Findings Of Fact Roger Williams College was chartered as a non-profit corporation December 11, 1975, and was excluded from licensure requirements from 1976 through 1981 pursuant to Chapter 246, Florida Statutes. In 1982 Chapter 246 was revised. Prior to the revision institutions such as Respondent were granted exclusions from licensure upon application therefor by the institution. The repeal and reenactment of Chapter 246 in 1982 required certain conditions be shown by the institution before exemption from licensure requirements would be granted. These requirements were furnished to all colleges and universities in Florida by Petitioner. By letter dated January 31, 1983 (Exhibit 1), Respondent was furnished appropriate forms upon which to apply for exemption and requested to provide certain information required by statute. The information submitted by Respondent included a catalog which: Was not dated. Contained an address in Tampa and an address in Dade City. In 1979 Respondent had advised Petitionerits current address was Tampa. Did not contain course descriptions. Stated requirements for doctor of ministry degree include 90 semester hours in residence and lists courses in 100-400 level. On page 8 the catalog states that subjects numbered 100-499 are especially for under- graduate credit, and those in the 500's are for graduate credit. Contained no specific course requirement for the degree of Master of Religious Education or Doctor of Religious Education degrees. Represented the location of the college at which its services will be offered as 5th and Florida, Dade City, Florida, while no such facility exists. States all admissions are under the control of the Dean of Admissions, yet such a position is not shown in the catalog on the administrative staff. Contained no required standards for students to achieve satisfactory progress. The address of the college at 13027 North 52nd Street, Tampa, Florida, is owned by Andrew McAllister, the president of Respondent, and is a brick two- story building looking like the other residences in the vicinity. No sign or other indication is posted to identify this building as Roger Williams College. Copies of degrees other than Bachelor of Theology or Bachelor of Religious Education were never provided by Respondent as requested by Petitioner.
Findings Of Fact L.B. Thanki received a degree in Civil Engineering at the University of Durham at Kings College, Newcastle Upon Tyne in the United Kingdom in 1956. Petitioner received a batchelor of law degree from Sardar Patel University (India) in 1967. This degree is the equivalent of two years study in law. The degree obtained from the University of Durham is not the equivalent of the degree received from an ABET approved university in the United States because it lacks 16 credit hours in Humanities and Social Sciences. Petitioner presented no evidence that his degree from the University of Durham or the curriculum he completed at any other university included the missing 16 hours in Humanities and Social Sciences. Petitioner presented a certificate (which was not offered into evidence) that he had completed a course in computer services meeting the board's evidentiary requirements of computer skills.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for licensure by examination as an engineering intern. RECOMMENDED this 10th day of May, 1991, in Tallahassee, Leon County, Florida. N. AYERS 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 10th day of May, 1991. COPIES FURNISHED: B. Thanki 1106 East Hillsborough Avenue Tampa, Florida 33604 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32399-1050 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack L. McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1999.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes, and administrative rules or section 1012.795(1)(a),1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Richardson holds Florida Educator's Certificate 696450, covering the areas of Elementary Education and English for Speakers of Other Languages (ESOL), which is valid through June 30, 2019. At all pertinent times, Mr. Richardson was employed as a fourth and fifth-grade reading teacher at WHE. As Ms. Kristen Rodriguez later testified, during the 2012-2013 school year, she encountered several students who asked her to let them remain with her in the media center at WHE rather than return to their scheduled class with Mr. Richardson. Based upon their accounts of Mr. Richardson's behavior in the classroom, she took the students to the school office and asked them to talk to the principal. The Broward County School District (District) subsequently conducted an investigation. Student A.C. credibly testified at hearing that during the 2012-2013 school year, when she was a fourth-grade student in his class, Mr. Richardson would sometimes scream at students who were not behaving, but did not scream at the well-behaved students. She testified that on a loudness scale of 1 to 10, he was a "7," while she rated other teachers at "5." Student A.C.'s testimony was supplemented and explained by the written statements of other students in that class: Student G.R. wrote that Mr. Richardson screamed at him close to his face; Student H.T. wrote that Mr. Richardson would scream if he was mad; Student J.G. wrote that when Mr. Richardson yelled at some students, he put his face within inches of the students' faces; Student T.W. wrote that he would yell in students' faces; and Student M.D. wrote that Mr. Richardson would yell in students' faces from inches away. The evidence was clear and convincing that when students were misbehaving, Mr. Richardson would sometimes yell or scream at them, placing his face close to theirs. Student J.G. credibly testified that if a student "wouldn't do like the work or behaved bad, he [Mr. Richardson] would grab them by their shoulders and yell at them and shake them." Student J.G. went on to clarify, "I mean not that bad, but like to get ahold." Student J.G.'s testimony was supplemented and explained by the written statements of other students: Student G.R. reported that Mr. Richardson "grabbed this kid and shook him"; and Student A.C. wrote that Mr. Richardson would shake students who were being bad, writing that "[w]hen he shaked [sic] kids he would shake them by the shoulders, on a scale from 0 to 5 he would shake kids like about a 2." The Department of Education (DOE) was notified of the allegations against Mr. Richardson. On or about April 5, 2013, Mr. Richardson received notice from Chief Marian Lambeth that the Office of Professional Practices of DOE had opened a case for purposes of investigating Mr. Richardson's alleged inappropriate conduct; and, if founded, the allegations could lead to disciplinary action against Mr. Richardson's Florida Educator's Certificate. On April 18, 2013, Mr. Richardson's attorney sent written notice to Chief Lambeth informing the DOE of her representation of Mr. Richardson in their investigation and requesting a copy of their investigative report upon its completion. Mr. Richardson was copied on the correspondence. As documented by letter later sent to Mr. Richardson, the Professional Standards Committee of the Broward County Public Schools met on May 8, 2013, and determined that there was no probable cause to support a charge of battery. However, the letter stated, "[l]et this correspondence serve as reprimand that any future violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession will result in a recommendation for further disciplinary action up to and including termination."2/ Mr. Richardson successfully filed a grievance regarding the letter of reprimand imposed by the District. By letter dated March 26, 2014, Mr. Lerenzo Calhoun, employee and labor relations specialist of the District, advised the Broward Teachers Union, "[I]t has been determined that the written reprimand issued to the grievant be rescinded." On April 16, 2014, Mr. Richardson completed a "GC-10R Renewal Application Form rev 06/10 Legal Disclosure 1 - District Version" to initiate renewal of his Florida Educator Certificate, which was due to expire on June 30, 2014. Instructions on the bottom of the form direct the applicant to provide additional detailed information on a Legal Disclosure Supplement if any of the preceding 21 questions on the page are answered affirmatively. Mr. Richardson, having correctly answered "no" to 20 of these questions that deal with sealed records, criminal records, and license sanctions, but "yes" to the single question that asks if there is a "current investigative action" pending, turned to the supplementary page, "GC10R Application Form rev 06/10 Legal Disclosure 2 - District Version." Other than the applicant's name, however, the supplementary form solicited information about only three topics, each in its own section: "Sealed or Expunged Records"; "Criminal Offense Records"; and "Professional License or Certificate Sanctions." Mr. Richardson had no sealed or expunged records and so could not provide any supplementary information in response to the questions in that section. He had no criminal offense records and thus similarly could not provide responses to the questions in that section. He had no professional license or certificate sanctions and so could not answer those questions either. There were no questions pertaining to ongoing investigations. He logically left the supplementary page blank, and submitted the renewal application to the District's office, which was authorized to reissue the certificate. On the application, he made full disclosure of the pending investigation, complete with a handwritten notation indicating that there was no decision as of yet and including the investigation case number for easy reference (he volunteered this, for remarkably there is no question or blank space to include this information anywhere on the forms). The renewal application was reviewed on behalf of the District by Ms. Sheila Gipson, a certification specialist for the District. Ms. Gipson, dutifully implementing the policy reflected in the form's directions to complete the supplemental disclosure, refused to process the renewal application, deeming it incomplete. On April 23, 2014, Ms. Gipson sent an e-mail to Mr. Richardson illogically repeating the instruction on the form that if any question on page 4 was answered in the affirmative, that page 5 (the supplement) must be completed, and directed him to do so. If Mr. Richardson—eager to have his license renewed—was baffled by Ms. Gipson's e-mail and nonplussed at the impossible guidance it contained, his bewilderment might be excused. As previously noted, he had already provided complete details about the ongoing investigation to the District and could provide absolutely no information responsive to any of the supplemental questions. In any event, it is clear that strict enforcement of this "catch-22"3/ has the practical effect of preventing anyone under investigation but awaiting determination from completing an application at all. It is not clear if this structure results from accident or disingenuous design. Mr. Richardson testified that he telephoned Ms. Gipson and explained his dilemma. According to Mr. Richardson, Ms. Gipson concluded that he should not have said "yes" to the investigation question if no sanctions had been imposed, again explaining to him that any "yes" response meant that the application could not be processed without sanctions information. He testified that she directed him to change his answer on page 4 and resubmit the application so it could be considered complete. Mr. Richardson's testimony as to what Ms. Gipson told him was unrefuted. Ms. Gipson's instruction to Mr. Richardson did not make sense, any more than the form itself did. Mr. Richardson did as Ms. Gipson had instructed and filled out a second application form, which he dated April 26, 2014, indicating no "current investigative action pending" as he was told to do. He executed the Affidavit, which in bold print states: "Giving false information in order to obtain or renew a Florida Educator's Certificate is a criminal offense under Florida law. Anyone giving false information on this affidavit is subject to criminal prosecution, as well as disciplinary action by the Education Practices Commission."4/ On or about April 23, 2014, notice had been sent to both Mr. Richardson and his attorney that the DOE's preliminary investigation was completed and available for review. An Informal Conference was scheduled for May 22, 2014. Both Mr. Richardson and his attorney acknowledged receipt of the notice on April 28, 2014. After some delays, reflected in e-mail communications, Mr. Richardson hand-delivered the second application to Ms. Gipson, who received it on May 2, 2014. The Commissioner has failed to show that Mr. Richardson gave false information with the intent to deceive or defraud the District or DOE. Mr. Richardson's alternative explanation of his intent is plausible given the irrational structure of the application form and the fact that he had already fully disclosed the existence of the investigation to the District in the earlier application dated April 16, 2014. His insistence that his only intent was to break the bureaucratic logjam and allow his application to be considered complete, as the District's certification specialist, Ms. Gipson, advised him to do, is plausible. Mr. Richardson's testimony that Ms. Gipson advised him to fill out the second application as he did was not a new assertion: he had said so nearly two years prior to the hearing in his deposition. The Commissioner did not list Ms. Gipson as a witness, and she did not testify. Mr. Richardson's testimony regarding the April 26, 2014, application was unrefuted. The Commissioner failed to prove fraudulent intent. There was no competent evidence presented at hearing that Mr. Richardson ever used profanity in the classroom. Although there was considerable testimony at hearing about a clinic pass associated with an injury to Student N.M. on an occasion when Mr. Richardson's class was engaged in "indoor P.E.," it was not shown that Mr. Richardson in any way caused that injury, and he was not charged with doing so in the Administrative Complaint. There was no competent evidence that Mr. Richardson or any other person ever threw a book at Student N.M., as was charged. Mr. Richardson has been employed by the District for almost 21 years. He has never before had any discipline imposed against his license. He has taught successfully at Challenger Elementary School for almost five years after the 2012-2013 school year, without incident. Ms. Kalima Carson testified that she co-taught with Mr. Richardson. As she testified, he was a good classroom manager. Ms. Carson also credibly testified that he was a good teacher and that his students showed tremendous academic gains. As Ms. Diane Velasco-Ortiz credibly testified, Mr. Richardson was good at motivating his students, and he did well with students who faced challenges at home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Elijah Mark Richardson in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e); issuing him a letter of reprimand; and placing him on probation for a period of one employment year. DONE AND ENTERED this 16th day of April, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 16th day of April, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent is an independent board attached to the Department of Education. It began its operations in 1972. Among its duties and responsibilities is the licensure of certain nonpublic colleges and the promulgation of rules containing minimum educational standards for the licensing of such colleges. The rule being challenged herein, Rule 6E-2.04, sets forth the minimum standards for licensure. These standards relate to the purpose of the institution, administrative organization, educational program and curricula, finances, faculty, library, student personnel services, physical plant and facilities, publications and required disclosure statements regarding the status of the institution in relation to professional certification and licensure. The Rule further provides that "It is recognized by the state board of independent colleges and universities that these minimum standards may not be equally applicable to every institution applying for a license." A substantially similar rule has been in effect since the respondent began its operations in 1972. It was the testimony of respondent's executive director, Dr. C. Wayne Freeberg, that the standards and criteria set forth in Rule 6E-2.04 are uniformly applied to all applicants. The prime inquiry of the respondent is whether the applicant has provided concrete documentation that the institution meets the standards set forth in the rule, even if they be met in a non- traditional manner. The respondent seeks to apply the rule uniformly to both traditional and nontraditional institutions. The petitioner is a profit-oriented, private corporation whose purpose is to provide educational services in a graduate dimension using a nontraditional delivery method. It applied to the respondent for licensure pursuant to Florida Statutes, Chapter 246. By letter dated September 26, 1979, petitioner was notified that its application for licensure had been denied by the respondent for failure to meet certain standards contained in Rule 6E-2.04. The deficiencies noted were in the areas of curricula, faculty and library. Subsequent to the denial of its application for licensure, petitioner filed the instant petition challenging the validity of Rule 6E-2.04, pursuant to Florida Statutes, 120.56. Petitioner has also requested and been granted an administrative hearing pursuant to Florida Statutes, 120.57(1), concerning the denial of its application for licensure.
The Issue Whether the Respondent's employment with the Petitioner should be terminated as alleged in the Amended Notice of Specific Charges filed on July 31, 2000.
Findings Of Fact At all times material to the allegations of this case, the Respondent was employed as a math teacher at Mays Middle. As such, the Respondent was responsible for the day-to-day teaching assignment of the students enrolled in his class. The Respondent's duties also encompassed maintaining the appropriate records to be in order to fulfill his teaching responsibilities. These records included lesson plans, grade sheets, attendance records, class rosters, and time cards. The Petitioner is the agency charged by Florida law to administer the public schools within the Miami-Dade County School District. The Petitioner is authorized to hire and to, when appropriate, discipline teachers within the Miami-Dade County school system. Mays Middle is a public school within the Petitioner's district. At all times material to the allegations of this case, Mr. Cooper was the principal at Mays Middle and was the supervisor responsible for personnel performance at the school. He has been a principal at several schools within the Miami-Dade school district and is a candidate for a doctorate degree in educational leadership. Mr. Cooper met the Respondent in approximately 1997 when he became the principal at Mays Middle. The Respondent was already employed at Mays Middle as a math teacher. All teachers at Mays Middle are required to attend faculty meetings, to turn-in class lists, to maintain teacher logs, to compile grades for students, to arrive at work on time prepared to teach, and to prepare appropriate lesson plans to be followed for the instruction of the students in the event the teacher is absent from school. All teachers at Mays Middle are provided with a faculty handbook that outlines their responsibilities. All teachers are required to follow the directives and instructions issued by the school principal regarding their responsibilities. All teachers who are cited for a performance deficiency are issued a prescription to address the identified problem. The prescription requires the teacher to perform specific acts to encourage remediation of the deficiency within a specified time. On November 17, 1998, Mr. Cooper issued a reprimand to the Respondent. This reprimand cited the Respondent's failure to notify or report to the worksite on November 6, 1998, and his failure to submit grades with gradesheets in a timely manner. In connection with this reprimand, Mr. Cooper conducted a conference for the record (CFR) with the Respondent in order to review the professional responsibilities of reporting to school timely or notifying the school and of submitting required paperwork in a timely manner. On January 13, 1999, the Assistant Principal, Mrs. Kaloostian, went to the Respondent's classroom to perform an observation. The class was to run from 9:30 a.m. until 11:15 a.m. Instead of beginning class promptly with the bell, the Respondent left the room after observing Mrs. Kaloostian in the rear of the classroom. Instead of returning to teach the class, the Respondent returned to the room at approximately 9:40 a.m., removed his bags and announced he was going home. Thereafter the school administrators attempted to locate a substitute for the Respondent's classes. The Respondent did not leave emergency lesson plans for the classes. Emergency lesson plans are required of all teachers so that a substitute teacher has material to review with the class. In this case, the Respondent did not leave plans for the day he left or the two days that followed. On January 22, 1999, Mr. Cooper conducted another CFR with the Respondent. This time the Respondent was placed on prescription for his conduct of January 13, 1999, and his failure to report to work the next two days. The doctor's note submitted by the Respondent to justify the absence indicated the Respondent was able to return to work on January 14, 1999. The prescription issued on January 22, 1999, outlined directives regarding lesson plans, attendance guidelines, the teacher code of ethics, and employee conduct requirements. The timelines for the Respondent's completion of these prescription directives were defined, ample, and unambiguous. When the Respondent did not timely complete the prescription, he was afforded additional time within which to complete the prescription directives. On February 17, 1999, the Respondent arrived at a faculty meeting 20 minutes late. The Respondent later stated that the tardiness was unintentional. On February 25, 1999, the Respondent was given a reprimand. Mr. Cooper conducted a CFR to review the attendance requirements and to address the Respondent's continuing failure to meet his professional responsibilities. All teachers employed by the Petitioner are evaluated pursuant to a Teacher Assessment and Development System (TADS). TADS evaluators must be trained in the assessment tool and all teachers are advised of the categories covered by the instrument. Mrs. Kaloostian performed a formal TADS observation of the Respondent's class on February 18, 1999. This evaluation cited the Respondent with deficiencies in six categories covered by the assessment tool. The prescription issued with the TADS evaluation provided the Respondent with specific corrective measures to be completed by March 26, 1999. On March 1, 1999, the Respondent reported late to work. On March 23, 1999, the Respondent reported late to work and failed to attend a faculty meeting. On April 2, 1999, Mr. Cooper issued a reprimand to the Respondent for insubordination, failure to comply with attendance directives, and failure to comply with directives regarding tardiness or absences. On March 23, 1999, Mrs. Kaloostian performed a TADS observation in the Respondent's class. This assessment found the Respondent deficient in five categories of performance. The Respondent was provided a prescription to be completed by May 4, 1999. Under the terms of the teachers' contract, the successful completion of prescription requirements results in the remediation of the deficiency identified. Thus a teacher on prescription must complete the directives of the prescription in order to show remediation. The Petitioner makes personnel and other resources available to a teacher to assist the completion of the prescription. On April 12, 1999, the Respondent refused to sign a time card as directed by the Principal. The Respondent disagreed with the information on the card and refused to comply with Mr. Cooper's instruction to sign the card. Following this incident, the Respondent was given a written reprimand. On May 4, 1999, Mrs. Kaloostian wrote a memorandum to Mr. Cooper outlining the Respondent's failures regarding the prescription that was to be completed by that date. On May 5, 1999, Mr. Cooper gave the Respondent an additional 24 hours to complete the TADS prescription materials. On May 13, 1999, the Respondent asked to speak with Mrs. Kaloostian. At that time he gave her a letter describing his medical problems and represented that he would be seeking a medical leave effective the end of the school day. After completing papers regarding the leave, the Respondent refused to deliver his gradebook to Mrs. Kaloostian. He was asked several times to turn the gradebook in and each time he refused. The Respondent represented he would deliver it the next day at 9:00 a.m. He did not return the gradebook by 2:00 p.m., May 14, 1999. In addition to not delivering the gradebook, the lesson plans for Respondent's classes were not provided. As a result the math department chair had to provide lessons for the Respondent's classes. On or about June 14, 1999, the Respondent turned in his gradebook through another teacher. The gradebook was deficient in the information it was designed to log. On May 14, 1999, the Respondent did not attend a scheduled CFR. Accordingly, the record of the deficiencies cited by Mr. Cooper and the prescription for correction was provided to the Respondent by certified mail. Such prescription noted the Respondent's continuous failure to meet the prescription activities. During the 1998/1999 school year, the Respondent was absent from school 42.5 days. Nineteen of those days occurred prior to May 14, 1999. From February 6, 1998 through April 1, 1999, the Respondent received five prescriptions for Category VII deficiencies in professional responsibilities. On August 9, 1999, Dr. O'Donnell, director of the Office of Professional Standards, conducted a CFR with the Respondent. The conference addressed Respondent's performance assessments, attendance, medical fitness to perform his duties, noncompliance with directives, violations of the Code of Ethics, and future employment with the Petitioner. Following the CFR the Respondent was to return to Mays Middle to assume his responsibilities on August 26, 1999. In order to afford the Respondent with additional time to complete his prescriptions, the 90-calendar day probationary period was extended. Since he did not timely complete the prescription but effected medical leave commencing May 14, 1999, the time for formal observations was extended. All parties knew the observation would be conducted between September 13, 1999, and October 19, 1999. Moreover, the Respondent knew as a result of the CFR that he would be required to comply with his professional responsibilities. Nevertheless, on August 31, 1999, the Respondent failed to submit class counts; he did not submit emergency lesson plans on September 3, 1999; and he did not provide a class list on September 8, 1999. As a result, Mr. Cooper conducted a CFR on September 17, 1999. The Respondent was deemed insubordinate in all of the areas of professional responsibilities that had been previously delineated. He knew or should have known that the administration was not going to tolerate the failures to submit the required documents. Further, he knew or should have known that the untimely submission of the documents would also not be acceptable. If the Respondent had a medical condition that impaired his ability to timely complete and submit his records, he did not fully explain it to Mr. Cooper. On September 15, 1999, between 9:30 a.m. and 11:15 a.m., Mrs. Kaloostian observed the Respondent's class and performed a TADS assessment. The Respondent knew or should have known the assessment would be forthcoming. He had ample opportunity to be prepared for the assessment. He was not. The deficiencies cited in the September 15, 1999, evaluation required prescriptive remediations to be completed by October 1, 1999. Again the prescription identified persons available to the Respondent to assist in the prescription activities. The Respondent did not timely complete the prescription and was given 24 additional hours to complete the work. The Respondent failed to submit attendance cards on time on September 5, 1999, and September 7, 1999. The Respondent failed to timely submit Student Interim Progress Reports on October 6, 1999. On October 5, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. Deficiencies were outlined and the Respondent was provided until October 19, 1999, to complete the prescriptive activities. On October 22, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. This observation also established deficiencies in the Respondent's performance. Consequently, Mr. Cooper recommended that the Respondent's employment with the School District be terminated. On November 3, 1999, the superintendent of schools issued a letter advising the Respondent that the Petitioner would take action on November 17, 1999, regarding the recommendation to terminate the Respondent's employment contract. The Petitioner did approve the termination as outlined by the superintendent's letter. Thereafter, the Respondent timely challenged the action and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. At the hearing, the Respondent did not provide a credible explanation as to why he failed or refused to complete the prescriptions that were provided for him. He did not provide a credible response as to why he failed to be punctual with reports, attendance of meetings, or to comply with the directives provided by the principal and assistant principal. The directives and suggestions were reasonable in nature and should have afforded the Respondent with an ample opportunity to correct the performance deficiencies. At all times the Respondent was entitled to and had a representative from the union to advise him and to assist him for the CFRs conducted with school personnel. The Respondent was repeatedly offered additional time to complete prescriptive assignments. The Respondent was offered assistance and resources to complete the prescriptive assignments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the termination of the Respondent's employment with the Miami-Dade County School District be affirmed. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 5th day of June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308 Charlie L. Bradley 130 Northwest 193rd Terrace Miami, Florida 33169 John Greco, Esquire Miami-Dade County School Board 1450 North East Second Avenue, Suite 400 Miami, Florida 33132 Paul J. Schwiep, Esquire Aragon, Burlington, Weil & Crockett, P.A. Office in the Grove, Penthouse 2699 South Bayshore Drive Miami, Florida 33133
Findings Of Fact Respondent is and at all times has been a licensed physician, holding Florida license number ME 0029977. He has been licensed in Florida since about 1976. G.L. is 73 years old. He has a third grade education. Previously, he was a farmworker in the fields. He is at most barely literate. In any event, he would not appreciate the meaning of a document of the type described below. G.L. and his companion, A.M., who is 59 years old and unemployed, had been patients of Respondent for about eight years at the time of the subject incident. From time to time, Respondent has lent his patients money, such as for transportation or medicine. Respondent's daughter, who serves as his office manager, has even provided transportation for patients in order to get them to the office and back home. On certain occasions, Respondent has lent G.L. money or paid for his medicine, although the amounts involved were not significant. On many other occasions, Respondent provided G.L. with free medication by giving him samples. Respondent did not keep track of the amounts involved because of the unlikelihood of any repayment. Between 1980 and the time of the incident, G.L.'s total charges for medical services rendered by Respondent were less than $5000. Medicare or Medicaid paid for about 80% of these costs. In May, 1986, G.L. suffered injuries as a result of an automobile accident. Respondent treated G.L., who had a balance due of about $824 at the time in question. Respondent referred G.L. to Franklin Douglas McKnight, who also served as Respondent's attorney, for representation in the recovery of damages for personal injuries. By January, 1987, Mr. McKnight was close to settling the case. At this point, Respondent visited Mr. McKnight and said that G.L. had agreed to pay Respondent a percentage of the settlement. The net amount that was estimated to be due G.L. was roughly $25,000, and Respondent was claiming $12,500. Mr. McKnight informed Respondent that he could not pay him a percentage and, in any event, could not pay him anything unless G.L. signed a letter authorizing the disbursement to Respondent. Mr. McKnight showed Respondent a simple example of such a letter. Respondent then prepared a letter for G.L. to sign. The letter stated: To Whom It May Concern: For past services, medical, social and humane assistance and personal loans rendered to me [G.L.] and my family during last many years. We hereby agree that the sum of $12,500 ... may be deducted from the net proceeds recovered as a result of the automobile accident, of date 5-30-86. I, [G.L.] Hereby thus authorize you, Mr. Douglas McKnight, (My representing Lawer) to disburse above amount out of net proceeds to Dr. Prem N. Tandon, M.D. without reservations. Thanking you: [Signed by G.L. and A.M. as witness.] During an office visit, Respondent presented the letter to G.L. and A.M. for their signature. Little if any meaningful explanation accompanied the signing. G.L. and A.M. signed the letter based on their trust of Respondent as their physician. When Respondent delivered the signed letter to Mr. McKnight, he told Respondent that he would not disburse any sums to Respondent without the consent of G.L. at the time of disbursement. G.L. later refused to honor the disbursement letter. Confronted with conflicting claims to nearly $12,000 of the settlement proceeds, Mr. McKnight interpleaded the sum in Orange County Circuit Court. Respondent has been disciplined twice previously. In a Final order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing to himself two legend drugs, Nembutal and Ritalin. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for one month. In a Final Order dated June 15, 1988, Petitioner found, Respondent guilty of various statutory violations concerning generally recordkeeping requirements with respect to controlled substances. Petitioner imposed an administrative fine of $1500, reprimanded his license, required him to attend 60 hours of Category I Continuing Medical Education courses in legal aspects of dispensing controlled substances, and restricted his license by prohibiting him from dispensing drugs in an office setting and maintaining drugs for the purpose of dispensing until he complied with certain conditions concerning recordkeeping requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating of Section 458.331(1)(n), Florida Statutes, suspending Respondent's license for six months, and imposing an administrative fine of $5000. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1989. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-3 Adopted. 4 Adopted in substance. 5-7 Adopted. Adopted except as to the mischaracterization of the document as a promissory note. Rejected as irrelevant, contrary to the greater weight of the evidence, and recitation of testimony. Whether G.L. was able to read is beside the point. He was incapable of understanding the meaning of the document that he signed. Rejected as against the greater weight of the evidence. Rejected as cumulative and, to the extent not cumulative, irrelevant. 12-15 Rejected as recitation of testimony and subordinate. 16-17 Adopted in substance. 18 Rejected as recitation of evidence and legal argument. 19-21 Rejected as recitation of testimony and subordinate except that the first sentence of Paragraph 21 is adopted. Rejected as irrelevant. Rejected as recitation of testimony. Rejected as against the greater weight of the evidence. Adopted. Rejected as cumulative and, to the extent not cumulative, irrelevant. Rejected as legal argument contrary to the cited statutory definition of the practice of medicine. Rejected as recitation of testimony. Adopted in substance. Treatment Accorded Respondent's proposed Findings 1-4 Adopted. 5-6 Rejected as subordinate. Adopted. Rejected as irrelevant and, to the extent implying that G.L. understood the meaning of the document that he was signing, against the greater weight of the evidence. 9-10 Rejected as irrelevant. See Paragraph 9 in preceding section. 11-14 Adopted. 15 Adopted in substance. 16-19 Adopted in substance except that the first sentence of Paragraph 16 is rejected as against the greater weight of the evidence. Rejected as irrelevant. First sentence adopted. Second sentence rejected as irrelevant. Adopted. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 David G. Pius, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph M. Taraska, Esq. Launa K. Cartwright, Esq. Taraska, Grower, Unger and Ketcham, P.A. Post Office Box 538065 Orlando, FL 32853-0065 =================================================================
The Issue The issue presented is whether Petitioner's application for licensure by examination as a professional engineer should be granted.
Findings Of Fact Petitioner is an applicant for licensure by examination as a professional engineer. By letter dated February 6, 1991, Respondent notified Petitioner that his education did not meet the criteria for licensure. Specifically, Petitioner's education was not deemed to be equivalent to an accredited engineering degree because it lacked 6 credit hours of mathematics, 24 credit hours of engineering sciences, and 8 credit hours of humanities and social sciences. Further, Petitioner had failed to submit any evidence of possessing computer skills. Petitioner is a graduate of the Indian Institute of Technology in Kharagpur, India. He received a degree styled Bachelor of Technology in Civil Engineering in 1967. Petitioner is not a graduate of Florida's State University System. Further, Petitioner did not notify Respondent before July 1, 1984, that he was engaged in active and responsible engineering work on July 1, 1981. Petitioner had his transcript evaluated by the World Education Service (hereinafter "WES"). WES filed a report, dated September 20, 1985, attesting that Petitioner's education was the equivalent of an engineering technology degree. A second report issued by WES, dated March 14, 1988, is identical. A third report, dated January 7, 1991, is identical to the first two, except that in this latest report, the WES opines that Petitioner has the equivalent of a bachelor's degree in civil engineering. The Board's Education Advisory Committee reviews foreign degree candidates to determine if their education meets the standards established by the Accreditation Board for Engineering and Technology, Inc., (hereinafter "ABET"). The ABET standards for an approved baccalaureate degree in engineering include: 16 hours of mathematics (calculus through differential equations), 16 hours of basic sciences, 32 hours of engineering sciences, 16 hours of engineering design, and 16 hours of humanities and social sciences. There is a major difference between an engineering degree and an engineering technology degree. An engineering technology degree does not require the same number of hours in advanced mathematics (calculus through differential equations) as an engineering degree. Furthermore, an engineering technology curriculum emphasizes the technical aspects of the profession, such as engineering design coursework, but does not stress the underlying engineering sciences. Petitioner's transcript and course titles were typical of an engineering technology curriculum. Petitioner's mathematics courses were not solely at the advanced math level, but also included algebra and geometry. Furthermore, Petitioner's transcript only demonstrated 8 hours of engineering sciences. The title of Petitioner's degree is not dispositive. What is dispositive is that Petitioner's course of study had its emphasis on technical design courses rather than on higher math and engineering sciences courses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by examination. DONE and ENTERED this 24th day of September, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact numbered 1-3, 6, and 8-11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. COPIES FURNISHED: Om Prakash Bhola 3600 Khayyam Avenue Apt. #7 Orlando, Florida 32826 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Carrie Flynn, Acting Executive Director Department of Professional Regulation Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
Findings Of Fact Petitioner is licensed by the State of Florida as a laboratory technologist. Petitioner applied to the Respondent for licensure as a supervisor. On February 2, 1982, Respondent denied Petitioner's application to take the supervisory examination for the stated reason that Petitioner did not have ten years of experience. Petitioner holds a Bachelor's degree in Fine Arts from Florida International University. Petitioner has supplemented his education by taking additional science courses. The science courses taken before and after Petitioner received his Bachelor's degree total 26 semester credits. The courses taken after receipt of his degree have been specifically related to his field. Petitioner has been employed by the Miami Heart Institute since July 11, 1976, except for the period between September, 1976, and August, 1977. Dr. Jerome Benson is a pathologist and is the Director of Laboratories at the Miami Heart Institute. He is also Vice Chairman of the National Accreditation for Clinical Laboratory Sciences, the organization which accredits approximately 1,000 programs in the medical technology field and which is responsible for the Committee on Higher Education and Accreditation of the United States Office of Education, which accredits laboratories. He is familiar with accreditation of medical technology programs throughout the country and locally. He serves on the Advisory Committee at Miami-Dade Community College, and he planned the curriculum for the medical technology programs at both Miami- Dade Community College and at Florida International University. He was recognized as an expert by both parties. Dr. Benson believes that Petitioner is qualified to sit for the supervisory examination in terms of education, in terms of experience time, in terms of intent of the law, and in terms of protecting the public safety. He further believes that the science courses Petitioner has taken, both pre-baccalaureate and post-baccalaureate, qualify Petitioner for a Bachelor's degree in medical technology. Norman Bass was formerly Petitioner's immediate supervisor. He evaluates Petitioner's performance in the laboratory as excellent and believes that Petitioner is qualified through experience and academic courses to sit for the supervisory examination. At the time of the formal hearing in this cause, Petitioner had a total of 12,935 hours of work time at the Miami Heart Institute. Respondent considers 37.5 hours as constituting a full work week. George S. Taylor, Jr., reviewed Petitioner's application on behalf of Respondent. The application was received on January 18, 1982, and was denied on February 2, 1982, for the reason that Petitioner did not have ten years' experience. At the time, Respondent did not have current transcripts reflecting courses taken by Petitioner. Respondent did not request any, but simply used transcripts on file with Respondent which had been filed when Petitioner applied for his technologist's license, even though Petitioner's application for licensure as a supervisor reflected that he had taken various science courses at Miami-Dade Community College. Taylor is of the opinion that an applicant with 120 college credits must have between 25 and 30 of those credits in science courses in order to have a major in science; an applicant with 90 semester hours in college is required to have 17 to 24 credits in science in order to have a science major.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application to take the examination for a supervisor's license. DONE and RECOMMENDED this 14th day of January, 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 14th day of January, 1983. COPIES FURNISHED: Samuel S. Forman, Esquire The Counsel Building 2016 Harrison Street Hollywood, Florida 33020 Morton Laitner, Esquire Dade County Health Department 1350 North West 14th Street Miami, Florida 33125 David H. Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
