The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is an applicant for a Florida Educator's Certificate. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question. In advance of the Test, Petitioner was informed in writing of, among other things, the following: In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . . Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . . Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: * * * c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. * * * Section 2: Prohibited Aids The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . . * * * Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat." After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.). Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look." Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well." Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point, Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it." Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3 Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4 Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that Ms. Lorenzo had confiscated from Petitioner's left hand. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6 As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam." Ms. Lorenzo responded that Petitioner's "test [was] over for today." After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on." As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room). On April 26, 2004, the Department sent the following letter to Petitioner: This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following: "Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. Section 2: Prohibited Aids The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the math subtests of the General Knowledge Test." As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision. This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . . If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows: I have received your letter about the problem I had the day of test. I'm so sorry about the day. In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room." This denial of Petitioner's application for certification is the subject of the instant proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 30th day of August, 2005.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: Respondent held Florida teacher's certificate number 681506, covering the areas of Pre-K through Grade 3, which was valid until June 30, 1995. On or about November 4, 1986, Respondent was charged with battery by information filed in Dade County Court Case No. 86-79409. On December 29, 1986, following a non-jury trial, Respondent was found guilty as charged. Adjudication of guilt was withheld and Respondent was ordered to pay $77.00 in court costs. In 1990, Respondent submitted an Application for Florida Educator's Certificate to the Bureau of Teacher Certification of the Department of Education (Bureau). On the application, she checked "no" in response to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld? Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of certification. Please Check One: Yes No If yes, you must give complete details for each charge. As Respondent was aware, her negative response to this question was untrue inasmuch as, in 1986, she had been found guilty of the crime of battery in Dade County Court Case No. 86-79409. In 1992, Respondent submitted another Application for Florida Educator's Certificate to the Bureau. On the application, knowing that her response was false, she answered "no" in response to the following question: Yes No Have you ever been convicted, found guilty, or entered a plea of nolo contendre (no contest) to a crime other than a traffic violation? A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge In 1993, Respondent submitted a third Application for Florida Educator's Certificate to the Bureau. On the application, she knowingly gave false information by checking "no" in response to the following question: Yes No Have you ever been convicted, found guilty, entered a plea of nolo contendre (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to s.943.058, F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. On February 7, 1994, while working as a teacher at Golden Glades Elementary School, a public school located in Dade County, Respondent was involved in an altercation with a student, C.K., in the doorway to Respondent's classroom.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order: (1) finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint, as amended, concerning her falsification of the 1990, 1992, and 1993 certification applications she submitted to the Bureau; (2) barring Respondent from applying for certification for a period of three years for having committed these violations; and (3) dismissing the remaining counts of the Administrative Complaint, as amended. DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
Findings Of Fact At relevant times to this inquiry Respondent has held the teaching certificate number 664911 in the area of substitute teacher issued by the Petitioner. In the case of the State of Florida v. Robert Ray Stone, in the Circuit Court of the Fifth Judicial Circuit of the State of Florida in and for Marion County, Case Number 90-1630-CF-A-W, Respondent was charged with two counts of vehicular homicide, a single count of leaving the scene of an accident in which a death was involved and a single count of evidence tampering. The accident was alleged to have occurred on May 6, 1990 and the alleged evidence tampering was said to have occurred between May 6 and May 12, 1990. On April 30, 1991 Respondent was tried, found guilty and was adjudicated guilty of unlawfully and willfully failing to stop his vehicle at the scene of an accident or as close thereto as possible, or forthwith to return to that scene and fulfill the reporting requirements and rendering of aid requirements set out in Section 316.062, Florida Statutes, thus violating Section 316.027, Florida Statutes. He pled and was adjudicated guilty of unlawfully and knowingly altering, destroying, concealing, or removing any record, document or thing, in this instance an automobile and/or automobile parts with the purpose to impair its verity or availability in any proceeding or investigation, knowing full well that a criminal trial or proceeding or an investigation by duly constituted prosecuting authority, law enforcement agency or grand jury of the state was pending or was about to be instituted, and through such evidence tampering violated Section 918.13(1)(a), Florida Statutes. The accident in question involved death. These offenses in Counts 3 and 4 to the information to which Respondent offered his pleas were third degree felonies. The two counts of vehicular homicide were not pursued and are not part of the judgment and sentence in the aforementioned case. For his plea Respondent was given concurrent sentences of twelve months imprisonment for Counts 3 and 4 to the second amended information, followed by six years probation to run concurrent. In the imposition of the sentence the court also recommended payment of restitution and investigative costs, alcohol counseling, and that the Respondent consume no alcohol and that the driver's license of the Respondent be revoked for a period of three years. Knowledge of the crime was publicized in the Ocala Star Banner in its July 10, 1990 edition. Frank Washington, Jr., Director of Personnel for the Marion County School System, Marion County, Florida, in which Respondent had been employed as a substitute teacher, offered his opinion on the Respondent's effectiveness to serve as a substitute teacher following the subject incident. Mr. Washington has 31 years of experience in education to include classroom instruction at the elementary, junior high and high school level, service as assistant principal or principal in elementary and middle schools as well as his administrative service. Mr. Washington holds a Florida certificate to teach. Mr. Washington is somewhat familiar with the criminal law case against the Respondent. As a consequence of the case Respondent has been removed from the approved list of substitute teachers in the Marion County School System. Mr. Washington's opinion on the effectiveness of the Respondent to carry forward his duties as a substitute teacher is that Respondent's effectiveness has been reduced. This is especially true given that the school system has limited control over substitute teachers as contrasted with full-time teachers. Mr. Washington's concerns about Respondent's effectiveness also addresses the apparent disregard for human life evidenced by the Respondent in his conduct in leaving the scene of an accident where a human life was lost and the deceit demonstrated by the Respondent in his evidence tampering following the accident. Mr. Washington does not believe that this type individual needs to be in the classroom working with children in a posture where children are to be taught good citizenship. Mr. Washington's opinion on loss of effectiveness is accepted.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is recommended: That the teaching certificate as a substitute teacher, No. 664911, held by Robert R. Stone be revoked for a period of ten years. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lawrence A. Longenecker formerly held a Florida teaching certificate, and was employed as a science teacher at Madeira Beach Middle School in Pinellas County until January of 1978. In January of 1978, administrative charges were brought against the petitioner by the Professional Practices Council (the predecessor to the Education Practices Commission) for the revocation of his teaching certificate. After a hearing before a Hearing Officer with the Division of Administrative Hearings, it was found that petitioner had made sexual advances toward three female students on four separate occasions during 1977 and that petitioner was thus guilty of personal conduct which seriously reduced his effectiveness as a school board employee. The Hearing Officer recommended, by order dated November 25, 1980, that petitioner's teaching certificate be permanently revoked. Professional Practices Council v. Lawrence Longenecker, DOAH Case No. 80-1276 (November 25, 1980). By Final Order filed on February 2, 1981, the Education Practices Commission adopted the Hearing Officer's Recommended Order and permanently revoked petitioner's teaching certificate. Professional Practices Council v. Lawrence A. Longenecker, Case NO. 80-005-RT (February 2, 1981). No appeal was taken from this Final Order. In approximately March of 1983, petitioner filed an application for a Florida Teaching Certificate, which application was denied by the Department of Education. Its "Notice of Reasons" for denial, filed on June 30, 1983, recited the events which formed the bases for the prior permanent revocation of petitioner's teaching certificate, and concluded that petitioner had failed to demonstrate that he is of good moral character, as required by Section 231.17(1)(e), Florida Statutes, and that petitioner had committed acts for which the Education Practices Commission would be authorized to revoke a teacher's certificate. Petitioner was 28 and 29 years of age during the time of the acts which formed the basis for the prior certificate revocation. He is now 34 years old. Since 1978, he has obtained a Master's degree in personnel administration from the University of South Florida and has been employed in the area of retail management. He fees that he is now more mature and more wise and would like to return to his chosen profession of teaching school. During the pendency of the instant proceeding, petitioner visited Dr. Alfred Fireman for psychiatric counseling and evaluation on three occasions. It was Dr. Fireman's opinion that petitioner is psychologically fit to reenter the teaching profession provided that his behavior is monitored. He concluded that petitioner "was a suitable candidate for a probationary restoration of privileges." The Education Practices Commission has never reinstated a former certificate or issued a new teaching certificate to an individual whose certificate had been previously permanently revoked.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying petitioner's application for a Florida teaching certificate. DONE AND ENTERED this 9th day of March, 1984. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March 1984. COPIES FURNISHED: Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 J. David Holder, Esquire Berg & Holder 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32301 Donald L. Greisheimer Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32301
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 422775 (graduate, rank 3), which expires on June 30, 1984. She is certified to teach biology and health education at the secondary (grades 7-12) school level. She is now employed by the Duval County School Board as a teacher at Douglas Anderson Middle School. (Testimony of Cobb; Prehearing Stipulation; P-4.) In January, 1974, Respondent pleaded guilty to a misdemeanor crime: the obtaining of public assistance by fraud in violation of Section 409.325, Florida Statutes. On January 28, 1974, the County Court of Duval County adjudged her guilty and placed her on probation. (P-1.) On November 23, 1976, the State Attorney of Duval County filed a criminal Information charging Respondent with petit larceny. Essentially, he alleged that, on November 21, 1976, she took merchandise belonging to Winn-Dixie Stores, Inc., without paying for it. On November 30, 1976, she entered a plea of nolo contendere to the petit larceny charge; she was adjudged guilty by the County Court of Duval County and sentenced to pay a $50 fine and court costs. (P-2.) In July, 1978, Respondent applied for a Florida teaching certificate. Section V of the application asked: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation"? By marking the appropriate space, she answered "No". (P-3.) She executed the application before a notary public on July 14, 1978; she expressly certified that: I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28 F.S.) I further certify that all information pertaining to this application is true and correct. Pursuant to her application, and in reliance upon the representation that she had never been arrested or involved in a crime, the Florida Department of Education issued her the teacher's certificate which she now holds. (Testimony of Lee; P-4.) At the time she completed her application, Respondent was aware of her criminal record and knew that she had been involved in at least one criminal offense--the 1976 offense of petit larceny. At hearing, she could not explain why she denied any past involvement in a criminal offense: Q.: [Counsel for Commissioner] : So, you knew [when you applied for a teacher's certificate] that you had been involved in a criminal history or had had an involvement with the law? A.: [Respondent]: In '76, yes. Q.: Okay, why didn't you put, "yes"? A.: I just didn't. Q.: But you . . . you knew you had been involved in a criminal offense. A.: In '76, yes. : So then why didn't you put, "yes"? A.: I just didn't. (Tr. 126.) It must be concluded that Respondent knowingly falsely represented to the Department of Education that she had no prior involvement in any criminal offense; that she misrepresented her criminal record in order to obtain a Florida teacher's certificate. (Testimony of Cobb; P-1, P-2, P-3.) Whether an applicant has ever been arrested or involved in a criminal offense is a material factor in the Department's evaluation of an application. An application may be denied if the applicant has committed acts which would justify suspension or revocation of a teaching certificate; it is likely-- although not certain--that, if the Department was aware of Respondent's past criminal record, her application would have been denied. (Testimony of Lee.) When Respondent submitted an application for employment with the Duval County School Board on July 24, 1978, she falsely answered "No" to the question: "Have you ever been arrested for any other offense other than minor traffic violations"? (Tr. 49.) She knew her answer was false 2/ . Had her criminal record been revealed, she would not have been recommended for employment. (Testimony of Epting, Cobb.) From October 7, 1978, to November 11, 1978, Respondent obtained unemployment compensation even though she was employed by the City of Jacksonville. She obtained the unemployment compensation by falsely indicating she was not employed. Consequently, a criminal Information was filed on April 29, 1980, by the State Attorney of Duval County charging her with unemployment compensation fraud. On June 4, 1980, she pleaded guilty to the charge; however, the Circuit Court of Duval County withheld adjudication, placed her on probation for one year, sentenced her to three weekends in county jail, and directed that she make complete restitution of the funds wrongfully collected. (P-6.) Respondent acknowledges that she knew her action was wrong, that she knew she was not entitled to the unemployment compensation funds. She explains that she was in financial need and behind on her house payment; she feels her actions were justified, under the circumstances, because Jacksonville (her employer) had promised that she would continue to be employed. Instead--after she had incurred long-term financial commitments--Jacksonville terminated her employment. She has now made full restitution for the wrongfully taken funds. (Testimony of Cobb.) Respondent has been an effective and satisfactory teacher during the 1980-1981 school year. Her ratings have been the highest possible; she has shown initiative and established rapport with her students. Her principal recently promoted her to chairman of the science/health department and recommended that she be reemployed for the 1981-1982 school term. (Testimony of Poppell; R-1.) Teachers in Duval County are held to a high standard of character and conduct. A teacher's involvement in crime would tend to violate those standards; parents would be unwilling to entrust the education of their children to such an individual. (Testimony of Poppell.) The Commissioner's proposed findings of fact have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's Teacher's Certificate, No. 422775. DONE AND RECOMMENDED this 3rd day of November, 1981, in Tallahassee, Florida. L. CALEEN, JR. 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 November, 1981
Findings Of Fact On August 7, 1983, the Petitioner, accompanied by two companions, a male and female, entered the Richway Department Store at 1941 South Military Trail in West Palm Beach, Florida. The male approached the store's service desk and attempted to obtain a refund for some silverware. Previously, the store security manager, Art Riggott, had been informed by telephone call from another local Richway Store that if two black females and a black male attempted to obtain a refund for silverware at his store, a refund should be refused. When Mr. Riggott advised the male that a refund for the silverware could not be issued without a receipt for its purchase, he left the silverware on the service desk counter and exited the store. While the two women were in the store, Mr. Riggott and another security officer kept them under surveillance. In the ladies wear department, they placed several articles of clothing in a carriage, including two women's jackets, and continued through the store, placing several other articles of merchandise in the carriage also. In the domestic department, the Petitioner was observed as she put the two jackets in her purse. The women then left the carriage in an aisle with the other merchandise in it, and exited the store. Outside, they rushed toward a red car parked at the curb, which was driven by the male who had sought the refund for silverware. The Petitioner was arrested. The other woman was able to get into the car before it sped off with one door open. The Petitioner was taken to the store office where her purse was opened and the two women's jackets were removed. The jackets had Richway price tags on them. They had been received by the Richway Store only two days before. When the Petitioner failed to appear at her scheduled court appearance, a bench warrant was issued for her arrest. She did appear at a subsequent hearing on January 20, 1984, and entered a plea of no contest to the offense of retail theft. The court withheld adjudication of guilt, ordered the Petitioner to pay a fine of $90.00, and rescinded the outstanding bench warrant. The Petitioner paid the fine. In 1985, after graduating from college, the Petitioner applied to the Dade County School Board for a teaching position. On her application, the Petitioner answered "no" to the question "Have you ever been convicted, fined, imprisoned or placed on probation in a criminal proceeding?" On this application, the Petitioner also certified that the information she provided was true, correct and complete to the best of her knowledge and belief, and that the information was furnished in good faith. The application includes the statement that any omissions or false statements will constitute reason for dismissal. The Petitioner was hired and worked during the 1985-1986 school year, but she was dismissed from this position when school officials learned of her criminal prosecution and the false statements on her employment application. On April 9, 1986, the Petitioner applied to the Department of Education for a Florida teaching certificate. On this application, the Petitioner answered "no" to a question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Because the results of a routine fingerprint check by the Florida Department of Law Enforcement disclosed that the Petitioner had been arrested and prosecuted for shoplifting in August of 1983, the Petitioner's application was denied. On November 26, 1986, the Petitioner filed another application for a Florida teaching certificate. On this application the Petitioner disclosed that she had been arrested in West Palm Beach for shoplifting on August 3, 1983, and that adjudication of guilt was withheld. The Petitioner's falsification of her applications for employment and for a teaching certificate are acts of extreme dishonesty and conduct which would seriously reduce her effectiveness as an employee of the school system. Such conduct violates the Principles of Professional Conduct for Educators, and is unacceptable for members of the teaching profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Cherry D. Cornelius for a Florida teaching certificate, be denied. THIS RECOMMENDED ORDER entered this 2nd day of April 1987 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of April 1987. COPIES FURNISHED: Ms. Cherry D. Cornelius 231 S.W. 15th Avenue Delray Beach, Florida 33444 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Karen Barr Wilde Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Department of Education 319 West Madison Street Room 3 Tallahassee, Florida 32301
The Issue Whether the Florida Prepaid College Board (Respondent) is liable to Stephen E. Pazian (Petitioner) under the Participation Agreement for losses incurred in his investments in the Florida Prepaid College Plan as a result of Respondent’s failure to follow Petitioner’s investment instructions.
Findings Of Fact Respondent is a corporate entity created by Section 1009.971, Florida Statutes,2/ responsible for administering the Florida College Savings Program, also known as the Florida College Investment Plan (the Plan). Petitioner is an individual with a Master’s degree in Business Administration from the University Georgia. Petitioner and his wife have been residents of Homosassa, Florida, since 2003. In October 2003, Petitioner opened two accounts with Respondent under the Plan and directed that the funds for both accounts be 100 percent invested in the U.S. Equity Investment Option. Petitioner opened the first account with an initial investment of $50,000 for his daughter, Jordan S. Pazian, Account Number 0079456. The other account Petitioner opened was for his son, Benjamin W. Pazian, Account Number 0079484, also with an initial investment of $50,000. The contract between Respondent and an account owner under the Plan is the Participation Agreement. The Participation Agreement is incorporated by reference into Florida Administrative Code Rule 19B-16.003. Respondent agreed to the terms of the Participation Agreement when he signed the applications opening the two accounts. In turn, Section 1 of the Participation Agreement provides that “the Florida College Investment Plan Application (the ‘Application’) that I completed, signed and submitted to the Board and the Disclosure Statement is incorporated by reference and made a part of this Participation Agreement.” The Disclosure Statement provided to Petitioner at the time he opened the subject accounts, explained on page 28, that the Board “will mail to the Account Owner quarterly statements indicating: Contributions to each selected Investment Option made to your Account during the period. Withdrawals from each selected Investment Option from your Account made during the period. The total value of your Account at the end of the period.” In addition, the Disclosure Statement explained that the fourth-quarter, year-end account statement would provide the same information for the preceding calendar year and the investment performance for each investment option. The Application forms completed by Petitioner required Petitioner, as account owner, to provide “Contact Information” to the Board as part of the Application. Petitioner listed his address as “11987 W. Timberlane Dr., Homosassa, FL 34448-7311,” on both Applications. On October 13, 2003, Petitioner signed both Applications and initialed the following two paragraphs contained on the final page of the Applications: I have read and understand the Florida College Investment Plan Disclosure Statement and the Participation Agreement, and consent to the policies, terms, and conditions of the Florida College Investment Plan, and the Participation Agreement. I understand that the Participation Agreement, which is incorporated into this application by reference, as it relates to enrollment in the Florida College Investment Plan, constitutes a legally binding agreement between me and the Florida Prepaid College Board. I understand that the policies, terms and conditions of the Florida College Investment Plan and Participation Agreement may be amended from time to time without prior notice, and I understand and agree that I will be subject to those amendments. I understand that enrolling in the Florida College Investment Plan and investing my funds in the investment options involves a high degree of risk, account values may fluctuate and there is no guarantee. I understand that I could lose all funds, including any earnings on those funds, deposited in the account, and investments in the Florida College Investment Plan are not deposits or obligations of, or insured or guaranteed by the State of Florida, the United States government, the Florida Prepaid College Board, the Federal Deposit Insurance Corporation, or any other governmental agency or financial institution. Intuition Systems, Inc., is Respondent’s contract provider of certain administrative services with respect to the Florida College Investment Plan, including processing forms from account owners that direct changes in the selection of investment options within the Plan. On January 10, 2007, Petitioner telephoned Respondent. The call was answered by Intuition Systems, Inc. During the telephone call, Petitioner asked for a personal identification number (PIN) for online access to his two accounts. Petitioner also asked about the process for changing the direction of his investments in the Plan. In his testimony, Petitioner recalled, or thought he recalled, receiving Respondent’s facsimile number during the telephone call on January 10, 2007. That testimony, however, is not credited because, although Intuition Systems, Inc.’s business records reflect telephone contact from Petitioner on January 10, 2007, and that Petitioner ordered a PIN number and asked about changing his investments, there is no indication in the records that Petitioner asked for or received a facsimile number. Petitioner more likely received Respondent’s facsimile number from either its appearance on the first page of quarterly statements of the accounts mailed to Petitioner’s Florida residence, or from Petitioner’s wife, who received the mail and opened the quarterly statements. Petitioner testified that he did not personally receive his PIN, but conceded that it was probably sent to his home. Based upon Petitioner’s testimony and Intuition Systems, Inc.’s records reflecting Petitioner’s request for a PIN and that a PIN number was mailed to Petitioner’s residence in Homosassa, it is found that, within five-to-seven days from January 10, 2007, until Petitioner closed the accounts in 2009, Petitioner had access to a PIN number for online, computer access to investment information to the Plan accounts he opened for his children. Around the same time period (middle January 2007), Petitioner also received either online access to, or one or more copies in the mail of, a document entitled “Florida College Investment Plan Allocation Transfer Form” (Allocation Transfer Forms). Based upon Intuition System, Inc.’s records reflecting the January 10, 2007, telephone call, it is found that Petitioner was “advised of web-for-transfer form,” and the most likely scenario is that Petitioner printed Allocation Transfer Forms from Respondent’s website and provided copies of the forms to his wife. Petitioner left Florida in late January 2007 to live, temporarily, in California to work as president and chief executive officer for Prismedical Corporation. While in California, Petitioner stayed in a large motor home near his work in Napa, California, from approximately late January 2007 until returning to Florida in the fall of 2008. During that time period, Petitioner made several trips back to his residence in Homosassa, Florida. Petitioner is unaware of the exact dates he was in Florida during 2007 and 2008, but estimates he was in Florida on approximately the following dates: January 1 through January 28, 2007, May 31 through June 2, 2007, August 25 through September 3, 2007, September 28, 2007, October 7, 2007, November 21 through November 24,2007, December 23 through December 31, 2007, January 1 through January 2, 2008, February 9 through February 17, 2008, and November 10, 2008, through the end of 2008. During the time period that Petitioner was staying in California, Petitioner never updated his address on file with Respondent from Homosassa, Florida, as set forth in his Applications for the accounts, and there is no evidence that Petitioner otherwise advised Respondent or its administrator of an address change. Prior to February 4, 2007, Respondent’s wife, Barbara Pazian, filled out the top portion of two Allocation Transfer Forms for Petitioner’s two Plan accounts: one for the investment account for their daughter, Jordan, and the other for the investment account for their son, Benjamin. The information Ms. Pazian wrote into the top portion of each of the two Allocation Transfer Forms included Stephen E. Pazian’s name as the account owner, a daytime telephone number in Homosassa, Florida, the names of their two children as beneficiaries of the accounts, and the respective account numbers for the two accounts. Petitioner obtained the two partially completed Allocation Transfer Forms from his wife either before or after he left for California. On Sunday, February 4, 2007, while in his motor home in California, Respondent completed and signed the bottom portion of each of the two Allocation Transfer Forms. The Allocation Transfer Form Petitioner completed for the account in Jordan Pazian’s name authorized Respondent to move 100 percent of the equity balance to the fixed income investment option. The Allocation Transfer Form Petitioner filled out for the account in Benjamin Pazian’s name authorized Respondent to move 50 percent of the equity balance into the fixed income option. The top pre-printed paragraph of the Allocation Transfer Forms provides: Return this form to: Florida College Investment Plan P.O. Box 6587 Tallahassee, Florida 32314-6567 Respondent’s facsimile number is not provided on the pre-printed Allocation Transfer Forms. Instead of mailing the Allocation Transfer Forms, Petitioner prepared a facsimile transmittal cover sheet on his computer and dated it February 5, 2007. The facsimile cover sheet was on Prismedical Corporation letterhead and was signed by Petitioner with a message to the Florida College Investment Plan Finance Department from Petitioner stating, “Please find attached two Investment Fund transfer requests for you to process. Please call me should there be any questions.” On Monday, February 5, 2007, Petitioner instructed Jennifer Teixeira, an office assistant at Prismedical Corporation in California, to transmit by facsimile the two completed Allocation Transfer Forms and the facsimile cover sheet Petitioner had prepared to Respondent at fax number 850- 309-1766. As shown by telephone records, Ms. Teixeira completed the task of transmitting by facsimile the three pages as instructed on February 5, 2007, at 9:28 a.m. While there was evidence adduced at the final hearing that Respondent has acted upon investment instructions received by fax, it is clear that the instructions on the Allocation Transfer Forms require mailing and that it was Petitioner who decided to transmit the forms by facsimile instead of mail. Petitioner received a printout from the transmitting facsimile machine in California indicating that the three pages faxed to Respondent on February 5, 2007, were received by Respondent. Other than review of that printout, Petitioner did not try to confirm with Respondent that his investment instructions were received and Petitioner did not communicate with Respondent regarding his faxed instructions for over one year and nine months. The instructions contained in the two Allocation Transfer Forms transmitted to Respondent in that February 5, 2007, facsimile were never acted upon by Respondent or its administrator, Intuition Systems, Inc. There are a number of possible explanations for Respondent’s failure to follow the investment instructions on the two Allocation Transfer Forms. First, while telephone records show that three pages were transmitted, there could have been a problem with Respondent’s fax machine which prevented actual receipt of the transmission. It is also possible that the transmission was received, but the pages were never printed because of error or because of a confidentiality code on the sending machine in California. Another plausible explanation is that the pages were received and printed out, but then lost or misplaced. A possible, but less likely,3/ scenario is that the three pages were transmitted upside down so that only blank pages were transmitted. The person in charge of document management operations for Intuition Systems, Inc., went through all of the images of incoming correspondence, including faxes, received from February 2, 2007 through February 8, 2007, by Intuition Systems, Inc., on behalf of Respondent, and could not find the fax transmitted by Petitioner to Respondent on February 5, 2007. Regardless of the actual reason, it is clear that the investment instructions contained in the Allocation Transfer Forms for Petitioner’s accounts transmitted to Respondent on February 5, 2007, were never followed. The quarterly account statements for both of Petitioner’s accounts with Respondent for the four quarters of 2007 and first three quarters of 2008 were mailed to Petitioner’s residence in Homosassa, Florida, no later than the following dates: Quarter Mailing Dates First Quarter 2007 May 1, 2007; Second Quarter 2007 August 9, 2007; Third Quarter 2007 November 7, 2007; Fourth Quarter 2007 February 13, 2008; First Quarter 2008 May 12, 2008; Second Quarter 2008 July 31, 2008; Third Quarter 2008 November 6, 2008. Petitioner’s wife, Ms. Barbara Pazian, received all of the above-listed quarterly statements and filed them away at the Pazian’s home in Homosassa. The first paragraph of each quarterly statement mailed to Petitioner’s residence specifically states: This statement summarizes your account activity for the previous quarter. Please review the information carefully. Changes to the account, including a change of address, must be in writing and be signed by the account owner. You may mark your changes directly on this statement, sign the statement and mail it to the address below or FAX to (850) 309-1766. Additional information about your account is available at www.florida529plans.com, Florida College Investment Plan, “Access My Account.” If you have any questions, please call 1-800- 552-GRAD (4723). (Emphasis added). On May 8, 2007, Petitioner’s wife called the Florida College Prepaid Board, through Intuition Systems, Inc., to inquire whether she could use some of the investment funds to purchase a new car for their daughter, Jordan, and was told that she could not. Ms. Pazian wrote a handwritten note stating “car not” on the original first 2007 quarterly report for Jordan’s account. If Petitioner had reviewed any of the above-listed quarterly statements or accessed the accounts on a computer using his PIN number, Petitioner would have seen that the instructions contained in the Allocation Transfer Forms he signed, dated February 4, 2007, had not been followed. The account summaries on the first page of each of the quarterly statements listed above clearly indicate that the only funded investment option in both accounts throughout the time period from 2007 through October 31, 2008, was the “U.S. Equity Investment Option.” According to Petitioner, however, he never bothered to review the quarterly statements or access the accounts by computer from January 2007 through October 2008. During the same time period, however, Petitioners regularly reviewed the performance of his non-Plan investments via online computer access. At the final hearing, Petitioner explained that he did not follow his investments in the Plan because it was his understanding that he could only make investment changes in his Plan accounts once a year. Petitioner further testified that since his Plan investments could not be actively traded like his other investment accounts, he considered them “sort of set-it- and-forget-it accounts.” According to Petitioner, the first time he noticed that his investment instructions had not been followed and that all of his investments under the Plan were still invested in the U.S. Equity Investment Option was when he returned home in November 2008 and decided to review the quarterly statements that his wife had filed away. In contrast, according to the testimony of Respondent’s General Counsel Thomas McSwain, during a telephone conference with Petitioner in February 2009, Petitioner told him that, while Petitioner was in California, Ms. Pazian kept him informed of his Plan account balances each quarter from the quarterly statements. Contemporaneous notes taken by Mr. McSwain are consistent with his recollection of that conversation with Petitioner in February 2009. Based upon Mr. McSwain’s testimony and corroborating notes, as well as Petitioner’s self-reported practice of regularly following his other investments, the undersigned credits Mr. McSwain’s testimony over that of Petitioner and finds that during the period of time that Petitioner was in California, Petitioner’s wife kept him informed of the account balances of his Plan investments when she received quarterly statements for those accounts mailed to Petitioner’s home in Homosassa, Florida. While Petitioner might not have actually reviewed his quarterly statements for his Plan investments from 2007 through the third quarter of 2008, the fact that he was kept apprised of the account balances on a quarterly basis demonstrates that Petitioner had sufficient information to know that his investment instructions faxed to Respondent on February 5, 2007, had not been followed. If Petitioner’s investment instructions had been followed, the quarterly statements would have revealed different account balances between his two Plan accounts. Instead, the account balances reflected on the quarterly statements for both accounts remained exactly the same throughout the time that Petitioner was in California. A change of the investment option for Petitioner’s Plan account for his daughter Jordan from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007 to a 100 percent allocation in the Fixed Income Investment Option would have resulted as follows: Account Number: 0079456 Beneficiary: Jordan S. Pazian [Actual] [Adjusted] U.S.EQUITY OPTION FIXED INCOME OPTION Date Shares Price Balance4/ Shares Price Balance5/ 2/5/2007 4,363.7302 $15.83 $69,083.82 6,083.7900 $11.36 $69,083.82 3/31/2007 4,363.7302 $15.67 $68,360.89 6,083.7900 $11.50 $69,989.40 6/30/2007 4,363.7302 $16.51 $72,059.87 6,083.7900 $11.43 $69,533.18 9/30/2007 4,363.7302 $16.63 $72,579.53 6,083.7900 $11.76 $71,530.65 12/31/2007 4,363.7302 $16.11 $70,292.97 6,083.7900 $12.11 $73,660.76 3/31/2008 4,363.7302 $14.93 $65,129.07 6,083.7900 $12.29 $74,761.00 6/30/2008 4,363.7302 $14.59 $63,647.65 6,083.7900 $12.15 $73,947.41 9/30/2008 4,363.7302 $13.65 $59,559.57 6,083.7900 $12.12 $73,737.68 12/31/2008 4,363.7302 $10.76 $46,946.07 6,083.7900 $12.67 $77,094.04 3/31/2009 4,363.7302 $9.56 $41,714.74 6,083.7900 $12.78 $77,756.03 4/30/2009 4,363.7302 $10.58 $46,188.98 6,083.7900 $12.85 $78,203.31 6/30/2009 4,363.7302 $11.12 $48,515.40 6,083.7900 $13.03 $79,290.58 7/10/2009 4,363.7302 $10.62 $46,342.01 6,083.7900 $13.20 $80,327.87 A change of the investment option for Petitioner’s Plan account for his son Benjamin from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007, to a 50 percent allocation in the Fixed Income Investment Option and a 50 percent allocation in the U.S. Equity Investment Option would have resulted as follows: Account Number: 0079484 Beneficiary: Benjamin W. Pazian INCOME OPTION[Actual] [Adjusted]U.S.EQUITY OPTION 50% U.S. EQUITY OPTION + 50% FIXED Date Shares Balance6/ (prices same as above) U.S. Equity Shares Balance (prices same as above) + Fixed Income Shares Balance7/ (prices same as above) Total 2/5/2007 4,363.7302 $69,083.82 2,181.8650 $34,541.91 + 3,041.8950 $34,541.91 $69,083.82 3/31/2007 4,363.7302 $68,360.89 2,181.8650 $34,180.44 + 3,041.8950 $34,994.70 $69,175.15 6/30/2007 4,363.7302 $72,059.87 2,181.8650 $36,029.93 + 3,041.8950 $34,766.59 $70,796.52 9/30/2007 4,363.7302 $72,579.53 2,181.8650 $36,289.76 + 3,041.8950 $35,765.33 $72,055.09 12/31/2007 4,363.7302 $70,292.97 2,181.8650 $35,146.48 + 3,041.8950 $36,830.38 $71,976.86 3/31/2008 4,363.7302 $65,129.07 2,181.8650 $32,564.53 + 3,041.8950 $37,380.50 $69,945.03 6/30/2008 4,363.7302 $63,647.65 2,181.8650 $31,823.83 + 3,041.8950 $36,973.70 $68,797.53 9/30/2008 4,363.7302 $59,559.57 2,181.8650 $29,779.78 + 3,041.8950 $36,868.84 $66,648.63 12/31/2008 4,363.7302 $46,946.07 2,181.8650 $23,473.03 + 3,041.8950 $38,547.02 $62,020.05 3/31/2009 4,363.7302 $41,714.74 2,181.8650 $20,857.37 + 3,041.8950 $38,879.02 $59,735.38 4/30/2009 4,363.7302 $46,188.98 2,181.8650 $23,094.49 + 3,041.8950 $39,101.65 $62,196.14 6/30/2009 4,363.7302 $48,515.40 2,181.8650 $24,257.70 + 3,041.8950 $39,645.29 $63,902.99 7/10/2009 4,363.7302 $46,342.01 2,181.8650 $23,171.00 + 3,041.8950 $40,163.93 $63,334.94 Although Petitioner had sufficient information since at least May 2007, to know that his February 2007 investment instructions had not been followed, the first time that Petitioner contacted Respondent regarding those investment instructions was on November 13, 2008, when Petitioner made a telephone call to Respondent through Intuition Systems, Inc. During that telephone call, Petitioner complained that he sent the Allocation Transfer Forms in February 2007, but that the accounts were never updated. The Intuition Systems, Inc., representative who took the call advised Petitioner that the forms were never received and therefore, the Plan accounts could not be updated. Petitioner then spoke to a supervisor at Intuition Systems, Inc., who advised Petitioner that there was no record that the Allocation Transfer Forms had been received. In January 2009, Petitioner sent a letter addressed to Mr. Hoepner, Chairman of the Florida College Prepaid Board, which was received by Respondent on January 12, 2009. In that letter, Petitioner requested that his investments be retroactively changed to reflect the investments and earnings as they would have been for each of the accounts had his investment instructions dated February 5, 2007, been followed. Petitioner’s January 2009 letter also stated, in reference to his investment instructions transmitted February 5, 2007, “The cover sheet for this request as well as the request forms and other relevant documents are attached for your reference.” The attached fax cover sheet was in color, was dated February 5, 2007, and signed by Petitioner, but had no initials of Ms. Teixeira, who had sent the original fax cover sheet on February 5, 2007. Later, during his November 19, 2009, deposition, Petitioner admitted that he had printed out that fax cover sheet in color from his computer and signed it in late 2008 or early 2009, but backdated it to February 5, 2007. Later, Petitioner produced the original fax cover sheet which he had sent on February 5, 2007, which had the initials of Ms. Teixeira on the front. According to Petitioner, his wife found the original. Petitioner’s wife, however, did not remember finding it. Regardless of who found the original, the fact that Petitioner was able to print out, back-date, and sign a copy that appears to be the original fax cover sheet demonstrates the mischief that could be achieved had Petitioner desired to misrepresent the facts regarding his February 5, 2007, facsimile. The undersigned finds that Petitioner did not intend to misrepresent the facts regarding that facsimile, but rather finds that Petitioner was overenthusiastic in his attempt to demonstrate to Respondent what had happened on February 5, 2007, through use of identical copies of the original fax cover resident in his computer. This incident, however, was considered in assessing the credibility of Petitioner’s other assertions in this case. As indicated above, Petitioner spoke to Mr. McSwain on the telephone in February 2009. During that call, Petitioner told Mr. McSwain that he did not want the February 5, 2007, Allocation Transfer Forms implemented until the matter was resolved. Respondent’s executive director sent Petitioner a letter dated April 27, 2009, informing Petitioner that Respondent was unable to approve his request, and offering Petitioner another opportunity to implement changes to his Plan accounts and including forms for that purpose. Petitioner never submitted the forms and no allocation changes took place. After filing the Amended Petition for Formal Hearing dated June 1, 2009, initiating this case, Petitioner’s Plan accounts were closed and rolled over into another 529 college investment plan at his request on or about July 10, 2009. On that date, the balance of each account was $46,292.01, after deduction of a $50.00 rollover fee for each account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Prepaid College Board enter a Final Order finding that the Florida Prepaid College Board is not liable to Petitioner, Stephen E. Pazian, under the Participation Agreement and dismissing Petitioner’s Amended Petition with prejudice. DONE AND ENTERED this 9th day of March, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 9th day of March, 2010.
