The Issue Whether Petitioner proved by clear and convincing evidence that Respondent left a kindergarten student, K.M., alone in her classroom on April 2, 2018, as alleged in Petitioner’s Administrative Complaint.
Findings Of Fact Based on the record and evidence presented at the hearing, the undersigned makes the following findings of relevant and material fact: Stipulated Facts Respondent holds Educator Certificate 1168653, covering the areas of Elementary Education, English for Speakers of Foreign Languages, and Exceptional Student Education (“ESE”), valid through June 30, 2021. At all relevant times, Respondent was employed as a kindergarten teacher at Sunland Park Academy, in the school district of Broward County, Florida. Evidence Presented at the Hearing Samiyeh Nasser During the 2017-2018 school year, Samiyeh Nasser (“Nasser”) was employed as a Teacher’s Assistant at Sunland Park Academy in the Broward County School district. She worked with the kindergarten classes. Nasser “pulled out” students, removing them from a teacher’s class and bringing them to her own room to provide extra help with reading, spelling, and word pronunciation. She regularly went to Leger’s classroom during first period each day, at approximately 9:00 a.m., and would take four or five students to her own classroom. She would then bring them back to their regular class to attend “specials,” which are elective classes. On April 2, 2018, when Nasser returned children to Leger’s classroom, at 10:05 a.m. that day, she noticed that the other students had already left the room, but that there was one student, K.M., there alone. When Nasser found her, K.M. was crying. When Nasser asked her why she was alone, K.M. said that her classmates had gone to physical education class (“P.E.”), and that she had been told by her teacher, Respondent, to stay in the classroom. Based on other credible evidence, K.M.’s comment to Nasser regarding having to “stay in the classroom” referred to a counseling conversation which Leger had with K.M. earlier in the morning, prior to the class leaving for P.E. She did not mention anything to Nasser about Steven Bynes (“Bynes”), a pool substitute who had assumed responsibility for the class in Respondent’s absence. Nasser opened the back door to the classroom, saw the other students at P.E., and instructed the small group of students she brought back to the classroom to join them outside. She did not see either Leger or Bynes with the students at P.E. when she found K.M. Nasser remained with K.M. briefly, hugged her to calm her down, and then left her in the room as she went on to assume her other duties. She was in Leger’s classroom a total of approximately five to seven minutes. Steven Bynes, Jr. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park Academy during the 2017-2018 school year. He provided coverage when teachers were absent or out, and no outside substitute was hired for the day. On April 2, 2018, he was instructed to cover Leger’s class while Leger attended a meeting.1 Bynes was in Respondent’s classroom for approximately 20 minutes. Leger returned to the classroom while Bynes was still there and advised him that the class had “specials.” Bynes claimed that he advised Leger that it was two minutes before the class was to go to P.E., and advised her that she “still had time” to take them there. 1 This was a meeting between Leger, the guidance counselor, and a parent mentioned later in this Recommended Order, paragraph 60 infra. He claimed that Leger did not say anything to him, and he left the classroom to return to the front office. After the fact, Bynes was told that a student had been left in the classroom, but he denied knowledge of it and denied responsibility for leaving K.M. in the classroom. He claimed he left the class with Leger. He also denied having any conversation with K.M. in the classroom. Bynes denied taking the class to P.E. and stated that when he left the classroom, he left the students with Leger.2 Nikia Ragin Nikia Ragin (“Ragin”) was the Assistant Principal at Sunland Park Academy during the 2017-2018 school year. She was told by the Principal that Nasser had reported an incident concerning a student, K.M. After speaking to Nasser, she spoke to K.M. Ragin spoke to K.M. approximately two hours after the event took place, and then reported to the Principal. Ragin was also present when Leger explained to the Principal that Bynes, not she, had taken the students to P.E. Other than Leger’s statement, Ragin found no other evidence to conclude that Bynes had taken the students to P.E. Ragin’s conclusion regarding the evidence, at that point, was misguided and affected because the school surveillance cameras that would likely show who took the students to P.E. were not operating properly.3 Leger elaborated and explained to Ragin that she was in a meeting with the guidance counselor when the students went to specials. 2 Notably, Bynes said he didn’t really remember what Leger said or did after he advised her that she still had time to take the class to specials. Curiously, after he said this, he testified that he simply “walked out of the classroom.” This description by Bynes was significantly at odds with Leger’s testimony and recollection of the same discussion. Bynes seemed vague and uncertain at times regarding the incident. Leger’s description of her encounter and discussion with Bynes when she returned, is more persuasive and credible, and is adopted. 3 The camera tapes had been reviewed by Ragin because of Leger’s claim about not taking the students to P.E. Had the surveillance cameras been working, there would have been clear images of the kindergarten hallways and other relevant areas. There were also other inoperative cameras, that if working properly, would have shown relevant views of the hallway leading to and from the office of the guidance counselor. Sharonda Bailey Sunland Park Academy Principal, Sharonda Bailey (“Bailey”), received a report from Nasser about a student in Leger’s class. She referred the matter to Ragin, and saw her speaking with Nasser and also with K.M. Bailey recalled that Bynes had been in the classroom that day to cover the class. She asked him if anything had occurred when he was in the classroom. Bynes told Bailey that Leger had returned to the classroom and said something about the students being late for specials. Bynes recounted to Bailey that he explained to Leger that they weren’t that late, that she should take them herself, and that he then walked out the front door. When she spoke with Respondent, Leger stated to her that she did not leave a student in the classroom and that Bynes was the person who took the students to P.E. Bailey also attempted to verify who took the students to P.E. through the school’s security cameras. However, because the camera system was antiquated, it had not captured or recorded what she needed to see. The security cameras glitched and froze, and the time stamp was off. In short, the cameras were not capable of adequately displaying Respondent’s location or movement in the hallways because its quality was so poor.4 4 The security videos of the kindergarten hallway and the area outside the office of the guidance counselor were requested by Leger during discovery. However, they were not provided to her and were not used or shown at the final hearing. Bailey contacted K.M.’s mother and told her that her child was left alone in the classroom while the rest of the class was taken to specials. She explained that she would investigate the incident. Because Bailey was not able to find anyone during the investigation to validate Respondent’s position that she did not leave the student behind, she issued a written reprimand to Leger. Bailey did not speak at length with K.M. about the incident, but merely asked if she was okay. Private Investigator William Miller William Miller (“Miller”) was retained by Leger’s counsel to attempt to locate K.M. He ultimately located her in Gulfport, Mississippi. He telephoned K.M.’s mother, Shirelle M. He reached her in her car on her way to pick up K.M. from school. Later that day, Miller was also able to speak directly to K.M.5 Miller asked K.M. if she remembered the incident. K.M. explained that Respondent went to a meeting, and that the class had been turned over to a substitute teacher by the name of Mr. Bynes. She told him Bynes took the class to P.E. outside the classroom. K.M. related to Miller that she told Bynes she had been bad, and that Respondent had told her she could not go outside for P.E. K.M. stated that Bynes then told her to “wait in the classroom” and he took the rest of the class to P.E. Miller testified that neither he nor K.M.’s mother provided her with any background, mentioned Bynes, or in any way suggested what information they wanted from her. Miller had work experience interviewing juvenile witnesses and testified that he “assiduously avoided” leading K.M., because they are so prone to being improperly led when questioned. 5 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her mother’s speaker phone while they were in the car together. Miller recounted that K.M.’s mother expressed surprise that K.M. recalled the name of Bynes, and assured Miller that she had not coached K.M. in any way.6 Based on his interviews over the phone, affidavits were prepared for K.M. and her mother, which documented the verbal information they had provided to Miller. The affidavits were given to K.M.’s mother. Miller explained to her that the affidavits should be their testimony, and not the testimony of either Miller or the attorney in the case. He also explained that if there were any changes that needed to be made, she should make the changes, send the affidavit back to him, and that the affidavits could be redone, if necessary. Miller asked the mother to read and go over the affidavit that K.M. was being asked to sign. Miller arranged to have a notary go to their apartment in Mississippi to have the mother and the child execute the affidavits. Before this occurred, he was able to reach Shirelle M. by telephone. She apologized and told him that the delay in executing the affidavit stemmed from the fact that she had changed jobs, and that the Gulf Coast had experienced three separate hurricanes since he had last spoken to her. Miller explained to her that he did not want it to be inconvenient and that he would make the arrangements necessary to get a notary to her to be able to notarize the affidavits. The notary was given specific instructions to tell Shirelle M. and K.M. that they did not have to sign the affidavits, and could make any changes to them that they wanted. Despite the delay in securing her signature, Miller still felt that the mother did not have any hesitation signing her affidavit. 6 K.M.’s mother had been told of the incident, but had not been told about Bynes at the time of the incident. Ruth Galliard Leger Respondent was K.M.’s kindergarten teacher at Sunland Park Academy during the 2017-2018 school year. She recalled that K.M. was a good student and they got along well. Sometime during the morning of April 2, 2018, Respondent requested an emergency meeting with the school’s guidance counselor and the parent of a male student. The male student had come in late to class that day. He became disruptive, knocking teaching items, like posters and magnets, to the floor.7 The meeting was scheduled by the guidance counselor. Respondent left for the meeting when Bynes arrived at her classroom to provide coverage. Earlier that morning, K.M. had also been disruptive. Respondent counseled her and told her that if she did it again, Respondent would take some time from her P.E., consistent with the class rules, and that she would have to stay behind in the classroom with Respondent for a few minutes of her P.E. time.8 On the day of the incident, the class had P.E. scheduled at 10:10 a.m. When Respondent left for her meeting, the class had not yet gone to P.E. During the meeting with the guidance counselor, Respondent excused herself and returned briefly to her classroom to retrieve a form that needed to be signed by those in attendance at the conference. Resp. Ex. 1. When she entered the room to get the form, Bynes was there with her students. Respondent explained to Bynes that she forgot the form, and that her meeting with the counselor and parent was not over. Respondent asked Bynes what time it was and when he told her that it was approximately 10:15 a.m., she reminded him that the class had specials at 10:10 a.m. 7 This was out character for him, prompting Respondent to request the emergency meeting. 8 Four other students had also been counseled that morning about their conduct and the consequences before Respondent went to her meeting with the counselor. Bynes said that they had only missed five minutes, and the class could still go to P.E. Respondent retrieved the form she needed, went out the front door into the kindergarten hallway, and back to her meeting. The class was in the room with Bynes when Respondent departed to go back to the meeting. However, she did not see Bynes take the students to P.E. After the meeting with the counselor and the parent, Respondent left the counselor’s office. Respondent and the student’s parent stood in the first- grade hallway talking for several minutes.9 Respondent then walked the mother to the front door of the school, where there are more cameras, and parted company with her. Leger then proceeded down the hallway back to her classroom. When she got back, she was shocked to find K.M. standing in the room by herself. When she asked K.M. why she was in the room, K.M. explained that she had remembered that Leger previously told her that she owed time from P.E. for misbehaving. As a result, she decided to stay behind in the room when the others went to P.E. Respondent did not recall telling K.M. to “stay back” from P.E. Leger told K.M. that she did not have to remain behind, that she wasn’t upset with her, and that she should have gone to P.E. with the rest of the kids. Since there were five minutes left in the P.E. class, Respondent took K.M. out to P.E. When Respondent picked up her students from P.E. five minutes later, K.M. was fine and the class went to lunch. The next day, at the end of school, Principal Bailey handed Respondent a letter advising her that she was under investigation for leaving a child unattended. 9 This hallway was covered by the same faulty security cameras previously mentioned. At her disciplinary meeting, Respondent told Bailey that she did not leave K.M. in the classroom, and that she was at a meeting with the guidance counselor and a parent at the time. To support her defense, Respondent asked Bailey for the school videos which would show her in different hallways, entering the counselor’s office, and speaking with and walking the mother to the front door when her students went to P.E. Leger later asked her first lawyer on two separate occasions to obtain the relevant videos from the Broward County School District through a Freedom of Information Act request. Resp. Exs. 12a and 12b. She wanted the security videos to be subpoenaed for this case.10 K.M. remained in Respondent’s class for the balance of the year and Respondent had a good year with her. Leger never spoke to K.M. or her mother about the incident. Shirelle M. Shirelle M. is the mother of K.M. She recalled Miller calling and speaking to her and K.M. on the speaker phone. She heard K.M. tell Miller that it was Bynes that had left her in the classroom. She heard K.M.’s entire conversation with Miller. The affidavit that K.M. signed was an accurate recitation of the phone conversation she heard between Miller and her daughter in the car. She also signed her own affidavit that accurately set forth her conversation with Miller. Resp. Ex. 8. She knew that she could make any changes to her affidavit before signing it. 10 The undersigned took administrative notice of the DOAH file, which included Respondent’s subpoena to the Broward County School District seeking the videos, the District’s response, and Respondent’s Motion to Compel seeking access to the videos. Shirelle M. was there when K.M. signed her affidavit, and read it with her beforehand. She testified that no person forced her daughter to sign the affidavit. She explained the long period of time that elapsed between the time that she got the affidavit and the time that she signed. The delay was due to her work schedule, which involved four or five jobs, since the COVID-19 pandemic. She testified that she had no hesitation executing her affidavit, and did so freely and voluntarily, since it was accurate and correct. Concerning the day of the classroom incident, she saw her daughter before speaking with the Principal when she picked K.M. up from aftercare. She did not get much detail from the Principal, who said that the matter was still under investigation. The Principal never told her that it was Respondent who left K.M. in the room. She never overheard K.M. tell anyone that Respondent had left her in the classroom. K.M. Before beginning her testimony, eight-year-old K.M. was questioned by the undersigned. She was polite, alert, and calm. She understood the oath and the importance of telling the truth. She remembered when she lived in Florida. She also recalled Respondent as her kindergarten teacher and the incident of being left in the classroom. K.M. testified that it was Bynes who left her in the classroom when Respondent was at a meeting. 11 She recalled that when Bynes arrived at the classroom, Respondent then left for a meeting. 11 The Transcript mistakenly phonetically wrote Barnes. It should have been Bynes. K.M. stayed behind when the rest of the class went to P.E. She did so because Respondent had told her earlier that morning to stay behind because of minor discipline issues with her. More specifically, as the class left to go to P.E., K.M. told Bynes that she was supposed to remain in the classroom, and Bynes said “okay” and took the remainder of the class to P.E. K.M. remained in the classroom while the class was at P.E., until Respondent returned from her meeting. When asked by Leger why she was there alone, K.M. reminded Respondent that she had previously told her to stay in the class. K.M. executed an affidavit that she read and that her mother read to her. It accurately reflected what happened. Resp. Ex. 13b. K.M. recalled speaking to a man on the phone (Investigator Miller), and told him the same thing as what she testified to in court. K.M. unequivocally stated twice during the hearing that she never told anyone that Respondent, Leger, had left her in the classroom. Nobody told K.M. what to say in the hearing, and she remembered on her own that to which she testified. K.M. liked Respondent and stated that she was “a pretty good teacher.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Administrative Complaint and the charges contained therein. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Lisa M. Forbess Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this matter is whether Petitioners are entitled to attorneys’ fees pursuant to Section 120.595(3), Florida Statutes (2006), and Section 57.105, Florida Statutes (2006).
Findings Of Fact In Peter J. Singhofen, P.E., and Streamline Technologies, Inc. v. Board of Professional Engineers, DOAH Case No. 05-3674RX, Petitioner challenged the validity of Florida Administrative Code Rule 61G15-22.011(2), promulgated by Respondent. The Rule generally denied owners of technology, such as computer software programs the ability to qualify a course, taught by the owner on the technology, from qualifying for continuing education credit. The published purpose of the rule was to prevent a continuing education provider from having a conflict of interest. Petitioner filed an Affidavit detailing the hours and work performed in the rule challenge care and requesting fees in the amount of $15,750. Respondent also submitted an Affidavit from an expert supporting the hours, work, and fees requested as reasonable. In the underlying case, the record contained some evidence of some meaningful discussion by the Board supporting the Rule. The discussion primarily reflected that the Board’s desire was to prohibit and prevent “shill” courses from receiving continuing education credit. Significantly, the Board had previously denied applications for continuing education providers proposing to offer “shill” courses. However, the record did not contain any evidence that the Board considered whether the Rule was consistent with NCEES guidelines as required by statute. There was no discussion or finding by the Board prior to engaging in rulemaking that a continuing education provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest or be inconsistent with NCEES guidelines. Additionally, the published purpose for promulgating the Rule was admitted to be erroneous by Respondent’s Executive Director. This error alone was material and a sufficient ground to invalidate the rule. Petitioner’s courses met both the NCEES and Florida Administrative Code Rule 61G15-22.003 as a qualifying activity for purposes of continuing education credit. The Rule resulted in Petitioners’ being denied approval to teach such qualifying activity; and was therefore, inconsistent with NCEES guidelines. Such inconsistency was outside of the Board’s rulemaking authority. In this case, Respondent stipulated to the reasonableness and the amount of fees, subject to the statutory cap. Respondent presented no evidence showing that special circumstances existed which would make the award unjust. Therefore, Petitioner is entitled to attorneys’ fees and costs subject to the statutory cap.
The Issue Whether William Campion, Respondent, as president of Central Florida Community College, violated Section 112.313(6), Florida Statutes, by using public resources in furtherance of his work with Excel Telecommunications, Inc., and if so, what penalty should be recommended.
Findings Of Fact Respondent, William Campion, (Respondent) became president of Central Florida Community College (CFCC/College) in October, 1986. He resigned in October, 1995, effective February 16, 1996, for reasons unrelated to the Ethics Commission investigation. As president of CFCC, Respondent's salary was approximately $120,0000 per year. Excel Telecommunications, Inc., (Excel), is a multilevel marketing organization. Its product is long distance telephone service, but representatives earn money not primarily from selling the product, but by recruiting representatives. Respondent first heard about Excel in April 1993, and got involved with it in July of that year. Respondent earned income based on the activities and efforts of those he recruited. The list of persons directly or indirectly recruited by Respondent was called his "downline". There were approximately 20,000 people in Respondent's downline as of February 1996. By April 1994, Respondent had reached the highest level of Excel, Executive Director and National Training Director. Respondent remained at this level in 1995 and during 1994 and 1995 Respondent's income from Excel exceeded his salary as president of CFCC. Respondent knew that it would be improper to use resources of CFCC to promote Excel. Accordingly, Respondent and others connected with Excel, including CFCC employees, rented an office in downtown Ocala to use as an Excel training and recruiting center. Respondent limited the ability of Excel members employed at CFCC to conduct Excel activities on campus. Excel members were prohibited from soliciting or signing up customers on campus, although MCI, AT&T, and Sprint, competitors of Excel, did actively solicit customers on campus. Excel members were prohibited from holding meetings on campus. Excel meetings were conducted at the Excel office. Use of Telephones to Promote Excel On a few occasions Respondent used CFCC telephones to take care of matters relating to Excel. There were some occasions when Respondent made calls related to his work at CFCC, and during the conversations the individuals called mentioned Excel. During such conversations, there were sometimes brief comments relating to Excel, but the discussion returned to the CFCC related issue. When first employed as Respondent's executive staff assistant, Kathleen Daghita was instructed by the other assistant in the office to tell callers that Respondent did not take Excel related calls at his CFCC office. Nevertheless, Ms. Daghita took one or two telephone calls per month for Respondent which were Excel related. Although some Excel related telephone calls were put through to Respondent, Ms. Daghita acknowledged that in doing so, she failed to follow specific directions. Estelle Winkler, who served as Respondent's secretary, brought to Respondent's attention that another member of the CFCC's administration, Hillary Allen, was using the telephone to promote Excel. Respondent indicated that he would speak to Mr. Allen about it. Respondent spoke to Mr. Allen and directed him to refrain from making Excel related call from CFCC telephones. After this, Ms. Winkler never heard Mr. Allen make Excel related calls from CFCC telephones. Respondent, during the course of his official duties, spoke to individuals at CFCC on college business who were involved in Excel. Hillary Allen, Director of International Education at Central Florida Community College, and Don Bostic, Central Florida Community College's Dean of Continuing Education, both joined Excel with Respondent. Respondent was their sponsor. Mr. Allen and Mr. Bostic had conversations about Excel with Respondent in Respondent's office. However, no meeting was ever called in Respondent's office for the purpose of talking about Excel. These conversations about Excel arose in context of discussions about CFCC business, with passing references to an Excel related topic. Duplication of Video Tapes Using CFCC Facilities Pat Fleming is the Media Services Coordinator at CFCC. Mr. Fleming came to the college in April 1993, and joined Excel in August 1993. Mr. Fleming considers himself a friend of Respondent and thinks highly of him. At all times relevant to this case, there was no written policy prohibiting the duplication of tapes by CFCC's audiovisual personnel. It was a long-standing practice at the College to permit duplication of non-copyrighted tapes provided that the person requesting the copy brought in his or her own tape and the tape duplicator was not needed at the time for CFCC work. This practice predated Respondent's tenure at the College. Mr. Fleming personally duplicated Excel tapes for Respondent on approximately ten occasions from the spring of 1995 through November of 1995. Generally, Respondent would have between one to three duplicates made of his Excel master tape. The Respondent had at least thirty to forty duplicate tapes made from the Excel master. Respondent would always provide the tapes to make the duplicates. He would always provide more blank tapes than the requested number of duplicates. James Dial is the Audio/Visual Technician for the College. Pat Fleming has been his supervisor since 1993. Until 1993, Mr. Dial's duties included copying tapes. At about the same time Mr. Fleming came in as his supervisor, Dial's office was relocated to the lower floor due to construction, and he was no longer involved in copying tapes. Mr. Dial testified that more than one hundred Excel tapes were copied in 1993, after Mr. Fleming was hired. He estimates that during the thirty-four month period between April 1993 and February 1996, more than one hundred Excel tapes were copied using audiovisual facilities at CFCC. Mr. Dial's estimate is based on individuals including Hillary Allen, Gene Iba, and Don Bostic bringing Excel masters and blank tapes to the CFCC audiovisual facilities. During this time period, Mr. Dial was not personally involved in the duplication of tapes and had not been involved since 1993. By his own admission, Mr. Dial never witnessed any duplicate tapes being made. There is no evidence that the tapes brought in by Mr. Allen, Mr. Iba, and Mr. Bostic were duplicated at Respondent's request or that he received any special privilege, benefit or exemption from those tapes. Mr. Dial never observed Respondent making copies of any tape. Mr. Dial had no knowledge that Respondent requested that duplicate copies of any tapes be made. CFCC has equipment which permitted duplication of videotapes only in "real time" duplication. That is, a thirty minute tape would take thirty minutes to duplicate. Only three duplicates can be made at a time. Consistent with the College's long-standing practice, the audiovisual personnel at CFCC made duplicate tapes for persons associated with CFCC as well for individuals in the community not associated with CFCC. Except for the duplication of a commercial video tape in 1991, the Excel tapes appear to have been the only tapes of a commercial nature duplicated at the College. However, the same processes and procedures were followed for the duplication of Excel related tapes as for other tapes of a noncommercial nature. Use of College Satellite to Receive Excel Programming Between March and November 1995, Excel ran broadcasts promoting the organization every Monday night at 9:00 p.m., alternating original shows with repeats. In March 1995, Respondent asked Mr. Fleming whether the CFCC's satellite receiver could pick up an Excel program broadcast. Respondent's reason for making the request was that he wanted to watch the program. Although he had a satellite receiver at his house, Respondent often worked late at CFCC. Rather than go home to watch the program and then return to work, he watched the Excel program at CFCC. Mr. Fleming then asked Mr. Dial to set the College's satellite receiver to receive Excel's program broadcast. Respondent watched the program occasionally with Mr. Fleming at the audiovisual center or in his office. Re-spondent watched the program approximately six to ten times over a six month period. Mr. Dial placed the Excel program location on the list of "favorite" channels. Respondent did not request that Excel be listed on the list of "favorite" channels. Mr. Dial placed it there on his own initiative as a matter of convenience. The satellite receiver at CFCC has access to any programming that is not blocked by programmers, scramblers, and the like. There are no costs, such as royalties, associated with pulling programs off the satellite. The college has access to twenty-four satellites with approximately thirty channels on each satellite. The process of pulling an unrestricted program off the satellite is not complicated: One merely locates the satellite, locates the channel, and pushes a button to pull the program in. It is a task that takes about ten or fifteen seconds to do. There was no policy at the College which prohibited pulling up programs off the satellite for any individual. Several individuals, other than Respondent, requested that programming off the satellite be pulled in for their use. In these instances, CFCC audiovisual staff complied with these requests. Use of College Room to Produce Excel Video Mr. Dial testified that he had observed a video of Respondent making an Excel presentation in a room in Building Five of at the CFCC campus. Mr. Dial indicated that he was familiar with the room which he alleged was used by Respondent in the presentation, from being in and out of almost every room on campus. However, he could not identify any reference point with respect to the room, such as a view through any window of the room shown on the tape. There was no room number shown in the video nor was any insignia of CFCC shown. All that Mr. Dial recalled was a wall and a conference table, but he did not provide any specific detail of either at hearing. There was no evidence presented at hearing that the alleged use of the facility was in violation of any CFCC policy, or than any CFCC policy, or that any CFCC equipment was used to make the videotape. Preparation and Duplication of Audiotapes On one occasion, Respondent borrowed an audiotape recorder to make an Excel tape. At the request of Respondent, Mr. Dial, in September 1995, set up a tape recorder and a microphone in a conference room in Building Three. Respondent used that tape recorder to make an Excel audiotape. The tape recording was done after the end of the workday. No evidence was presented at hearing that there was any policy prohibiting the use of audiovisual equipment by CFCC personnel. To the contrary, it was established that audiovisual equipment could be and was loaned to CFCC personnel for personal use. The next day, Mr. Dial was requested by Mr. McClain to put a musical prelude on the tape that had been made by Respondent. It was estimated that it took Mr. Dial three or four minutes to put the musical prelude on the tape. There is no evidence that Respondent asked that the musical prelude be put on the tape. There is no evidence that Respondent knew at the time that the musical prelude had been put on the tape. Approximately twenty duplicates of that tape were made using the audiovisual resources of CFCC. To duplicate audiotapes, CFCC had high speed duplicating equipment which permitted duplication of audiotapes at a five to one ratio. To duplicate twenty tapes using the high speed duplicating equipment took approximately seven and one half minutes. Respondent supplied the blank audio tapes for duplication. It was a practice at CFCC to permit the duplication of non-copyrighted audiotapes provided that the person requesting copies brought in their own tapes to permit duplication. Audiotapes were duplicated for faculty, staff, students, and members of the community. Use of College Room for Excel Presentation by Jim Voight Respondent allowed Jim Voight, a successful member of the Excel organization, to use a room at CFCC to speak to interested persons about Excel. Mr. Voight had been instrumental in Respondent's decision to join Excel. The meeting occurred during lunch and during Spring Break 1994 at CFCC. Spring Break during that year was March 14-18. Respondent was concerned at the time that having the meeting with Mr. Voight on campus would give rise to an appearance of impropriety. It was initially Respondent's preference to have the meeting off campus. The room used for the meeting with Mr. Voight was available for rent of fifty dollars to interested parties outside CFCC, but no rent was ever paid for using the meeting room. At the meeting, Mr. Voight indicated that he would give CFCC more than fifty dollars and the he was intended to endow CFCC. Mr. Voight subsequently made donations to CFCC in amounts as follows: August 31, 1994- $6,000; October 31, 1994- $2,000; December 2, 1994- $2,000; January 3, 1995- $2,000; February 10, 1995- $2,000; and March 16, 1995- $2,000. All total, CFCC received $16,000 from Mr. Voight. Payments began in August 1994, because of the time delay associated with establishing the endowment mechanisms. Payments ceased after a local newspaper called attention to Respondent's involvement with Excel.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that William J. Campion, did not violate Section 112.313(6), Florida Statutes. DONE and ENTERED this 24th day of December, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD 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) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mark Herron, Esquire Akermann, Senterfitt and Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Petitioner is entitled to the validation and scoring of his test scores on the Florida Educational Leadership Examination on January 21, 2006.
Findings Of Fact On January 21, 2006, Petitioner took the Florida Educational Leadership Examination (FELE) at a site in Miami. Persons who take and pass the FELE are eligible for certification as administrators. As is the case with all persons taking the FELE, prior to attending the examination, Petitioner received the "Certification Examinations for Florida Educators . . . Registration Bulletin" (Registration Bulletin). The Registration Bulletin warns prominently on page 14: I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room. Prior to taking the FELE, Petitioner also received a document titled, "Important Information about Cheating Behaviors" (Booklet). Section 1 of the Booklet warns that "cheating" is defined as, among other things: "During the examination, using, or attempting to use, prohibited aids, as identified in Section 2." Section 2 of the Booklet describes "prohibited aids" as follows: You cannot bring any of the following prohibited aids to the test room. They include: cell phones or any other electronic communication or recording device such as a beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player. . . . The last section of the Booklet is titled, "General Testing Information and Procedures." This section warns: "If you bring any prohibited items such as a cell phone to the test, you will not be admitted to the test room." The second to last page of the Booklet restates: "I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room." Paragraph 4 of the last page of the Booklet warns one last time: "Do not bring to the test room any prohibited aids such as cell phones (see the enclosed letter for other prohibited aids); leave them locked in your car. You will not be admitted to the test if you bring them with you. If you are discovered to have prohibited aids during the test, your test scores may be invalidated." Test administrators, room supervisors, and proctors receive a Test Administration Manual for the Florida Educational Leadership Examination. Page 17 of the manual advises that the examinees receive several warnings not to bring prohibited aids, including cell phone, into the test room or break areas around the test room. The manual informs the testing staff: DO NOT ADMIT an examinee to a test room if you observe a cell phone or other prohibited device. Tell the examinee he or she cannot enter with the device but may be admitted if he or she can return without it (e.g., lock it in the car) AS LONG AS IT IS POSSIBLE TO DO SO AND RETURN TO CHECK IN BY THE TIMETESTING BEGINS (15 minutes after the reporting time on the admission ticket). The manual adds: If the prohibited aid is not discovered until after the examinee has been admitted to the test room, see Identifying and Documenting Suspected Cheating, incident number 1 on the next page. The manual lists three incidents, arranged in ascending order of seriousness. These incidents and the appropriate procedures for the testing staff are: Incident: It is discovered that an examinee has a prohibited device, SUCH AS A CELL PHONE, but the examinee is not immediately suspected of using the device (e.g., a cell phone rings and the examinee turns it off without using it). PROCEDURE: ? Quietly inform the examinee that he or she is in possession of a prohibited aid, which the examinee has been informed is not permitted in the test room. ? Tell the examinee to place the aid in the envelope that has been provided by the Institute for that purpose and write the examinee's name on the envelope. ? Hold the envelope in a safe location. ? Tell the examinee that the item may be retrieved at the end of the test. ? If the examinee refuses to relinquish the prohibited device, follow MISCONDUCT guidelines on page 21. ? Carefully document the incident, noting the time and duration of the incident, for inclusion in the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. Incident: An examinee is observed USING a prohibited aid, such as a cell phone or photographic device, to obtain or communicate test content either in the test room or in break areas around the test room. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the prohibited aid and ask him or her to step outside the room. The Room Supervisor should take along and protect the test materials and prohibited aid. ? The prohibited device should be examined to determine if there is the possibility that confidential test information was recorded (for example, if the device is a scanner pen or if a cell phone has a lens device). If so, document that information on the C-2, Cheating and Misconduct Observation Report. DO NOT ATTEMPT TO CONFISCATE THE DEVICE. ? If the examinee hides the device, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. ? If the examinee causes a disturbance, such as refusing to leave or return test materials, see MISCONDUCT guidelines on page 21. Incident: An examinee is SEEN WITH A "CHEAT SHEET" OR IS OBSERVED USING NOTES OR OTHER WRITTEN MATERIALS to obtain information or pass information to another examinee. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the written notes and ask him or her to step outside the room, taking the test materials and written notes with you. ? The notes should be examined. CONFISCATE THE NOTES. If the examinee hides the notes, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the confiscated notes and answer folder to the C-1 irregularity report. Respondent's exhibit omits page 21 of the manual, which contains the "misconduct guidelines. The only other relevant provision in the portion of the manual included in the exhibit provides that the Room Supervisor should greet the examinees with a scripted introduction. This introduction includes the warning: "Cell phones, books, study aids, calculators, electronic devices, and papers of any kind, including scratch paper, are NOT permitted during the testing." The Room Supervisor posted in a prominent place at the front of the test room a notice, in large print, stating: "cell phones are prohibited in test rooms and surrounding break areas." Petitioner could not possibly have avoided seeing the notice, which was printed on yellow paper, prior to starting subpart one of the FELE. Although Petitioner arrived at the test room in time for the commencement of subpart one of the FELE, he was late enough that he missed some of the pretest instructions. As he entered the test room, he was wearing an earpiece, which communicates with his cell phone by way of Bluetooth wireless technology, provided the cell phone is sufficiently close to the earpiece. As Petitioner walked past the Room Supervisor to take a chair in the test room, the Room Supervisor immediately noticed the ear piece and recognized it as a Bluetooth device, which would allow for wireless, remote communication with a cell phone. The Room Supervisor informed Petitioner that he needed to remove the device, but Petitioner replied only that he would turn it off. Lacking much time for an extended exchange with Petitioner, the Room Supervisor joked that such devices cause cancer and directed one of the proctors to help Petitioner complete the registration application. By the time that Petitioner had entered the test room, the Room Supervisor had already given the instructions on how to complete the registration application. As Petitioner was taking his seat, the Room Supervisor began giving the instructions on how to take the test. For some reason, Respondent introduced into the record a registration application of Petitioner for the October 22, 2005, administration of the FELE. However, Petitioner likely completed the same form for the January 21, 2006, administration of the test. The form states, just above the examinee's signature: "I hereby agree to the conditions set forth in the Registration Bulletin " At least partly due to Petitioner's late arrival, the group in his room was late starting the test, which was being administered simultaneously in several separate rooms at this test center. A few minutes after starting the test, the Test Supervisor was told by the proctor, who had attended to Petitioner, that Petitioner still had the earpiece in his ear. The Room Supervisor informed the proctor to summon the Test Administrator to handle the situation. The Test Administrator entered the room a few minutes later and saw the Bluetooth earpiece in Petitioner's ear while he was taking subpart one of the FELE. During the next break, the Test Administrator approached Petitioner and told him he could not use the Bluetooth earpiece during the test. Petitioner responded that the device was off and other examinees had cell phones in their pockets and purses. The Test Administrator offered to take the device up to his office. Petitioner refused to relinquish the device. After considerable coaxing, Petitioner finally agreed to remove the device during the next two subparts of the test. By letter dated March 1, 2006, Respondent informed Petitioner that it was invalidating his scores on subtest one, and thus subtests two and three, of the Florida Educational Leadership Examination (FELE) administered on January 21, 2006. The letter states that several witnesses had seen Petitioner, during subtest one, wearing in his ear an earpiece of a cell phone. There is no doubt that the Room Supervisor would have allowed Petitioner to take all three subparts of the FELE, if Petitioner had agreed to the simple request to remove his Bluetooth earpiece. Petitioner tried to justify his intransigence by contending that his earpiece was off and other examinees had cell phones in their pockets or purses. Evidently Petitioner was unaware on the morning of the test that his choice was to remove the earpiece before starting the test or take the test with the earpiece in and have all of his scores invalidated. Petitioner chose the second option, so Respondent properly invalidated all of his scores.
Recommendation It is RECOMMENDED that the Department of Education enter a final order invalidating Petitioner's scores on subparts one, two, and three of the Florida Educational Leadership Examination administered on January 21, 2006. DONE AND ENTERED this 20th day of June, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2006. COPIES FURNISHED: Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott J. Odenbach Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 John Roques 17475 Southwest 182 Avenue Miami, Florida 33187
The Issue Whether by showing the movies "Death Wish II", "First Blood", and "Police Academy", or portions of those movies, to respondent's fourth grade students, respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B- 1.06(3)(a), Florida Administrative Code.
Findings Of Fact STIPULATED FACTS: Respondent holds Florida teaching certificate 367043 covering the areas of Elementary Education, English and Reading. At all times material hereto, the respondent was employed as a fourth grade teacher at Woodland Elementary School in the Pasco County School District. During the 1983-84 school year, the respondent permitted his fourth grade class to view the movie "Death Wish II", an "R" rated movie. Subsequently, the respondent's principal instructed the respondent that in the future, no films could be shown to the respondent's students without first obtaining a specific permission of the principal. Following the showing of "Death Wish II", the principal adopted a new policy for the 1984-85 teacher handbook which stated, "No video movies are to be shown in the classroom without special permission from the principal." The new policy requiring special permission from the principal was discussed and explained to all teachers at a faculty meeting on or about August 20, 1984. The respondent was in attendance at the meeting. On June 3, 1985, the respondent permitted his fourth grade class to view approximately forty-three minutes of the movie "First Blood" at which time he stopped the movie due to his concern over the escalating violence depicted in the movie. The respondent also permitted his fourth grade students to view the movie "Police Academy". The respondent did not obtain special permission from his principal to show those movies to his students. The movies contained scenes involving violence, nudity, profanity and implied sexual acts. DEATH WISH II At the end of the 1983-84 school year, the respondent's fourth grade class joined Mr. Younglove's sixth grade class to watch video movies in Mr. Younglove's classroom. The movie "Death Wish II" was shown. The movie was on a video disc that did not have a rating on it. However, Mr. Younglove had a card which contained numbers indicating when the movie would have to be stopped to edit certain parts of the movie by fast forwarding. Mr. Younglove operated the video equipment and fast forwarded the movie at certain times. There was insufficient evidence to determine what specific portions of the movie "Death Wish II" had been edited by fast forwarding. Prior to allowing his students to view the movie "Death Wish II", the respondent had not seen the movie himself and had taken no steps to personally determine the movie's rating. Further, respondent, was not familiar with the theme, plot or story line of the movie other than believing that "it had something to do with the bad guys getting it from the good guys for a change". "Death Wish II" is an extremely violent movie containing graphic rape scenes, numerous scenes of cold-blooded murder committed by the movie's "hero", and vulgar language. Prior to the first rape scene, which occurs within the first ten minutes of the movie, it is apparent that the movie is not suitable for fourth graders. From the build-up to the rape scene, it is fairly obvious what is going to occur. The entire theme of the movie is inappropriate. It suggests that the criminal justice system does not work, that it is acceptable to obstruct the police in their investigation of a crime, and that it is justifiable for a victim of a crime to seek his own revenge by systematically executing the perpetrators of the crime. Mr. Kelley, the Guidance Counselor at Woodland, succinctly summarized the movie by stating, "it is totally inappropriate for showing not only nine and ten-year-olds, but I would say it's inappropriate for most human beings." Subsequent to the showing of "Death Wish II", Mr. Stevens, a parent of one of respondent's students, called Mr. Renninger, the principal, about the showing of the movie. Mr. Renninger called respondent into his office and discussed the matter with him. Mr. Renninger told respondent that an "R" rated movie was not acceptable to show elementary students, and that in the future, respondent could not show any video movies to the students without first obtaining the principal's permission. Respondent talked to Mr. Stevens and was very apologetic about the showing of the movie. TEACHER'S HANDBOOK-PAGE 42B Prior to the opening of the 1984-1985 school year, the teachers at Woodland Elementary School, including respondent, attended a faculty meeting at which time revisions to the teacher handbook were discussed. Page 42B, entitled "Responsibilities of Teachers - Lesson Plan", was specifically discussed. Page 42B contains the following language: All films, filmstrips and VCRs tapes MUST be listed in your lesson plans. No video movies are to be shown in the classroom at any time without special permission from the principal. The requirement that teachers obtain special permission from the principal prior to showing any video movie was added to the handbook as a result of the showing of "Death Wish II". "POLICE ACADEMY" AND "FIRST BLOOD" On June 3, 1985, at the end of the 1984-85 school year, respondent's fourth grade class once again joined Mr. Younglove's sixth grade class to view video movies. It was the end of the school year, and the movies were not intended to have any educational value but were simply to entertain the students. The teachers were not required to submit lesson plans for that period of time. On the Friday immediately preceding Monday, June 3, 1985, Mr. Younglove told respondent that he had obtained authorization from the assistant principal to show "P" and PG" rated films to his classroom. Mr. Younglove had received permission slips signed by the student's parents indicating that "P" and "PG" film would be shown. The respondent also sent permission slips to the parents of his students. Respondent was advised that the movies would be brought in by the students. When respondent's students arrived at Mr. Younglove's classroom, the movie "First Blood" was in progress. Mr. Younglove informed respondent that the movie had been edited for television and was "all right". However, at some point thereafter, Mr. Younglove left the classroom leaving respondent to monitor the combined classes. As the movie continued, respondent became concerned by the escalating violence in the movie and therefore ordered the film stopped. The video tape was then rewound to the beginning of the tape to the movie "Police Academy". Prior to permitting his students to view "First Blood", the respondent had not seen the movie himself and was not familiar with its plot, theme or story line. Neither respondent nor Mr. Younglove had received special permission from the principal or assistant principal to show the movie "First Blood". The portion of "First Blood" shown to respondent's class contained profanity and physical violence and, as admitted by respondent, was not appropriate for viewing by fourth grade students. Mr. Younglove was still absent from the room when the movie "Police Academy" began. The respondent did not know the movie's rating but questioned Mr. Younglove about the rating when Mr. Younglove returned to the classroom. Mr. Younglove informed respondent that it was rated "PG". Prior to permitting his students to view the movie, respondent was not familiar with the movie's theme, plot or story line, although he assumed that it was a comedy because he had seen "Police Academy II" advertised on T.V. The movie "Police Academy" contains numerous profanities and vulgarities which are regularly spaced throughout the movie. The movie contains female nudity and two implied sex scenes. Although the movie was stopped and fast forwarded, apparently on two occasions when nudity had been observed, the students viewed all of "Police Academy" except for approximately two minutes and 30 seconds when it was fast forwarded and the screen was blank. As admitted by respondent, the movie "Police Academy" is not appropriate for viewing by 10-year old children. Indeed, the movie is so filled with inappropriate language and activity that it would be impossible to edit out all the objectionable material and have much of the movie left. During the showing of "First Blood" and "Police Academy", there was considerable activity going on in the classroom. Students were going in and out of the classroom to get drinks of water. Several students were practicing karate, having just recently seen the movie "Karate Kid". Others were listening to music on cassette tape recorders. Some students were playing "finger break", and some students were crawling around under the tables. The noise level in the classroom was fairly loud, and many students were paying little attention to the movie. On the Wednesday following the showing of the film, respondent called the mother of one of his students who had been upset about the movies being shown to her daughter. During the conversation, the parent advised respondent that the movies were "R" rated. This was the first time that respondent learned of the rating of the films. RESPONDENT'S CONDUCT By allowing fourth grade students to view the movies, "Death Wish II", "Police Academy", and "First Blood", the respondent showed a complete lack of judgment. After the first several minutes of both "Police Academy" and "Death Wish II", it becomes quite apparent that the movies are not suitable for 9 and 10-year olds. Respondent's belief that the movies were rated "PG" does not in any way justify the respondent's behavior in permitting his class to continue to view movies that are totally inappropriate for that age group. After the incident involving "Death Wish II", respondent had been specifically told that he had to obtain permission from the principal prior to showing any video movies. He was also aware of the written policy which requires this. Nevertheless, he allowed his fourth grade class to view "Police Academy" based on Mr. Younglove's representation that the movie was rated "PG" and that the assistant Principal had given permission for "PG" rated movies to be shown, neither of which representation, as it turned out, was accurate. RESPONDENT'S EFFECTIVENESS AS A TEACHER Respondent began teaching in the Pasco County School System in the 1974-75 school year. Since that time, he has received evaluations indicating that he has been a "satisfactory" or "effective" teacher every year except for his first evaluation as a first year teacher, which indicated that he needed improvement in every area listed, and an evaluation for the period of August, 1978, to February, 1979, which indicated that his performance was unsatisfactory in three of the five categories listed. Since the 1979 evaluation, the respondent has been evaluated as satisfactory in every school year. At the hearing, the parents of several of respondent's students testified that respondent had been a good teacher for their child and that they would not hesitate to have respondent teach another one of their children even though they were aware of the content of the movies that were shown in the classroom. Letters from the parents of 19 other students who had respondent as a teacher supported the opinion of the five parents who had testified on behalf of respondent that respondent was a good teacher. Respondent has maintained a good rapport with both his students and their parents, and he has been very effective in improving some of his students' academic skills. Dr. John Long, Assistant Superintendent for Administration, believes that respondent's effectiveness as a teacher has been seriously affected by his conduct, but not so seriously reduced that respondent could not have taught again in Pasco County on a probationary status at a school other than Woodland. Dr. John S. Joyce, the Director of Personnel, believes that respondent's effectiveness as a teacher had been drastically reduced as a Pasco County teacher in that respondent's action in showing inappropriate movies for a second year in a row indicates that respondent is either insubordinate or defective in judgment.
Recommendation Based on the foregoing Findings off Fact and Conclusions of Law, it is concluded that respondent has violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code, as alleged in the Amended Administrative Complaint. However, in considering the appropriate penalty, respondent's improper conduct should be balanced with his satisfactory performance as a teacher over the last six years and the positive effect he has had on many of his students. It is, therefore, RECOMMENDED: That a final order be entered finding that respondent has violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code, and suspending respondent's certificate for one (1) year. DONE and ENTERED this 8th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS 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 8th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1802 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1.-2. Accepted in paragraph 1. 3.-4. Rejected as unnecessary though accepted as true. Indicated in Background as to who the individuals are. Accepted in paragraph 1. Accepted as inferred in paragraph 7. Accepted in paragraph 5. 8.-9. Accepted generally paragraph 6. Rejected as immaterial in that studies do not relate to the effect of a single incident. Accepted generally in paragraph 6. Rejected as unnecessary. Accepted generally as set forth in paragraph 4. Rejected as based solely on hearsay evidence. Accepted generally in paragraph 7. 16.-17. Accepted in paragraph 8. Accepted in paragraphs 9, 11 and 13. Accepted in paragraphs 3 and 11. Accepted in paragraph 17. Accepted in paragraph 11. Accepted generally in paragraphs 3 and 11. 23.-25. Accepted generally in paragraph 12. 26.-28. Accepted in paragraph 13. 29-38. To the degree these are not a synopsis of the testimony, they are accepted generally in paragraph 14. Rejected as immaterial. Accepted generally in paragraphs 17 and 20. Rejected as specific finding as cumulative. Rejected as specific finding as unnecessary since no contrary finding was made. Rulings On Proposed Findings of Fact Submitted by the Respondent 1.-3. Accepted generally in paragraph 4, portions not included rejected as immaterial or not supported by competent evidence. 4. Accepted to the degree stated in paragraph 4, that there was no competent evidence to determine which portions had been edited. 5-6. Accepted generally in paragraph 7 and by omission of a contrary finding. Accepted generally in paragraph 8; next to last sentence rejected as not supported by competent evidence and as immaterial. Accepted to the degree relevant in paragraph 9. 9.-10. Accepted generally in paragraph 10. 11.-12. Accepted in paragraphs 11 and 15. 13.-15. Accepted generally in paragraphs 11, 13, and 14. 16.-18. Rejected as specific findings as immaterial and merely as recitation of testimony, although generally accepted in paragraphs 14 and 15. 19. Accepted to the degree relevant in paragraph 16. 20.-23. Rejected as immaterial. 24-25. Accepted to the degree relevant in paragraph 20. 26. Accepted generally in paragraph 18. 27.-28. Accepted generally in paragraph 19, although the numbers not accepted since there was no indication on several letters that the individuals were parents or, if parents, when their child was in respondent's class. 29.-40. Accepted to the degree relevant in paragraphs 19 and 7. Parental comments were considered in mitigation of penalty as stated in conclusions of law. COPIES FURNISHED: J. David Holder P.O. Box 1694 Tallahassee, Florida 32302 Thomas W. Young, III 208 West Pensacola Street Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde Education Practices Commission Executive Director Department of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue At issue is whether Respondent committed the offense alleged in the Final Notice of Non-Compliance and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Charles E. Brown, Jr., is now and was at all times material hereto licensed by Petitioner, Department of Insurance (Department), as a Life and Health Agent (02-18), and held license number A031614. At all times material hereto, insurance agents licensed in Florida, such as Respondent, have been required to complete continuing education courses every two years, and Respondent was aware of such obligation. 1/ Compliance could be achieved by completing Department-approved seminars, classroom courses, or self-study courses. 2/ During the compliance period of December 1, 1995 through November 30, 1997, Respondent was required to complete 28 hours of continuing education courses. With regard to that requirement, the proof demonstrated Respondent failed to complete any hours of continuing education. Consequently, the proof supports the conclusion that Respondent failed to timely complete the 28 hours of continuing education required for the compliance period at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, suspends Respondent's insurance license for a period of six months. DONE AND ENTERED this 28th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2000.
Findings Of Fact The parties Petitioner, Televisual Communications, Inc., is a company specializing in the production of educational and marketing programs for health care. These programs include software, photographic, written media and, pertinent to this case, educational videos for home, office or self-directed study. Respondent, Department of Labor and Employment Security, Division of Workers' Compensation (Division), is the state agency charged by law with the duty to implement and enforce the provisions of Chapter 440, Florida Statutes. The proposed rule In 1993, the Florida Legislature amended the workers' compensation law, and mandated for the first time that physicians who treat injured workers must be certified by completing a minimum five- hour course in order to receive reimbursement for rendering medical treatment in the workers' compensation system. Section 440.13(3), Florida Statutes (Supp. 1994). Pertinent to this case, Section 440.13(3), Florida Statutes (Supp. 1994), provides: As a condition to eligibility for payment under this chapter, a health care provider who renders services must be a certified health care provider and must receive authorization from the carrier before providing treatment. This paragraph does not apply to emergency care. The division shall adopt rules to imple- ment the certification of health care providers. As a one-time prerequisite to obtaining certifi- cation, the division shall require each physician to demonstrate proof of completion of a minimum 5-hour course that covers the subject areas of cost containment, utilization control, ergonomics, and the practice parameters adopted by the division governing the physician's field of practice. The division shall coordinate with the Agency for Health Care Administration, the Florida Medical Association, the Florida Osteopathic Medical Association, the Florida Chiropractic Association, the Florida Podiatric Medical Association, the Florida Optometric Association, the Florida Dental Association, and other health professional organizations and their respective boards as deemed necessary by the Agency for Health Care Administration in complying with this subsection. No later than October 1, 1994, the division shall adopt rules regarding the criteria and procedures for approval of courses and the filing of proof of completion by the physicians. (Emphasis added) Also pertinent to this case is the Division's general rulemaking authority, codified at Section 440.591, Florida Statutes, which provides: The division shall have the authority to adopt rules to govern the performance of any programs, duties, or responsibilities with which it is charged under this chapter. On October 28, 1994, consistent with the legislative mandate and under the rulemaking authority delegated to it by Sections 440.13(3) and 440.591, Florida Statutes, the Division published notice, inter alia, of proposed rule 38F-53.011, in Volume 20, Number 43, of the Florida Administrative Weekly. That rule established the procedures and criteria for the approval of the minimum five-hour training course required for physician certification and, pertinent to this case, provided: (7) In order for a certification training course to be approved, the following shall be submitted to the Division as part of the proposed training course: * * * (b) Syllabus and outline of course content including time frames for each component and schedules for any breaks or meals included in the presentation. If audio-visual materials are to be utilized, a qualified and approved instructor must be present, during the audio-visual presenta- tion, to answer questions on the subject matter presented. The rule challenge On November 18, 1994, petitioner filed a timely petition for an administrative determination of the invalidity of proposed rule 38F- 53.011. Such protest did not contest the propriety of any provision of proposed rule 38F-53.011 regarding the procedures and criteria for the implementation or approval of the minimum five-hour training course required for physician certification except the provisions of subparagraph (7)(b) which, by implication, mandate a live seminar format and exclude video correspondence/home study as an acceptable training and certification program. Notably, neither the petition nor proof offered at hearing contests the reasonableness of the rule's requirement that a "[s]yllabus and outline of course content including time frames for each component and schedules for any breaks or meals included in the presentation" be submitted to the Division, and that "[i]f audio-visual materials are to be utilized [at a seminar], a qualified and approved instructor must be present, during the audio-visual presentation, to answer questions on the subject matter presented." Rather, petitioner's complaint is that the rule does not go far enough in that it does not include, as an alternative to the live presentation contemplated by the rule, provision for audio visual home study. Such omission, viewed in conjunction with the provisions of section 440.13(3)(a) which mandate that the Division develop and implement the "5-hour course," but does not proscribe the mode by which such "course" will be delivered, is the essence of petitioner's contention that the proposed rule is invalid. Standing Petitioner, as a producer of educational videos for home or self-directed study, contends that it has standing to challenge the proposed rule because, as written, it will be precluded from producing and marketing a home study course for the physician certification program and, consequently, that it will fail to realize profits from the sale of videos that it might, if the rule allowed home study, otherwise garner. Respondent contests petitioner's standing to maintain this rule challenge proceeding. Pertinent to the issue of standing, it is observed that the proof demonstrates that petitioner is a producer of educational videos for home study, and that it is not a health care provider or a representative of health care providers affected by Section 440.13(3), Florida Statutes (Supp. 1994), or the proposed rule, or otherwise shown to be regulated or controled under chapter 440 or the proposed rule. As to the financial impact on petitioner, it "estimates" that as of the date of hearing it had spent "somewhere around $75,000 . . . in salaries, travel and other expenses associated with getting to where we are at this point" and that "if [it was] able to successfully sell [its] program to ten percent or less of the market that exists in Florida right now, that [it could double its existing annual sales of $650,000]." [Tr. pp. 25 and 26] Notably, while petitioner may have expended "around $75,000" in salaries, travel and other expenses associated with public hearings on the proposed rules and other efforts to persuade the Division to include video home study as an approved method for physicians to attain certification, and that it is doubtful petitioner would undertake such expense unless it anticipated that production of such a program would insure to its benefit, the record is devoid of any competent proof to demonstrate, with any degree of certainty, what percentage of the market petitioner could reasonably be expected to garner or the net profit, it any, petitioner stands to loose if it is precluded from offering home study videos. In sum, the potential financial impact to petitioner in this case is not, based on the proof, quantifiable and is, at best, speculative. The merits of the rule challenge Based on the foregoing findings of fact and the conclusions of law which follow, it must be concluded that petitioner has failed to demonstrate its standing to maintain this rule challenge proceeding. Accordingly, since resolution of that issue is dispositive of this case, it is unnecessary to address the merits, if any, of petitioner's challenge.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact From May 26, 1989 to September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the Building Official for the City of Boynton Beach, Florida (City). As part of Jaeger's responsibilities he oversaw the zoning, construction, code enforcement and occupational licensing for the City. His job description stated that he would keep abreast of new changes in applicable laws and regulations and recommend changes to the laws and regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing codes are elements which affect affordable housing in the City. In the fall semester of 1991, Jaeger enrolled in an academic program leading to a doctorate degree in public administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating that the pursuit of a doctorate degree in public administration was not applicable to being a building official. During the fall semester of 1991, Jaeger took a course entitled State Government and Public Policy at FAU taught by former Governor Reuben Askew. For his State Government and Public Policy Course, Jaeger wrote a research paper entitled "The Effect of Government Regulation on Affordable Housing -- Competing Public Policy Objectives." Jaeger dictated the original draft of his research paper to his administrative assistant, Fran Sceblo, who then typed it up, presented it to him for editing and retyped it whenever he made corrections. She worked for approximately two and half to three weeks on the report. During some of the time she shifted some her work to others in the office so that she could finish the report. Some of the dictation and typing of Jaeger's research paper was done during regular Monday-through-Friday work hours. All dictation and typing of the Respondent's research paper were done in City offices, on City equipment and using City paper. Jaeger provided the computer disk upon which the work in progress and final product of his research paper were stored. Before beginning dictation, Jaeger offered to pay Ms. Sceblo for working on his research paper, if she worked outside her normal working hours. On a few occasions, Ms. Sceblo stayed in the office past five o'clock to work on Jaeger's research paper. Jaeger never paid Ms. Sceblo for any of her work on his research paper. On February 20, 1992, Jaeger sent a letter to Samuel Gerace, along with a manuscript of his research paper, offering that research paper for publication in Southern Building Magazine. The paper was never published. Jaeger received a satisfactory grade in his State Government and Public Policy course, and that grade was based in part on his 16-page research paper. Jaeger did not submit copies of the paper to his colleagues on the City's staff, the City manager, or the City commissioners. Jaeger attended three conferences concerning affordable housing prior to the time the research paper was written. The cost for the conferences and the cost of attending were paid by the City. Jaeger had prepared other school related reports using City resources, during business hours, with the knowledge and permission of the City manager. These reports reflected activities that were directly related to his work with the City. The research paper did have some benefit to the City because the City did deal with issues dealing with affordable housing and the City had evidenced its intention to have some of its employees, including Jaeger, educated on the issues involving affordable housing. There was no city policy which would have prohibited Jaeger from researching the issue of affordable housing and making a report on his research. Jaeger's job description stated that the building official "has wide latitude for exercise of independent jugment and use of delegated authority, laws, regulations, codes, and ordinances applicable to Inspection Division operations." The cost of the time spent by Jaeger and Ms. Sceblo on the paper was approximately $1,745.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Donald Jaeger did not violate Section 112.313(6), Florida Statutes and dismissing the complaint against Donald Jaeger. DONE AND ENTERED this 30th day of January, 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 30th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2502EC 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: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Accepted to the extent that the City would not pay for the coursework because it was not considered applicable to a building official. Rejected to the extent that it implies that any project or report that Jaeger may do during the coursework would also not be applicable to the work of the building official. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraphs 4-6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Accepted in substance. Paragraphs 9: Rejected as subordinate to the facts actually found. Paragraph 10: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 11-13: Rejected as constituting argument. Paragraph 14: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. The third sentence is rejected as subordinate to the facts actually found. Paragraphs 15-16: Rejected as constituting argument. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Respondent's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Rejected as unnecessary. Paragraph 2: Accepted in substance. Paragraphs 3-4: Accepted in substance. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance except as it relates to Civil Service Rules. There was no competent substantial evidence to support such a finding as it related to the Civil Service Rules. Paragraph 9: The portion relating to the job description is accepted in substance. The remaining is rejected as not supported by competent substantial evidence. Paragraph 10: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Kerrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty Moore, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Randall Henley, Esq. 328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent should have qualified Petitioner's proposed television production for Florida's 2005/2006 Entertainment Industry Financial Incentive pursuant to the requirements of Section 288.1254, Florida Statutes (2005).
Findings Of Fact In 2003, the Legislature created Respondent within the Office of the Governor, Office of Tourism, Trade and Economic Development (OTTED). Since that time, Respondent has administered an entertainment industry financial incentive program (the incentive program) subject to specific appropriation. The purpose of the program in part is to encourage the use of Florida as a site for filming and providing production services for motion pictures, made-for-television movies, commercials, and television programs. For fiscal year 2004/2005, the Legislature appropriated $2.45 million for the incentive program. The Legislature set aside $10 million for the incentive program in fiscal year 2005/2006. Petitioner is a Delaware corporation, which is based in Weddington, North Carolina. The corporation has no assets. Ban Mandell is Petitioner's president and only identified corporate officer. Mr. Mandell does not know if the corporation has issued any shares of stock. Since 1996, Petitioner has been the production company for the "The New Home Show" (show/series), which has aired several series on the Public Broadcasting System (PBS) through its sponsor television station, PBS Station WTVI, in Charlotte, North Carolina. The concept of the show is to begin with a vacant lot, to film the construction of a house by licensed builders and tradesmen, and to complete the project with a fully furnished home. In addition to Station WTVI, other sponsors have provided products to Petitioner to use in the construction of houses for prior shows. For example, Owens Corning underwrote a series in Tennessee for an 8,000 square-foot Owens Corning Systems Thinking Home. Additionally PBS underwriters have provided funds to produce shows in the past. Each show or series is a unique production. The filming does not take place on a traditional set, studio, or backlot. Instead, Petitioner films all scenes on location at the construction site. If the project demonstrates how to tile a bathroom, filming takes place during the actual performance of the work by tradesmen, providing the viewer with an understanding of the whole process. It takes longer to film a series than traditional television programs. Filming cannot take place every day because it is ongoing throughout the construction process. It took Petitioner 18 months to film its most recent project. Petitioner's first show was in 1996. The show consisted of 18 episodes about the construction of one home, the "Wedge Plantation," in North Carolina. Mr. Mandell personally advanced some of the money to finance the construction of the house. He and his family now live in the home. In 1997, Petitioner filmed eight episodes in Tennessee about the construction of a home for Owens Corning. This house was sold after its completion. In 1999 and 2000, Petitioner videotaped the construction of two houses in Lake Park, North Carolina. Petitioner filmed 18 episodes about a Victorian home called South Port, and eight episodes about a home called the Empty Nester. In 2004 and 2005, Petitioner filmed eight episodes about the construction of a golf course house in North Carolina. The series about the golf course house is complete except for editing. Excluding the series about the golf course house, Station WTVI has aired the first three series of completed projects. PBS makes each completed series available for distribution nationally by other PBS-member stations that want to include the shows in their programming. Pursuant to a contract between Station WTVI and Petitioner, Station WTVI must be identified as a co-producer on all shows that it sponsors. Station WTVI also requires that all monies from any source that are used to pay for the projects be paid directly to the station. Station WTVI receives and disperses all funds and ensures that all contributors receive the appropriate acknowledgement. Sometime in early June 2005, Respondent notified interested filmmakers regarding policies and procedures that OTTED adopted for the 2005/2006 incentive program. A letter dated June 1, 2005, stated as follows in relevant part: . . . Before you submit the appropriate application, . . . there are a few important things about the process that you must be aware of. The policies and procedures in the following document are the only official policies adopted by the State of Florida pertaining to the Entertainment Industry Financial Incentive Program. There are NO other persons, agents, organizations, financial institutions or businesses who in any way represent the policies of the State of Florida regarding the details of the Entertainment Industry Financial Incentive Program. In an effort to adhere to the new laws pertaining to this incentive and application process, we will only accept completed applications via Federal Express or U.S. Certified Mail. Any other form of delivery will not be accepted and your application will be returned. No applications will be accepted if they are postmarked before June 13, 2005. Applications received before this time and date will be returned. * * * 5. These policies and procedures, along with the application process, are contingent upon House Bill 1129 being signed into law by the Governor. Respondent's 2005 policies and procedures include the following pertinent provisions: POLICIES AND PROCEDURES Definitions: * * * Principal Photography--The phase in production in which all of the moving images are photographed and recorded according to the instructions of the screenplay in preparation for later editorial cutting and assembly. Production Costs--The costs of real, tangible, and intangible property used and services performed in the production, including preproduction and postproduction, of qualified filmed entertainment. Production costs generally include, but are not limited to: Wages, salaries, or other compensation for technical and production crews, directors, producers, and performers who are residents of this state. Expenditures for sound stages, backlots, production editing, digital effects, sound recordings, sets, and set construction. Expenditures for rental equipment, including, but not limited to, cameras and grip or electrical equipment. Expenditures for meals, travel, accommodations, and goods used in producing filmed entertainment that is located and doing business in this state. Qualified Expenditures--Production costs for goods purchased or leased or services purchased, leased, or employed from a resident of this state or a vendor or supplier who is located and doing business in this state, but excluding wages, salaries, or other compensation paid to the two highest-paid employees. Qualified Production--. . . [A] production is not a qualified production if it is determined that the first day of principal photography in this state occurred prior to certification by the Office of Tourism, Trade, and Economic Development (OTTED). * * * The Application Procedure: Qualified Production: Any company engaged in this state in producing filmed entertainment may submit an application to the OFE for the purpose of determining qualification for receipt of reimbursement. The Office of Tourism, Trade and Economic Development (OTTED) shall make the final determination for actual reimbursement through a certification process. Applications received between June 13, 2005, and June 24, 2005 (the "Principal Photography Application Period"), will be placed into one of two queues (defined below), according to principal photography start date. If more than one project in a queue has the same principal photography start date, those projects with the same principal photography start date will also be placed in the queue on a first-come, first-served basis. Applications received between June 27, 2005, and January 31, 2006, will be placed into one of the two queues on a first-come, first-served basis. On February 1, 2006, the remaining funds within both queues will be combined into a single queue and distributed based on a project's principal photography start date. * * * The Decision-Making Process: The decision-making process for designating filmed entertainment as a qualified production will follow the following sequential steps. Completed General Project Overview and Application is received in the OFE and reviewed to ensure all necessary documentation is attached. If the application is not complete, or documents are missing, the OFE will fax a letter to the production company listing the missing information and documents and the application will not be considered for qualification. Project review by the OFE to determine if the production is a qualified production . . . . After the production has been qualified by the OFE, the OFE will notify the OTTED of the applicant's qualification and the amount of reimbursement. After the OTTED has certified the amount of funds for the production, the OFE will notify the applicant of its determination . . . Expenditures made prior to certification by the OTTED will not be considered for reimbursement. A written contract between the production company and the State of Florida will be drafted and fully executed. * * * OFE Evaluation of the General Project Overview and Application: For a qualified production, the OFE will consider the following questions, among others, when making a determination if the production is qualified: a. The Application: Is it completely filled out, signed and dated? Are there further questions that must be asked and answered? Are all of the necessary documents included? * * * c. The Budget: Does the production have the necessary financing in place to begin production on the designated start date? Will the production spend a minimum of $850,000 on qualified expenditures in this state? * * * e. A Completion Bond: i. Will there be a completion bond in place with an industry recognized completion bond company before principal photography begins? If not, does the production company have the necessary financing in place to complete the shooting? * * * Availability of Funds: Annual funding for the Entertainment Industry Financial Incentive Program is subject to legislative appropriation. The State of Florida's performance and obligation to pay under the contract is contingent upon an annual appropriation by the legislature. If and when, the legislature makes funds available, the OFE will consider each project until all of the funds are committed, or June 20, 2006, whichever comes first. If an application is received and is qualified, but no funds are available, the OFE will notify the company in writing within five days. If the qualified company wishes to remain in the queue in the event funds become available in that fiscal year, it must inform the OFE in writing within five days. Disqualification: A qualified production will cease to be qualified if the OFE determines: The principal photography start date: Occurred before funds had been certified by the OTTED to the production company; or Does not start on the day indicated in the Project Overview on applications received between June 13, 2005, and June 24, 2005, for any reason other than an act of God . . . . Mr. Mandell became interested in producing a series of the show in Florida a few years ago. He particularly was interested in telling the story of the vacation home concept as it has been developing in central Florida. Vacation homes are well-known among European tourists who visit central Florida. The concept is not well-known to many Americans. There are approximately 50,000 vacation homes available in the vicinity of Orlando, Florida. Tourists rent the homes on a weekly basis. Instead of staying in one or two hotel rooms, a family can stay in a vacation home with multiple bedrooms, baths, pool, and other amenities. The vacation homes generate tax revenue for Florida because they are subject to hotel tax. In anticipation of potentially coming to Florida, Mr. Mandell signed up for Respondent's periodic e-mail service. Through these e-mails, Mr. Mandell learned about the financial incentive program. He understood from the beginning that there was some uncertainty as to whether the program would go forward. On or about June 8, 2005, Petitioner applied for a Florida sales tax exemption for the entertainment industry. The sales tax exemption application erroneously stated that PBS Station WTVI was its parent company. Asserting that its first day of principal photography would be August 1, 2005, Petitioner asserted that it intended to build four or five homes in Lake County, Florida, for a PBS do-it-yourself show. The sales tax exemption was valid for only 90 days. However, Mr. Mandell believed that building more than one home at a time would make the filming go faster, speeding up the production process by shooting more than once or twice a week. Following Petitioner's submission of the application for the 90-day sales tax exemption, a member of Respondent's staff, Niki Welge, advised Mr. Mandell that the incentive program was going forward. Ms. Welge referred Mr. Mandell to Respondent's website for details. Ms. Welge also informed Mr. Mandell that Respondent would rank applications received during the "Principal Photography Application Period" (between June 13, 2005, and June 24, 2005) based on the "Principal Photography" start date. Based on Mr. Mandell's conversation with Ms. Welge and existing contacts for Florida crew members, Mr. Mandell decided to move Petitioner's "Principal Photography" start date from August 1, 2005, to July 1, 2005. Mr. Mandell also decided to go forward with a much larger project than originally planned. Mr. Mandell decided to build a neighborhood consisting of 395 or 396 vacation homes in Lake County, Florida, with Platinum Properties of Central Florida, Inc. (Platinum Properties), Clermont, Florida, as the builder/developer. The 395 homes were in addition to the four homes in Lake County, Florida, that Petitioner intended to build with Better Built Homes, Inc., Melbourne, Florida, as the contractor. Prior to submission of Petitioner's application, Mr. Mandell reviewed Respondent's Policies and Procedures and Section 288.1254, Florida Statutes (2004), the version of the statute that was available on MyFlorida.com. Mr. Mandell then filled out the application on June 9 and 10, 2005. Petitioner's application indicates that Petitioner intends to film at least 13 episodes in Florida for The New Home Show (500 Series). The application also indicates that Petitioner has already begun preproduction at vacation homes in Polk County, Florida. According to the application, Petitioner intends to film for approximately 52 days, between July 1, 2005, and June 30, 2006, in three Florida counties: Lake, Polk, and Orange. Paragraph 9 of the application requires the applicant to describe its Florida qualified expenditures and to include a total production budget with a breakout of the estimated Florida expenditures. Paragraph 9 of Petitioner's application states as follows in relevant part: Estimated total expenditure on Florida resident wages (excluding the salaries for the two highest paid Florida resident employers): $500,000 Estimated expenditures on Florida lodging: $20,000 Name of hotel(s): Private Vacation Homes Total number of room nights: 200 [the application skips subsection c] Estimated expenditures on Florida set construction: $10,500,000 Estimated expenditures on purchase or rent for real and personal property: $17,000,000 Estimated expenditures on other services rendered by Florida companies: $100,000 Please list the other services: Misc. Construction Services * * * h) Total estimated qualified Florida expenditures: $28,120,000 According to the application, Petitioner intended to spend $500,000 on Florida resident wages. Mr. Mandell based this figure on building just 50 homes and spending at least $10,000 in labor for each home. Petitioner projected that it would spend $20,000 on Florida lodging. This figure covered 200 nights in hotels and vacation homes. Petitioner anticipates spending $10,500,000 on set construction. Mr. Mandell based this figure on the cost of constructing 50 houses. A set is traditionally a temporary structure. Petitioner will not have a set. Instead, Petitioner is proposing to build over 300 homes to be sold as permanent, fixed structures. Petitioner estimates that it will spend $17,000,000 for the purchase or rent of real or personal property. According to Mr. Mandell, this figure represents the cost of the acreage at the "Platinum" site, plus the cost of the infrastructure. However, the purchase of real estate and the construction of infrastructure are not related to the television episodes that Petitioner proposes to film. In any event, all of the lots are already sold and the buyers have contracted for the construction of homes. The last estimate was $100,000 for other services rendered by Florida companies. However, Mr. Mandell did not have anything specific in mind. The general project overview and application included the following admonition: IMPORTANT NOTE: If the following documents are not submitted with your application your application will not be considered complete: Script Budget Production/Shooting Schedule Proof of Financing Your application will not be considered for qualification and will be returned if the requested documents are not attached. Mr. Mandell attached a proposed budget to Petitioner's application. The proposed budget was written in narrative form and states as follows in pertinent part: The New Home Show will be responsible for over $20,000,000 in expenditures within in Florida from July 01, 2005, through June 30, 2006. Construction of homes and neighborhoods is always our biggest expense representing over 80% of the total expenditures. . . . We will start with four homes built by Better Built Homes, Inc. The budget for these four homes will be over $1,000,000. The homes will be built in an established neighborhood that the producer has located four vacant lots in. These homes will be finished during December 2005. In September 2005, we will start working with our 2nd builder/developer, which is Platinum Properties, Inc. We are in the process of contracting for several homes with Platinum. The expenditures for these homes will be over $15,000,000. * * * In the past, our funding comes from five different areas for these projects. Those areas are: Producer's advance PBS underwriters Builder Developer State Incentives The PBS Underwriter funds and the State Incentive are important funds for The New Home Show because they do not require re- payment. All of the other categories are loans that are repaid from the proceeds from the sale of the homes that we build. Our PBS presenting station is WTVI in Charlotte. All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds. WTVI is the co-producer of The New Home Show on PBS and approves all budgets and disburses all funds regulated by PBS. PBS has very strict rules and regulations regarding the funding of all PBS shows including The New Home Show and we adhere to those rules and regulations. In addition to the budget, Mr. Mandell prepared a production/shooting schedule to be attached to the application, along with the following: (a) an undated letter from the Director of PBS PLUS and PBS SELECT describing PBS's distribution process and the importance of PBS's underwriting guidelines in very general terms; (b) an undated letter from an advertising agency; (c) a copy of a script from a prior show; and (d) seven pages of PBS's promotional material for the show's 2005 project about the golf course home. In the very early morning hours of June 10, 2005, Mr. Mandell realized that the package of material was in excess of 13 ounces, and that it would not fit in a regular envelope. He decided to send it to Respondent by U.S. Certified Mail, no return receipt requested, in a heavy-duty priority mail envelope. Mr. Mandell uses an Internet postage service, which is the equivalent of having a postage meter. At 3:31 a.m. on June 10, 2005, Mr. Mandel purchased on-line postage in the amount of $6.15 for priority mail, flat-rate delivery, certified, with a ship date of June 13, 2005, on the shipping label. He did not request or pay an additional fee for a "green card" return receipt. The Internet postage service provided Mr. Mandell with a Customer Online Label Record, showing that the label was printed on June 10, 2005, with a June 13, 2005, ship date. The instructions from the Internet postage service contain the following request, "Please use this shipping label on the 'ship date.'" During the hearing, Mr. Mandell stated that he could have printed the shipping label with any date between June 10, 2005, and June 17, 2005. Respondent's policies and procedures clearly require Respondent's staff to determine whether an applicant has the necessary financing in place to begin production on the designated start date and to complete shooting. The policies and procedures do not explain what documents will meet the "proof of financing" requirement. To answer his questions in this regard, Mr. Mandell called Ms. Welge. On June 10, 2005, Mr. Mandell advised Ms. Welge that the show would be financed through construction loans. He explained that Petitioner could not provide Respondent with a bank statement showing a sum of money in a bank account because construction loans do not operate in that manner. A borrower does not retrieve construction loan funds from the lender until the builder needs them. Financial institutions loaning construction funds do not escrow the entire sum, but provide funds on a drawdown basis, based on percentage of completion. After speaking to Ms. Welge, Mr. Mandell sent her an e-mail on Friday, June 10, 2005, at 4:06 p.m. The e-mail inquired whether a letter from the real estate company that was financing the show would satisfy the "proof of financing" requirement. Petitioner's June 10, 2005, e-mail included a draft of a letter allegedly from Platinum Properties, identified only as a Florida real estate developer. The proposed letter stated as follows in relevant part: . . . Subject to timing and construction issues, we look forward to working with The New Home Show on this project. The New Homes Show's project is the creation of an entire vacation home neighborhood in central Florida. If we are able to go forward with The New Home Show on this project, it will be funded with a combination of bank and trade lines, which Platinum Properties utilizes on a regular basis. We have assured the producers of The New Home Show that we have adequate credit lines to cover any and all construction on this project. We expect the cost of this project will be $ of which $ is expected to be spent between 07/01/05 and 06/30/06. Upon receiving Mr. Mandell's e-mail, Ms. Welge shared the proposed letter with others on Respondent's staff. First, she sent it to Scott Fennell, OTTED's Deputy Director, who was providing administrative leadership to Respondent's staff during a vacancy in the position of Film Commissioner. Ms. Welge sent the e-mail to Mr. Fennell on Friday, June 10, 2005, at 4:11 p.m. Mr. Fennell did not immediately respond to Ms. Welge's inquiry about the proposed "proof of financing" letter. On June 10, 2005, Ms. Welge also discussed Petitioner's proposed letter regarding "proof of financing" from Platinum Properties with Susan Simms, Respondent's Los Angeles Liaison. Ms. Welge then contacted Mr. Mandell, advising him that the proposed letter was not sufficient because it contained contingencies. Later in the evening on June 10, 2005, Mr. Mandell contacted Danial Lambdin from Better Built Homes, Inc. During a telephone conversation, Mr. Mandell and Mr. Lambdin, drafted the unsigned, undated "proof of financing" letter that Petitioner ultimately submitted with its application. The letter states as follows in pertinent part: This letter confirms that you have contracted for the construction of four (4) single family vacation homes in Lake County, Florida. I am pleased to be involved with The New Home Show and am excited about working with you. I can confirm that I have an adequate line of credit to complete these homes for you. My Bank is Riverside National Bank at 417 First Ave., Indialantic, FL 32903. My primary contact is Monica Silveria. Their phone number is 321-725-7200. Mr. Mandell typed the letter addressed to himself in Weddington, North Carolina, with the address of Better Built Homes, Inc., Melbourne, Florida, as the letterhead. Very late on Friday, June 10, 2005, or very early on Saturday, June 11, 2005, Mr. Mandell completed the application form and the preparation of all attachments. He placed all of the documents in the priority mail envelope and attached the prepaid certified mail shipping label with the predated ship date. Mr. Mandell then dropped the envelop in an outgoing "mail tote" at his home. Mr. Mandell does not know when the U.S. Post Office received the application and its attachments. Someone at his home takes the mail tote to the post office in Charlotte, North Carolina, every day. The U.S. Post Office delivered the application and its attachments to the state's off-site mail-screening facility on Monday, June 13, 2005, at 3:43 a.m. On Monday, June 13, 2005, at 6:18 a.m., Mr. Fennell answered Ms. Welge's inquiry about the sufficiency of Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Mr. Fennell responded that "[t]his seems a bit light, but I don't know what typically passes for 'proof of financing' in the film world." On Monday, June 13, 2005, at 9:43 a.m., Ms. Simms responded by e-mail to Mr. Fennell regarding Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Ms. Simms stated that the contingencies in the proposed letter were potential deal-killers, and that Ms. Welge was able to let Petitioner know on Friday that this was not acceptable as proof of financing. Respondent received the application on Monday, June 13, 2005, at 3:29 p.m. Later that day at 6:21 p.m., Respondent faxed Petitioner a letter, notifying Mr. Mandell that Petitioner did not qualify for the incentive program for the following two reasons: (a) The application was postmarked on June 11, 2005; and (b) The application did not contain any documents containing proof of financing. Respondent sent this letter without contacting Better Built Homes, Inc., or its financial institution. Following receipt of Respondent's June 13, 2005, denial letter, Mr. Mandell contacted Raquel Cisneros, another member of Respondent's staff. Ms. Cisneros and Ms. Welge were the only staff members involved in reviewing Petitioner's application on June 13, 2005. Mr. Fennell signed the June 13, 2005, denial letter but did not review the application. Mr. Mandell explained to Ms. Cisneros that the application was not postmarked on June 11, 2005. Ms. Cisneros admitted during the hearing that the denial letter did not have a postmark of June 11, 2005. Mr. Mandell also inquired of Ms. Cisneros why the June 13, 2005, denial letter stated that the application contained no documents to demonstrate "proof of financing," when the Better Built Homes, Inc., letter had been attached to the application. Ms. Cisneros advised Mr. Mandell that the Better Built Homes, Inc. letter was deficient because it did not contain an amount of financing. Mr. Mandell was unable to obtain an extension of time for Petitioner to serve an "election of rights." Therefore, Mr. Mandell filed an "election of rights" form with Respondent on June 16, 2005. Respondent's June 13, 2005, denial letter provided Petitioner with the opportunity to provide Respondent with additional documents. On June 17, 2005, Petitioner took advantage of that opportunity by submitting a letter dated June 17, 2005, from Platinum Properties. The letter states as follows in pertinent part: We are looking forward to this venture of together building 395 Vacation homes in Lake County with the support, cooperation and abilities that "The New Home Show" brings to the project. Attached you will find the Lender Commitment to get started on the Millbrook Manor Project from AmBanc Commercial Lending Services. Lawrence M. Maloney signed the June 17, 2005, "proof of financing" letter as president of Platinum Properties. Attached to Mr. Maloney's letter was the first page of a Conditional Commitment from AmBanc Commercial Lending Services (AmBanc), Saint Charles, Missouri. The AmBanc Conditional Commitment states that Millbrook Manor/Larry Maloney (Borrower) has executed the document and requested financing in connection with a project described therein. The Conditional Commitment also states that the project has been conditionally approved to receive financing in the maximum principal amount of $15,000,000. The single-page Conditional Commitment does not contain a description of Millbrook Manor. Petitioner did not hear further from Respondent until Petitioner received a second denial letter on June 24, 2005, the last day of the initial two-week window for applications. Respondent based its second denial of Petitioner's application on the following reasons: The submitted budget does not distinguish the production costs as defined in Section 288.1254(2)(b) of the Florida Statutes. The submitted budget does not contain an adequate breakout of the estimated Florida expenditures as opposed to overall project expenditures as described on page five of the General Project Overview and Application. Designated recipients of state incentives must be party to the application and subsequent contractual agreements. Your application states, 'All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds.' There is inadequate evidence that the application was sent via FedEX or U.S. Certified mail as required on page one (1) of the Entertainment Industry Financial Incentive Policies and Procedures. 'Any other form of delivery will not be accepted and your application will be returned.' On June 27, 2005, Petitioner submitted its second "election of rights" form. Petitioner also provided Respondent with its second statement of disputed facts. Respondent anticipated that it would receive some applications on June 13, 2005, by Federal Express or Certified U.S. Mail by overnight or same-day delivery service. Respondent's staff included the requirements that no applications would be accepted if they were postmarked before June 13, 2005, and only then if they were sent by Federal Express or U.S. Certified Mail in an effort to ensure a fairer process for evaluating the applications received during the critical first two-week principal photography application period. However, the policies and procedures do not require that the applications be mailed on or after June 13, 2005. In the instant application process, Respondent approved at least one other application that Respondent received on June 13, 2005. As to the requirement for "proof of financing," at least one other approved applicant (Britt Allcroft Productions/Britt Allcroft) contained an unsigned letter from a third party, which contained a contingent intent to "assist" in obtaining financing for the production if it was able to obtain $2 million from the incentive program. For this application, Respondent's staff engaged in a telephone conference call with the applicant, obtaining verbal assurances that the letter from the third party constituted a promise to provide financing for the remainder of the production not covered by the other more specific non-contingent promises of financing and licensing agreements. Additionally, the Britt Allcroft application indicated that a completion bond was in place to cover any shortfall in financing, guaranteeing that the production would be completed. Petitioner's application did not contain a completion bond. Another approved applicant (Rolling Films Company) provided Respondent with two contingent letters from third parties, indicating their intent to provide partial financing for the production only if the remaining funds were obtained by a date certain. That application also included a letter from the applicant, indicating the applicant's intent to finance the production for any amount not covered by the third parties. Petitioner's application refers to the funding of prior shows as including producer's advance and PBS underwriters. It does not state that Petitioner agreed in this case to fund the show over and above the amount to be financed by Better Built Homes, Inc., in the amount of $1,000,000 for four homes or the $15,000,000 that Platinum Properties promised to provide for the construction of 395 homes. Additionally, there is no persuasive evidence that Mr. Mandell gave Respondent verbal assurances that Petitioner or PBS intended to fund any shortfall in funds to complete the show, which has projected total production costs in excess of $28,000,000. The letter from PBS Plus & PBS Select agrees to assist in Petitioner's effort to fund the show but does not say how much funding Petitioner could anticipate from PBS underwriters. It is obvious that Respondent's staff is confused about the "proof of financing" requirement. For example, Ms. Cisneros testified in deposition that an applicant only needed to show financing in place for one-half of its total production costs. During the hearing, Ms. Cisneros testified that an application had to show "proof of financing" all of its production costs. Ms. Welge testified in deposition that an applicant had to demonstrate "proof of financing" for its Florida expenditures. Ms. Simms testified that an applicant had to establish "proof of financing" for the entire production budget. Mr. Fennell freely admits that he does not know what constitutes "proof of financing" for an entertainment production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of October, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of October, 2005. COPIES FURNISHED: Pamella Dana, Director Office of Tourism, Trade, and Economic Development The Capitol, Suite 1902 Tallahassee, Florida 32399-0001 Susan Albershardt, Commissioner Office of Film and Entertainment The Capitol, Suite 202 Tallahassee, Florida 32399-0001 S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Tallahassee, Florida 32301 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 1 Tallahassee, Florida 32399-1050 Ted Bonanno, Esquire Office of the Governor The Capitol, Suite 2001 401 South Monroe Street Tallahassee, Florida 32399-0001
