Findings Of Fact At all times material to these proceedings, Respondent, Barry James Rose, was employed in the public schools of Okaloosa County, and worked on a continuing contract as a physical education teacher at Addie R. Lewis Junior High School. The Respondent began teaching at Addie R. Lewis Junior High School during the 1972-1973 school year, and has continued in that capacity up until the date of the hearing in this cause. During the Respondent's entire tenure at this school, Wayne McSheehy, has served as Principal. During this time, the Respondent's principal responsibility was to teach physical education, although he also taught science classes during the 1976-1977 school year and during the 1977-1978 school year. Prior to the 1976-1977 school year, Respondent also coached several sports at the school. During the time that Respondent taught at Addie R. Lewis Junior High School, his wife, Barbara Rose, also taught girls' physical education at that school. During the 1976-1977 school year, Mr. and Mrs. Rose "team taught" during third and fourth periods, and were usually in communication during Respondent's sixth period class. Mrs. Rose's office was located in the girls' physical education locker room, where all physical education equipment for both boys' and girls' classes was kept, along with some of the Respondent's personal belongings. At the beginning of the 1976-1977 school year, Respondent requested and was assigned a teacher aide named Pam Skinner who served as the Respondent's aide throughout the school year. In addition, Miss Skinner knew Mr. and Mrs. Rose outside the school environment in that she lived near the Roses and occasionally baby-say for them. During the 1976-1977 school year Respondent instructed Cynthia Straley and Sherri Wiley in their second period physical education class. Respondent was not these students' assigned instructor for the second period class, and was present in that second period class only during a three-week segment in the spring of 1977. In addition, Respondent instructed Tracy Lynn Scott and Renee Green in their fifth period physical education class during the 1976-1977 school year. The allegations against Respondent are contained in five paragraphs in the Petition for the revocation of teacher's certificate filed by the PPC. For purposes of clarity, the issues raised in these five paragraphs will be dealt with separately. In paragraph one of the Petition, the PPC alleges that during the 1976- 1977 school year the Respondent ". . . was guilty of improper conduct toward a female student by pinching her buttocks, hugging her and placing his hands inappropriately upon her body." There is no testimony in the record that Respondent at any time hugged a female student in any of his classes, and, therefore, it is found that there is no evidence to support that portion of the charge contained in paragraph one. In addition, there is insufficient evidence to support the allegation that Respondent ever pinched any of his students on the buttocks as contended in paragraph one of the Petition. Respondent categorically denies this charge, and the only student testifying that Respondent ever pinched her indicated that this conduct occurred in class throughout the 1976-1977 school year when, in fact, Respondent taught this student's class only during one three-week period in the Spring of 1977. In addition, there was no other testimony to corroborate the student's assertion that Respondent ever pinched her. The last portion of the charge contained in paragraph one of the Petition relates to Respondent having placed his hands "inappropriately upon the body" of the same student whose buttocks he allegedly pinched. The record is clear that this alleged conduct occurred on only one occasion, and that the alleged touching occurred in the context of the performance of an advanced gymnastic exercise. These exercises were optional with the students involved, and were totally voluntary. The student involved did not report the incident to other teachers, in spite of the fact that at least two female teachers were involved in the same class, nor did she report the incident to administrators at the school until the beginning of the following school year. The student's parent, when told of the incident, did not consider it sufficiently serious to bring to the attention of school personnel. The student involved elected to continue the class under the Respondent's guidance, notwithstanding the alleged occurrence. Finally, the record reflects that the conduct alleged in this portion of the charge was acceptable from a teaching standpoint in the context in which it occurred. Consequently, there is insufficient testimony in the record to establish that any alleged touching by Respondent of the student in question was "inappropriate." Paragraph two of the Petition alleged that during the 1976-1977 school year Respondent ". . . made disparaging remarks of a sexual nature to one or more students in his classes." The remark in question is alleged to have been made to Renee Green, a student in Respondent's fifth period physical education class. There is a direct conflict in the testimony with regard to the content of the alleged remark. In her deposition, Miss Green contends that while she was rolling a plastic pipe on the floor during one of Respondent's classes, Respondent said to her: "What are you doing, Renee, trying to get your cheap thrills? I wonder what you do on weekends." Miss Green testified that although the remark upset her, she was not sure why it had that effect on her. Other testimony in the record confirms that the first sentence of the alleged remark was made, but that the second was not. Additionally, Respondent testified that the entire content of his remark was: "Renee, what are you doing, getting cheap thrill." There is no objective evidence in the record on which to base a conclusion that the alleged remark, whether made as asserted by Miss Green or Respondent, was either disparaging or of a sexual nature. Accordingly, the charge contained in paragraph two of the Petition is not supported by competent substantial evidence. In paragraph three of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . patted and slapped girls on the buttocks in the presence of other students." Respondent admits having patted only one student, Pam Skinner, on the buttocks after the successful completion of a gymnastics exercise. Miss Skinner testified that she took the gesture to be one of commendation and approval of her having successfully completed an exercise on which she had been working for some time. Respondent denies having patted any other students on the buttocks and his contention is supported by virtually all other instructional personnel at the school who had an opportunity to observe the Respondent during the course of his instruction of students in his classes. Notwithstanding this fact, other students who alleged that Respondent had patted them on the buttocks admitted that the patting took place in the context of physical education instruction, and indicated to them only that they should proceed with their activities in accordance with instructions given them by Respondent. The record is totally devoid of any indication that any of the participants considered patting on the buttocks in this context to have been inappropriate. In fact, none of the students involved were sufficiently offended by the alleged conduct to bring it to the attention of school personnel until the following year. In addition, all of the students continued in the Respondent's classes with no apparent ill effects. In paragraph four of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . entered the girls' locker room where females were dressing without first announcing his intentions to enter the dressing area." There is insufficient evidence in the record on which to base a conclusion that Respondent ever entered the girls' locker room unannounced while female students were in a state of undress. In fact, there is no evidence that Respondent ever entered the girls' locker room unannounced, and only one student testified that Respondent entered the locker room while female students were dressing. The Respondent denies the allegation, and his contentions are substantiated by each of the physical education instructors working with him who were in a position to observe his conduct in this regard. The record is clear that Respondent on occasion had to enter the girls' locker room to obtain equipment to conduct his classes, but that he utilized his teacher aide, Pam Skinner, to insure that no female students were in a state of undress prior to his entrance. It is, therefore, specifically found that Respondent at no time entered the girls' locker room where females were dressing without first announcing his intentions to do so, and that, therefore, there is no evidence to substantiate the allegations of paragraph four of the Petition. In paragraph five of the Petition the PPC alleges that during the 1976-1977 school year, the Respondent ". . . and a female student were alone on one or more occasions in the girls' locker room for an extended period of time with the locker room door closed." Respondent would often enter the girls' locker room, accompanied by his teacher aide, Pam Skinner. Their purpose in entering the locker room was to retrieve girls' physical education equipment which was used by Respondent in instructing his classes. In most instances when Respondent and Miss Skinner entered the girls' locker room, the Respondent's wife, who maintained an office inside the girls' locker was present. The Respondent had specifically asked for assignment of a teacher aide to his classes during the 1976-1977 school year to enable him to remove the equipment from the girls' locker room with a minimum of inconvenience and embarrassment to either himself or his female students. There is no evidence in the record to indicate that Respondent's conduct while in the girls' locker room with his teacher aide, Miss Skinner, was at all improper, and, in fact, the only finding possible from this record is that their visits to the locker room were solely for the purpose of obtaining equipment for the proper instruction of his classes. Accordingly, it is concluded that there is insufficient evidence of record to sustain the charge contained in paragraph five of the Petition. None of the alleged incidents contained in the Petition were considered by the students, their parents, or school administrative personnel to be of sufficient severity to be brought to Respondent's attention during the 1976-1977 school year, despite the fact that several of these alleged incidents were brought to the attention of both parents of the students involved and to school administration personnel It was not until the beginning of the 1977-1978 school year that the school administration decided to investigate these allegations further. Even then, the school principal indicated that he did not consider the allegations of sufficient severity for further disciplinary action until Respondent insisted on obtaining the identities of those persons making the allegations. Even after the allegations were investigated, none of the parents involved requested that their students not be instructed by Respondent during the 1977-1978 school year, and the school principal indicated to the parents that they need not be concerned about their children continuing to be taught by Respondent. In fact, Respondent has, since the allegations occurred, instructed these same female students in subsequent classes, with no apparent ill effect. In addition, during the 1977-1978 school year Respondent was selected as runner up for Teacher of the Year in the same school at which the alleged incidents occurred. Therefore, it clearly appears for the record that, given the fact that neither the parents involved nor school administrative personnel felt it necessary to remove any of the involved female students from Respondent's classes, together with Respondent's performance as a teacher in the school during the 1977-1978 school year, Respondent's effectiveness as an employee of the school system has not been affected by the alleged occurrences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint against Respondent, Barry James Rose. DONE AND ENTERED this 28th day of December 1978 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mailing Address: Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1978. COPIES FURNISHED: J. David Holder, Esquire Suite 224 110 North Magnolia Drive Tallahassee, Florida 32301 Richard H. Frank, Esquire John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact Petitioner and her husband, Dr. Henry S. Pennypacker developed a precision teaching process designed to facilitate learning by the students exposed to this process. It was first used at the University of Florida in 1972 under contract between the corporation formed by the Pennypackers, viz, Precision Teaching, Inc. of Florida, and the University of Florida Athletic Association. This contract with the Athletic Association continued through fiscal year 1973-74. By 1974 the system had acquired wider acclaim and the University of Florida decided to try this process on entering students who were below the academic average. Since the project was expected to grow it was decided that Susanne Pennypacker would be employed full time to manage the activities of Precision Teaching, Inc. of Florida. The University of Florida entered into a contract with Precision Teaching, Inc. to conduct the program in fiscal year 1974-75 and Petitioner served as Director on the staff of, and was paid by, Precision Teaching, Inc. During this contract period the University determined that it would prefer to operate the program as a university project rather than under a contractual arrangement with Precision Teaching, Inc. Negotiations were conducted with the Pennypackers and it was agreed that Petitioner would be employed by the University to run the project which would be called the Personalized Learning Center. Several letters passed between Dr. Webb and Petitioner and her husband as the negotiations respecting the budget for fiscal year 1975-76 progressed. On June 3, 1974 Dr. Webb submitted a proposed budget for the fiscal year commencing July 1, 1975 to the Pennypackers. A copy of this letter was not offered into evidence. By letter of June 19, 1975 the Pennypackers reminded Dr. Webb that the contract with Precision Teaching would expire on June 30, 1975 and a management contract to continue the opera-tion of the Personalized Learning Center had not been executed. It was further stated that they had agreed to operate the center at the budget figure presented on June 3, 1975, but it appears that the University was unable to commit $7,000 of the proposed far amount. Dr. Webb was advised that the Pennypackers' continued participation in the project was dependent upon written assurance that the shorted funds become available by January 1, 1976, and that "we will regard failure to provide (at least written assurance) the full amount requested and agreed to as a signal that our services are not longer desired and, accordingly, will, with great reluctance, terminate completely our association with the center on July 1, 1975." By letter dated June 30, 1975 (Exhibit 15) Dr. Webb submitted the budget for the operation of the Center for the FY 75-76 to Dr. Pennypacker. Therein the full amount for salaries contained in Petitioner's proposed budget of June 5, 1975 (Exhibit 13) was approved. No formal contract was entered into between Ms. Penny-packer and the University, but the discussions were memorialized in a letter from the University representative, Dr. Jeanne Webb, to the Pennypackers dated June 30, 1975 (Exhibit 4). Petitioner became an employee of the University on July 1, 1975. The terms and conditions of this employment are contained in the University' s Notice of Appointment (Exhibit 18) dated November 25, 1975 which was executed by Petitioner on December 15, 1975. In late November or early December, 1975 Petitioner was notified that her contract with the University would not be extended beyond June 30, 1976. Within ten days of receipt of that letter Petitioner requested reasons for not being reappointed for the forthcoming year. Neither of these letters was offered into evidence. Response to Petitioner's request for reasons were contained in Dr. Webb's letter of December 17, 1975 (Exhibit 16). Although reasons indicating dissatisfaction with Petitioner's performance as Director of the Personalized Learning Center are contained in Exhibit 16, Respondent took the position that satisfactory performance of duty by Petitioner was not an issue in this case, and offered no evidence to support the bare allegations contained in Exhibit 16. Upon completion of Petitioner's case Respondent submitted a motion for directed verdict, and an argument on said motion. Petitioner replied thereto and thereafter Respondent rested without presenting evidence.
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
The Issue The issues in this case are whether, as Petitioner has charged, Respondent offered for sale training in a program of physical exercise, or the right or privilege to use equipment in furtherance of a program of physical exercise, at an unregistered business location, in violation of section 501.015(1), Florida Statutes; and, if so, whether a penalty should be imposed.
Findings Of Fact The Department is the state agency responsible, among other things, for administering the laws regulating health studios. For purposes of circumscribing the Department’s jurisdiction, the term health studio “means any person who is engaged in the sale of services for instruction, training, or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.” § 501.0125(1), Fla. Stat. Magloire is a person who meets the definition of a “health studio” subject to the Department’s regulatory jurisdiction. During the period from, roughly, December 2018 until December 2019, Magloire operated a gym under the name “Adrenaline Fitness,” which was located at 3700 Northwest 124th Avenue, Coral Springs, Florida (the “Gym”). There is no dispute that Magloire allowed persons to use equipment or facilities at the Gym for the purpose of physical exercise. It is also undisputed that Magloire never registered the Gym with the Department, which would have been required if the Gym were a “business location.” See § 501.015, Fla. Stat. A health studio constitutes a “business location” if “studio services” are performed onsite. The term studio services “means privileges or rights offered for sale or provided by a health studio.” § 501.0125(2), Fla. Stat. Magloire maintains that the Gym was a “private facility” where services were not “offered for sale” to the public, but rather were made available as a convenience to his personal friends and acquaintances. The relevant distinction here, however, is not between private and public facilities, per se, but between commercial and noncommercial gyms. A homeowner who installs exercise equipment in his garage for personal use and invites a few friends over for a workout once in a while does not thereby turn his home into a “business location.” Magloire’s Gym did not involve this kind of obviously personal, noncommercial use. Magloire testified that many of the persons who worked out at the Gym did not pay him with money for the privilege, although a few did, occasionally, tender cash; the undersigned accepts this as true. Magloire admitted, however, that he received other valuable consideration from guests, such as services, in exchange for his letting them use the Gym’s equipment and facilities. The undersigned determines as a matter of ultimate fact, based on clear and convincing evidence, that the Gym constituted a “business location” where “studio services” were “offered for sale.” Magloire, therefore, was required to register the Gym with the Department pursuant to section 501.015(1), which he failed to do, in violation of the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing a fine of $1,000 against Magloire for providing studio services at an unregistered business location in violation of section 501.015(1), Florida Statutes. DONE AND ENTERED this 24th day of February, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 24th day of February, 2020. COPIES FURNISHED: Genevieve Hal1, Esquire Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Vladimir Magloire Adrenaline Fitness Studio 10370 Northwest 40th Place Coral Springs, Florida 33065 (eServed) Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of February, 2013.
Findings Of Fact Respondent, Expression Gym, Inc. (Expression) is a Florida Corporation with its place of business located at 2633 West 76th Street, Hialeah, Dade County, Florida. The business began in approximately 1991. From the time of its inception, Expression has offered some type of fitness equipment for use at its facility. In April, 1994, Fabio Otero began working at Expression. Mr. Otero brought all of his physical fitness equipment to the business for use at the facility. The working relationship between Mr. Otero and Expression ended in late July, 1994. On August 1, 1994, Ms. Gloria Gil, an owner of Expression, bought some fitness equipment for use at Expression. Sometime prior to September, 1994, DACS officials received information from the Hialeah occupational licensing office that Expression had an occupational license for an exercise studio or health studio. A research of the records of DACS did not reveal that Expression had registered with DACS as a health studio. On June 24, 1994, DACS sent a letter to Expression, notifying the business that health studios were required to be registered pursuant to Section 501.015, Florida Statutes, and enclosing a health studio registration form with the letter. Expression did not receive the letter. On July 27, 1994, DACS sent another letter to Expression, stating that DACS had not received a reply to its previous letter and requesting Expression to send in the registration form. Expression did receive the July 27, 1994 letter. DACS did not receive a registration form from Expression in response to the July 27, 1994 letter. On September 2, 1994, James Kelley, an Assistant Division Director of the Division of Consumer Services, which is a part of DACS, made an on-site inspection of Expression's facility. While at Expression's facility, Mr. Kelley talked to Mrs. Gil, who advised him that Expression had two types of memberships. One membership entitled the member to use the weight equipment at the facility and to participate in the aerobics program. The other membership was for a gymnastic program for children. Mrs. Gil advised Mr. Kelley that a three month membership could be purchased for $89, which also included one month free. A six month membership with one month free could be purchased for $129 and a nine month membership could be purchased for $199 which also entitled the member to one free month. By letter dated October 10, 1994, DACS advised Expression that DACS intended to impose an administrative fine for failure to register as a health studio. DACS further advised Expression that it must register before engaging in any further health studio activities. As of the date of the hearing Expression had not submitted a registration form to DACS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Expression Gym, Inc. violated Sections 501.015(1), (2), (3), Florida Statutes, and assessing a penalty of $1,000.00. DONE AND ENTERED this 6th day of February, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 6th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6447 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected to the extent that it implies that Expression actually received the letter of June 24, 1994. Paragraph 5: Accepted to the extent that Expression received the July 27, 1994 letter but rejected to the extent that it was the second notice that Expression had received. Paragraph 6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: Rejected as irrelevant to the charges in the Notice of Intent to Impose Administrative Fine. Paragraph 9: Accepted in substance. COPIES FURNISHED: Joe Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Expression Gym C/O Gloria Gil 2633 West 76th Street Hialeah, Florida 33016 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, 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 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
