The Issue The issues presented concern the question of the entitlement of the Petitioner, Elizabeth A. Atkinson, to be licensed as a real estate salesman in the state of Florida, as contemplated by Chapter 475, Florida Statutes.
Findings Of Fact Petitioner made application with the State of Florida, Department of Professional Regulation, Division of Real Estate, to be licensed as a real estate salesman. This application was received on July 15, 1986, by the Florida Real Estate Commission. A copy of that application form may be found as Respondent's Exhibit 2 admitted into evidence. Question 6 in the application states: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner answered this question in the affirmative, and in response to instructions in that questionnaire undertook to make explanation of her criminal record. That explanation was to this effect: I was convicted in 1972 of Fraudulent Use of Credit Card this was a credit card that was mine during my marriage [sic] and I used this during our separation [sic] and my ex-husband pressed charges. Then I was also convicted of worthless check charges these were my own and restitution has been made. In the face of this revelation by the Petitioner concerning her criminal background and having ascertained what it believed to be a more comprehensive explanation of the Petitioner's involvement in criminal activities, the Florida Real Estate Commission determined to deny the application for licensure. Respondent's Exhibit 1 admitted into evidence is a copy of a letter from counsel for the Respondent to Petitioner identifying what the Respondent perceived to be a depiction of the criminal activities of the Petitioner. When confronted with a denial of her request for licensure Petitioner timely sought a formal hearing to prove her entitlement to licensure. The case was assigned to the Division of Administrative Hearings and the hearing date of March 27, 1987, was established. Notwithstanding the provision of notice and the remarks by Petitioner to Respondent's counsel which created the impression that the Petitioner would appear at the hearing session, Petitioner did not attend the hearing and was not represented at the hearing. In addition to the previous exhibits which Respondent offered and which have been addressed in the fact finding, Respondent offered, and it was admitted into evidence, a third exhibit, correspondence from the petitioner to a Ms. Clayton. This correspondence appears to be a further attempt on the part of the Petitioner to explain the circumstance of her criminal activity. In accordance with Rule 1.370, Florida Rules of Civil Procedure, and Rule 22I-2.12(1)(h), Florida Administrative Code, Respondent made request for admissions from the Petitioner on February 16, 1987. The request for admissions document instructed the Petitioner in the following fashion: Pursuant to the Rules cited above, you are hereby required to specifically admit or deny the following facts in writing. If objection is made to any of the following, then you are required to state in writing your reasons therefor. You are further required to submit the original and one copy of this document, when completed, to the Hearing Officer in this cause, and one copy to the attorney for the Respondent, within 30 days. In substance, it was requested of the Petitioner that she admit: On or about January 12, 1973, Petitioner was charged with issuing a worthless check. Adjudication of guilt was withheld, and Petitioner was placed on probation for one year. On or about May 17, 1973, Petitioner was charged with two counts of worthless checks and probation violation. On or about September 5, 1973, Petitioner was charged with two counts of worthless checks, contempt of court, and probation violation. On or about October 16, 1973, Petitioner was charged wish fraudulent and illegal use of credit cards and probation violation. On or about April 7, 1975 and April 17, 1975, Petitioner was arrested on worthless check charges. On or about June 1, 1975, Petitioner was arrested for inmate of a house where drugs are used, worthless checks, contempt, and failure to appear charges. On or about February 17, 1978, Petitioner was arrested on worthless check charges and adjudicated guilty of said charges. Petitioner was sentenced to five years of state prison and three years of probation; 56 months of the prison sentence were suspended. On or about June 2, 1978, Petitioner was charged with worthless check charges and adjudicated guilty of said charges, and sentenced to 30 days of jail time. On or about September 7, 1978, Petitioner was charged with issuing a worthless check. On May 13, 1985, Petitioner was charged with a probation violation and issuing a worthless check. Respondent's counsel stated in the course of the final hearing that the Petitioner had promised responses to the request for admissions but had not made those available prior to the final hearing. Under the circumstances, Respondent's counsel asked that the hearing officer deem those matters set forth in the request for admissions established as fact. The request was granted, and the request for admissions was deemed established and provided a basis for fact finding. On March 27, 1987, at 11:32 a.m., the office of the Division of Administrative Hearings received the Petitioner's response to the request for admissions. That document is being transmitted with this recommended order. In her response, the Petitioner acknowledges the factual accuracy of all paragraphs, save numbers 6 and 10. In paragraph 6, she denies that she was arrested as being an inmate of a house where drugs are used and appears to emphasize an acknowledgment of the arrest for worthless checks dating from June 1, 1975. In responding to paragraph 10 of the request for admissions which concerns charges against the Petitioner for probation violation and issuing a worthless check dating from May 13, 1985, Petitioner states: "This was not a new charge but a formality to have the judge terminate the probation period which I had to have been terminated several years prior to this date."
The Issue The issue in this case is whether the termination of Respondent's employment by Petitioner is justified and consistent with the requirements of the Collective Bargaining Agreement between Petitioner and the Sarasota Classified/Teachers Association (of which Respondent is a member).
Findings Of Fact Petitioner is the Sarasota County School Board, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Sarasota County. The School is a public high school established in 2001. It is located at 6400 West Price Boulevard, North Port, Florida. The school had a student body in excess of 2,600 students at the beginning of the current (2008-2009) school year, but that has declined to 2,500 as of the date of the final hearing in this matter. Respondent, Ronald Davenport, was employed at the School as a campus security monitor (also known as a security aide) from 1988 until December 5, 2008. Respondent is an African-American male. Respondent is a "classified" employee under the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the District (the "Collective Bargaining Agreement"). On December 5, 2008, Respondent was reassigned or transferred from the School to McIntosh. The reasons for the transfer will be more fully discussed below. During Respondent's tenure as a security monitor at the School, he received a number of written disciplinary letters or memoranda. Under the District disciplinary policies, written reprimands are issued only after verbal reprimands have been issued and proven ineffective. Respondent's discipline to-date has included the following: On November 22, 2004, Respondent was given a Record of Verbal Reprimand concerning his failure to responsibly monitor students while on duty. A written reprimand was given to Respondent on January 4, 2005, concerning improper contact with students and work performance. In April 2005, Respondent was suspended without pay for a period of three days. The basis of the suspension was Respondent's insubordination to superiors. In January 2006, Respondent was again suspended without pay, this time for a period of ten working days. This suspension was based on Respondent's failure to perform his work responsibly, use of school computers for personal reasons, and insubordination. A letter of instruction (which is not technically a disciplinary action) was given to Respondent on April 12, 2007, concerning his actions while driving on campus. Respondent received other verbal reprimands and letters (memoranda) of instruction in addition to those set forth above. It is noted that two suspensions for a single employee is very unusual; grounds for a second suspension would normally warrant termination of employment. However, Principal Kenney stated that at the time of the second suspension, he wanted to give Respondent another opportunity, even though dismissal was probably warranted. (Likewise, the aforementioned transfer from the School to McIntosh was another effort by Kenney to sanction Respondent without resorting to termination of employment.) In the Fall of 2008, a student at the School spat water on Respondent. The student received a three-day suspension and a deferred expulsion1 for his actions. A few weeks later, a different student spat water on a Caucasian security monitor. That student received a five-day suspension and a deferred expulsion for the remainder of the year. The student in the second incident, however, had a disciplinary history while the student who spat on Respondent did not. That is the reason for the slight disparity in punishment. Respondent was unhappy about the second student being treated more harshly and surmised that the reason for the difference in punishment was that he (Respondent) was African- American while the other security monitor was Caucasian. That being the case, Respondent contacted Mr. Trevor Harvey, president of the local NAACP chapter, to complain. Harvey contacted Principal Kenney, and the two agreed to meet at Kenney's office on December 5, 2008, to discuss possible racial issues at the School. On December 4, 2008, Respondent was observed handing out a note or flyer to students. The flyer, which was copied from a handwritten original, included the following bullet points: An instruction asking the reader to make a copy and tell a friend about the contents of the flyer. A request to have parents and students call various news agencies (whose telephone numbers were listed at the bottom of the flyer) and request that reporters be sent to the School the following day (December 5) to attend an NAACP meeting at the School. A statement of the writer's belief that the District and the School promote intolerance, bias, and double standards concerning people of color. A statement specifically addressing Respondent's confrontation with a student earlier in the year. Another statement urging the reader to submit their own concerns to administration that day or early on the following day. Respondent denies writing the flyer or having anything to do with its distribution to students. However, he does admit distributing copies of the flyer to other employees at the school, including Jacqueline Pollard, a teacher, and Wesley Johnson, the senior head custodian at the School. Both Pollard and Johnson are African-Americans. Other employees, including Mr. Johnson, saw Respondent handing out a sheet of paper to students on December 4, 2008, which they presumed to be copies of the flyer. The flyer had been discovered by administrative staff at the School on December 4, 2008, after an altercation between some girls on campus. While the girls were being questioned in the administrative offices, one of them provided staff with a copy of the flyer. The student did not know from whom she had received the flyer, but said it was being distributed around campus. At least one teacher told the administrative office that a student in her class received the flyer from Respondent. Respondent was seen distributing an unidentified sheet of white paper to students on the afternoon of December 4, 2008, and the morning of December 5, 2008. Respondent maintains that all he gave students was a handwritten Christmas greeting which said, "Happy Holidays and [peace sign] on Earth. God bless Obama & God bless the U.S.A. Mr. Ron, Security." On the morning of December 5, 2008, Respondent was observed by Assistant Principal Wilks talking to a group of students. Wilks heard Respondent tell the students to go to the Performing Arts Center ("PAC") for the purpose of attending the NAACP meeting. Many of the students then headed toward the PAC. Wilks then redirected the students toward their assigned classrooms. Respondent denies he told students to go to the PAC for a meeting; he says he directed them all to return to class. Based on Wilks' interaction with students shortly thereafter in the area of the PAC, her testimony on this point is more credible. After hearing Respondent talking to the students, Wilks went to the PAC, which is located at the front of the campus. Several groups of students showed up at the PAC and said they wanted to attend the NAACP meeting. They were told that there was no meeting at the PAC that day in which students were authorized to attend. One of the students advised Wilks that her "uncle" had told her to go to the PAC for the meeting. Respondent concedes that the student was referring to him (although she is not actually his niece). Respondent denies telling her to go to the PAC for a meeting. There was in fact a meeting at the School on December 5, 2008, between the principal, Dr. Kenney, and the NAACP representative, Mr. Harvey. However, that meeting was held in the principal's office, not at the PAC. The meeting went well and Mr. Harvey left the campus seemingly in agreement with how the School was handling interactions between racial groups.2 It was determined by the School administration that Respondent's apparent involvement in the effort to disrupt the NAACP meeting made his continued employment at the School impractical. However, rather than seeking to terminate Respondent, it was decided that he could be transferred to McIntosh to serve as a security monitor at that school.3 On the evening of December 5, 2008, after school hours, Respondent was called at home and told that he was being reassigned. On December 6, 2008, Respondent came to the School to empty out his employee locker and retrieve his personal items. He asked that this process be supervised and/or taped, so there were persons observing him as he did so. Respondent then reported to McIntosh for duty. Employees are not allowed to use school copying machines for personal use (without prior approval from administration). Each employee is assigned a code to use when making copies so that the School can monitor the use of copy machines. On the Monday following Respondent's reassignment to McIntosh, a media specialist printed out a "user chart" for one of the school copy machines located in the mailroom. The user chart showed that Respondent had made 465 copies on that machine since the beginning of the 2008-2009 school year. Principal Kenney could not think of any justification for Respondent making that many copies. Respondent does not remember what he copied, but notes that another security monitor made many more copies than Respondent did. Respondent did not deny making the copies, but was unaware of the requirement to get permission first. Just three weeks before the NAACP meeting incident, while Respondent was still working at the School, his supervisor was looking for him on campus. Respondent did not respond to calls over the walkie-talkie (radio) system used for communication purposes. Respondent had not signed out in accordance with the well-known policy to do so, but was observed off-campus at a gas station. The failure to sign out is an actionable violation of Respondent's employment. On December 18, 2008,4 Larry Leon (chief of school police and director of safety and security) and Sam Wilson went to McIntosh to provide Respondent a sealed envelope. The envelope contained a notice concerning an upcoming meeting. After Respondent failed to answer numerous radio calls from Wilson, Wilson asked McIntosh's assistant principal, Hazuda, to make an attempt to call Respondent. Hazuda called Respondent, who showed up at Hazuda's office in a matter of minutes. Upon seeing Wilson in the office, Respondent was visibly upset. He said something to Hazuda about being "set up" and that he was being harassed. Respondent refused to accept the envelope, said he was sick, and left Hazuda's office to go to the school clinic where he signed out for the day. When Wilson tried to talk to him, Respondent simply raised his hands above his head and walked away. Hazuda's efforts to make Respondent remain at the school and go back to work were not successful. Hazuda's testimony on this point is extremely credible. As Respondent was leaving the clinic, Leon called out to him. Respondent ignored Leon and continued to leave the building. Leon followed and called out loudly to Respondent, asking him to stop. Respondent swore at Leon, saying "F**k you" and continued to walk toward his car. At no time did Respondent turn around and engage in face-to-face conversation with Leon.5 On January 5, 2009, Police Chief Leon and Wilson returned to McIntosh with another written notice to be delivered to Respondent. Letters had been sent to Respondent about the upcoming meeting, but no response had been received. (Respondent had signed one copy of a notice, but left it on the counter in the administration offices rather than returning it as asked.) So, Wilson and Leon again tried to hand-deliver a copy of the notice to Respondent. Numerous attempts to contact Respondent via radio on January 5, 2009, were unsuccessful. Finally, someone who had heard the radio calls advised Respondent that he was being summoned to the front office. Respondent surmises that his radio might not have been functioning properly at that time, so he didn't hear the calls. When Respondent got to the office, he decided to check out for the day because he was feeling ill. He left without accepting delivery of the written notice. Subsequently, on January 15, 2009, a Weingarten hearing was conducted on the issues relating to the December 5, 2008, NAACP meeting at the School and the two incidents at McIntosh. Respondent attended the hearing and presented responses to the allegations of misbehavior. Based upon the information gathered at the Weingarten hearing, the District decided that termination of Respondent's employment was warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Sarasota County School Board terminating the employment of Respondent effective February 18, 2009. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009.
The Issue Is Petitioner disqualified by law from working in a position of special trust and responsibility related to child-care services? If disqualified, is Petitioner entitled to exemption from disqualification?
Findings Of Fact The discussion in the preliminary statement concerning the case history is incorporated. At present Petitioner works at St. Vincent's Hospital in Jacksonville, Florida. She is employed as a registered respiratory therapist. She serves critically-ill and terminally-ill patients. She has worked at the hospital for two years. To obtain the Florida license necessary to work as a registered therapist, she spent a total of two and one-half years at Florida Community College at Jacksonville and Flagler Career Institute. In receiving a degree from Florida Community College at Jacksonville, she finished in the top ten in her class. In the distant past, Petitioner has worked as a teacher's aide in the Duval County, Florida, public school system. At present, Petitioner and her husband, Michael Williams, have renovated a building and adjacent property with the intent to open a day-care center which would serve the needs of 50-60 children. Petitioner's role in the project would be as owner. Petitioner would hire a manager. Petitioner and the manager would hire the staff necessary to care for the children. Petitioner and Michael Williams were married in 1977. They have several children, the last of whom was born in 1984. The day-care center would be known as "Kids Points of View". The day-care center would have a separate checking account from that maintained by Petitioner and her husband. Petitioner has engaged a CPA firm to provide accounting and payroll services for the day-care center. Those functions would be coordinated between the accountant and Petitioner's husband for the benefit of the day-care center. In furtherance of the day-care project, the Petitioner and her husband have expended $30,000.00 to $40,000.00 and have expended hundreds of hours in labor. Petitioner has been prohibited from working with children in a position of special trust, such as day care, based upon certain criminal law violations, which Respondent maintains would disqualify Petitioner from that undertaking. The basis for disqualifying Petitioner from working with children in the day-care facility is associated with a criminal law offense disposed of on October 27, 1981 involving grand theft and a second grand theft charge disposed of on July 31, 1990, both offenses having occurred in Duval County, Florida. Both offenses were felonies. In the case of State of Florida v. Audrey Yevette Williams, in the Circuit Court of Duval County, Florida, Case No. 81-7707CFQ, Petitioner entered a plea of guilty to the offense of grand theft. She was given 18 months probation and made to pay restitution to the Sears Surplus Store in the amount of $504.00, within one year of the case disposition. Petitioner also had to pay $10.00 to the victims' crime compensation trust fund. Petitioner met the terms of her probation. Petitioner describes the experience in 1981 as one in which she accompanied another person to the Sears Surplus Store. She made purchases which she paid for. Her acquaintance gave merchandise to Petitioner to carry out of the store, together with the purchases which Petitioner had made. Petitioner and her companion were apprehended and two weeks later were arrested for theft. The arrest for the grand theft was made on September 4, 1981. Petitioner concedes that the companion who was with her in the Sears Surplus Store took items from the store and did not pay for them. On March 15, 1990, Petitioner was again arrested for grand theft. This arrest was in connection with Petitioner's work as a director in a child- care center in which she was accused of misappropriating funds from the center. Petitioner pled no contest to that offense. On July 31, 1990, she was adjudicated guilty of a felony and placed on community control for two years, followed by probation for one year, and made to make restitution in the amount of $5,856.20. Petitioner met the terms of her probation. Petitioner explains that the circumstance was one in which she misapprehended the opportunity which she had to meet the financial needs of the child-care center based upon the belief that permission from one person within that organization was sufficient to carry out her fiscal duties, when, in fact, that individual did not have the exclusive authority to authorize Petitioner to expend money. As her plea suggests, Petitioner chose not to contest the facts, feeling the need to dispose of the case and not leave her children unattended by contesting the facts. In addition to the grand theft offenses described, Petitioner has a history of worthless check cases that postdate the first offense for grand theft. Petitioner has made restitution in these cases. She has also made restitution in instances where the basis for restitution was not in association with requirements imposed on her by the criminal justice system. The worthless check offenses were offenses investigated by the Sheriff's Office in Jacksonville, Duval County, Florida. In explaining the worthless check cases, Petitioner points out that, in some instances, the problems were occasioned by the fact that her husband was overseas in military service and her confusion over dates upon which his salary check would be deposited and available for Petitioner to write checks on. Petitioner concedes that on some occasions, the problems arose because she assumed checks she had written would not be presented and honored before sufficient funds would be placed in her account to pay for the checks. Out of this experience, Petitioner has decided that if she is unable to pay for something, she does not need it. Overall, Petitioner wishes that she had not done the acts which have been described. She attributes her conduct to lack of maturity. She now sees the need to abide by the law. She has not had criminal-law problems since 1992. She has no outstanding worthless checks at present. Petitioner expresses an affection for children and wants to provide a nurturing environment in a day-care facility. Mary Gibbs is a domestic worker and cosmetologist. Petitioner is her daughter. Following the problems which Petitioner has experienced with the criminal-law authorities, Ms. Gibbs has noticed a change in her daughter. She believes her daughter has grown up. She notes that her daughter is active in the church, involved with the choir, and serves as church secretary and usher. The church which Petitioner attends is the Free Spirit Church of God in Christ. Ms. Gibbs believes that if Petitioner were granted an exemption she would act responsibly in running the day-care center. Mary Jackson is Petitioner's sister. She is the proprietor of M.J. Creative Hair Design and a student at Florida Community College at Jacksonville. In her opinion, Petitioner acted immaturely in the 1980's and is more mature now. Ms. Jackson also notes Petitioner's religious conversion. She believes that some of Petitioner's past conduct was associated with an attempt by Petitioner to meet the needs of Petitioner's family. At present, Ms. Jackson would trust Petitioner with large amounts of money. Michael Williams has been married to Petitioner for approximately 20 years. He notes the complications associated with maintaining a family when he was overseas and his wife and children were in the United States. In particular, he makes this observation concerning the financial circumstances in the past when Petitioner wrote worthless checks. Over the years Mr. Williams believes that his wife has changed and become more responsible. Mr. Williams has observed that Petitioner is "good" with children. Lillie R. Huntley has known Petitioner all of Petitioner's life and knows of Petitioner's past problems that have been discussed. Ms. Huntley observes that Petitioner has changed over time and is more prone to seek help when Petitioner needs help. At present Ms. Huntley observes that Petitioner's reputation in the community is one of honesty. Elder Ernest Lee Huntley of the Free Spirit Church is married to Ms. Lillie R. Huntley. He has provided a letter addressing Petitioner's long- standing membership in the church and his belief that Petitioner is a person of high morals. Elder Huntley also comments on Petitioner's devotion to their church. Ms. Tamara Gilbert has written a letter commending Petitioner for Petitioner's devotion to her own children and other children. Ms. Gilbert believes that Petitioner is a positive role model in the lives of children.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED a final order be entered which finds that Petitioner should not have been disqualified from owning the day-care facility, or, alternatively, finding that Petitioner should be exempt from disqualification to work with children in a position of special trust. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996.
Findings Of Fact At all times material hereto, Respondent was an employee of Petitioner, and at the time of her suspension on February 17, 1982, she was employed as a teacher. In December 1977, Respondent filed an application with the State of Florida, Department of Health and Rehabilitative Services pursuant to the food stamp program. On that application, she listed George Fishburne as the applicant and named herself as the applicant's spouse. In the section entitled "Household Composition," she listed George Fishburne as the head of the household, herself as his wife, three persons as their children and Clestine [sic] Edwards as a niece. In the section entitled "Earned Income," Respondent listed as the only source of income a gross salary for George Fishburne of 90 a week working at Dixie Cleaners. She also signed George Fishburne's name to the application on the line entitled "Signature of Head of Household or Spouse. At the time that Respondent completed and submitted the application for food stamps, she and George Fishburne were divorced. Although he on occasion stayed at Respondent's home, George Fishburne lived elsewhere and was, therefore, neither the head of Respondent's household nor a member of her household. At the time that Respondent completed and submitted the application for food stamps, Celestine Edwards stayed at Respondent's house on an irregular basis and, therefore, was not a member of the household. At the time that Respondent completed and submitted the application for food stamps, Respondent failed to report both her employment with Petitioner and her gross monthly income of $646.60. Based upon Respondent's application, the State of Florida, Department of Health and Rehabilitative Services commenced paying benefits to Respondent. No changes to the information contained in that application were ever reported by Respondent. The information provided by Respondent in her application entitled her to benefits in excess of the benefits she would have beer, entitled to had she been truthful. Between December 20, 1977, and September 30, 1980, Respondent received $5,670 in excess of the benefits to which she was entitled. Prior to felony criminal charges being filed against her, Respondent was given an opportunity to make arrangements with the Department of Health and Rehabilitative Services to repay the excess in benefits which she had received. The Department waited for two months, but Respondent failed to make any contact to discuss repayment. Accordingly, the matter was referred to the State Attorney's office, and felony charges were filed. Thereafter, Respondent agreed to make restitution, and she was not brought to trial on the charges of public assistance fraud. Pursuant to the terms of Respondent's agreement made in court, she was referred to the Advocate Program, a program for first offenders. She agreed to repay the sum of $3,500 as restitution and to perform 50 hours of volunteer work. At the time of the final hearing in this cause, Respondent bad completed her 50 hours of volunteer work and had repaid the sum of $525. She was still "being supervised", through that program and would not be released from supervision until the agreed upon amount of restitution had been paid in full or until further order of the court which placed her in that program. All of Respondent's witnesses were character witnesses. They all believe that Respondent is either a good or excellent teacher and is an admirable person because of her extensive involvement in church and community volunteer work over the years. One of those witnesses, however, became aware of the public assistance fraud charges against Respondent and of Respondent's suspension and possible dismissal from employment by Petitioner through reading about it in the newspapers. At the time Respondent applied for benefits under the food stamp program, she knew that neither George Fishburne nor Celestine Edwards were members of her household, and she further knew that she was employed and not unemployed. She intentionally gave false information on her application in order to obtain benefits to which she was not entitled. Her December 1977 initial application reflects that she had previously been a recipient of food stamps, from which fact it can be assumed that she had some familiarity with the operation of the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of immorality, affirming her suspension effective February 17, 1982, dismissing Respondent from employment with the School Board of Dade County, and denying Respondent's request for back pay. DONE and RECOMMENDED this 19th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 19th day of July, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Sampson Oliver, Esquire 2930 Lenwood Avenue, SE Atlanta, Georgia 30317 Phyllis O. Douglas, Esquire Dade County Public Schools Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
Findings Of Fact The Respondent, Glensa Poole, is a teacher licensed to teach in the State of Florida and was employed by the Petitioner, School Board of Dade County, as a teacher at Little River Elementary School during all times pertinent hereto, to wit: 1977 through 1980. The Petitioner is an agency of the government of Metropolitan Dade County charged with conducting public education, including operation and maintenance of public school facilities as well as the hiring, regulating and supervision of the conduct, practices and activities of teachers in those facilities, including the Respondent. The Respondent, in four (4) cases in 1977 and in five (5) cases in 1980, committed offenses involving the negotiating of worthless bank checks or drafts in return for goods, services or items of value for which he was convicted in the Circuit Court for the 11th Judicial Circuit. These convictions all were for third degree felonies and sentences varying from three (3) to five (5) years ware imposed for all nine (9) convictions. The sentences were suspended and probationary terms imposed in their stead. The record does not reflect whether the Respondent remains under his probationary term or not as of the date of the hearing. The criminal charges of for which the Respondent was convicted involve knowingly making, uttering and issuing worthless bank checks and drafts in return for goods, services or other items of value and the statute under which he was convicted for those felony charges, Section 832.05, Florida Statutes, necessarily involved, for a conviction to be entered, a finding that the Respondent knowingly issued the worthless checks with the intent to defraud others of goods, services or items of value. The Respondent, Glensa Poole, is the same Glensa Poole or Glensa John Poole who was found guilty of the nine (9) felony charges involved herein.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and the arguments of counsel, it is, therefore RECOMMENDED: That Glensa John Poole should be dismissed from his employment with the Dade County School Board and that he should forfeit all back pay. DONE and ENTERED this 17th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 17th day of November, 1982. COPIES FURNISHED: Jesse J. McCrary, Esquire 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 William DuFresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2011.
The Issue Whether the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was correct in its denial of the Petitioner's application and request to transfer a Series 4-COP beverage license for the premises, Paradise Inn.
Findings Of Fact The facts reveal that sometime in December, 1978, the Petitioner, James Sylvester Cooper, determined to apply for the transfer of a Series 4-COP beverage license which originally had been issued to the Petitioner's since deceased father. The license was issued by the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The license which had been held by Mr. Cooper's father was for the premises known as Paradise Inn, Madison Heights, 518 Alabama Street, Daytona Beach, Florida. In pursuit of the request for transfer, the Petitioner completed a personal questionnaire form which was given to him by the Respondent, and may be found as the Respondent's Composite Exhibit No. 2 admitted into evidence. In actuality, a form was completed for this license transfer and the transfer of a license in a companion application, D.O.A.H. Case No. 79-532. The Petitioner also completed a fingerprint card by affixing his fingerprints to that document, and the document may be found as the Respondent's Exhibit No. 1 admitted into evidence. The fingerprint card was submitted in December, 1978. The questionnaire was completed on January 3, 1979. Both items were filed with the Respondent in its office located in Daytona Beach, Florida. When the Petitioner completed the questionnaire form, his initial response to question No. 6 was, "No". The thrust of the question No. 6 was to ask the applicant if he had been arrested for the violation of any other laws of the State of Florida not enumerated in questions Nos. 1 through 5 of the first page of the questionnaire or arrested for the violation of laws of other states or the United States, excluding minor traffic violations and instructed that if the answer was, "Yes," that details be provided concerning the nature of the events surrounding the arrest. When the questionnaire which was submitted on January 3, 1979, was reviewed by employees of the respondent, it was noted that the answer to question No. 6 was in the negative, notwithstanding the fact that the Respondent had received information from the Florida Department of Law Enforcement that possible charges for carrying a concealed firearm in Daytona Beach, Florida, and for issuing a check for which insufficient funds were available to honor the check, which latter charge purportedly was brought in Duval County, Florida. Officer Blanton, the employee of the Respondent who made this discovery, tried to contact the Petitioner in person and was unsuccessful. Later, Officer Blanton was able to contact Mr. Cooper by telephone and to request that the Petitioner come in to discuss the answer to question No. 6. Cooper agreed and came to the office of the Respondent in Daytona Beach on January 8, 1979. At the meeting on January 8, 1979, when confronted with his answer to question No. 6, the Petitioner responded that he did not understand that question to mean that you had to indicate all arrests. The Petitioner said he understood the question to mean that only convictions should be reported. Once the Petitioner had teen specifically advised by the Respondent's employee that the form, as it suggested, required an applicant to indicate arrests, he admitted that he had been arrested by the Daytona Beach, Florida, Police Department for carrying a concealed firearm, and stated further that the adjudication of quilt in that matter had been withheld. Cooper said that he would verify this disposition of the case and report back to the Respondent to establish the fact of the disposition by providing the Respondent with an official record. At the meeting referred to above which was held on January 8, 1979, between Officer Blanton and the Petitioner, Mr. Cooper denied any arrest having occurred in Duval County, Florida, relating to a worthless check. The Petitioner left the office of the Respondent, to shortly return with his attorney, Mr. Moore, and a further conversation was held on January 8, 1979, pertaining to the Petitioner's arrest record. A discussion was held concerning the carrying of a concealed firearm case in Daytona Beach, Florida, and the Duval County, Florida, worthless check allegations. Again, the Petitioner admitted being arrested for carrying a concealed firearm, but denied any involverent in a worthless check charge in Duval County, Florida. In view of this further denial of a knowledge of a Duval County, Florida, charge, Officer Blanton indicated that he would check into the matter further. After the second meeting between the Respondent's employee and the Petitioner, and on the same day, January 8, 1979, the employee of the Respondent discovered another allegation of an arrest which had taken place in Daytona Beach, Florida, for the offenses of loitering and prowling. On January 10, 1979, the Petitioner reported back to the office of the Respondent in Daytona Beach, Florida, and amended his application form by striking in the column the word, "No" and writing in the column the word, "Yes" and indicating that the carrying a concealed firearm complaint had taken place in 1974. In support of his position he produced documents that showed that the disposition of that case had been: withhold adjudication of quilt and place the Petitioner on two years unsupervised probation. When questioned about the loitering and prowling arrest, the Petitioner initially denied that arrest, but later indicated that he thought it was vagrancy. Subsequent to that discussion, he indicated on the application form that a loitering charge had occurred in June, 1976, for which he had paid a $35.00 fine. In the meeting on January 10, 1979, when the employee of the Respondent interrogated Petitioner further about any incidents in Duval County, Florida, involving a worthless check, the Petitioner again replied that he had no connection with such a charge. On January 11, 1979, the Respondent, in its Daytona Beach office, received a reply to its inquiry about the Duval County, Florida, case for a worthless check. That response may be found as Respondent's Composite Exhibit No. 4 which is a transmittal sheet and an arrest and booking report. The arrest and booking report shows that the Petitioner, James Sylvester Cooper, had been arrested in May of 1975 in connection with a check charge. Officer Blanton then contacted Mr. Cooper and indicated that the Respondent would need to know the disposition of the Duval County, Florida, charge, to which Cooper replied that be would go to Jacksonville and take care of the matter by bringing back a disposition of the case. Later in the month, Mr. Moore, the Petitioner's attorney, spoke with Officer Blanton and asked for the case number of the Duval County, Florida, allegation against the Petitioner. Mr. Moore was given the information and stated he would discover the nature of the allegation in Duval County and contact the Respondent when he had ascertained the facts of those charges and had attended them. On January 31, 1979, Officer Blanton saw that the application for the license was submitted through channels to the Director of the Division of Alcoholic Beverages and Tobacco, in Tallahassee, Florida. The application was reviewed in view of the answer to question No. 6 as amended, on January 10, 1979, which answer reflected the carrying of a concealed firearm charge and the loitering charge in Daytona Beach, but did not reflect the worthless check charge in Duval County, Florida. Acting in view of this information, the Director issued a letter on February 7, 1979, indicating his intent to deny the application for transfer of the license. In that letter the operative provisions of the statement of denial were couched in this language: The applicant's failure to truthfully answer questions concerning his qualifications and his criminal history record are indicative of a lack of good moral character. Subsequently, in keeping with his representations, the Petitioner's attorney went to Jacksonville and discovered that there was outstanding a case against the Respondent for failure to appear in connection with a worthless chock charge, and this allegation was pursuant to Section 300.405, Florida Statutes. A disposition of the case was achieved on March 8, 1979. A copy of the disposition may be found in the Respondent's Exhibit No. 3 admitted into evidence. In the course of the hearing in this cause, the Petitioner testified about the matter in Duval County, Florida, which dates from May, 1975. Petitioner's explanation was that he had some occasional contact in Duval County, Florida, in 1974 and 1975 and that while living there he mistakenly assumed that his roommate would pay the landlord, which did not occur, and led to some type of claim by the landlord. The Petitioner stated that although he does not recall a summons being served on him, he does recall that his roommate contacted him to tell him about an outstanding worthless check, for which he went voluntarily to the Judge's Chambers, then reported to be fingerprinted in the jail area and reported back to the Judge's Chambers and paid off the check through the Judge's secretary. In fact, the Petitioner had been arrested in Duval County, Florida, in the year 1975, in connection with a worthless check claim and the facts of this case indicate that he had a knowledge of that case when he answered question No. 6 in the submitted questionnaire on January 3, 1979, as amended on January 10, 1979. This is borne out by the facts which were revealed in the process of checking on the arrest allegation through the office of the Respondent and the answers that the Petitioner gave to the representative of the Respondent, and by the Petitioner's admission in the course of the hearing that he had been fingerprinted and taken to court in connection with a worthless check charge and by his grudging recognition in the course of the hearing that the events and charges complained about in the Respondent's Exhibit No. 3; i.e., the arresting and booking report and attendant disposition of the case, were matters which took place in Duval County, Florida, and matters that pertained to him. Likewise, the Petitioner only admitted the loitering arrest and conviction after being confronted for a third time, the first time being in filling out the form which was handed in on January 3, 1979; the second occasion of January 8, 1979, when he was told that the questionnaire, just as it said, required that all arrests be reported; the third instance, January 10, 1979, by direct questioning concerning the offense in which he initially denied the loitering arrest. Finally, the Petitioner in his initial completion of the questionnaire, even though the questionnaire clearly said to report arrests, did not do so until told to do so specifically on January 8, 1979, and then he only reported the arrest for carrying a concealed firearm. In reading the basis of the denial of the license, which has been set out above, it could be read to address the issue of the answers which the Petitioner gave in the application questionnaire on the basis that those answers were not truthful and the additional allegation that the Petitioner's criminal history record both show a lack of good moral character as described in Section 561.15, Florida Statutes; however, in the course of the hearing, the Respondent's counsel asserted that the true basis of denying the license application was related solely to whether the answers which the Petitioner gave on the questionnaire were truthful concerning the subject of his criminal history record, and that the denial was not related to any criminal history per se. Therefore, this Recommended Order is rendered in keeping with the Respondent's counsel's representation and the Petitioner conducted his case to comport with that limitation. Having established the nature of the statement of denial the question becomes one of whether the answers to question No. 6 on the personal questionnaire are of such a caliber that they demonstrated a lack of good moral character on the part of the Petitioner to the extent that he is not entitled to be the recipient of the beverage license that he has applied for. Subsection 561.15(1), Florida Statutes, states: 561.15 Licenses; qualifications required.-- (1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding. When considered in view of that standard, the facts in this case demonstrate that the Petitioner does not show the requisite good moral character expected of a person licensed by the Division of Alcoholic Beverages and Tobacco. The Petitioner's response to question No. 6, a legitimate inquiry made to him by the Respondent, ranged from equivocation to undeniable misstatements of the facts known to him and by these actions the Petitioner has shown himself to be a person not to be entrusted with a beverage license. The Petitioner, the record will show, has had some experience as a law enforcement officer and for this reason, his counsel contended that the Petitioner would not be so bold as to erroneously answer the questionnaire, knowing that the fingerprint identification card would be the vehicle by which a successful records check could be conducted and the arrests discovered. The tone of the testimony in this case as concluded puts that theory to rest. There is, however, another view which can be asserted on the question of the significance of the Petitioner's police experience. That view is that the Petitioner indeed knew the difference between what it meant to be convicted of an offense as contrasted with being arrested, and even with this knowledge selected the course of conduct which he pursued in answering question No. 6 on the application form. Finally, it was shown in the course of the hearing that the Petitioner had lived at certain residences in Duval County, Florida, which residence addresses are not reflected in the answers to the questionnaire and had held employment with an organization known as General Wholesale, which statement of employment is not reflected in the answers to the questionnaire. These items were first revealed at the hearing. These facts were made known subsequent to the Director's letter denying the application which was dated February 7, 1979, and for that reason they did not constitute the basis for denying the application and have not been relied upon by the Hearing Officer in reaching the factual conclusions, conclusions of law and recommendation in this matter.
Recommendation It is recommended that the Petitioner's application for transfer of the Series 4 COP beverage license connected with the premises, Paradise Inn, be DENIED. DONE AND ORDERED this 29th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1979. COPIES FURNISHED: Reginald E. Moore, Esquire 724 Second Avenue Post Office Box 1848 Daytona Beach, Florida 32015 Francis Bayley, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.
Findings Of Fact The stipulations of the parties in the pre-hearing stipulation, the testimony presented, and the evidence received at the final hearing support the following Findings of Fact: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Escambia County School Board, issue a final order affirming suspension without pay of Respondent’s employment, pending disposition of his criminal charges. DONE AND ENTERED this 22nd day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2017. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Malcolm Thomas, Superintendent Escambia County School District 75 North Pace Boulevard Pensacola, Florida 32505 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
