The Issue The issue is whether the following rules are invalid exercises of delegated legislative authority: Florida Administrative Code Rules 64B1-2.008; 64B1-6.002(1), (4) (only the following language: "is responsible for filing provider approval applications and"), (5), (8) (only the following language: ". . .n approved"), and (10) (only the following language: "individual,"); 64B1-6.005(4); 64B1-6.006(1), (8) (only the following language: "approved"), and (11); 64B1-6.007(1) and (2); and 64B1-6.008(1) and (2).
Findings Of Fact Petitioner received his degree in Acupuncture and Oriental Medicine in 1997. He subsequently obtained a license, under Chapter 457, Florida Statutes (2003), and is now an acupuncture physician, practicing Acupuncture and Oriental Medicine. Petitioner has been a member of numerous acupuncture organizations. Respondent has approved Petitioner, individually, as a continuing education provider, under provider number BP02-92. To obtain such approval, Petitioner has twice paid Respondent $100 for a two-year approval as an acupuncture continuing education provider. Respondent has also approved the Acupuncture and Oriental Medicine National Coalition Corp. (NCC), which is a Florida for-profit corporation, as an acupuncture continuing education provider. Incorporated on March 3, 2003, NCC has paid Respondent $100 for approval as an acupuncture continuing education provider. Petitioner and David Sontag are the sole officers, directors, and shareholders of NCC. Each shareholder owns half of the company's stock. The purpose of NCC is to raise the standards of the acupuncture profession nationally, including educational standards, and to support the advancement of "acupuncture and oriental medicine." NCC has about 300 members residing in Florida and 1000 members nationally. Membership, which is free, entitles the member to benefits, such as access to information on the NCC website and negotiated discounts from other service providers, but not to rights in governing the corporation. Respondent has approved NCC as a "State or National Acupuncture and Oriental Medicine Organization," pursuant to Section 457.107(3), Florida Statutes (2003). In November 2001, Petitioner coordinated an acupuncture continuing education program in Fort Lauderdale for another provider. In 2002, Petitioner sponsored an acupuncture continuing education program in Florida on electro-acupuncture. On August 23, 2003, Petitioner taught a weekend acupuncture continuing education program sponsored by NCC. Petitioner obtained Respondent's approval for the electro-acupuncture course, but the process took nine months to complete. However, the record is insufficient to determine the cause or causes for the delay and, thus, who was responsible for it. At least 60 days before conducting the course, Petitioner paid the $50 program approval fee and submitted the approval forms. When Petitioner inquired about the approval, Respondent's executive director advised him to provide the course, pending approval. Petitioner thus was unable to advertise the course as approved by Respondent and instead advertised only that the sponsor had applied for Respondent's approval. Nearly 100 persons attended the electro-acupuncture course, paying $65 each. However, Petitioner netted only $350 on the program because of the expenses in advertising the program, renting a hotel, and other items. NCC obtained Respondent's approval for its course in August 2003 within two weeks of submitting its application. NCC submitted the required forms and the required $100 check. Persons attending the NCC course received their acupuncture continuing education credits from Respondent. Petitioner is substantially affected by the rules that he has challenged. Petitioner has sponsored an acupuncture continuing education course and, as an employee, taught another course that was sponsored by NCC. It may be reasonably expected that Petitioner will participate in future acupuncture continuing education programs in one or both of these capacities. The rules concerning a filing fee for approval require a modest fee, but NCC's net on the one course for which detailed financial information was provided suggests that the provider is substantially affected by even a modest fee, given the relatively little profit that ensued from that course. In their entirety, the subject rules in this case are as follows (challenged portions underlined): 64B1-2.008 Continuing Education Program Approval Fee. The continuing education program approval fee shall be $50. Specific Authority 457.104, 457.107(3), Florida Statutes. Law Implemented 457.107(3), Florida Statutes. History–New 5- 12-87, Amended 9-15-92, Formerly 21AA-2.008, 61F1-2.008, 59M-2.008, Amended 10-15-97. 64B1-6.002 Definitions. “Approved” means acceptable to the Florida Board of Acupuncture. “Board” means Florida Board of Acupuncture. “Committee” means Committee on Continuing Education of the Board. “Contact Person” means one who is responsible for filing provider approval applications and insures compliance with these rules, maintains complete rosters of participants, and is knowledgeable about the provider’s program(s). “Correspondence Program” means an approved program offered by mail with a defined course of study to be completed by the participant for which an evaluation of performance is made and a rating of satisfactory or unsatisfactory completion of the course is given by the provider. “Credit Hour” means a minimum of 50 minutes and a maximum of 60 minutes of class time. One-half (1/2) credit hour means a minimum of 25 minutes and a maximum of 30 minutes of class time. “Department” means the Department of Health. “Participant” means an acupuncturist who attends a program presented by an approved provider in order to achieve the stated objectives of the program. “Program” means a planned educational experience dealing with a specific content based on the stated objectives. “Provider” means the individual, organization or institution conducting the continuing education program. Specific Authority 456.013, 456.025, 456.033, 457.104, 457.107(3) Florida Statutes. Law Implemented 456.013, 456.025, 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Formerly 21AA-6.002, 61F1-6.002, Amended 1-16-97, Formerly 59M-6.002. 64B1-6.005 Standards for Approval of Continuing Education Credit. A continuing education program must contribute to the advancement, extension or enhancement of the licensee’s skills and knowledge related to the practice of acupuncture and oriental medicine. Programs should concern the history and theory of acupuncture, acupuncture diagnosis and treatment techniques, techniques of adjunctive therapies, acupuncturist-patient communication and professional ethics. All continuing education courses are subject to evaluation and approval by the Board to determine that the continuing education course meets the criteria established by the Board which has final determination as to the number of hours of acceptable credit that will be awarded for each program. Each program offered for continuing education credit must be presented or taught by a person who at a minimum holds a bachelor’s degree from an accredited college or university or a post-secondary education institution licensed by the State of Florida, with a major in the subject matter to be presented; or has graduated from a school of acupuncture, or has completed a tutorial program which has a curriculum equivalent to the requirements in this state and was approved by a state licensing authority, a nationally recognized acupuncture/oriental medicine association or a substantially equivalent accrediting body, and has completed three (3) years of professional experience in the licensed practice of acupuncture; and has a minimum of two (2) years teaching experience in the subject matter to be presented, or has taught the same program for which approval is sought a minimum of three (3) times in the past two (2) years before a professional convention, professional group or at any acupuncture school, or has completed specialized training in the subject matter of the program and has a minimum of two (2) years of practical experience in the subject. In order to meet the continuing education requirements, the continuing education program submitted by the licensee must meet the criteria established by the Board. No credit will be given for programs which are primarily devoted to administrative or business management aspects of acupuncture practice. To receive credit for programs on HIV/AIDS, the program must be, at a minimum, two (2) hours in length and must address the areas mandated in Section 456.033, F.S. The Board accepts HIV/AIDS programs presented or conducted by the Department of Health and programs approved by other professional regulatory boards for the health professions. Continuing education programs related to laboratory test or imaging findings shall be designed to provide course content on the clinical relevance of laboratory and diagnostic tests and procedures as well as biomedical physical examination findings and to advance, extend or enhance the licensee’s skills and knowledge related to the safe and beneficial use of laboratory test and imaging findings. Specific Authority 456.013(9), 456.033, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(9), 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 8-6-89, Formerly 21AA-6.005, 61F1-6.005, Amended 3-18-97, Formerly 59M- 6.005, Amended 6-1-99, 1-7-03. 64B1-6.006 Requirements for the Provider. Each provider shall: File all information necessary for provider and program approval on Forms DOH/AP007, Continuing Education Course Approval Applications, DOH/AP006, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office. Insure that the continuing education program(s) presented by the provider complies with these rules. Maintain a complete, alphabetized, legible roster of participants for a period of 3 years following each program presentation. Maintain a “sign-in” sheet and a “sign- out” sheet with the signatures of participants. Provide each participant with a certificate certifying that the participant has successfully completed the program. The certificate shall not be issued until completion of the program and shall contain the provider’s name, title of program, date of program, location, and number of credit hours. Notify the Board of any significant changes relative to the maintenance of standards as set forth in these rules. Ensure that no person receives credit for the same program more than once. Notify the Board of any change in the presenters or instructors of any approved program, and demonstrate the new instructor meets the criteria set forth in subsection 64B1-6.005(2), F.A.C. Designate a contact person who assumes responsibility for each program, and who is knowledgeable about each program. The contact person shall notify the Board of any significant changes in programs or a lapse in the maintenance of standards. In a correspondence continuing education program, each provider is responsible for obtaining from each certificateholder a signed statement which states that the participant did in fact read the material, performed the exercises and took the examination personally. A clearly defined refund policy shall be in the flyer. There shall be adequate personnel to assist with administrative matters and personnel with competencies outside content areas in cases when the method of delivery requires technical or other special expertise. Providers shall maintain records of individual offerings for inspection by the Board; records shall include subject matter, objectives, faculty qualifications, evaluation mechanisms, credit hours and rosters of participants. Specific Authority 456.013, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 7-25- 88, Formerly 21AA-6.006, 61F1-6.006, Amended 3-18-97, Formerly 59M-6.006, Amended 2-18-98. 64B1-6.007 Preapproved Providers. Subject to the requirements of Rule 64B1-6.005 and subsections 64B1-6.007(3) through (5), F.A.C., the Board approves for continuing education credit programs offered by: (a) The Continuing Education Committee of the American Association of Oriental Medicine (AAOM); (b) The Florida State Oriental Medicine Association (FSOMA); (c) Individual member schools of the Colleges of Acupuncture and Oriental Medicine (CCAOM); and (d) The National Alliance for Acupuncture and Oriental Medicine. A nonrefundable processing fee of $50 must be submitted with each registration of course offering. Each program offering shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; and Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C. Upon processing of a program offering, the Board will assign an identification number to that program. Upon receipt by the provider of the course identification number, the provider may identify the program as “approved by the Florida Board of Acupuncture for purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.007, Amended 7-4-94, Formerly 61F1-6.007, Amended 4-10-97, Formerly 59M-6.007. 64B1-6.008 Process for Program Approval. Each program to be offered by an approved provider must be approved by the Board. Applications for approval Form DOH/AP007, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office shall be submitted to the Board Office at least 60 days prior to the date of presentation. Each program application shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.; and A nonrefundable fee of $50.00. Upon approval of a program, the Board will assign an identification number to that program. If approved, the provider may identify the program as “approved by the Florida Board of Acupuncture for Purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.008, 61F1-6.008, Amended 1-16-97, Formerly 59M-6.008, Amended 2-18-98. The forms mentioned in Florida Administrative Code Rule 64B1-6.006(1) involve two approval processes. Form DOH/AP007, which is also mentioned in Rule 64B1-6.008(1), is the application for Respondent's approval of the provider. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP007 comprises two pages of instructions, a copy of Florida Administrative Code Rule 64B1-6.005, and a four- page application. The instructions state: "Application Fee: $100 (Non- Refundable). The remainder of the instructions explain the items set forth in the application. The checklist at the end of the instructions restates the requirement to submit a $100 check or money order. The first page of the application states: "$100 non- refundable application fee." It asks whether the application is a "renewal application." The first page also asks the name of the "organization" and its "continuing education director," as well as contact information, such as mailing address. The first page asks four questions: Does your organization monitor attendance to assure those in attendance have been present for the entire program for which they receive credit? Does your organization assign an identifiable person to be present at continuing education activities who is responsible for recording attendance? Does your organization have facilities available to store records for at least 3 years? Have you attached a curriculum vitae for each instructor? The first page concludes with an affidavit signed by the continuing education director, although not notarized, and stating that he or she represents that the information in the completed form is accurate and will comply with the rules contained in Florida Administrative Code Chapter 64B1-6.006. The second page of the application is a certificate of completion. It requests the name, license number, and address of the licensee attending the program; the name and address of the provider; and the site, course title, continuing education hours awarded, and name of the instructor. The third page of the application is Form C: Course Offering Data Form. This page requires the provider to list the educational objectives of the course and the continuing education hours and subject matter for each objective. The form also requires the identification of the teaching methods. The fourth page of the application is Form D: Course Offering Data Form. This page requires the provider to list the name and job title of each instructor and his or her relevant education and experience. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP006 comprises one page of instructions, a copy of Florida Administrative Code Rules, 4B1-6.005 and 64B1-6.008, and a three-page application, the last two pages of which are identical to the last two pages of the Form DOH/AP007 application. The first numbered instruction requires: "Prior to offering or advertising a continuing education course, the provider must have registered by way of submitting this application: the course, along with any materials to be offered and the name and qualifications of the instructor . . .." This instruction warns: "If you have failed to submit all of the above, you will not be eligible to offer the course for continuing education credit. NO RETROACTIVE CREDIT IS GRANTED BY THE BOARD." The second numbered instruction requires the provider to submit any material to be used in a home-study course. The third numbered instruction requires a "nonrefundable fee of $50" with "each program application." The first page of the application requires identifying information for the provider and program, as well as disclosure of whether the course for which approval is sought is a previously approved course with a new or additional instructor, a new course, or a previously approved course with different credit hours. The first page also states that instructors must meet the qualifications of Florida Administrative Code Rule 64B1-6.005(2)(a) or (b).
The Issue Whether Respondent, Hillsborough County School Board (School Board), erred in denying the Petitioner's request to consolidate its two charter contracts into one charter agreement.
Findings Of Fact Trinity School is a Florida corporation that owns and operates two charter schools in Hillsborough County, Florida. The two charter schools are known as Trinity Lower School for Children and Trinity Upper School. Trinity Lower School for Children provides education for 425 students in kindergarten through fitth grade. Trinity Upper School serves 225 students in sixth through eighth grades. The School Board is constitutionally and statutorily charged with the operation and supervision of all K through 12 public schools in Hillsborough County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.32(2) and 1003.02. The two Trinity charter schools are part of the public school system and are sponsored by the School Board. § 1002.33. Trinity School was formed by a group of educators and parents of children who had attended a private Roman Catholic School that was closing. In 1999, Trinity School submitted its application to form a K through eighth grade charter school. Its application was approved by the School Board, and Trinity began operation in 1999. Trinity School's population grew steadily from its inception and in 2003, Trinity School sought to purchase a building across the street from its campus. Ms. O'Dea, the founder, principal, chief executive, and educational officer for Trinity School, explained that Trinity School learned that it would be eligible for additional federal start-up money, if Trinity School divided its charter into two separate charters. By dividing the original charter and creating a new charter school for the middle school, Trinity School was able to obtain at least $450,000.00, in federal start-up funds which was used to help purchase a building across the street from the original school, grow the number of classes, as well as increase the number of programs and teachers. In 2003, Trinity School applied for a charter for the Trinity Upper School, which would serve sixth through eighth grades. The School Board approved the charter for the Upper School, and Trinity School was able to receive the federal start-up money. The Trinity Upper School began operating under its own charter in 2004. Although two separate charters, both Trinity Schools are operated by the same parent corporation, follow the same Bank Street School principles of educational development, and are located in the same location. Further, the record showed through the testimony of Ms. Difranco, Trinity School's director of finance, that the two charter schools "actually function as one school[,] [w]e share buildings; we share a media center; we share staff; we use one accounting system." On April 3, 2008, Trinity School wrote the School Board's representative to request a change in Trinity School's financial reporting to the school district. Trinity School's letter recognized that both schools operated "under the fiscal umbrella of The Tampa School Development Cooperation [sic], but the schools' finances are reported to the district separately." Trinity School advised the School Board representative that combining the schools' financial reports would benefit "both our accounting practices and the school district." On May 15, 2008, Ms. Hodgens, the School Board's supervisor of charter schools, wrote Ms. O'Dea: After consulting with the Department of Education regarding your request to combine Trinity School for Children and Trinity Upper School, the district has been advised that you are able to combine the two schools. I will present your request to the Hillsborough County School Board regarding the combination of the two schools during your schools' contract renewal process. On March 15, 2010, the School Board wrote Ms. O'Dea concerning the renewal of the charters. The School Board informed Ms. O'Dea that "Trinity School for Children/Trinity Upper is scheduled for Contract Renewal Review[,]" and requested that a list of materials be provided for the review. On June 28, 2010, Ms. Hodgens, referencing her earlier letter dated May 15, 2008, wrote Ms. O'Dea concerning Trinity School's request to combine the charters during the contract renewal period. Specifically, Ms. Hodgens wrote: After several conversations with district staff, there is no educational benefit for students by combining the two schools. Due to this fact, the Superintendent will not be making this recommendation to the School Board at the time of your contract renewal. Trinity School and the School Board brought their consolidation dispute before the Department of Education under section 1002.33(6)(h). On March 30, 2011, Dr. Eric Smith, the Florida Commissioner of Education, entered a Mediation Report of Impasse, stating that the parties had reached an impasse and that the matter could not be settled through mediation, pursuant to section 1002.33(6)(h). Ms. Difranco, who has been Trinity Schools' director of finance for the past two years, credibly testified that both schools functioned administratively as one school, but were required to file separate fiscal reports. Furthermore, she credibly testified that creating the two separate fiscal reports for each school, results in Trinity School's accountants and personnel having to perform additional duties of separating the relevant data by school. Ms. Difranco credibly testified that she had conducted a cost analysis comparing the costs of treating the two schools as separate charters with an estimated cost of operating under one charter. According to Ms. Difranco, the savings to Trinity School would be approximately $123,000.00, a year. The largest bulk of the savings would come from a reduction in the administrative fee Trinity School pays to the School Board to administer the charter schools. Ms. Difranco estimated that the administrative fee paid to the School Board would reduce by approximately $65,000.00, a year. The reason for the reduction in administrative fees received by the School Board is the legislature's enactment of section 1002.33(20)(a), Florida Statutes (2011). Section 1002.33(20)(a), in part, changed the formula used to calculate the administrative fee charged to charter schools by district school boards. This change in the formula for funding results in a reduction of the amount of money that the School Board will receive as administrative fees from Trinity School if the two charters are combined into one charter. The School Board, in making its decision about whether or not to grant the request to combine the two charters into one charter, considered the fact that it would receive less money from the administrative fees, if the two charters were combined. Both Trinity Schools have received from the State of Florida "A" ratings and are respected charter schools. Trinity Schools, however, have not been designated as "high-performing" charter schools by the Commissioner of Education, as defined by section 1002.331, Florida Statutes (2011). The reason that Trinity Schools’ two charters do not meet the statutory definition of "high-performing" charter school under section 1002.331 is due to past negative fund balances. The record, however, showed that Trinity Schools are on the verge of eliminating the financial difficulties. Specifically, the testimony showed that in 2009-2010 school year, Trinity Schools had a negative fund balance. However, the testimony showed through Ms. Difranco that for school years 2010-2011, and the current school year 2011-2012, that Trinity Schools have met the fiscal requirements.
Findings Of Fact Respondent, Edward M. Caputo (Caputo), was employed as the principal of Key Largo Elementary School in June 1971, and continued to be so employed until suspended in September 1984, for refusing to obey an order of the Superintendent to discontinue religious education classes at his school. Dr. Armando J. Henriguez (Superintendent) is and has been since January, 1969, the Superintendent of Schools for Monroe County. The Monroe County school district includes 13 schools, and extends from Key West to the Dade County line, a distance of approximately 112 miles. The Superintendent's office is located in Key West, the southern extreme of the school district, and Key Largo Elementary School is located on Key Largo, toward the northern extreme of the school district. The Prelude During the 1982-83 school year, Dr. Caputo precipitated two events which demonstrated the controversial nature of religion in the public schools, and which apprised him of the need for circumspection when dealing with the issue. In March 1983, Dr. Caputo granted permission to the Gideons, a society committed to the distribution of the Holy Bible, to meet with fifth and sixth grade students in their classrooms during normal school hours. The Gideons distributed Bibles to those students who expressed a desire to have one by raising their hands. The Gideons prayed that the Bibles would have some effect upon the students who would choose to accept them. In response to student complaints, the Superintendent met with Dr. Caputo on March 7, 1983, to discuss the Gideon incident. During that meeting, the Superintendent reprimanded Dr. Caputo for having permitted such activities at the school. Dr. Caputo conceded his error and assured the Superintendent that he would not allow his religious activities to affect his future administration of the school. Based on Dr. Caputo's assurances, the Superintendent elected to take no disciplinary action1. The second incident followed a Miami Herald article concerning the Gideon incident. In response to the Herald article, Dr. Caputo published a School Newsletter, dated May 26, 1983, and distributed it to the parents of Key Largo Elementary School students. In the newsletter, Dr. Caputo discussed his commitment to God, his spiritual renewal, his life's commitment to learning and practicing the teachings of Jesus Christ, and his belief that it was wrong to stop the voluntary desire to pray in unity in public as well as private places. On June 7, 1983, the Superintendent convened a principals' meeting. At that meeting the Superintendent discussed the impropriety of Dr. Caputo's newsletter and directed all principals that: School newsletters are solely for school business and are not to be used to set forth personal, political or religious views. If there is any question as to whether a subject is proper, contact [the Superintendent]. The Genesis On September 11, 1984, Dr. Caputo addressed the Key Largo Elementary School PTA concerning, inter alia, the "moral; decay" of the nation's schools. At the conclusion of his address, armed with what he represented to be an emerging "equal access concept," Dr. Caputo offered two motions for the PTA's consideration.2 First, that the PTA support the instruction of the national motto "In God We Trust," the pledge of allegiance to the flag, and both the singing and the history of traditional 1 2 patriotic songs which integrate God and country, as well as the national anthem. Second, that the PTA support the establishment of a voluntary course of instruction in the Bible during the Elementary Enrichment Program hour.3 The PTA adopted a resolution supporting Dr. Caputo's first motion, but declined to support Dr. Caputo's second motion. However, after discussion, the PTA did adopt a resolution supporting Dr. Caputo's second motion, modified to provide for a voluntary course of instruction "in the history of any religion of choice," as opposed to a course of instruction in the Bible. Nevertheless, the PTA's resolution of "support" specifically provided: The PTA requires that the courses stay within the boundaries of the law in regard to the First Amendment, as it pertains to religious liberties. Dr. Caputo would subsequently represent to the Superintendent, and at hearing, that because of the PTA resolutions, the religious classes were the parents' program. Nothing could be further from the truth. Dr. Caputo had contemplated for some time the establishment of Bible studies during the enrichment hour. He used the PTA as a vehicle to demonstrate public support for his plan. Clearly, Dr. Caputo was the creator and force behind the program, and no religious instruction could have occurred without his endorsement. On September 13, 1984, Dr. Caputo distributed a school newsletter to all parents announcing three religious courses that would be offered during the enrichment hour, and invited parents to enroll their children. The courses offered were the Jewish religion, based on the Old Testament the Protestant or Christian religion, based on the old and New Testaments and, the Catholic view of God. The Fruition Although Dr. Caputo had worked with the Superintendent for over 13 years although the Superintendent had always been available to Dr. Caputo, by telephone or otherwise and, although Dr. Caputo knew the implementation of such classes would be controversial, he made no effort to apprise the Superintendent 3 of his intentions until September 17, 1984, two days before the classes were to commence. On September 17, 1984, Dr. Caputo drafted a letter to the Superintendent in which he outlined the resolutions adopted at the PTA meeting, and concluded As near as I can see under the equal access laws and the string of cases which have led to that law, we must allow the parents to have that instructional opportunity, or deny them equal access to the cafetorium. * * * I will be looking forward to hearing from you about this matter. Facially, Dr. Caputo's letter appears reasonable since it purports to request the Superintendent's advice on the propriety of the proposed classes. However, when Dr. Caputo posted the letter to the Superintendent, he knew the probability of it being received before September 19, 1984, was remote. In fact, the letter was not received until 2:45 p.m., September 19, 1984. Nevertheless, because of a telephone call the Superintendent received at approximately 4:30 p.m., September 18, 1984, from a reporter with the Miami News, he learned, before their occurrence, that religious classes were scheduled for September 19, 1984, at Key Largo Elementary School. Accordingly, at 9:00 a.m., September 19, 1984, the Superintendent placed a telephone call to Dr. Caputo to discern what was planned at the school. Dr. Caputo read the Superintendent his letter of September 17, 1984, and vehemently assured the Superintendent that the Equal Access Act, recently passed by Congress, gave him the legal authority to hold the classes. The Superintendent was unfamiliar with the Equal Access Act. Therefore, because students were registered and parents scheduled to teach, he deferred to Dr. Caputo's assurances. The first classes were held, as scheduled, on September 19, 1984. In the Protestant class, the lesson was creation. There was no evidence of what was taught in the Judaism class. The Catholic class was merely a planning session, and no lesson was taught. The classes, not unexpectedly, were controversial and attracted significant news media coverage. The evidence reflects Dr. Caputo was elated with the attention and notoriety he received. The Aftermath On Septmber 19, 1984, following his telephone conversation with Dr. Caputo, the Superintendent asked his assistant to research the Equal Access Act, and recalled the School Board attorney to Key West. On September 20, 1984, following their review of the matter, the Superintendent telephoned Dr. Caputo and advised him that it was their opinion the classes were illegally constituted. Dr. Caputo took issue with the Superintendent's opinion and impassionedly argued the propriety of the classes. Consequently, since the parties were at an impasse, the Superintendent advised Dr. Caputo to reflect on the matter that evening, and arranged to meet with Dr. Caputo in Key Largo the next day. At their meeting in Key Largo, on September 21, 1984, the Superintendent again tried to reason with Dr. Caputo concerning the legality of the classes. The Superintendent gave Dr. Caputo a copy of the Equal Access Act and a copy of the School Board attorney's written opinion, each of which demonstrated the impropriety of the classes. Dr. Caputo was not dissuaded, however. Accordingly, the Superintendent advised Dr. Caputo that the classes must be stopped, and that unless he discontinued the classes and assured the Superintendent that (1) he would abide by administration policies, (2) not permit his religious activities to enter into the administration of the school, and (3) advise the PTA and the faculty that he had misinterpreted the Equal Access Act (the three "conditions"), he would recommend his dismissal to the School Board. Dr. Caputo refused. Notwithstanding his refusal, the Superintendent still attempted to come to conciliatory terms with Dr. Caputo. The Superintendent advised Dr. Caputo that he would not seek his dismissal even if he (the Superintendent) were required to stop the classes so long as Dr. Caputo assured him the classes would not be resumed, he would abide administration policies, he would not let his religious activities enter into the administration of the school, and he would advise the PTA and the faculty that he had misinterpreted the Equal Access Act. Dr. Caputo refused. Finally, the Superintendent offered Dr. Caputo a simple solution: Stop the classes and seek a court determination of their legality. Dr. Caputo refused. At hearing Dr. Caputo asserted he could not comply with the Superintendent's order because of, what he termed, the three "conditions attached to it." Dr. Caputo's assertion is unworthy of belief. The evidence is clear that Dr. Caputo would not have stopped the classes under any circumstances. Further, what Dr. Caputo terms "conditions" were not conditions at all. The Superintendent's orders were clear--stop the classes and agree not to resume them. Whether Dr. Caputo agreed to abide the remainder of the Superintendent's directive, to forestall disciplinary action, is superflous. On September 21, 1984, the Superintendent suspended Dr. Caputo from his position as principal of Key Largo Elementary School, and recommended his dismissal to the Monroe County School Board (School Board). On September 24, 1984, the School Board suspended Dr. Caputo without pay, and initiated the instant petition for dismissal. Dr. Caputo timely requested a formal hearing.
The Issue The issue is whether Petitioner is entitled to a permanent teaching certificate.
Findings Of Fact The first factual issue involves the application that is in dispute. There are a July 1994 application for a temporary, or two-year, certificate and a January 1994 application for a permanent, or five-year, certificate. The record contains the July 1994 application for a temporary certificate, but not the January 1994 application for a permanent certificate. The record also contains a temporary certificate issued by Respondent on November 28, 1994, and effective for two years starting July 1, 1994. It thus appears that Respondent granted the July 1994 application. As is apparent from the two notices of reasons, Respondent has also denied an application of Petitioner. The first Notice of Reasons, which is undated, but presumably precedes the demand for a hearing signed February 18, 1997, refers to Department of Education Number 603025, which is the number borne by the July 1994 application and July 1994 temporary certificate. The Amended Notice of Reasons filed April 17, 1998, also refers to Department of Education Number 603025. If the Department of Education Number is specific to an application, rather than an applicant, then the notices of reasons either mistakenly refer to Number 603025 or represent an attempt to deny an already-granted application. If the Department of Education Number is specific only to an applicant--i.e., Respondent assigns the same number to all applications submitted by the same applicant--then the number is useless in trying to identify the application that is the subject of this case. This case obviously arose in connection with the application that Respondent denied; the circumstances suggest that the denied application was the January 1994 application for a permanent certificate. Petitioner testified that she had a two-year temporary certificate from about August 1992 through about June 1994. (Tr. p. 30) She testified that in January 1994 she applied for a five-year permanent certificate (Tr. p. 31), although she later testified that the January 1994 application was for another two-year temporary certificate (Tr. p. 32). Most likely, Petitioner misspoke when she described the January 1994 application the second time as an application for another temporary certificate. More likely, she applied, as she first indicated, for a permanent certificate in January 1994. One would expect that, six months later with school about to recommence, Petitioner filed for another temporary certificate because Respondent had still not issued the permanent certificate for which she had applied in January 1994. This recommended order therefore treats the subject application as the January 1994 application for a permanent certificate. Resolution of issues regarding Petitioner's candor in the application process obviously would have been facilitated by the inclusion in the record of the January 1994 application, but, consistent with the parties' handling of the matter, the recommended order will address the contents of the July 1994 application on the assumption that Petitioner completed the two applications similarly in making this disclosure. Without regard to the confusion concerning the applications, for reasons explained in the conclusions of law, Respondent, in granting Petitioner's July 1994 application for a temporary certificate, necessarily determined, or should have determined, that Petitioner was of sufficient moral character as to be permitted to teach for another two years in Florida's public schools. Petitioner received her first teaching certificate in Massachusetts in 1974. This certificate allowed her to teach kindergarten through sixth grade. In 1978, Petitioner moved to Naples. Petitioner first became employed by the Collier County School District in 1987 when she taught homebased Head Start, which did not require a teaching certificate. The following year, Petitioner taught Head Start in the classroom until the law changed and required that a person in this position hold a certificate. So, sometime in 1988, Petitioner began working at Gulf View Middle School, where she worked as an teacher or aide for in-school suspension, a teacher or aide for students with learning disabilities, and an aide for students who were severely emotionally disturbed. In 1992, Petitioner transferred to Lely Elementary School, where she continued to work as the aide to the teacher who had taught severely emotionally disturbed students at Gulf View. This teacher now had a class of emotionally handicapped students. Starting in August 1992, when Petitioner obtained her first temporary two-year teaching certificate in middle school math, she worked out-of-field at Lely as a teacher for emotionally handicapped students. She continued to teach at Lely through the end of the 1994-95 school year. At the end of the 1994-95 school year, the Collier County School District terminated the emotionally handicapped unit at Lely and asked Petitioner to teach in varying exceptionalities at Manatee Elementary School for kindergarten through fourth grade. Agreeing to do so, Petitioner began the 1995-96 school year at Manatee, but transferred back to Lely when, after a couple of months, the Collier County School District reopened the emotionally handicapped program at Lely. Petitioner finished the 1995-96 school year at Lely. At this point, Petitioner had worked nine years for the Collier County School Board: five years as an aide and four years as a teacher of emotionally handicapped students. Petitioner had worked in the classroom for all but the first of these years. Prior to the start of the 1996-97 school year, Petitioner received a letter from the Collier County School District stating it was not renewing her contract. The letter contained no explanation for this action. However, Petitioner's second temporary certificate had expired, and the Collier County School District may have been concerned about Petitioner's certificate status. The record does not disclose Petitioner's employment during the 1996-97 school year. However, since November 1997, Petitioner has been employed by the David Lawrence Mental Health Center. She works as a behavioral technician at Golden Gate Middle School, which is a school of the Collier County School District. Petitioner works on campus as a peer group counselor with boys who have been removed from school for behavioral problems. Early in 1996, Petitioner had inquired of Respondent as to the status of her two-year-old application for a permanent certificate. There is no evidence in the record to suggest that Respondent had taken any of the actions contemplated by Section 120.60, Florida Statutes, that would prevent licensure by default on the January 1994 application. To the contrary, the most reasonable inference from the long period of inaction is that Respondent did not request additional information within 30 days of receipt of the January 1994 application. It is obvious that Respondent did not grant or deny the January 1994 application within 90 days of receiving it. In response to Petitioner's effort to reactivate her application, by letter dated March 1, 1996, one of Respondent's investigators requested from Petitioner a copy of the initial police report and her statement. In response to some information that Petitioner forwarded and possibly her complaint as to the slow progress in reviewing her application, Respondent's investigator wrote Petitioner a letter dated April 8, 1996. He wrote that he could "give no explanation as to why you were not contacted about this incident in 1994 since you did acknowledge it on your application. Applicants are required to acknowledge arrest/revocation incidents on all applications." The April 8 letter restates requests, made only weeks earlier, for a statement of Petitioner and a copy of the police report. The July 1994 application discloses that Petitioner had received a "citation" for an open house party, and the court had "terminated" the case withholding adjudication. The two quoted statements in the April 8 letter are important on the issue of licensing by default. These statements reveal that the subject application disclosed the open house party and that Respondent had not requested information of Petitioner for over two years. By letter dated March 29, 1996, Petitioner provided Respondent's investigator, as he had requested in his April 8 letter, with a statement explaining the court documents that evidently had already been sent to Respondent. This letter either was misdated "March" when it should have been "April" or it responded to the earlier request--still in 1996--for additional information. In part, Petitioner's March 29 letter states: The open house charge was issued four months after a teenager was taken to the hospital for stomach problems and it was discovered that alcohol had been consumed. There had been a total of five teens at my house on that night, two were my children. All four students drove/accompanied the ill one to the hospital with my knowledge and permission, with no thought or suspect [sic] of alcohol use by any of us. The incident involving the "open house party" took place during the evening hours of New Year's Eve, 1992, and predawn hours of New Year's Day, 1993. The only persons in attendance were Petitioner, her two sons, N. and M.; N.'s girlfriend, S.; and a couple of boys who were M.'s friends. N. and S. were 16 years old, and M. and his two friends were 14 years old. For a couple of months ending the preceding Thanksgiving, S. had lived with Petitioner and her two sons. Her mother had told her to leave her house for undisclosed reasons. Petitioner, who had known S. as a student when Petitioner taught at Gulf View Middle School, agreed to allow S. to live with her family, but ended this arrangement when S. and N. began sleeping together over Petitioner's objections. S. then moved in with an aunt. S. and N. continued to date after she moved in with her aunt. During Christmas break, N., M., and M.'s two friends had a soccer tournament in Miami, and Petitioner drove them back and forth each day of the tournament. On the final day of the tournament, New Year's Eve, S. attended the games with Petitioner and N.'s games. When the games ended, Petitioner drove N., M., S., and M.'s two friends back to Naples, where they arrived sometime around 10:00 p.m. On New Year's Eve, after returning home, N. frequently left the house to visit a girl babysitting across the street. In general, Petitioner and the children watched television and played cards. From this point, the material points of the stories begin to diverge. Only two of the six witnesses testified: S. and Petitioner. Petitioner may reasonably have elected not to require that her two sons testify in order to avoid the reopening of a more serious matter that developed later that evening. Respondent could not secure the testimony of M.'s two friends, one of whom reportedly resides in New York and the other in Orlando. S. testified that she drank openly in front of Petitioner to the point that she became so drunk that, on a scale of 0-10 for impairment, she was a 10. She described her behavior as "loud and obnoxious." She testified that she was falling down. Interestingly, S. testified on direct examination that she did not recall if M. or Petitioner drank, but N. was drinking. She later testified that everyone, including M., was drinking, but immediately changed this testimony back to the original assertion that she did not know if M. was drinking. S. admitted that her recollection of the events of the evening was highly imperfect and did not include such memorable events as a trip to the hospital later in the evening after midnight. Also, S. is biased against Petitioner. Initially, she testified that Petitioner had known that she and N. were sleeping together--knowing that such an assertion would paint Petitioner in a bad light--but later she testified that she and N. had surreptitiously entered each other's bedroom unnoticed by Petitioner. Petitioner testified that, before midnight, she discovered that a bottle of vodka was down "a little bit" beyond the level that Petitioner had left it, after consuming two drinks. Petitioner testified that she announced to the group that she was putting the bottle back and no one was to drink anything. Petitioner knew at the time that S. had already had an extremely serious alcohol-abuse problem. Her father had died from a drug overdose, and her mother was an alcoholic. While in sixth grade, S. had been in the alcohol rehabilitation program at the David Lawrence Mental Health Center due to her drinking. Petitioner testified that the boys were not acting different during the evening, but S. was. Petitioner testified that S. was giddy, falling down, complaining, prior to midnight, of physical illness. S. began to vomit repeatedly. Petitioner helped her shower, gave her some ice, and then put her to bed in the still-empty bedroom that she had vacated a month earlier. Initially, Petitioner had thought that S. was simply trying to get attention, perhaps jealous of N.'s visits to the girl babysitting across the street. When the vomiting began, though, Petitioner realized that S. was not acting to get attention. At some point after Petitioner had gone to bed, after having gotten S. to bed, M. entered S.'s bedroom and had sexual intercourse with her. S. testified that the sex act was nonconsensual. At some point well after the act of sexual intercourse between S. and M., N. determined that S. was so ill that she had to go to the hospital, so he informed his mother of the fact. Fatigued from her trips to Miami, Petitioner gave N. the keys to her car, and, with M. and his two friends, N. drove S. to the hospital, where she did not require much, if any, treatment for her intoxication and evidently received no treatment for the sexual assault of which she later complained. The evidence fails to establish that N. had drunk any alcoholic beverages that evening. Moreover, even if N. had drunk alcoholic beverages, there is no evidence that, when Petitioner gave him the keys to the car, he was in any way impaired. The next morning, after leaving the hospital and returning to her aunt's home, S. told her aunt that M. had raped her. S. later filed a complaint with law enforcement alleging sexual battery, but she dropped the charges five weeks later. It is impossible on this record to determine whether the act was consensual or not, although S. clearly believes that it was not. Relatively little time in the questioning of S. was devoted to this aspect of her testimony. M., who has not admitted even that he had sexual intercourse with S., did not testify. As already noted, S.'s credibility is undermined by her poor memory and bias. About six months later, also while intoxicated, S., now 17 years old, was sexually assaulted by her mother's ex- boyfriend, who was nearly 30 years old. She filed and, two years later, dropped charges of sexual battery in this case too. Petitioner finds this and the earlier incident involving M. as part of a pattern of behavior in which S. files false charges of sexual battery in remorse after drunken sexual intercourse. Perhaps, but on this record, it is as likely that the intoxicated S. is sexually exploited by predatory males, presses charges, and then lacks the strength to pursue the matter. Although any sexual intercourse between 14-year-olds and 16-year-olds is not conducive to their health or welfare, this record does not permit a finding that the much more grave behavior--rape--took place in this case. Further, nothing in the record suggests that Petitioner should reasonably have anticipated that M. would have sexual intercourse with S. later in the evening. To the contrary, S. had recently lived with the family for a couple of months without any such problem with M. or a relationship between S. and M. About ten days after the incident, Petitioner spoke with an investigating officer from the Naples Police Department. She said that she might have used "poor judgment" in allowing the minors to drink "a little" alcohol. She added, in her statement to the officer: . . . I spent most of the evening with [S.], put her in the shower, got her out of the shower. She threw up outside; she threw up in the bathroom; she threw up in the waste basket. It was excessive, you know. I did not understand it. I did not think she could have been drunk from what she had to drink unless you say--you say, you know that she is allergic. Petitioner later tried to explain that her reference to what S. had drunk that night was based on information obtained after the night in question. However, the statement does not support Petitioner's explanation of after-acquired information. She said, "I did not think she could have been drunk from what she had to drink . . .." The tense suggests that the thought was contemporaneous to the events taking place that evening. Given Petitioner's knowledge of S.'s serious problems with alcohol, Petitioner could not have failed to make the connection between S.'s drunken-like behavior, including vomiting, and her consumption of alcohol, although this does not mean that Petitioner had witnessed S. consume more than a small amount of alcohol. More in demeanor than in testimony, Petitioner displayed no great fondness for S. This is not surprising, given the complaint that S. made to the police. However, it is likely that Petitioner's relationship with S. had deteriorated by the time that Petitioner, having discovered that S. and N. were sleeping together in Petitioner's house, had told her to leave. By New Year's Eve, Petitioner was unlikely to cater to S. by serving her any alcohol or even tolerate her consumption of anything near the amount of alcohol it took to get her as sick as she did. It is more likely that Petitioner did watch S., and possibly N., consume "a little" alcohol, but then S. consumed much more alcohol without Petitioner's knowledge. When Petitioner later was charged with an open house party, she retained an attorney and decided to plead no contest to the charge. Withholding adjudication of guilt, the court imposed a fine of $100 and six months' probation and required Petitioner to be evaluated by a court counselor. Although Petitioner testified that she believed that M. had not had sexual intercourse with S. that evening, she wanted to spare M. the turmoil of a trial, which undoubtedly would have raise the issue of his actions with S. on that night and possibly exposed him to criminal liability. The sole problem with Petitioner's behavior on New Year's Eve is that she failed to take reasonable steps to stop S. from drinking the little quantity of alcohol, of which Petitioner was aware that S. had drunk. Many options were available to Petitioner: taking S. to her aunt's home, insisting that S. go to bed in Petitioner's room, removing all known alcohol to Petitioner's bedroom, or discarding all known alcohol. However, although these options would have protected Petitioner from criminal liability, none--not even the first-- would have necessarily prevented S. from drinking that evening. Petitioner's failure has a bearing on her liability for the violation of the law prohibiting open house parties, although, for reasons explained in the conclusions of law, her plea and the court's withholding of adjudication cannot serve as a basis of denial, in themselves. Petitioner's failure also does not constitute a failure to protect a student. Petitioner was not in the relationship of a certificate-holder dealing with a student when the activities took place, in Petitioner's home, on New Year's Eve. S. was present due to her relationship with N. and secondarily her relationship with Petitioner's family. This relationship was not a teacher-student relationship. Petitioner's sole role on the evening in question was as a parent or a parent to a friend of a guest in the home. The failure to prevent S. from drinking a little alcohol on New Year's Eve and her subsequent plea of no contest to a violation of the law against open house parties-- which, though perhaps a plea of convenience, was certainly warranted under the facts--do not constitute a failure of moral character, which requires consideration of a broader range of behavior. Petitioner has worked nine years for the Collier County School District without any reported problems. During the four most recent of these years, she has worked in the classroom with temporary certificates issued by Respondent, which granted the second temporary certificate following disclosure of the arrest for the open house party and, as noted in the conclusions of law, following a determination that Petitioner had sufficient good moral character to work with schoolchildren. After losing her job with the School District, Petitioner found a job with a mental-health center that effectively returned her to the classroom for at least one, and possibly two, years, including the most recent 1997-98 school year. Again, there have been no reports of problems. On this record, Petitioner has demonstrated sufficient good moral character to qualify for a permanent certificate. The statement in the March 17, 1996, letter that there was "no thought or suspect of alcohol use by any of us" means that Petitioner, her sons, and M.'s two friends did not suspect S. of drinking alcohol. This statement was untrue. No later than when S. started vomiting, Petitioner knew that S. had consumed alcohol. However, Petitioner had disclosed the incident. When considered in the larger context of the underlying disclosure, this isolated misstatement--the product of two years' self-justification--does not constitute dishonesty or fraud, which are better illustrated by an attempted concealment of the incident. One more matter requires factfinding. During the deposition of Petitioner, which Respondent's counsel conducted by telephone, Petitioner's counsel, who was present with Petitioner and the court reporter, passed notes to his client during the questioning without disclosing to Respondent's counsel that he was doing so. The affidavit of the court reporter asserts uncontrovertedly that counsel passed repeated notes to Petitioner during the deposition, sometimes while Petitioner was in the middle of an answer. As noted in the conclusions of law, this practice is an abuse of discovery. As for findings of fact, two points emerge. First, the note-passing has not undermined Petitioner's credibility as a witness. It is impossible to find a loss of credibility without knowing at least the questions or answers during which counsel passed notes to the witness. In passing, the administrative law judge agrees with Petitioner's counsel that it was unnecessary to bring up the gesture made by Petitioner in the direction of the telephone-- i.e., directed toward Respondent's counsel. Coarseness in the relative privacy of a deposition room occupied only by Petitioner, her attorney, and a court reporter is not grounds for denial. Such a gesture is no more likely to reveal a lack of credibility than an excess of frustration coupled with a problem in impulse-control that, in this setting, is minor. If frustration and minor impulsivity, these characteristics would not assist the factfinder in his factfinding responsibilities. Second, the note-passing, while an abuse of discovery, was almost certainly not material. The administrative law judge has resolved most of the nonultimate factual disputes in this case favorably to Respondent, such as whether Petitioner was aware that S. had consumed any alcohol. It is unlikely that a deposition free of note-passing would have resulted in the resolution of the remainder of the direct or ultimate factual disputes favorably to Respondent. As to direct facts, it is highly unlikely that, absent a timely note, Petitioner would have testified that she watched S. drink herself sick or that she knows that M. raped S. As to ultimate facts, it is equally unlikely that, absent a timely note, Petitioner would have admitted, for instance, that her acts and omissions constituted a lack of good moral character or that her misstatement in the March 17 letter constituted dishonesty or fraud.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a five-year permanent teaching certificate. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998. COPIES FURNISHED: David Brooks Kundin Attorney at Law Post Office Box 430 Tallahassee, Florida 32302 Matthew K. Foster Brooks LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent (a) pushed a ten-year-old student against a wall and struck his arm with a closed fist; and/or (b) falsely answered a question on the application for renewal of her educator certificate, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's educator certificate.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules. Respondent holds Professional Educators Certificate 730057 (certificate). Valid through June 30, 2018, the certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Cooperative Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (ESE). At all times material to this proceeding, Respondent was employed as an ESE teacher at WHGES in the Miami-Dade County School District (District). Respondent has been employed by the District in a variety of capacities for a total of 25 years and in a teaching capacity for the last 17 years. The charges against Respondent arise from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. On that date, E.A. returned to Respondent's classroom after an in-school appointment with his therapist. Rather than entering the classroom, E.A. stood outside the closed door and knocked on the door intermittently for approximately five to ten minutes. Several students in the classroom went to the door to tell E.A. that the door was unlocked and to come in. When E.A. continued to knock on the door and disrupt the classroom, Respondent went to the door. Respondent was able to open the door part of the way and get her hand and part of her body in between the door and the door frame when E.A. pushed the door closed on Respondent and held it shut with his foot. Respondent shouted at E.A. to open the door and said repeatedly, "it's the teacher, open the door!" When E.A. removed his foot from the door, the door swung out towards the wall, trapping E.A. in a corner between the open door and the wall. Respondent yelled at E.A. to get into the classroom and struck him on the upper arm at least two times. Respondent also picked up E.A.'s backpack and threw it in the classroom. According to Respondent, she made physical contact with E.A. when he raised his arm and she believed he was about to hit her. Respondent claims she used a "defensive move" to prevent E.A. from striking her. Respondent's testimony is inconsistent with that of E.A. and several students who witnessed the event, and deemed not credible by the undersigned. According to E.A., Respondent definitely meant to hit him although he was not hurt physically by the contact. E.A. entered the classroom crying because he was very embarrassed that this occurred in front of his fellow classmates. This altercation was witnessed by another teacher who reported it immediately to administration. Assistant Principal Mary Pineiro (Pineiro) was sent to the classroom to determine what happened. Pineiro observed E.A. crying and holding his arm. Pineiro heard another student say, "I cannot believe you did that to my friend," to Respondent. Respondent refused to answer Pineiro's questions regarding the incident. The teacher and other students who witnessed the event were sent to the office and asked to provide written statements of what they observed. The statements were provided independently and students were separated when they wrote their statements. They were not told what to write and their statements were not edited. The statements corroborated E.A.'s version of events that he was playing around outside the door when Respondent came out and struck him on the arm several times. On February 15, 2012, Respondent was suspended without pay from her teaching position for 25 days which was later upheld after a formal hearing (DOAH Case No. 12-0808TTS). By certified letter dated March 14, 2012, Petitioner informed Respondent that PPS opened a case to investigate her use of inappropriate discipline.2/ On August 9, 2012, another certified letter was sent from Petitioner to Respondent advising that Petitioner had "concluded its preliminary investigation" and wanted to provide Respondent an opportunity to review the materials and respond to the allegations. The letter states that Respondent is not required to respond and that an informal conference was scheduled for August 29, 2012. Respondent wrote back to Katrina Hinson (Hinson) with PPS on August 31, 2012, thanking PPS for "putting me on this pedestal of honor" and giving her the opportunity to refute the allegations of misconduct. Respondent asserts in this letter that she is the victim of a "mafia-type, posse ring" and the victim of a conspiracy including Pineiro and others at WHGES. Rather than respond to the allegations of misconduct, Respondent's three-page letter appears to be a plea for help from Respondent to protect her teaching position from the "obsessive hate" of the alleged conspirators. Petitioner sent a memo to Respondent on August 30, 2012, enclosing a copy of the materials assembled during the preliminary investigation conducted by PPS. The purpose of this memo appears to be to notify Respondent to keep the materials confidential during the proceedings. This memo and the materials were received by Respondent on September 8, 2012. On September 17, 2012, Respondent wrote another letter to Hinson at PPS in which she states, "to be in compliance with your office's investigation, I am writing for professional guidance in regard to curtailing the constant bare-faced humiliation and bait-and-switch torture by Dade County Public School's [sic] employees, as my soul is longing for peace to have solace to grieve my loss in every respect of life fulfillment." Respondent asks whether PPS is part of the DOAH process, complains about the union attorney and the school board attorney and asserts that the "mafia-type posse wants me to be on an accelerated program for homelessness and malnutrition." This letter, and its reference to an "investigation," is not a response to allegations of misconduct but rather appears to be Respondent's attempt to seek help from PPS with regard to the DOAH proceeding. The final hearing in the DOAH proceeding regarding Respondent's suspension without pay occurred before Administrative Law Judge Stuart M. Lerner on September 24, 2012. On October 1, 2012, Respondent wrote another letter to Hinson which states in the opening paragraph: To be in compliance with your office's investigation, I am writing for professional guidance in regard to my mental faculty due to my mild malnourished and homeless states, as I am constantly being deprived of rightful income due to a group of vicious, hateful, and jealous so-called professional educators and so-called professional administrators of Dade County public schools. This letter states, "I am being sanctioned (mentally slaved [sic]) that if I return to employment of Dade County Public Schools. I cannot communicate further with your office, neither through writing or telephone." In this letter, Respondent asserts that E.A. and the student witnesses were "coached to give false witness against me." Regarding the incident with E.A., Respondent states, "the student kidnapped me between the door and the door jamb, and battered me with the door to my head and upper torso, that left me with a mild head trauma." A similar letter was written by Respondent to Hinson on October 5, 2012. Respondent does not mention any "investigation" but again asks for help from Hinson stating: May you please go another extra mile to help me? I beg of you. My grasp to hope is weakening as my resilience to these evil ones has been for many, many years. They have cornered me by attacking my every phase of bottom line. Please, do not allow evil to have dominion over good. A final letter by Respondent to Hinson was written on October 19, 2012, in which Respondent complains that she is being unfairly harassed by the principal at her new assigned school, Aventura Waterway K-8 Center. Notably, Hinson did not reply to any of the correspondence from Respondent. According to Hinson, PPS has no authority to address concerns or complaints about harassment or discrimination. This information was not communicated by PPS to Respondent. What is clear from these letters is that Respondent had no understanding that she was under investigation by DOE. Rather, Respondent erroneously believed that PPS would intervene on her behalf with regard to her then-pending matter before DOAH or with her assigned schools. The final order upholding Respondent's suspension without pay was issued by the District on February 13, 2013. Respondent alleges that, at that time, she was advised by her union representative that the matter was concluded and that she did not have to worry about this incident any further. On March 18, 2013, Respondent filed her annual application for renewal of her educator's professional certificate with the District. In response to the question, "Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for professional license or certificate?" Respondent answered "No." Respondent certified by her application signature that all information provided in the application was "true, accurate and complete." When the District received and reviewed the application, a computerized alert was received from Petitioner indicating that an investigation was pending with PPS. Jose Garcia, Certification Officer for the District, notified Respondent by memorandum dated April 17, 2013, that Respondent needed to return a corrected application. Respondent did not believe she was under investigation and thought that by indicating "yes" on the form, she would be incriminating herself. Respondent wrote Governor Scott an email on May 17, 2013, alleging that PPS and the District Certification Office were wrongfully preventing the renewal of her application in an attempt to prevent her from working with children with disabilities. As a result of this email, the alert was removed from Respondent's certificate and it was reissued by the District. Respondent never acknowledged the DOE investigation in her application for renewal. Petitioner considers Respondent's refusal to acknowledge the pending PPS investigation as an attempt to renew her certificate by fraudulent means. The Administrative Complaint charges Respondent as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(a), Florida Statutes, in that Respondent obtained or attempted to obtain a teaching certificate by fraudulent means. COUNT 2: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 3: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 4: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. COUNT 6: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings. Respondent filed a Motion for a Formal Hearing on December 26, 2013, with the EPC in which she disputed all of the allegations of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the incident with E.A., with a copy to be placed in Respondent's certification file, and placing Respondent on probation for a period of 90 school days. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2015.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Each of the three petitioners in this proceeding timely applied to the Psychological Services Office of the Department of Professional Regulation for licensure as a Mental Health Counselor without examination. Within ninety days of receipt of the complete information required from each applicant, the Psychological Services Office denied their requests for licensure by exception on the ground that they had not received a master's degree from a college or university approved by the United States Department of Education (U.S. DOE), as required by Section 490.013(3)(b), Florida Statutes, (Chapter 82-179, s. 37, Laws of Florida 1982) Each petitioner received a master's degree from International College in Los Angeles, California. International College has administrative offices in California, but has no campus and no library. Its graduate degree program is based upon a tutorial process via a learning contract prepared by a tutor and a student. International College is approved by the State of California Department of Education. It is eligible for institutional financing administered by the U.S. Department of Education and its students are eligible for federal funding. International College is not accredited by an accrediting association approved by the U.S. DOE, though it is currently seeking such accreditation. The U.S. DOE, in accordance with its policy and statutory mandate of non-interference with the internal affairs of educational institutions, does not "approve" individual colleges or universities. It does make determinations of institutional eligibility for federal funding and it also determines the eligibility for listing in a publication entitled Education Directory Colleges and Universities. This publication is a standard federal publication for use by the general public and other federal agencies. It contains a listing of degree- granting institutions with informational data on the institutions listed. It includes accredited post-secondary institutions, as well as those non-accredited universities or colleges holding the three institutional certification. The latter category includes colleges or universities which have had students transfer to three institutions which are accredited by a nationally recognized accrediting agency. International College is listed in the latest edition of the Education Directory - Colleges and Universities as the holder of a three institutional certification. Listing in the Directory does not establish eligibility for federal funding and does not otherwise constitute an "approval" by the U.S. DOE, other than an approval" or qualification for listing in the Directory. That publication is merely a compilation of ready reference to over 3,000 institutions of higher education. While the U.S. DOE does not "approve" colleges or universities or otherwise conduct an independent investigation or analysis of any college or university, it does recognize accrediting agencies pursuant to published criteria and maintains a published listing of nationally recognized accrediting agencies.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the applications of petitioners Sheryle Rubin Baker, Rose Marie Anderson, a/k/a Rie C. Anderson, and Carmella Christopher Kelsey for licensure as mental health counselors by exception, pursuant to Section 490.013(3), Florida Statutes Chapter 82-179, s. 37, Laws of Florida 1982), be DENIED. Respectfully submitted and entered this 13th day of September, 1983 in Tallahassee, Florida. DIANE D. TREMOR, 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 13th day of September, 1983. COPIES FURNISHED: Dave Webster, Esquire 9385 North 56 Street Suite 301 Temple Terrace, Fla. 33617 Drucilla E. Bell, Esquire Deputy General Counsel 130 North Monroe Street Tallahassee, Fla. 32301 Secretary Fred Roche Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
