The Issue Whether Petitioner meets the qualifications prescribed by Chapter 475, Florida Statutes for licensure as a real estate salesman?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is a 1986 graduate of Florida State University. He has a degree in urban politics and real estate. In November, 1989, Petitioner entered a plea of guilty in Palm Beach County Circuit Court to two counts of burglary of a dwelling, one count of petty larceny, and one count of dealing in stolen property. Adjudication of guilt was withheld and Petitioner was placed on five years probation, which, the court specified, was not subject to "early termination." In addition, Petitioner was ordered to pay $360.00 in restitution and $265.00 in court costs. These crimes were all committed in June, 1989, after Petitioner had returned to Palm Beach County from a two or three-month vacation in Colorado. The two counts of burglary involved the same dwelling: the townhouse that Petitioner had lived in, with others, prior to his Colorado vacation. The lease to the townhouse, which was in the name of one of his roommates, had expired before his return from vacation. Contrary to the instructions of the landlord, Petitioner entered the dwelling on at least two separate occasions after coming back from Colorado in order to retrieve personal belongings that remained in the townhouse. The stolen property involved in the dealing in stolen property charge was a stereo that belonged to Petitioner's friend. Petitioner tried to pawn the stereo for $45.00. The petty theft charge involved the taking of ten CD's that were on top of a CD player located in a bar in the vicinity of the townhouse. Since these incidents, Petitioner has not run afoul of the law. Petitioner presently owns and operates the South Florida Adventure Club, a business which plans and organizes social activities for single professionals. In his spare time, he serves as an advisor to two youth groups. Petitioner is still on probation. He has paid in full the restitution ordered by the court. His court costs, however, have not yet been paid in full. He still owes $50.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Petitioner is not qualified for licensure as a real estate salesman because of his criminal record and denying his application for licensure based upon such a finding, without prejudice to Petitioner filing a subsequent application supported by a showing that, "because of the lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by granting" the application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September, 1991. STUART M. LERNER 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 5th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent: 1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-4. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 5. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance. 6-10. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony. 11. Rejected because it is more in the nature of a statement of the case than a finding of fact. COPIES FURNISHED: Greg Allen Hinds 2016 Broward Avenue # 3 West Palm Beach, Florida 33407-6112 Joselyn M. Price, Esquire Assistant Attorney General 400 West Robinson Street Suite 107, South Orlando, Florida 32801 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times material to this proceeding Respondent, Frederick Alexander, was a student at Seminole Community College. As such, Respondent was subject to the disciplinary rules and regulations of Seminole Community College as set forth in the College's general catalog, Volume 16, April 1981. In particular, Petitioner's Rule 6HX25-4.06 provides as follows: Seminole Community College expects its students to be mature and responsible citizens at all times and places. Any student whose conduct or dress, whether on or off campus, at any time, is in violation of law, is a public nuisance, or deemed improper and detrimental to the College, may be subject to disciplinary action including probation, suspension, dismissal or denial of re-enrollment . . . . While enrolled at Seminole Community College, on or about September 25, 1981, Respondent entered Room J-110 at the College and, while in the presence of Claudette Gover, a secretarial employee of the College, exposed his genitals, and remarked to Ms. Gover, "Do you want some of this black stuff, Baby?" Ms. Gover appeared as a witness at the final hearing in this cause, and positively identified the Respondent from a photograph of the Seminole Community College basketball team. Subsequently, on or about October 26, 1981, Respondent was observed in the ladies shower room in the health building on the campus of Seminole Community College. That shower room is a non-coeducational facility, intended solely for use of female college students and faculty and staff members, and is clearly marked as such. Respondent was observed in the shower room by a female student who had just emerged from the shower and was clad only in her underclothing. Although Respondent made no overt advances to the female student, he remained in the locker room adjacent to the shower room, which also was used only by female students and faculty, until the female student dressed and left the room. Later, when questioned by college officials concerning his entry of the ladies shower room, the Respondent neither admitted nor denied his conduct. The Respondent was, however, positively identified as the individual in the shower room by the female student.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Board of Trustees of Seminole Community College dismissing Respondent as a student at the College. DONE AND ENTERED this 15th day of April, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A. Post Office Box 1330 Sanford, Florida 32771 Frederick Alexander 1619 West 16th Street Sanford, Florida 32771
The Issue Whether petitioner was "professional staff" within the meaning of Article VII of the University Constitution and therefore entitled to continue as Dean of the College of Education, in the absence of a showing of good cause why he should not continue? Whether FSU breached the 1984-1985 employment contract between the parties when it relieved petitioner of responsibilities as Dean of the College of Education on July 24, 1985? Whether FSU was under a legal obligation to give petitioner notice of good cause for not renewing the parties' 1984-1985 employment contract for the 1985-1986 or subsequent academic years?
Findings Of Fact After James L. Gant announced his intention to step down as Dean of FSU's College of Education, Augustus B. Turnbull, III, FSU's Vice President for Academic Affairs, appointed the College of Education Dean's Search Committee, also known as the Education Dean Search Committee (Search Committee) and named Robert Glidden, Dean of FSU's School of Music, chairman of the Search Committee. Petitioner's Exhibits Nos. 3 and 9. Dr. Turnbull asked that the Search Committee "try to have a new dean on board no later than the fall semester of 1983." Petitioner's Exhibit No. 3. On December 6, 1982, Dean Glidden executed Part A of Form No. SUS/PFR- 001/75 (R3/77), a formal position vacancy announcement prerequisite to any national search. (T.29-30) This form described the "Contract Period" as 12 months; gave July 1, 1983, as the anticipated starting date; stated the position title as "Dean, College of Education"; categorized the position as having regular professorial status; and indicated the "Discipline/Field" as "Administration." Petitioner's Exhibit No. 7. As part of the national search, the Search Committee caused circulars like Petitioner's Exhibit No. 9, "invit[ing] applications and nominations for the position of DEAN COLLEGE OF EDUCATION" to be published in periodicals like the Chronicle of Higher Education, which is how the vacancy came to the attention of petitioner Bruce Wayne Tuckman, whose application for the position eventually proved successful. Agreement Reached On April 28, 1983, Dr. Turnbull wrote Dr. Tuckman "to offer [him] the position of Dean of the Florida State University College of Education which carries with it the rank of Full Professor of Education ... effective ... July 1, 1983." Petitioner's Exhibit No. 10. In the letter, Dr. Turner undertook to recommend Dr. Tuckman for tenure "at the first opportunity, which will be during the 1983-1984 Academic Year." Id. On May 3, 1983, Dr. Tuckman signed the bottom of the letter in the blank provided to indicate acceptance of the offer. In May of 1983, Drs. Turnbull and Tuckman executed an employment contract covering the period July 1, 1983 to August 31, 1983, stating "CLASSIFICATION TITLE/RANK" as "Dean and Professor" and indicating 9040 as the class code. Respondent's Exhibit No. 15. "Dean and Professor" with a class code of 9040 is listed among the general faculty classification titles and codes. Respondent's Exhibit No. 2. "Professor" appears on the same list with a class code of 9001. On the strength of the agreement evidenced by Dr. Turnbull's letter of April 28, 1983, and Respondent's Exhibit No. 15, Dr. Tuckman, a much-published scholar, left a tenured position at the City University of New York and moved to Tallahassee from New York in the summer of 1983. On September 1 and 2, 1983, respectively, Drs. Turnbull and Tuckman executed a second employment contract with terms identical to the first, except that it covered the period September 1, 1983 to August 31, 1984, and had a greater number of pay periods, accordingly. Petitioner's Exhibit No. 11. 1984-1985 Contract Central to the present controversy is the contract executed by Dr. Turnbull on September 2, 1984, and by Dr. Tuckman on September 6, 1984, which provides, in pertinent part: STATE UNIVERSITY SYSTEM OF FLORIDA FLORIDA STATE UNIVERSITY 12 MONTH EMPLOYMENT CONTRACT This contract between Florida State University and the employee is subject to the Constitution and laws of the State of Florida, the rules and regulations of the Board of Regents... Employee Name: Bruce W. Tuckman * * * 3. Department Name: Dean Education * * * 5. Dates of Appointment: 09-01-84 to 08-31-85 * * * 8. Classification Title/Rank: Dean and Professor Class Code: 9040 Appointment Modifier: B * * * The following statement is only applicable to employees holding visiting appointments; or those appointed for less than one academic year; or (3) those with less than five years continuous service who are on soft money": Your employment hereunder will cease on the date indicated. No further notice to you of cessation of employment is required. Petitioner's Exhibit No. 13. "[A]ppointment modifier B ... is for courtesy faculty status." Erb Fontenot v. Florida State University, No. 85-3843 (F.S.U.; Jan. 5, 1987) at page 2. "Persons holding an administrative or services role normally hold a courtesy rank Rule 6C2-1.004(6)(a)7.a. On March 26, 1984, President Sliger had written Dr. Tuckman, advising him that he had been awarded "tenure to be effective Fall Semester, 1984." Respondent's Exhibit No. 1. Auspicious Beginning At first, all seemed to go well with the College of Education and its new dean. As chief executive officer, Dr. Tuckman was responsible for "all budgetary, fiscal and personnel matters in the College of Education," (T.58) and "had the executive responsibility for helping to set the directions and execute the policies and procedures of the college ... [,] sat as an ex officio member of the Policy Advisory Board ... [and] on a number of [other] committees." (T.50) He tended to "general day-to-day kinds of things ... responding to letters," (T.31), affirmative action and grievance matters. As the University Director of Teacher Education, he chaired FSU's Committee on Teacher Education, "organized conferences and committees on behalf of the College of Education [,] provided interface between the College of Education and the public school districts and schools of the state and other officials of the state ... [and] represented the College of Education to outside constituencies, [including] alumni [and] legislators..." (T.58) On May 31, 1984, Petitioner's Exhibit No. 12, and again on March 27, 1985, Petitioner's Exhibit No. 14, Dr. Turnbull rated Dr. Tuckman "satisfactory," the highest rating possible, on forms on which he characterized his primary duties as Administration." Dean Tuckman performed the duties of dean as described in the By-Laws of the College of Education. Petitioner's Exhibit No. 18. Although not required to do so, he also taught every year he served as dean. Complaints Made "[I]n the fall of 84, probably around October, November ... [after it became known that Stephen Edwards was] to assume the position of the Dean of Faculty in January of 1985, faculty members from the College of Education ... [approached him] concerned about the way the college was operating and the kinds of participation in its governance that the faculty were being able to have." (T.377) In due course, Dean Edwards, as he became, relayed these concerns to Dr. Turnbull. Dr. Turnbull had also heard complaints himself from members of the faculty of the College of Education, complaints which he originally dismissed as a normal reaction to somebody who is making necessary changes." (T.229) By the spring of 1985, however, he asked Dr. Tuckman to give him a "list of some of the faculty that he considered to be the future leaders of the college ... not necessarily the old guard or people who for one reason or another would be troublemakers, but a group of faculty on whom he would rely to carry out his policy directions for the college." (T. 228-230) Dr. Tuckman compiled such a list and furnished it to Dr. Turnbull. At a meeting he called in the summer of 1985, Dr. Turnbull discussed matters with "a significant number of" the people Dr. Tuckman had listed, and "asked them to work with [Dr. Turnbull] and the dean to turn the situation around." (T.230) The group struck Dr. Turnbull as noncommittal. At Dr. Turnbull's request, Dr. Tuckman then called a meeting of the Administrative Council, comprised of department chairmen and others. In this meeting, held on a Tuesday, possibly July 16, 1985, it was decided that the Administrative Council would meet again with Dr. Tuckman, without Dr. Turnbull present, and that afterwards the department heads would meet with Dr. Turnbull to "decide where to go from there." (T.231) After the Tuesday meeting, Dr. Turnbull drafted a memorandum addressed to the faculty of the College of Education. He attached this draft to a memorandum to Dr. Tuckman, dated July 17, 1985. In the memorandum to Dr. Tuckman, he referred to the draft as "a draft cover memorandum," solicited Dr. Tuckman's suggestions with regard to the draft, and stated that he "would also like to see a copy of the 'report' from our Tuesday meeting which we can send out with this cover memorandum." Respondent's Exhibit No. 5. Dr. Tuckman wrote Dr. Turnbull a memorandum, dated July 19, 1985. Labelled "PERSONAL AND CONFIDENTIAL," it is now a matter of public record, and reads, in part: I appreciate the gravity of the situation and the difficulty of the position you are in. I struggled through one or two similar crises myself last year, albeit on the department level, where faculty members were opposed to a chairman, and know how hard that is to deal with. I appreciate the consideration you have shown both me and the faculty of the College. It may not need reiteration but I want you to know that I like my job and I want my job. I think you need to keep in mind: the fact that I have only done what I was "brought here" to do and what I said I would do. I have always been honest and forthright with you and with the faculty. I have never been knowingly devious in any of my dealings. the fact that I "inherited" a college suffering from long-term neglect and one which included a number of people who were taking advantage of that situation and of their colleagues. * * * (4) the fact that relatively unused and "rusty" faculty governance structures were not used by me not by choice but because they could not raise quorums and did not have members who wanted to see them used constructively. They are now ready to be used. I was already putting them in readiness when this whole controversy started. * * * I have been less than perfect. I have made mistakes and I am now aware of many of them. But they were honest mistakes and well- intentioned mistakes. I am neither power- hungry nor malicious. Organizations often need to survive conflict in order to coalesce and grow. The essence of the process is having the members accept some of the responsibility for growth and decision-making. I want this to happen. This crisis can be turned from a nightmare into a blessing by a combination of actions by me and you. My job is to "open up all the doors" and let all of the faculty input in. I pledge to you that I will (and have already begun to) use all informal and formal mechanisms to foster faculty participation and involvement. I believe that I am both willing and able to do this. But it will only work if, as I open my doors, you close yours. You need to let it be known that you are satisfied with the plans and directions of the College, that you have helped make sure it is on course, but that its fate depends on it being able to solve its own problems. And, as you know, those problems are many and serious. And, with that decision to let me continue (after all, I have only had two years to deal with problems and habits formed over at least 10 years) , you must step back from the process and let it continue. ... If you step back, the faculty will realize that they must begin to take faculty governance processes seriously and use them constructively to help get us out of this fix. I want faculty involvement and I can get it. If they have nowhere else to go but to faculty committees, faculty meetings and to me, that's where they'll go. But if they can go to you, Steve or Bernie, they'll go there. I ask you personally, professionally and humbly for your help, both for me and for the College. The biggest help you can provide now is to say to the world, let the College of Education solve its own problems if it wants to stay in business. The rest is up to us. Dr. Turnbull felt this memorandum "was too little, too late," (T.236) and that it advocated "the course [he] followed very consistently up until a couple weeks before that." (T.236) On July 22, 1985, the department chairmen, having earlier met with Dr. Tuckman, as agreed, met with Dr. Turnbull. They reported that Dr. Tuckman "still did not understand the seriousness of the situation, and that they were, therefore, not willing to proceed with him to try to change the faculty's mind about the course and direction of the college." (T.231) Resignation Requested Late that day Dr. Turnbull summoned Dr. Tuckman to his office and requested that he step down as dean. Dr. Tuckman asked if he could think it over overnight, and, on the morning of July 23, 1985, told Dr. Turnbull he "wanted to be able to complete this year and have another year; and that at the end of the next year, if [Dr. Turnbull] was ... dissatisfied with [Dr. Tuckman's] performance, then at that time [Dr. Tuckman] would be willing to resign." (T.62) Dr. Turnbull told Dr. Tuckman he was wasting his breath, that he wanted him "out as dean right away." (T.62) When Dr. Tuckman "pleaded with him," id., Dr. Turnbull reportedly said, "A well-worded letter of resignation would resolve [sic] you of all embarrassment or pain." (T.62) But Dr. Tuckman refused to resign, saying, "[Y]ou will have to fire me." Id. No Longer Dean Believing Dr. Tuckman had been insubordinate, Dr. Turnbull wrote a letter to him the following day. The parties stipulated that Dr. Turnbull had full authority to act for FSU's president in these matters. The letter said: Dear Bruce: Effective immediately, you are relieved of your responsibilities as Dean of the College of Education. An alternative assignment for the 1985-86 academic year will be made as soon as possible. Petitioner's Exhibit No. 15. By memorandum dated July 30, 1985, Dr. Turnbull advised Dean Edwards, "Normal procedures should be followed, except that you will substitute for Dr. Tuckman." Petitioner's Exhibit No. 5. On or after July 24, 1985, but no later than July 30, 1985, Dr. Turnbull had assigned Dean Edwards "responsibility for the administrative affairs of the College of Education during the transition following the reassignment of Dr. Tuckman." Petitioner's Exhibit No. 5. By memoranda dated July 29 and 30, 1985, Respondent's Exhibits Nos. 9- 10, and by letter to Dr. Turnbull dated July 29, 1985, Respondent's Exhibit No. 8, Dr. Tuckman made known his view that he had a right to continue as dean, writing Dr. Turnbull, "I cannot accede to your request that I surrender my position," Respondent's Exhibit No. 8, and signing a memorandum dated July 29, 1985, addressed to department heads and ohers, "Bruce W. Tuckman, Dean." Respondent's Exhibit No. 9. On July 31, 1985, Dr. Turnbull sent a memorandum to Dr. Tuckman, with a "blind copy" to FSU's counsel, in form acquiescing to Dr. Tuckman's assertion that he was still dean. This memorandum stated: RE: Revised Assignment of Responsibilities Pursuant to my July 24, 1985 letter to you and our discussion of July 30, 1985, your complete assignment as dean for the period through the expiration of your current contract (August 31, 1985), is as follows: to develop and prepare a written report on the major policy and program initiatives of the College of Education during your tenure as dean along with a summary of your perception of the goals and objectives encompassed in these policies. to provide written recommendations on priorities among these goals, objectives, and plans to implement them, together with any suggestions for alteration as a result of the necessary reduction in College resources. responding upon request to inquiries from Dean Edwards or other appropriate officials about College of Education matters. (Dean Edwards will be assisting during this transitional period in the administration of the College of Education.) This reassignment is not intended to affect your functions and responsibilities as a faculty member. In the best interests of the University and in furtherance of a smooth transition, I am instructing you to vacate the physical quarters of the Office of Dean no later than the close of business on Friday, August 2. An alternative office will be assigned in the Stone Building. Please contact Dean Edwards concerning alternative office space. The practical reality was, however, that Dr. Tuckman did not serve as Dean of the College of Education after July 24, 1985. In September of 1985, Robert L. Lathrop was named interim dean, and he became "continuing dean in January 1987." (T.289) Academic deans customarily serve at the pleasure of university presidents. By memorandum dated February 4, 1964, (but not shown to petitioner before he signed the employment contract), Gordon W. Blackwell, then FSU's president, "instituted" the policy that "Members of the faculty ... hold administrative positions (... dean ...) at the pleasure of the President." Respondent's Exhibit No. 16. This is the norm in the United States. Witnesses at hearing, including academic deans at FSU, testified that FSU's deans served at the pleasure of FSU's president during the time in question. Dr. Turnbull's letter of July 24, 1985, reflected these views, and ended Dr. Tuckman's service as dean, although Dr. Tuckman stayed on as (and remained, at the time of the hearing) a tenured full professor in the College of Education. He received the full salary he contracted for in September of 1984 during the year ending August 31, 1985. Petitioner's Exhibit No. 13. Faculty vs. Professional Staff The, Board of Regents, which heads the Division of Universities within the Department of Education, has allocated university employees among three distinct "pay plans." The position "dean and professor," like the position "professor," has been assigned to the faculty pay plan, rather than to the administrative and professional pay plan, or to the plan for "University Support Personnel," formerly career service employees. (T.131, 190, 197). Article VII of the Constitution of the Florida State University, entitled "The Professional Staff," provides: Those persons holding academic appointments within The Florida State University, but not within a college or school, and those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with the provisions of the Florida Statutes and the regulations of the Board of Regents. Petitioner's Exhibit No. 17, page 11. Dr. Tuckman first saw this provision in July or August of 1983. (T.86) The text of Article VII, now promulgated as an administrative rule, Rule 6C2-1.004(7), Florida Administrative Code, effective September 30, 1975, has been included in the FSU Constitution since 1959. Similar language may have appeared even earlier as a bylaw, and was originally drafted to authorize conferring faculty rank on librarians. (T.411) As a provision of FSU's Constitution, Article VII is not among the "rules and regulations of the Board of Regents," strictly speaking. By virtue of Article VII or its predecessor, Willis Caldwell, registrar and director of admissions, was given faculty rank, possibly as an associate professor. Catherine Warren, Dean of Women, was "designated as professor," (T.419) under Article VII or its predecessor. Ms. Warren had done graduate work in history at Columbia University, but, like Willis Caldwell, had no academic appointment within a college or school. Article VII was also applied to Robert Pierce, who, as FSU's vice-president for administration from 1972 to 1976 or 1977 (T.417), had no standing in an academic unit. (T.221) It has never been applied to persons who "had faculty status in an academic unit or with tenure." (T.224) When administrators teach, "it's considered part of their responsibility." (T.415) A faculty member who forgoes teaching for research does not, on that account, lose his status as a member of the faculty and become a member of the professional staff. FSU's president, or his designee, has broad authority in assigning administrative responsibilities to FSU's deans, but they are not professional staff, if they have faculty appointments, even if they do not teach. Article VI of the Constitution of Florida State University, Rule 6C2- 1.004(6), Florida Administrative Code, deals at length with faculty members, employees who, like petitioner, have academic appointments. As dean and professor since his arrival at FSU, Dr. Tuckman has had faculty rank all that time. He has enjoyed membership in the General Faculty by virtue of his professorial rank, and has never been a member of the professional staff. Article VII has no application in his case, and was not incorporated by reference in the employment contracts Dr. Tuckman signed.
Recommendation That FSU enter a final order in Case No. 86-2483 declaring the parties' 1984-1985 employment contract, Petitioner's Exhibit No. 13, breached, effective July 24, 1985, but denying further relief in Case No. 86-2483. DONE and ENTERED this 11th day of June, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2483 Petitioner's proposed findings of fact Nos. 1 through 17, 20, 22, and 24 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. IS has only been adopted to the extent indicated by reference to petitioner's remaining proposed findings of fact. With reference to petitioner's proposed finding of fact No. 19, the FSU Constitution has been adopted as an administrative rule, now numbered Rule 6C- 1.004, Florida Administrative Code. With reference to petitioner's proposed finding of fact No. 21, Dr. Tuckman saw Article VII in July or August of 1983. The evidence did not show that he relied in fact on Article VII. Petitioner's proposed findings of fact Nos. 23 and 25 were not established by the weight of the evidence. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 18, 19, 21, 22, and 24 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, Rule 6C2- 1.004(3)(a), Florida Administrative Code, makes clear that Article VII can confer membership in the general faculty. With respect to respondent's proposed findings of fact Nos. 6 and 7, FSU contracted in September of 1984 for Dr. Tuckman's services as "dean and professor," not only for his services as a professor. Although deans ordinarily hold professorial rank, there is a difference between being dean and being simply a professor. In executing Petitioner's Exhibit No. 13, the parties agreed that Dr. Tuckman would serve as dean through August 31, 1985. With respect to respondent's proposed finding of fact No. 11, the evidence supports every sentence but the antepenultimate, which is partially an erroneous conclusion of law. The evidence did not show that an FSU vice-president had ever before unilaterally removed a dean, although there was testimony that Robert Lawton had been asked for his resignation. (T. 220) Respondent's proposed finding of fact No. 15 has been adopted, in substance, insofar as material, except that the evidence was that Dr. Tuckman had appointed three quarters of the Administrative Council, not three quarters of the department heads. With respect to respondent's proposed finding of fact No. 17, the number was $6,056. Only the first sentence in respondent's proposed finding of fact No. 20 has been adopted as established by the weight of the competent evidence. The first two sentences in respondent's proposed finding of fact No. 23 were established by the evidence. On July 24, 1985, Dr. Tuckman was relieved of his responsibilities as dean. Thereafter, Dr. Edwards acted de facto as Dean of the College of Education. With respect to respondent's proposed finding of fact No. 25, the evidence showed that Dr. Turnbull set out to do what he thought was best for the university without any ulterior motive, but the evidence did not show that Dr. Tuckman had breached the employment agreement or that anything else had relieved FSU of its legal obligations under the agreement. COPIES FURNISHED: President Bernard Sliger Florida State University Tallahassee, Florida Gerald B. Jaski, Esquire Linda C. Schmidt, Esquire Florida State University 311 Hecht House Tallahassee, Florida 32306 Stephen Marc Slepin, Esquire Slepin & Slepin 1114 East Park Avenue Tallahassee, Florida 32301 =================================================================
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the welding course/program offered by the college. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease in funding. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts which would be considered for planning the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the directors completed the reviews of their programs, Dean Tesinsky reported the findings to Dr. Samuels. Ultimately, such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. Concurrent with the planning performed incidental to the expected budget cuts, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but for which large numbers of students had expressed demand. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Welding program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Welding program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 22, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the welding program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 8, 11, 13 through 21 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 22, 1991; otherwise rejected as a conclusion of law, not fact. It has been concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 42. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $57,133. With the following clarifications, paragraph 10 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 12 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
Findings Of Fact That those facts alleged by Petitioner in the Petition to Determine the Invalidity [sic] of A Proposed Rule supporting the Petitioner's standing to bring a Chapter 120.54(4), Florida Statutes, rule challenge are correct and are sufficient to establish such standing. The notice of the proposed rule and the rule itself, first published at 11 Florida Administrative Weekly 1866, on May 3, 1985, are stipulated into evidence as forming the basis of the matter in controversy in this cause. The issues set forth in the Petition to Determine the Invalidity [sic] of A Proposed Rule as to whether the Respondent has the authority to promulgate the rule in question form the sole basis of this controversy. Respondent and Petitioners have agreed to submit simultaneous Memoranda of Law in support of their respective positions. The memoranda shall be filed on or before October 11, 1985. Petitioners and Respondent will file rebuttal memoranda on or before October 21, 1985. The Hearing Officer shall then have thirty (30) days in which to render his final order in this cause. Petitioners and Respondent have agreed to stipulate to all facts necessary to maintain this cause, other than those facts which may have arisen during the deposition of Howard Rasmussen, Director, Division of Alcoholic Beverages and Tobacco, which was scheduled and subsequently held on September 11, 1985. A transcript of that deposition was received by DOAH on October 11, 1985. Because the Director, Division of Alcoholic Beverages and Tobacco (Rasmussen), in discussions with the Secretary of the Department of Business Regulation and the General Counsel thereof, concluded confusion exists regarding the current interpretation of the words "Seminole Indian Tribe, or members thereof" in Section 210.05(5), Florida Statutes, he instigated Proposed Rule 7A-10.26 to clarify the meaning of these words. The "enrolled member" language in the proposed rule was included because the state maintains records regarding the enrolled membership of the Seminole Indian Tribe. Such enrollment clearly establishes membership in the Seminole Indian Tribe and is a form of registration of Seminole Indians with the state. The Economic Impact Statement (EIS) accompanying the proposed rule states the cost to the agency is essentially limited to the cost of promulgation of the proposed rule. The EIS further states the sale of tax-free cigarettes on Seminole Indian Reservations produced approximately $10 million in income during fiscal year 1983; of that, only about $3.5 million was received by the Seminole Indian Tribe as income. The rule will have a significant impact on the current beneficiaries of the $6.5 million profit not received by the Seminole Indian Tribe. The need for the proposed rule and some of the information appearing in the EIS appeared during legislative committee proceedings considering proposed legislation to limit the retail sale of tax-free cigarettes on Seminole Indian Reservations to members of the Seminole Indian Tribe instead of to the general public, as the law allows.
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Lyle Kehn's, employment as a custodian based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since August 28, 1995, Respondent has been employed by the School Board as a custodian. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). During the 2002-2003 and 2003-2004 school years, Respondent worked an evening shift at Cypress Lake High School. His job assignments included work at the Center for the Arts (the "Center"), which is a part of the Cypress Lake High School campus. During the 2003-2004 school year, S. B. was a junior at Cypress Lake High School. She studied theater at the Center. During the 2002-2003 school year, when she was a sophomore, B. had dated R. P., a junior at Cypress Lake High School. P. would stay late after school for band practice and met Respondent and began talking to him. R. P. told S. B. that Respondent was "cool" and had looked at pornographic magazines with him. R. P. introduced S. B. to Respondent, though S. B. never said more than "hi" to Respondent during the 2002-2003 school year. In December 2003, S. B. was cast in "All The World's A Stage," a play to be performed at the "Black Box," which was the theater contained within the Center. S. B. could not recall the precise dates of the performances, but she recalled that the play was performed from Thursday through Saturday on a week just before the winter break. On opening night of the play, the cast members were to report to the Black Box at 6:00 p.m. S. B. had planned to go home after classes ended at 2:00 p.m., but her mother was unable to pick her up that afternoon. Instead, S. B. chatted with friends for a few minutes after classes ended, then walked over to the Black Box. She went into the control booth, which contained the lighting and audio controls for the theater, to use the telephone there to call a friend. Respondent entered the control booth while S. B. was talking on the phone. He remarked on how dirty the booth was. B. responded that she was an actress, and it was not her job to clean the booth. Respondent replied that she should, nonetheless, clean up the mess in the control booth. Respondent then asked S. B. whether she had heard the song, "Stacy's Mom." This song, popular at the time, was about a boy dating a girl named Stacy, but preferring "Stacy's mom," who's "got it goin' on." The boy happily recalls mowing the lawn for Stacy's mom, who came out with just a towel on to show him a spot he'd missed. S. B. stated that Respondent smiled and nodded when he asked her about the song. S. B. found Respondent's question unsettling and ignored it, resuming her telephone conversation. After ending her telephone call, S. B. left the control booth and went to the dressing room where she happened upon a female friend. S. B. and her friend walked out to the theater lobby. Respondent entered the lobby from the outside. Respondent asked S. B. if she had talked to R. P. recently. S. B. and R. P. had ended their relationship in an acrimonious fashion the previous school year, as Respondent knew. S. B. answered, "Why would I talk to that asshole?" Respondent stated, "It's not his fault you're a slut," then laughed and began walking away. S. B. asked, "What did you say?" Respondent said, "You heard me" and walked away. S. B.'s friend shook her head and said, "Well, that was blunt." By this time, other cast members began arriving for the show that evening. S. B.'s friend went to the dressing room with the others, while S. B. remained in the lobby looking at cast photos from previous shows. Respondent walked back into the lobby. S. B. asked Respondent what R. P. had told him about her, but he would not say. S. B. dropped a pencil and bent to pick it up. Respondent said, "I've heard you like to bend over." S. B. walked into the theater, ending her interactions with Respondent. She testified that she never spoke to Respondent again. She did not believe the matter was a "big deal" at the time because she was more focused on the opening night of her play. S. B. did not report the incident to the school administration. On January 6, 2004, S. B. and a friend were looking for a three-ring binder that her friend had lost before the winter break. They asked John Hein, another custodian at Cypress Lake High School, whether he had found the binder. Mr. Hein told them that he had not seen a binder, but suggested that they ask Respondent, the evening custodian. S. B. said, "You mean the pervert?" In response to Mr. Hein's obvious confusion, S. B. stated that "everyone" knew that Respondent was a pervert and that he was "always making remarks to students." On the same date they were made, Mr. Hein reported S. B.'s comments to Rochelle Thimlar, an assistant principal at Cypress Lake High School. On January 9, 2004, Ms. Thimlar called S. B. to her office to discuss the situation. Ms. Thimlar had S. B. make a written statement. In her statement, S. B. briefly recounted the remarks that Respondent made to her and stated that Respondent looked at pornographic magazines with R. P., her former boyfriend. Ms. Thimlar forwarded S. B.'s statement to the school's principal, Tracy Perkins, who proceeded to call R. P. to her office. R. P. made a statement in which he admitted to bringing "inappropriate literature" to school and to sharing that literature with Respondent. R. P. stated that he and Respondent would joke around about "sexual humor." At his July 2004 deposition and again at the hearing, R. P. clarified that the "inappropriate literature" consisted of three magazines containing photographs of people engaged in sex acts. R. P. testified that Respondent looked at the magazines with him and that Respondent in no way voiced an objection or attempted to confiscate the magazines. To the contrary, Respondent asked R. P. whether he and S. B. engaged in the sex acts depicted in the magazines. R. P. testified that he would not have shown these magazines to any other adult. Finally, P. testified that he was not aware of S. B.'s statement to Ms. Thimlar at the time he made his statement to Ms. Perkins. On February 2, 2004, Ms. Thimlar asked S. B. to write a more detailed statement, preparatory to initiating a formal investigation of Respondent. This statement was consistent with the testimony recounted above. Ms. Thimlar then commenced efforts to contact S. B.'s mother to determine whether the student and her parents would cooperate with an investigation. On February 23, 2004, Ms. Thimlar finally spoke with S. B.'s mother, who stated that she wanted action taken immediately to remove Respondent from the campus. A formal complaint regarding Respondent's conduct was sent to Denise Phillips-Luster, the director of Equity and Recruitment for the School Board, on February 24, 2004. On the same date, the School Board suspended Respondent, with pay and benefits, pending the outcome of the formal investigation. In accordance with School Board policy and the SPALC Agreement, Ms. Phillips-Luster conducted the investigation and prepared an investigative summary of her findings. On March 18, 2004, a predetermination conference was held to allow Respondent to respond to the allegations. Prior to the predetermination conference, Respondent was provided a copy of the investigative summary. Respondent and his mother attended the predetermination conference and were each given an opportunity to speak and set forth Respondent's side of the story. Respondent denied knowing S. B. and denied every particular of her story. At the hearing in this matter, Respondent reiterated his denial. He testified that he cleans the Black Box at the end of his shift and would never have been there as early as S. B. alleged. As to the incident with R. P., Respondent testified that R. P. tended to hang around after school, trying to sneak into the band rooms to practice while he waited for his ride home. Respondent's job was to lock down the area to clean it. One afternoon, Respondent found R. P. in one of the band rooms eating and reading a magazine at the podium in the front of the room. Respondent told R. P. to leave the room. R. P. obeyed Respondent, but left his magazines on the podium. Respondent saw that they were pornographic magazines and took them to his supervisor. By letter dated April 28, 2004, from Georgianna McDaniel, the School Board's personnel director, Respondent was notified that probable cause had been found to believe the allegations were true and that a recommendation would be forwarded to the School Board that Respondent's employment be terminated. The Petition was served on Respondent on May 1, 2004. As initially served, the Petition alleged only the facts concerning the incident with S. B. At the time, the incident with R. P. was considered collateral to the main investigation because the investigators knew only that R. P. had shown Respondent "inappropriate literature" of some nature. The investigators believed that R. P.'s role, if any, would be to corroborate S. B.'s statements. It was only at R. P.'s deposition, taken July 26, 2004, that the School Board learned that the "inappropriate" material consisted of pornographic magazines containing photographic depictions of sex acts. This deposition caused the School Board to file a motion on July 27, 2004, to amend the Petition to include the charges related to Respondent's actions with R. P. Respondent has been reprimanded, warned, or cautioned for his behavior on at least eight previous occasions. On April 27, 1998, he received a letter of caution regarding comments and actions toward a female co-worker that could be interpreted as "suggestive," if not "sexual harassment," as alleged by the co-worker. On January 8, 2001, Respondent received a letter of reprimand for inappropriate, suggestive remarks to a female night school student. On four other occasions, Respondent has been reprimanded for inappropriate remarks and/or behavior toward co-workers, including a June 7, 2000, reprimand for discriminatory remarks he made to and about Spanish-speaking co-workers. Respondent denied making the remarks, despite the contrary statements of multiple witnesses. In the instant case, given Respondent's denial that he looked at pornography with R. P. or that he had ever even met B., the main question is the credibility of the witnesses. The story related by S. B. was credible, and no reason was presented at the hearing as to any motive she would have to invent her story. She barely knew Respondent, had no desire to press the case against him, and had nothing personal to gain by testifying against him. She did not think the incident was a "big deal" at the time and said little or nothing about it to her friends or parents. She did not complain to school officials. Rather, her off-the-cuff statement to another custodian that Respondent was a "pervert" caused the assistant principal to call her in for a conference. S. B.'s testimony concerning the incident with Respondent on opening night of "All The World's A Stage" is credited. Respondent's contrary testimony is not credible. Likewise, R. P. had no motive to invent a story about Respondent. In fact, given R. P.'s rancorous break-up with S. B. and the continuing animosity between them, his natural motive would more likely be to support Respondent and, thereby, put the lie to his former girlfriend's story. Further, R. P. appeared genuinely to like Respondent and was reluctant to testify against him at the hearing. Nevertheless, R. P. admitted looking at pornographic magazines with Respondent, as detailed above. R. P.'s testimony is credited. Respondent's contrary testimony is not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates Respondent, Lyle Kehn's, employment. DONE AND ENTERED this 21st day of February, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of February, 2005.
The Issue The issues posed for decision herein are whether or not the Respondent, during the Spring of 1977, supplied beer and marijuana to female students of Seminole Middle School; whether he smoked or permitted them to smoke marijuana in his apartment during this period and whether such conduct constitutes acts violative of Chapter 231.26 and 231.09, Florida Statutes, and Rules 6A-4.37 and 6B-1 of the State Board of Education, Florida Administrative Code. Based on the testimony of the witnesses and their demeanor while testifying, including the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is the holder of a Graduate Rank III teaching certificate number 318622 and has been employed as a teacher for approximately five years. During school year 1976-1977, he was assigned as a teacher at Seminole Middle School. By letter dated September 2, 1977, from Gus Sakkis, Superintendent of Schools for Pinellas County, Respondent was advised that he was suspended, without pay, from his duties at Seminole Middle School beginning August 24, 1977, and was further advised that it was the Superintendent's "intention to recommend to the School Board of Pinellas County at their regular meeting of September 28, 1977, that it sustain the suspension and that [Respondent's] contract with the School System be cancelled." Respondent was also advised that he was being charged with misconduct in office pursuant to Section 231.36, Florida Statutes. As stated, the acts which comprise the alleged misconduct in office by Respondent involve the giving/selling of alcoholic beverages and marijuana, to- wit: beer and marijuana to certain eighth grade students in the Seminole Middle School, Pinellas County, Florida, during the 1976-1977 school year and the summer months of 1977; that the Respondent smoked marijuana in the presence of the same students on several occasions and that Respondent drank beer and/or other alcoholic beverages with the students. To substantiate the allegations contained in the Petition for Revocation of Respondent's Teaching Certificate, the Petitioners presented the testimony of four female students: Stacey Soper, Terri Cotterman, Donna Lombardi and Genine Buckley. Petitioners also presented witnesses Lois Beacham, Douglas McBriarty and Ruth A. McNutt, all employees in the Pinellas County school system. Stacey Soper, a fifteen year old ninth grade student at Seminole Middle School was an eighth grade student during the 1976-1977 school year. She testified that she lived in the same apartment complex as the Respondent and saw him on numerous occasions at the apartment complex, the swimming pool and at football and baseball games. She has smoked marijuana before and drank beer. She recalled having smoked marijuana supplied by Respondent on at least three occasions along with two other students, Terri Cotterman and Genine Buckley. She recalled this incident as having occurred during the Spring of 1977, in addition to one other occasion in which she drank beer with Respondent. She testified that on one occasion she asked Respondent to sell her a "joint" for which she paid seventy-five cents. (She recalled at least one other occasion during the Spring of 1977, when she asked Respondent to give her some "pot." She testified that when the marijuana was smoked, Respondent and two or three other students were engaged in smoking one "joint" at a time. While so doing, she testified that Respondent would close the door to his apartment. Respondent kept marijuana in a plastic bag in a desk drawer in his coffee table. She testified that these smoking sessions lasted from one to one and one half hours. The witness reiterated her familiarity with marijuana and beer as she has drunk beer and smoked marijuana on numerous occasions prior to the subject occasion with Respondent. Terri Cotterman, a fifteen year old ninth grade student at Seminole Middle High School recognized Respondent and noted that Respondent taught her for one week during her seventh grade school year and was her regular English teacher during her eighth grade school year. Cotterman also had smoked marijuana with Genine Buckley (Genine) and Stacey Soper (Stacey) during the Spring of 1977. She testified that she, along with Genine and Stacey, smoked marijuana with Respondent and another former instructor in the school system, a Mr. Asbury, who brought them home after they smoked marijuana at Respondent's apartment. She recalled that on one occasion, after they finished smoking marijuana and was sitting around the apartment, there was a knock on the door and two individuals, later identified as Alvin Philpot and Margaret Croskey, visited Respondent's apartment. She testified that when they entered the apartment, Mr. Asbury advised Respondent that "you'd better get them out of here." They all left and Mr. Asbury drove them home. She specifically recalled that the marijuana had been smoked when Philpot and Croskey came to Respondent's apartment. Witness Soper testified that she asked Respondent to purchase a six- pack of beer for them sometime during the 1977 Memorial Day weekend. She testified that while she remembered Respondent purchasing the beer for them, she failed to recall which brand was purchased or whether the beer was in glass or metal containers. Donna Lombardi, also a student, recalled being in Respondent's apartment complex on approximately two occasions and recalled one time when Respondent bought herself, Terri and Stacey a six-pack of beer (TR. 151). She testified that Respondent was outside washing his car when Donna, Terri and Stacey asked Respondent to buy them some beer. Respondent agreed, purchased the beer and they drank it in Stacey's apartment. Lois Ann Beacham, an Assistant Principal at Seminole Middle School, has known Respondent as a coworker since approximately 1973. Ms. Beacham recalled two conferences in which she had, prior to the subject incidents, warned Respondent of the "hands-off" policy in effect at the school as it related to instructors and preadolescent students. She testified that the first incident stemmed from an occasion in which a student, Wendy Aydlett, cuddled up to Respondent at a table in the library and moved her chair closer to him. This occurred during the months of October thru December, 1976. Another incident occurred during November 1976, when a student whose last name was Vega, rode her bicycle over to Respondent's apartment and her mother later learned of this, became highly upset and brought the matter to the attention of Mrs. McNutt, the head of the eighth grade sub-team. Ms. Beacham and Mrs. McNutt met with Respondent the following day and they discussed the matter. According to Ms. Beacham, Respondent received the advice given him during the conferences in a graceful manner and thanked them for the manner in which the incidents were handled. No similar incidents occurred. Douglas McBriarty, Director of Instructional Personnel for the Pinellas School System, is involved on a day-to-day basis in the handling of teaching problems, hiring, leave problems and investigation and handling of complaints filed against teachers for improper activities or misconduct in office. He has held this position for approximately eight years. Mr. McBriarty became involved in Respondent's case when Mr. Zachary, Principal at Seminole Junior High School, called him and advised that a detective Howe from the Pinellas County Sheriff's Department had approached him about statements from three students (Soper, Cotterman and Buckley) which had originated from a diary found by a mother which made references to Respondent having drank beer and smoked marijuana with students. Dr. McBriarty approached Respondent about the allegations and he essentially denied that any of the allegations were true. Dr. McBriarty asked Respondent if he and Mr. Zachary could examine his apartment which Respondent agreed to. They visited Respondent's apartment and found no traces of marijuana or any paraphernalia associated with the smoking of marijuana. Dr. McBriarty testified that he examined a coffee table which was alluded to by the students in their statements and found nothing. Dr. McBriarty voiced his opinion that Respondent's effectiveness as an employee of the School Board had been reduced based on the incidents brought about as a result of the School Board's investigation and stated this was reinforced by his talks with parents of the students involved. He testified that at all times Respondent was cooperative and responded to questions asked of him. Prior to Dr. McBriarty asking Respondent if he and the principal could visit his apartment, he (Respondent) had no knowledge that an investigation of him was ongoing. Based on Dr. McBriarty's investigation, he made a recommendation to Dr. Sakkis, Superintendent, that Respondent should be suspended based on acts which in his opinion, amounted to misconduct in office. It was based on this recommendation that Respondent was suspended by the above referenced letter of the School Board dated September 2, 1977, and it was this action which prompted the investigation and Petition for Revocation by the Professional Practices Council. Respondent's Defense At the outset of the Respondent's defense, counsel moved for a dismissal of the charges arguing essentially that, assuming arguendo that the complaint allegations are true, the record was barren of any evidence tending to show that the Respondent's effectiveness had been reduced as per the teaching of BOYETTE v. STATE, PROFESSIONAL PRACTICES COUNCIL, 346 So.2d 598 (Fla. 1st D.C.A. 1977). Additionally, Respondent's counsel urged that the proof falls short of showing that the alleged acts and/or conduct allegedly engaged in by Respondent as testified to by Petitioners' witnesses, failed to establish any official misconduct within the meaning of Chapter 231.36, Florida Statutes. This Motion was denied based on the undersigned's opinion that the Petitioners had established a prima facie case. The Respondent denied that he had either given or sold beer or marijuana to Seminole Middle School students as alleged or that he engaged in any of the alleged acts complained of herein. Additionally, in support of his position, Respondent offered the testimony of witnesses Alvin Philpot and Margaret Croskey. They denied that they witnessed any marijuana being smoked at the Respondent's apartment when they visited him on the occasion when students Soper, Buckley or Cotterman were present. They also stated that they only witnessed one beer can present in Respondent's apartment and that they did not smell any marijuana in the apartment. Finally, they testified that the students left shortly after they arrived. An analysis of the testimony of witnesses Croskey and Philpot was not at all viewed as contradictory of the testimony of student witnesses Soper, Cotterman, Buckley or Lombardi. As a matter of fact, the student witnesses testified that when witnesses Croskey and Philpot arrived, they had finished smoking the marijuana. Contrasting the testimony of witnesses Soper, Cotterman, Lombardi, Buckley and McBriarty, with that of witnesses Croskey and Philpot (as well as the Respondent) the testimony of the witnesses offered by Petitioners i.e., Soper, Cotterman, Lombardi, Buckley and McBriarty, is more creditable. While there were some minor discrepancies in the student witnesses testimony respecting dates, they all testified without contradiction that they in fact smoked marijuana with Respondent which at times was supplied by him either free or for monetary consideration and that he purchased beer for them. Significantly, all of the students had high regards for the Respondent as an instructor and no ulterior motive was advanced by Respondent which would tend to show that the student witnesses would have any basis to fabricate their testimony. Noteworthy too, is the fact that these factors did not come to light until one of the students' parents learned of the activities by reading her daughter's diary. This hardly resembles a situation where student witnesses are out to "get their teacher." That a public school teacher would permit such a blatant violation of the law [Section 893.13(1)(f), F.S.] to take place under any circumstances is totally incomprehensible and raises serious questions concerning his fitness to continue in a teaching capacity. By such acts and conduct, it is, therefore, concluded that Respondent performed acts constituting misconduct in office as alleged. However, the Petition (Complaint) allegations wherein it is argued that the Respondent's effectiveness as a teacher has been reduced by his acts and conduct as set forth hereinabove, presents a more difficult issue. Here, as in Boyette, supra, the second element of the charge, i.e., that Respondent's effectiveness as a school teacher was seriously reduced as a result of the conduct complained of, was based almost entirely by the Petitioners upon the opinion testimony of Dr. McBriarty. While the record clearly reveals that the Respondent's acts and conduct herein were misguided, they fail to demonstrate that he was unfit to continue as a teacher. The testimony of those instructors who had any knowledge of Respondent's abilities indicated that he is a competent teacher and that he had not been seriously disciplined in the past. Under these circumstances, I, accordingly, find that the Petitioners failed to establish that necessary quantum of proof to support the allegations that the Respondent's effectiveness as a school teacher was reduced as a result of the conduct complained of herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Pinellas County School Board's, suspension of Respondent without pay be sustained for a period of two years. Additionally, it is further recommended that the Petitioner, Professional Practices Council, place the Respondent's teaching certificate under suspension from the date of the Pinellas County School Board's letter initially suspending him thru the 1978-79 school year. RECOMMENDED this 21st day of June, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675
