as well as the boys) told her Respondent was in the classroom at the time of the bathroom incident, but Ms. McGraw testified that she told the police this, and also told them that Ms. Meister had said this would not be the first time multiple students went in the bathroom together. (Tr. 173-74). Omitting those details in her written police statement is not surprising, since the police were investigating "allegations of sexual misconduct by juvenile offenders with a juvenile victim." Amended Stipulated Motion for Protective Order, ¶ 2, filed March 16, 2020. Details relevant here to whether Respondent met her supervisory responsibilities in the classroom would not be important in a police investigation of what the boys did to J.C. in the bathroom. One open question following J.C.'s revelation of the bathroom incident was when the incident took place. Ms. McGraw testified that she filled in the "date of the incident" space on J.C.'s written statement, writing that the incident was "last week." The boys' written statements are similar. At the hearing, Ms. McGraw testified that she was uncertain whether she just assumed the bathroom incident had occurred the prior week because that is when the "sex" note was written, or whether J.C. or the boys had said the incident was the prior week. Regardless, as Ms. McGraw and other witnesses agreed, first-graders do not have a very good concept of the passage of time so as to accurately report whether past events were last week or last month. Over the next two days (November 8 and 9), two DCF child protective investigators conducted interviews of the children regarding the bathroom incident. Either Ms. Carralero or Mr. Loomis sat in on the interviews and took notes, but let a DCF investigator conduct the interviews. Ms. Carralero was asked to sit in on the interview of K.R. in Mr. Loomis's place, because she had a preexisting relationship and good rapport with K.R., having known him and his family from having worked with and supervised his older brother. Notes of interviews of J.C., R.D., P.C., and K.R., are generally consistent with admissible evidence regarding the bathroom incident, at least in most respects that are material to the issues in this case. Ms. Carralero was tasked with following up to determine a timeframe for the bathroom incident. To accomplish this, she spoke separately with J.C. and K.R. on several occasions, finding the two of them to be most forthcoming about the details (perhaps in part because of the good rapport she already had with K.R.). First, Ms. Carralero attempted to narrow the time of day when the bathroom incident occurred, using broad frames of reference such as before or after "specials" (a slot for rotating special classes in art, music, and physical education), and before or after lunch. The students separately identified the time after specials and before lunch. That time slot, according to the first-grade classroom schedule, was for math. As a cross-check, Ms. Carralero then asked each student separately what they were working on, and they both responded that they were working on math. She then took it the next step, asking each student separately if they could recall what type of math they were working on. They each responded separately that they were learning counting by tens. Ms. Carralero then separately handed each student their math workbook and asked if they could identify what they were working on in their workbook. The students each identified a workbook page. Although they were not identical pages, they were in the range of pages worked on one day apart, according to Ms. Meister's lesson plan that she was required to draw up each week and follow. J.C. identified page 250 of the workbook, which was on the lesson plan schedule for individual work on Thursday, September 28, 2017. K.R. identified page 246 of the workbook, which was on the lesson plan schedule for individual work on Wednesday, September 27, 2017. As a final step to narrow down the timeframe, Ms. Carralero asked J.C. if she recalled what she was wearing the day of the bathroom incident. J.C. responded that she was wearing something pink and something black with sparkles, and that her hair was braided. Ms. Carralero asked K.R. separately if he remembered what J.C. was wearing that day, and he also said something pink and black. Ms. Carralero then studied security video recordings for the week pinpointed by the students' identification of what they were working on in their math workbooks. Ms. Carralero found a match on September 28, 2017: that day, J.C.'s clothing and hair fit the description given by J.C. and K.R. Ms. Carralero then verified from school records that the four students and Ms. Meister were all present in class that day. Ms. Carralero's approach was reasonable, and her testimony regarding how she made her determination was clear, credible, and consistent with the evidence of Respondent's class schedule and lesson plans. While it cannot be said with 100 percent certainty that the bathroom incident occurred on September 28, 2017, that date is supported by clear and convincing evidence. In addition to the indicators determined by Ms. Carralero's studied approach, each indicator confirming and reinforcing the others, a few independent factors tend to add credence to her timeline determination. One fact establishes that the bathroom incident must have occurred before October 12, 2017: K.R. was removed from Ms. Carralero's class and transferred to Ms. Rivera's class on October 12, 2017. In addition, a review of the SWAT logs shows that, while Ms. Meister's calls for assistance began on September 1, they were sporadic until late in September.13 September 28, in particular, stands out as the first banner problem day, with three separate calls for assistance with P.C. The first call, just after the school day began, was because P.C. had locked himself in the classroom bathroom and assistance was needed to coax him out. As Respondent put it, on some days, P.C. just showed up in an unhappy state, and it seemed to get worse throughout the day. But this day-long trend was not evident until September 28, 2017. A predetermination meeting was held on December 6, 2017. Respondent and her union representative were provided the investigative file material, including the student statements and notes of interviews, and Respondent was given an opportunity at the meeting to respond. Respondent repeated what she had told Ms. McGraw on November 7—that there were a number of occasions when multiple students had gone into the bathroom together before. When asked how she could have failed to notice nearly one- fourth of her class disappearing into the bathroom at the same time, she said that she may not have noticed because she was circulating around the 13 The log of SWAT calls shows the following calls by Ms. Meister for assistance: once on September 1 for K.R.; once on September 7 for P.C.; on September 20, once at 9:02 a.m. for P.C. and once at 9:40 a.m. for "J.R." (an apparent mistaken reference to K.R.); once on September 22 for P.C.; on September 25, once at an unknown time for P.C., and again at 1:05 p.m. for K.R.; once on September 26 for both K.R. and P.C.; and three times on September 28 for P.C., at 8:53 a.m., 9:50 a.m., and 12:50 p.m. Respondent points out in her PRO that there were 31 total SWAT calls for P.C. through the end of October, but only five of those calls were before September 28, 2017. classroom. She acknowledged that as of September 28, 2017, the bathroom door made a loud noise when closed, but she said that she would not necessarily have heard the loud bathroom door close on September 28, 2017, if her class was being noisy at the time. Following that meeting, the School District's investigation was summarized in a report prepared by Mr. Loomis. Respondent was disciplined in the form of a written reprimand for misconduct, by failing to properly supervise her class. She also received a non-disciplinary directive reminding her that she was required to adequately supervise her students. Respondent points out inconsistencies in the details regarding the bathroom incident, as set forth in the reports, statements, notes from interviews, and hearing testimony, which Respondent contends undermines the reliability of all the evidence. Respondent's point might be well-taken if this were a proceeding to determine whether one of the three boys had committed specific acts against J.C. during the bathroom incident, because the inconsistencies are in the details of who did exactly what to J.C. However, that is not the issue for determination in this case. Respondent offered testimony from an expert in child interview techniques, to point out that "best practices" for interviewing children were either not followed in the investigations of the bathroom incident or it cannot be discerned whether they were followed. The "best practices" guidelines offered in evidence provide a template for law enforcement officers to follow in interviewing alleged child victims of sex abuse. Examples of "best practices" to follow were: developing rapport with a child before delving into the sex abuse topic; interviewing the child in a comfortable, child-friendly place; not asking leading questions; limiting the number of adults in the interview room to one, ideally; limiting the times a child is interviewed; video recording interviews of child witnesses; and keeping a written record of the questions asked to ensure they were not leading. Since the interviews of children in this case were not recorded and Respondent's expert could not determine whether other best practices were followed, she offered the opinion that the children's statements could have been tainted by the process. She opined that the children's statements may have been born not of true memories of what happened, but rather, memories of what they may have been led to say or write, reinforced in repeated interviews that did not follow best practices or may not have followed best practices. In the context of this case, the expert opinions were not persuasive. While the concepts of the "best practices" guidelines in evidence may have some application beyond the context of a police officer interviewing an alleged child victim of sex abuse, there are some obvious differences with interviews conducted by school personnel investigating classroom matters. The initial interviews were conducted by the assistant principals and school counselor with whom the children frequently talked—they were the "go-to" persons—who already had good rapports established with these children, and who were all well-trained and experienced in conducting interviews of children to carry out investigations in school matters. That is very different from the first encounter of a police officer with an alleged child victim of sex abuse; rapport-building would be necessary before diving into the topic of sex abuse. In addition, Respondent's expert had the impression that the initial interviews were in a conference room with multiple strangers participating. Those were the second interviews controlled by DCF child protective investigators (who, presumably, were also well-trained in interviewing children, since that is their job). Respondent's expert did not have the benefit of Ms. McGraw's testimony regarding the child-friendly beanbag set-up in her office where J.C. first revealed the bathroom incident. Of note, Respondent's expert acknowledged that an alleged victim's first interview is the strongest evidence, particularly if the child witness volunteers the critical information rather than providing it in response to leading questions. In this case, it was striking that the first reveal of the bathroom incident came from J.C. volunteering the information, not in response to any question because no one knew to ask about it. Ms. McGraw's testimony regarding J.C.'s surprising reveal of the bathroom incident was clear, credible, and compelling to refute Respondent's argument raised before hearing that the way in which the interviews and investigation were carried out may have infected the children's statements. Although the expert testimony offered by Respondent addressed interviewing children generally, the "best practices" guidance document offered in evidence was specific to interviewing alleged child victims of sex abuse. Respondent's expert did not address the fact that in this case, interviews involved more than the alleged victim, J.C.; they extended to the alleged perpetrators. Here, three boys each admitted, to varying degrees, that they were involved in a bathroom incident in which J.C. was the unwilling recipient of kisses and touches on her "private part." The fact that each of the boys tended to point the finger of blame for specific offensive kisses and touches at one of the other boys might be an impediment to finding that one particular boy committed a particular wrongful act, but that is not the issue in this case. Here, that phenomenon adds force to the collective story told by these boys who were admitting, against their self-interest, to participating in a bathroom incident, while trying to minimize their personal culpability. The credible hearing testimony of R.D. and J.C., nearly three years after the bathroom incident, painted a clear big picture that three boys (K.R., P.C., and R.D.)14 went into the bathroom in Respondent's classroom with one girl, J.C., and while the four students were in the bathroom together, there were one or more occurrences of unwelcome and inappropriate touching of J.C.'s "private part." This clear and convincing big picture was supplemented, 14 In her deposition, J.C. named all three boys by their first names: K., P., and R. When converting the boys' first names to first and last initials for the transcript, the court reporter combined two boys' first initials, merging two boys into one. See Pet. Ex. 23 at 8 and 10 (referring several times to two boys, KP and RD, instead of three boys, K.R., P.C., and R.D.). The video recording of the deposition shows that all three boys were named, rather than two. explained, and corroborated by the statements and interviews of these children. By admitting their involvement, each of the three boys ended up serving a suspension. Respondent's expert failed to offer an explanation as to why boys would admit to their own involvement in the bathroom incident if there had been no such incident. Respondent has maintained that she was not aware of the bathroom incident. She attempted to suggest the possibility that the bathroom incident may have occurred during one of the "few occasions" in all of fall 2017 when she left the classroom, a couple of times to go to the office and a couple more times to go to the restroom, leaving a paraprofessional in charge. However, Respondent also admitted that it was entirely possible that the four students could have been in the bathroom together for as long as five minutes while she was in the classroom without her even being aware of their absence. When asked how that could have happened, she testified as follows: Probably, you know, when the students were doing work in their seats, I would circulate and help the students as it was needed. So if it was -- if I was helping a student on the far side of the room I would have had my back turned to the restroom. And, you know, if I was focused on the child I was talking to and their work on the desk in front of me, I would not have seen what was going on behind me. * * * Probably not five whole minutes with one student. But it would be entirely possible that I moved from one student to another sitting right next to that student without turning my back or without turning around again. (Tr. 495-97). Respondent's testimony stands as an admission that she was inadequately supervising her class. Having her back to her whole class— including the known troublemakers and the bathroom that they were known to run into and hide—for as long as five minutes is unreasonable and unacceptable. It is incomprehensible that while helping one student, she would not position herself to see the rest of the class in her peripheral vision, or regularly swivel her neck to make eye contact with the other students— particularly the known troublemakers. Rather than making this reasonable effort to protect her students from harm, she created conditions that were harmful to the physical and mental health and safety of one student. The credible testimony of both J.C. and R.D. established that Respondent was in the classroom at the time of the bathroom incident. J.C. testified that Respondent was the one who gave her permission to go to the bathroom when J.C. raised her hand. R.D. also testified that Respondent was in the classroom when he, K.R., and P.C. went into the bathroom. And both J.C. and R.D. testified that Respondent was in the classroom when they came out of the bathroom. J.C. added that Respondent was on the school phone when J.C. left the bathroom. While there were details that neither J.C. nor R.D. could recall about the bathroom incident, testifying nearly three years after it occurred, their testimony was clear, credible, and consistent regarding Ms. Meister's presence in the classroom at the time of the bathroom incident.15 Their testimony on this point was corroborated by Ms. McGraw's 15 Respondent's PRO argued that testimony of J.C. and R.D. should be discounted or ignored as the product of leading questions. No "leading" objections were made during J.C.'s deposition. As for R.D., Respondent's counsel did not object to R.D.'s testimony that he, P.C., K.R., and J.C. were all in the bathroom in Ms. Meister's classroom. A single "leading" objection was made after the following two questions and answers: Q: Okay. Now, before you all went into the restroom, was Ms. Meister in the classroom? A: Yes. Q: When you all came out of the restroom, was Ms. Meister in the classroom? A: Yes. Ms. Parker: I'm going to object. Leading the witness. (Tr. 121). The belated objection was overruled. That a question calls for a yes or no answer does not make it leading; instead, a question is leading if it suggests the answer. Happ v. State, 922 So. 2d 182, 185 (Fla. 2005) ("This court has long held that a question is not necessarily leading simply because it calls for a "yes" or "no" answer. Instead, a question is leading when it points out the desired answer."); Porter v. State, 386 So. 2d 1209, 1211 (Fla. 3d DCA 1980) (abbreviated definition of a leading question as one calling for a "yes" or "no" answer is misleading; the real test is if a question suggests only the answer yes or only the answer no). clear testimony that J.C. and the boys told her Ms. Meister was in the classroom at the time of the bathroom incident when that incident was first revealed on November 7, 2017. Respondent presented evidence of circumstances which she asserted should mitigate against any disciplinary consequences. She argued that Millennia Gardens' administration was to blame by assigning her to a classroom with very difficult students to manage and not giving her more help to learn the new technologies while trying to manage her classroom. Yet Respondent acknowledged the importance of her supervisory responsibilities as a first-grade teacher. She was responsible for the care and safety of the students in her classroom who were under her charge. As the master principal of Millenia Gardens put it: "Supervision is number one. You've got to have your eyes on the children at all times." Respondent identified two students who were involved in the bathroom incident, K.R. and P.C., as the ones who were most consistently disruptive in her class. She testified that at some point during the fall of 2017, she submitted a recommendation that the two boys should be evaluated for possible special education status. This evaluation process, referred to as the "MTSS" (multi-tiered student support) process, cannot happen quickly. If a school determines that a child should be evaluated for possible support, notice must be given to the parents and a meeting must be coordinated with the parents and a multidisciplinary team of school personnel. At such a meeting, a discussion ensues regarding the child's needs, possible interventions, and possible areas for professional evaluation. If and only if it is agreed that professional evaluation should occur, and the parents give their informed written consent, then a 90-day professional evaluation process begins. At the end of a 90-day evaluation process, it is possible that the school's determination would be that no special support is warranted; or it is possible that the school determines that student support in some form is warranted. If the latter determination is made, then the school would draw up an individual education plan (IEP) for the child, providing for such measures to be taken as are appropriate for the child, based on the evaluation results. In addition to an IEP, one possibility for a child with behavioral problems is the development of a behavioral improvement plan (BIP). No particular measures are employed in all IEPs or BIPs. One possibility is that a child would remain in a regular classroom with an aide assigned to help the child; however, that is only one of many possible measures that may be employed. Respondent was unable to say exactly when during the fall she submitted her recommendation that K.R. and P.C. go through the process for possible evaluation for special education. Although the evidence was not clear in this regard, at the time of the bathroom incident, Respondent may have been just about to make that recommendation or possibly may have just made that recommendation. The evidence was clear that at the time of the bathroom incident, the process had not gone forward to the point where parents had been contacted, a meeting set up, or parental consents for professional evaluations obtained. It would be sheer speculation to say what determinations could result following a 90-day evaluation period that had not yet been authorized or begun. Respondent cannot simply abdicate her responsibilities upon identifying two students for whom she recommended that such an evaluation process should start, as if that step created an entitlement to a particular end result. Respondent's claim that these two disruptive students made it impossible for her to manage her classroom is particularly troubling in the context in which it is being raised. Respondent cannot claim that she was oblivious because she was distracted by the two disruptive students. Those two disruptive students were secreted away in the bathroom. This makes it all the more incomprehensible that Respondent was unaware that nearly one-fourth of her class had disappeared.16
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) through a violation of rule 6A-10.081(2)(a)1., and imposing the following as penalties: suspension of Respondent's educator's certificate for a period of two years from the date of the final order; probation for a period of two years after the suspension, with conditions to be determined by the Education Practices Commission; a requirement that Respondent take a college level course in professional ethics for educators; and payment of a $750.00 fine. DONE AND ENTERED this 29th day of December, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive, 2nd Floor Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida. Respondent was previously licensed as a Certified Pool Contractor by Respondent, holding license number CP C21422. On March 15, 2004, Respondent's license was revoked and was void at all times material to this case. On June 3, 2005, Respondent entered into a contract with Luis Vargas and Maria Rivera (Customers) for construction of a pool at their home located at 1524 Southeast 8th Avenue, Cape Coral, Florida. The total cost of the proposed construction was $21,500. The name of Respondent's company as identified on the contract was Gulfshore Pool and Spa, Inc., 207 Center Street, Tarpon Springs, Florida. At all times material to this case, Respondent was the president and owner of Gulfshore Pool and Spa, Inc. During the sales presentation to the Customers, Respondent provided a copy of his license to the Customers that showed an expiration date of August 31, 2004, and told them that it was being renewed. The contract contained the following notation: Company is being retained for services of design, consultation and assistance in construction. Customer is responsible for obtaining all necessary permits required for the pool construction. Respondent testified that he told the Customers he would arrange for all subcontractors and would add a fee of ten percent as his fee for "overseeing" management of the project. The Payment Schedule for the contract required that "progress payments" in an amount totaling the cost of the pool were to be made to Gulfshore Pool and Spa, Inc. The Customers obtained the construction permit. Respondent made all arrangements for site clearing and excavation. Respondent made all arrangements for acquisition and delivery of pool construction materials to the job site. All materials invoices were billed to Gulfshore Pool and Spa, Inc. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections. The Customers paid a total of $20,500, by checks, made payable to Gulfshore Pool and Spa, Inc. The Customers withheld the remaining $1,000 payment for reasons that are immaterial to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Michael D. White violated Subsections 489.127(e) and (f), Florida Statutes (2004), and impose a total administrative fine of $10,000. DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2008. COPIES FURNISHED: Scott A. Smothers, Esquire Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828 Orlando, Florida 32801-2828 Michael D. White, Jr. Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc. 306 East Paris Street Tampa, Florida 33604 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Zed Lucynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent engaged in gross negligence, incompetency and misconduct in reroofing the Beetham residence during August 1986 and, if so, what administrative penalty should be imposed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant factual finding are made: Respondent, Robert L. Cochran, is a licensed roofing contractor having been issued license no. RC-0032408. On April 1, 1986, Respondent agreed to reroof the home of Hugh E. Beetham, situated at 2406 Calamonga Lane in Sarasota, Florida for $3,600.00. On April 3, 1986, Beetham paid Respondent $2,000.00 and paid the balance to him by installing carpet in Respondent's home in accordance with Respondent's directions. Respondent removed Beetham's old roof during April, 1986, and laid tar paper over the structure. Respondent did not retile Beetham's roof until August, 1986. David H. Gracey, who was received as an expert in roofing construction and systems, inspected Beetham's roof on August 26, 1987, to determine its condition by comparing existing features with the building code and the prevailing standards of roofing practice in Florida. Respondent used a cement tile to reroof Beetham's home. In doing so, Respondent did not comply with the local building code as follows: The tile head lap was insufficient and was laid with excess exposure, causing courses to be stretched which resulted in the roof being approximately 2 courses short or 230 less tile than should have been installed. Tile bed mortar was inadequate in size and placement causing excessive loose tile. Nearly 354 of 904 tiles or approximately 39.2% were loose presenting a safety hazard both in continued slippage and wind-borne tile in severe weather. Improper counterflashing detail at the chimney and gable with an unsuccessful attempt to seal the gable opening by the use of mortar. Detailing of the valleys were shoddy and misal igned. Tiles laid at the end of the house were uneven and created a safety hazard. Based on the numerous deficiencies found by Gracey during his inspection of Beetham's roof, the only means by which the roof could be corrected would be to remove all existing tile and mortar and redo the entire roof. /1
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Impose an administrative fine against Respondent in the amount of $750.00 payable to Petitioner within thirty (30) days following the entry of the final order. Place Respondent's license number RC-0032408 on suspension for a period of three (3) months with the further proviso that suspension be suspended for a period of forty- five (45) days during which time Respondent shall be allowed an opportunity to reroof the Beetham's home in accordance with the applicable building codes and provided such reroofing occurs, that the entire period of suspension be suspended./2 RECOMMENDED this 1st day of June, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1989.
