Findings Of Fact By letter dated February 4, 1976, the Board denied the Petitioner's application for licensure as a psychologist in the State of Florida (Petitioner's Exhibit 1). As grounds for its denial the Board stated that the Petitioner's doctoral degree does not meet the requirements of Florida Statutes Chapter 490.19(1)(d). Petitioner received a master's degree in clinical psychology from the University of Tennessee, Knoxville, Tennessee in March, 1949. A transcript of the Petitioner's record at the University of Tennessee was received in evidence as Petitioner's Exhibit 2. Petitioner took two academic quarters of course work at the University of Tennessee, Knoxville, and two quarters at the University of Tennessee, Memphis, School of Medicine, Department of Psychiatry. While at Knoxville the Petitioner completed, inter alia the following courses: Philosophy 401, a course in esthetics; Psychology 431 and Psychology 432, courses in clinical psychology with an emphasis on testing materials; and Psychology 542, a course in advanced statistics. While at Memphis the Petitioner completed the following courses: Psychiatry 403, a course in fundamentals of human behavior; Psychology 461, a course in applied psychological psychology; Psychology 651, a course in which clinical practices were demonstrated and discussed; Psychology 681, a practicum course in testing, diagnosis, and evaluation of patients at the psychiatric hospital; Psychology 594, a course in advanced testing techniques; and Psychology 682, an additional practicum course. In addition to the course material Petitioner completed a thesis, and oral examinations. The Petitioner then completed an internship at the University of Tennessee, Department of Psychiatry, which is called the Gailor Psychiatric Hospital. Following her internship the Petitioner joined the staff at the Gailor Psychiatric Hospital, where she worked for four years. During the fall of 1967 the Petitioner attended George Washington University. A transcript of her record at George Washington University was received in evidence as Petitioner's Exhibit 4. Petitioner took the following courses: Learning Problems and Disabilities, a course on how to teach and handle misbehaving, disturbed children; and the Adolescent in School and Work, a course dealing with behavioral adjustment of adolescents. Before she could complete a degree program at George Washington, the Petitioner's husband was relocated, and she moved to Las Alamos, New Mexico. During 1970 the Petitioner enrolled in the University of New Mexico in Albuquerque, New Mexico. Petitioner entered the College of Education, Department of Guidance and Counselling. Petitioner was seeking a degree in clinical psychology. There is a Department of Psychology at the University of New Mexico, but the program in that department dealt almost exclusively with experimental psychology, a program in which the Petitioner had no interest. The transcript of the Petitioner's record at the university of New Mexico was received in evidence as Petitioner's Exhibit 5. During the spring academic quarter of 1970, the Petitioner took a workshop course which focused upon working with children who have learning disabilities. During the summer academic quarter of 1970 Petitioner took a course dealing with the treatment of special education children in the regular classroom, and a seminar which dealt with education and treatment of neurologically impaired children. During the fall, 1970 academic quarter Petitioner took a course in group techniques for guidance; a course dealing with the education of emotionally disturbed children; and an advanced course dealing with education and treatment of neurologically impaired persons. During the spring academic quarter, 1971 the Petitioner took a course in techniques of counselling, an advanced practicum course in guidance and counselling, and an additional course in working with physically and neurologically impaired persons. During the summer quarter, 1971 Petitioner took a course titled "Research Design and Statistics". During the fall quarter of 1971, the Petitioner took a course on techniques of parent and teacher counselling, and a course on advanced theories of counselling and psychotherapy. During the spring quarter of 1972, the Petitioner took an additional advanced practicum in counselling and guidance. In addition to her course work the Petitioner completed a dissertation. The Petitioner's dissertation was a study of the way school counsellors view their work, both as they actually perform it and as they ideally perceive it; and the way students view what counsellors do, both in reality and ideally. Petitioner received a Doctor of Philosophy degree from the University of New Mexico. Her degree was labeled a degree in Pupil Personnel Services, which is an umbrella degree for all doctoral programs in the School of Education. Petitioner's major field of study was titled Counselling Psychology. No program in the University of New Mexico School of Education was approved by the American Psychological Association at the time that Petitioner was at the University of New Mexico, and no program has been approved since that time. The course of study undertaken by the Petitioner at the University of New Mexico is not a program with a standard of training comparable to universities having programs approved by the American Psychological Association. Petitioner's program was primarily limited in scope to one specific facet of a general program in psychology, that being school guidance and counselling. Some of the courses taken by the Petitioner included aspects of a general course in psychology, but the courses were not designed to provide a comprehensive background in psychology. The post-graduate programs pursued by the Petitioner prior to her enrolling in the University of New Mexico do not adequately fill the void. Petitioner's course work at the University of Tennessee, and at George Washington University does not provide her with a comprehensive academic background in psychology.
The Issue Whether the written statement that Respondent gave on September 17, 1998, at the request of Florida Department of Law Enforcement (FDLE) Special Agent John Subic was voluntary and therefore may be used by Petitioner to establish Respondent's guilt of the charge in the Administrative Complaint issued against him.
Findings Of Fact Based on the evidence adduced at the October 10, 2003, hearing, and the record as a whole, the following findings of fact are made: John Subic is now, and has been for the past ten years, a special agent with FDLE. On September 17, 1998, Special Agent Subic was working out of FDLE's Miami Regional Office under the supervision of Special Agent Supervisor John Coffey. As part of his investigation of a "large drug conspiracy" involving "3,000 pounds of cocaine," Special Agent Subic was looking for a fugitive, Alejandro Rota, who was wanted for his participation in the conspiracy. Mr. Rota had just been released from the Miami-Dade County Jail (County Jail) after having been arrested on an unrelated misdemeanor charge. Inasmuch as Mr. Rota had "fled" before "recovering his property," Special Agent Subic had instructed personnel working in the County Jail's "property room" to notify him immediately if Mr. Rota returned to claim his property. In the late afternoon on September 17, 1998, Special Agent Subic received a telephone call from a County Jail "property room" employee advising him that "a person was there, fitting the general description of [Mr. Rota, seeking] to recover [Mr. Rota's] property."2 Special Agent Subic made the reasonable request that the person be detained. Special Agent Subic and his supervisor, Special Agent Supervisor Coffey, then drove in separate vehicles to the County Jail to investigate. Special Agent Supervisor Coffey arrived at the County Jail first. Special Agent Subic joined him shortly thereafter. Special Agent Subic knew immediately, upon first seeing the individual that been detained pursuant to his request, that that individual was not Mr. Rota. Special Agent Subic handcuffed (but did not arrest) the detainee. He did so because he believed, reasonably, that there was a possibility this individual, who had presented to County Jail personnel a property receipt belonging to Mr. Rota in an attempt to obtain Mr. Rota's property, was guilty of "aiding and abetting a fugitive," and he wanted to look into the matter. As Special Agent Subic learned when he asked for identification, the detainee was Respondent. At the time, Respondent was employed by the Florida Department of Corrections as a correctional officer,3 and he so advised Special Agent Subic. Special Agent Subic told Respondent that Mr. Rota was a "fugitive [involved in] a very large drug case"4 and that Special Agent Subic "wanted him [Mr. Rota] very badly." Special Agent Subic advised Respondent that Respondent "had an opportunity to help himself out" if he led Special Agent Subic to Mr. Rota. Special Agent Subic repeated this advisement on several occasions during the time he was with Respondent that day. At no time did Special Agent Subic "say what that help was" that Respondent would receive if he assisted in Mr. Rota's capture. Respondent, initially, appeared to Special Agent Subic to be "quite apprehensive"; however, by all outward appearances, Respondent quickly calmed down. "[W]ithin a few minutes [after making contact with Respondent], [Special Agent Subic] was looking at [Respondent] as a cooperator, not as a suspect,"5 so he took the handcuffs off of Respondent. Respondent told Special Agent Subic that "he [Respondent] and a friend of his had been working out at a gym [where] they [had] met [Mr.] Rota and that [Mr.] Rota had asked [Respondent] to come pick [Mr. Rota's] property up [at the jail]." Respondent identified Mike Mila as the person who had accompanied him to the jail (in Respondent's vehicle, a 1997 Toyota 4Runner) and driven off in the vehicle when County Jail personnel detained Respondent. At Special Agent Subic's request, Respondent telephoned Mr. Mila.6 "[A] short time later," at approximately 5:20 p.m., Mr. Mila arrived at the scene "in a vehicle [a 1997 Toyota 4Runner] [Respondent] stated was his." Special Agent Subic then spoke with both Respondent and Mr. Mila in an effort "to determine who [had] actually [been] in the vehicle when it [had] left the jail" earlier that day. Upon questioning, Respondent changed his story and told Special Agent Subic that Respondent's brother, not Mr. Mila, had accompanied Respondent to the jail and then fled the scene in Respondent's vehicle. Special Agent Subic also asked Respondent "about how [Mr.] Rota would contact him." Respondent, in turn, showed Special Agent Subic, on Respondent's beeper, the "specific code" that Mr. Rota used to contact Respondent. Special Agent Subic then asked Respondent, "Mind if I look in your vehicle?" He added, "You don't have to let me." When Respondent said that he did not mind, Special Agent Subic inquired, "Are you sure?" and reiterated that Respondent could decline his request. Respondent responded by "nonchalant[ly]" telling Special Agent Subic to "go ahead" and search. Respondent, through his spoken words,7 freely and voluntarily gave Special Agent Subic permission to search his vehicle. His consent was given without coercion or duress and did not represent mere acquiescence to police authority. Mr. Mila was not "in the vicinity" of the vehicle at the time Respondent gave his consent. He and Respondent had been "separated" by Special Agent Subic and Special Agent Supervisor Coffey. After having received Respondent's permission, Special Agent Subic searched Respondent's vehicle. In the glove compartment of the vehicle, Special Agent Subic found a "small package of [pink] pills." He showed them to Respondent and asked "what they were." At first, Respondent claimed that "he didn't know." Seconds later, after Special Agent Subic told Respondent that he was going to "send them to the lab and the lab [would] tell [him] what they [were]," Respondent admitted that the pills "were steroids for his use." Special Agent Supervisor Coffey then asked Respondent and Mr. Mila if they would "voluntarily go to the FDLE office." Respondent was told that he was not under arrest and that he was "free to leave." At no time did Special Agent Subic indicate that he would "throw out those pills." He did tell Respondent that the "only way [Respondent] could help himself out [was] to locate the fugitive,"8 but did not specify the "help" Respondent would receive. Both Respondent and Mr. Mila voluntarily agreed to go to FDLE's Miami Regional Office. Special Agent Supervisor Coffey used his vehicle to transport Mr. Mila to the office. Respondent went with Special Agent Subic in Special Agent Subic's vehicle. For "safety" reasons, Special Agent Subic placed Respondent in handcuffs for the trip. Respondent sat "immediately next to [Special Agent Subic] in the passenger seat." Upon arriving at the office, Special Agent Subic took Respondent to the "squad bay," which was "just a large room with a bunch of desks [with chairs] in it." It was sometime before 7:00 p.m. when they arrived. Special Agent Subic again told Respondent that he was "free to leave." Respondent, however, chose to stay. He "sat in the chair next to [Special Agent Subic's] desk" and began talking with Special Agent Subic. Respondent thereupon gave a "third version" of what had happened earlier that day before Special Agent Subic had arrived at the County Jail. He claimed this time that it was Mr. Rota, not Mr. Mila or Respondent's brother, who had accompanied him to the County Jail that afternoon. According to Respondent, when he was taken into custody by County Jail personnel, Mr. Rota "jumped in the driver's seat [from the passenger seat] and took off" in Respondent's vehicle. A "casual" conversation between Respondent and Special Agent Subic ensued. Special Agent Subic's "primary interest" was in finding Mr. Rota and he was "trying to gain the assistance of [Respondent]" to help him accomplish this objective. Special Agent Subic's "intention was to come across as a friend" to Respondent, and he acted accordingly. Respondent remained at the office for approximately two hours. He spent less than half that time talking with Special Agent Subic. The conversation was not non-stop. "[A]t times, [Special Agent Subic] had to go out and make some phone calls." "[T]oward the end of the time that [Respondent was] there in the office," in response to Special Agent Subic's request, Respondent agreed to give a voluntary, written statement.9 Special Agent Subic asked Respondent to include in the statement "how [Respondent] came to be at the jail with Mr. Rota's property receipt" and to "indicate something about the pills" that had been found in the glove compartment of Respondent's vehicle. Special Agent Subic did not direct Respondent to use any particular "wording" in writing the statement. Respondent's written statement consisted of four pages. The first page of the written statement read as follows: SWORN STATEMENT OF WITNESS I CARLOS PINEDA, residing at . . . do hereby make the following statement at the request of John A. Subic, Special Agent with the Florida Department of Law Enforcement. I am making this official statement voluntarily. I have not been threatened or coerced, nor have I been promised a reward. I do solemnly swear that the following statement is true and correct. SEE ATTACHED HANDWRITTEN STATEMENT Respondent's name and address and Special Agent Subic's name were handwritten (by Respondent and Special Agent Subic, respectively). "SEE ATTACHED HANDWRITTEN STATEMENT" was typed. The remainder of the first page was printed. Before writing his name and address, Respondent was "given an opportunity to read" this printed material. The second and third pages of the written statement consisted of Respondent's "attached handwritten statement," which was in Respondent's own words. It read, verbatim, except for obvious misspellings (which have been corrected) and omitted punctuation marks (which have been inserted), as follows: On approximately Sept. 17, 1998, I Ofc. C. Pineda, CO I was detained by FDLE. I met up with an old friend of mine which I had not seen in about 3 months at the gym. I've known him since 1991 in which he was going to the gym. He came to me with a pink paper which stated property that he'd stored at Dade County Jail. I asked him why wouldn't he go pick it up himself. He replied, "I had a problem with my girlfriend's father. He is a City of Miami Police Sergeant. He found out I had gotten her pregnant. I was arrested by him for a misdemeanor charge. I would like for you to come with me to Dade County Jail since you might know someone there working." I agreed to go with him as a favor. He was going to sell me a good chain in his property for a good price. We met up at the gym after he had beeped from a house number that night: 225-7778. We met at the gym at 2:30 p.m. We didn't work out and he rode in my car to the jail. There, I got off and went up to the property window and asked for his belongings while he waited in the car. As soon as the officers detained me, he took off in my vehicle. He did not have my permission to take it. I was the one driving. He jumped in the driver's seat and drove off. I then spoke with FDLE. I was afraid, panicked, when they told me he came out on America's Most Wanted for 3,000 pounds of cocaine & murdering someone. I didn't know what to say but I told the truth at the end. I don't have to, but I co-operated & told them everything I knew: the car I had seen him in; the phone number he called me from: 225-7778; and the times he went to the gym: approximately about 9:30 p.m. I didn't know he was a wanted fugitive. In my car, I had some pills which I train with.[10] They are a mild testosterone enhancer steroid. I then called him from a pay phone. Mike came and picked me up in front of the courthouse in my vehicle which he had probably gotten the keys through Alex or someone at the gym. C. P. The fourth and final page of the written statement contained the following "sworn" statement signed by Respondent: I have carefully read the above statement consisting of 4 pages and I have made and initialed all necessary changes or corrections. Respondent's written statement was the product of his own free will. Special Agent Subic and Special Agent Supervisor Coffey did not make any coercive threats or promises or otherwise employ physical or psychological coercion (such as refusing to provide Respondent with something to eat or drink or to allow him to go to the bathroom) in an effort to overbear Respondent's will and get him to write this statement. They made it clear to Respondent that he did not have to cooperate with them by giving a written statement and that he was "free to leave" at any time. Shortly after giving his written statement, Respondent left the office with Special Agent Subic, who subsequently dropped Respondent off. Respondent was not arrested that evening. The "pink pills" found in the glove compartment of Respondent's vehicle were sent to the laboratory for analysis. In March of 1999, following his receipt of the laboratory test results, Special Agent Subic arrested Respondent (at Respondent's place of employment, the South Florida Reception Center) for having been in possession of a controlled substance on September 17, 1998. After being arrested and "Mirandized" by Special Agent Subic, Respondent "again said that [the pills found in the glove compartment of his vehicle on September 17, 1998] were his," claiming he had obtained them "from a friend of his at the gym that he was working out at."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission accept the undersigned's determination regarding the admissibility of Respondent's September 17, 1998, written statement15 and, should the parties be unable to agree to an "informal disposition" pursuant to Section 120.57(4), Florida Statutes, either: (a) resolve the instant controversy pursuant to Section 120.57(2), Florida Statutes, if there remain no disputed issues of material fact; or (b) remand the matter to DOAH for a "formal hearing" (held pursuant to Sections 120.569 and 120.57(1), Florida Statutes) if there remain disputed issues of material fact. DONE AND ENTERED this 22nd day of January, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of January, 2004.
The Issue The issue posed for decision herein is whether or not the Petitioner meets the educational requirements for entitlement to licensure as a psychologist. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and consideration of the Respondent's proposed memorandum, I hereby make the following relevant:
Findings Of Fact Petitioner made application to Respondent to obtain a psychology license by exception pursuant to the provisions of Section 1 of Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) At Petitioner's request, Respondent (herein sometimes referred to as the Board of Psychological Examiners or Board) reconsidered his application. It was reaffirmed that his doctoral degree was not from a program primarily psychological in nature because the program did not include at least one course in biological bases of behavior, cognitive-affective bases of behavior, individual behavior, or methodology for the application of psychological knowledge as required by sub-paragraphs (a), (b), (4), and (f), of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) Respondent presented the testimony of board member Edward Murray, Ph.D., who was received as an expert in these proceedings in the subject matter of psychology. In order to receive a license in Florida, an applicant, pursuant to Chapter 490, Florida Statutes, must receive a degree from a program primarily psychological in nature. The Board, in carrying out the statutory requirements, promulgated Rule 21U-11.05 to determine whether or not a program was primarily psychological in nature. In so doing, the Board has set forth a requirement that a full course be devoted entirely to the content of the following areas: (a) biological bases of behavior; (b) cognitive-affective bases of behavior; (c) social bases of behavior; (d) individual differences; (e) statistics; and (f) methodology and application of psychological knowledge. (TR-49) Without reciting the Petitioner's testimony, in hoc verba, it suffices to say that the Petitioner has taken several courses which touch upon some of the areas required in the above-referred rule (21U-11.05, Florida Administrative Code). However, Petitioner failed to establish that he had taken a class which was primarily in the "biological bases of behavior" as was required. Additionally, Petitioner failed to establish that he had taken a course which primarily dealt with the cognitive bases of behavior which was required in order to satisfy the requirements of subsection (2)(b) of Rule 21U-11.05, Florida Administrative Code. Further, Petitioner, while having taken several sociology courses, failed to satisfy the requirement of having taken a course which dealt primarily with individual behavior. Finally, Petitioner failed to satisfy the requirement of establishing that he had taken a course to satisfy the requirement of research methodology for the application of psychological knowledge. The Board requires one individual course in each specific area set forth in Rule 21U-11.05 and does not permit an applicant to piece together parts of several courses to satisfy the requirements. (Testimony of Dr. Murray, TR 51-54) Respondent's Position Respondent graduated from the University of Illinois with a Ph.D. in Social Psychology. Respondent's position is that, based on the numerous courses that he has taken, both graduate and post-graduate, including his years of experience in the counseling and advisory areas, he more than satisfies the requirements of Rule 21U-11.05, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a psychologist by exception be DENIED. RECOMMENDED this 29th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 29th day of July, 1983.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Employment Charge of Discrimination (Complaint) filed on March 17, 2016.
Findings Of Fact The record in this case is somewhat sketchy. Petitioner is a 51-year-old African-American female. In 2015, Petitioner was a client of Career Source Central Florida, a temporary employment agency which has a contract with Manpower, a staffing agency, to place clients in jobs on a temporary basis. Respondent is a corporation which provides a variety of services in the mental health field. The company employs persons of all national origins. One source of employees is persons referred by Manpower. Ms. Guzman is Respondent's Mental Health Targeted Case Manager Program Manager/Executive Consultant who interviewed Petitioner for a temporary position with her company. On October 19, 2015, Petitioner was hired by Respondent for 90 days as an intern in human resources. Under the terms of employment, Respondent could terminate Petitioner at any time, even the first day, if she was not performing in a satisfactory manner. If Petitioner was deemed to be a good candidate for employment, Respondent had the option to employ her on a permanent basis after her probationary period ended. Petitioner acknowledges that during her tenure with Respondent, her salary was paid by Manpower. However, Manpower was not named as a co- respondent in the Complaint. When she interviewed for the position, Petitioner was told by Ms. Guzman that the organization was bilingual, all employees were required to speak English, but she would hear a lot of Spanish being spoken. Petitioner informed Ms. Guzman this would not be a problem. She also informed Ms. Guzman that she did not speak Spanish. Ms. Guzman told her this would not be a problem. On December 8, 2015, Ms. Guzman informed Petitioner she was being terminated. According to Ms. Williams, she was told by Ms. Guzman that she was being terminated because she could not speak Spanish and her rate of pay did not match her level of experience. She was also told her job performance was less than satisfactory. Ms. Williams was upset because she had not been previously warned that her job performance was less than satisfactory or that speaking Spanish was a requirement. She also observed several other employees, including one medical doctor, who did not speak Spanish, but were allowed to use other employees as interpreters, when needed. According to Ms. Guzman, the reason for Petitioner's termination was poor job performance, and not her inability to speak Spanish. For example, Ms. Guzman noted that Petitioner had difficulty in spelling English words and she frequently needed assistance from other employees in completing her job- related tasks. Discharging Petitioner for this reason was consistent with her original terms of employment. There was no evidence, direct or circumstantial, that Petitioner was terminated because she was an African-American or because of her national origin, or that Respondent's decision to terminate Petitioner was motivated by unlawful discriminatory intent. Petitioner is currently employed by the Osceola County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 27th day of March, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of March, 2017.
The Issue The issue for consideration is whether the Petitioner, Donna B. Lopez, is qualified to sit for the examination as a mental health counselor in Florida by virtue of her education and experience.
Findings Of Fact In April, 1985, the Petitioner, Donna B. Lopez, filed an application with the Florida Board of Psychological Examiners, (Bgard), to sit for examination as a mental health counselor. In paragraph 7 of the application, which called for a listing of all post-secondary psychology related education, Petitioner indicated that she received a degree as psychologist with a major course of study in psychology from the Universidad Nacional de Rosario, Esquela de Psicologia, in Rosario, Argentina, which school was accredited by the Universidad Nacional del Litoral in the Republic of Argentina. Petitioner graduated from that school on December 30, 1971. When the application was received by the Board, it was evaluated by Ms. Biedermann, who determined Petitioner did not qualify to sit for the requested examination because the university from which she received her degree was not accredited in accordance with state requirements that the applicant have a Master's degree from a university accredited by an agency approved by the United States Department of Education. To make the evaluation, Ms. Biedermann used two documents to determine accreditation; the 1981-1982 edition of Accredited Institutions of Post Secondary Education (Programs/Candidates), a directory of accredited institutions and programs published for the "Council on Post-Secondary Education" of the American Council on Education and Accredited Post-Secondary Institutions and Programs, published by the United States Department of Education in September, 1980. Supplements to the latter are published in the Federal Register and during the evaluation, Ms. Biedermann considered not only the basic document but also the then current edition of the Federal Register. Petitioner's university was not listed as an accredited university by any of the documentation either at the time of evaluation of the application or at the time she graduated in 1971. Consequently, Ms. Biedermann advised Petitioner that her application to sit for the examination had been denied. Another reason for rejection of Petitioner's application was that Ms. Biedermann was unable to determine if Petitioner's degree was equivalent to a Master's degree in the United States. Included with Petitioner's application was a translation into English of a Spanish language document which constitutes a description of her course work, but it is not an official transcript. Nonetheless, Ms. Biedermann called the United States Department of Education to inquire if there were any schools in Argentina accredited by United States approved agencies and was advised that there were not. Petitioner attended undergraduate school in Rosario, Argentina, graduating from a five year course of study with the degree of Psychologist in 1971. Thereafter, she completed a three year internship in a mental health center in Buenos Aires during which time she did a series of rotations throughout the different departments of the center. From there she went into private practice in Buenos Aires and was a member of a psychiatric team in a hospital from 1973 through 1978. During this time she was supervised by a psychiatrist who is a member of the American Psychiatric Association. In 1979 she settled in Miami, becoming an American citizen in 1986. After her arrival, she applied to the Dade County Board of Psychologists, then the accrediting agency, and was issued an occupational license as a psychologist in late 1979 or 1980. She thereafter practiced as a psychologist in Dade County until 1981 when the Florida Legislature passed the current statute, (Section 490.005) governing the licensing of psychologists and various sub-disciplines. In the 1950's, the original Chapter 490 of Florida Statutes licensed psychologists at the Doctorate level only. In 1979 this statute sunsetted and from 1979 to 1981, at least in both Dade and Broward Counties the county occupational license was issued to almost anyone applying for it without a prior demonstration of qualification. In the memory of Dr. Jospeh R. Feist, who was instrumental in the process designed to cure this situation, approximately 800 occupational licenses were issued in the first six months of this period: a figure the same as the total number of licenses issued statewide under the prior licensing statute in the prior twenty years. In 1979, the Dade County Commission passed an ordinance to revoke the occupational licenses issued during the hiatus period and established qualifications for licensing. It also created a board to review applicants. Dr. Feist was appointed as Secretary of the board which was made up of six members, all of whom were Ph.D's. In the course of this service, Dr. Feist became acquainted with Petitioner who applied sometime during 1980. The board recommended approval of her application. In Dr. Feist's opinion, Petitioner's course work was at or beyond the Master's level in the United States. The Board, however, did not inquire into whether Petitioner's university was properly accredited here. Dr. James E. Gorney is a clinical psychologist who is also an assistant professor of psychiatry at Cornell University Medical Center. As a part of his duties, he participates in the training program for post-doctoral psychologists and for 11 years or so, has examined the transcripts of numerous individuals possessing both Master's and Doctor's degrees in psychology. He got to know the Petitioner when they were both selected to serve on a prestigious international panel in New York City made up of university teaching psychologists hand picked by the conference leaders. Dr. Gorney has reviewed Petitioner's course work and based on it and his personal knowledge of her work and experience, he is of the opinion that she possesses the equivalent of a Master's degree from Cornell. Her program far exceeds any program for a Master's degree in psychology Dr. Gorney has seen anywhere in the United States and is the equivalent of a Doctoral program. It surpasses many programs approved by the American Psychiatric Association. Every area is covered and many related areas normally covered in Doctoral programs are included providing a very broad range of experience. Dr. Gorney's opinion is reinforced and supported by the deposition testimony of Dr. Muller whose experience with Petitioner and evaluation of her credentials leads him to conclude that her course work is the equivalent of at least a Master's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application to take the examination for licensure as a mental health counselor be denied. RECOMMENDED this 28th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1987. COPIES FURNISHED: John L. Britton, Esquire BRITTON & KANTNER, P.A. Barnett Bank Building, Suite 1203 One East Broward Boulevard Fort Lauderdale, Florida 33301 Phillip B. Miller, Esquire Robert D. Newell, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Linda Biedermann, Executive Director Board of Pschological Services 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Stipulated facts: Respondent Division of Licensing received Petitioner Iaderosa's application of a Class "P" intern license on October 7, 1980. By letter to Petitioner dated November 13, 1980 Respondent stated "Your application for a Class "P" Detection of Deception Examiner/Intern license has been approved. This license will be issued upon submitting the items listed below. However, should your fingerprint card be returned by the FBI indicating that you have a previous arrest record, the Department of State reserves the right to revoke your license. Please forward the following for the issuance of your license: Fee $30 [and] Certificate of Insurance. Respondent received the requested license fee and certificate of insurance on or before April 14, 1981. Respondent notified Petitioner on June 4, 1981: "Your application for the above referenced license [Administrative Denial/Detection of Deception Intern Class 'P' license] has been denied pursuant to Chapter 493.575, Florida Statutes which states: ... 'The Department of State may take the same disciplinary actions based upon the same grounds as set forth in Chapter 493.319, Florida Statutes...'." Petitioner conducted polygraph examinations without a license. Petitioner Iaderosa was employed by the Southern Institute of Polygraph on October 10, 1980 immediately subsequent to graduation from its accredited detection of deception examiner's school. She had applied for an intern license prior thereto but had not been licensed by Respondent or received notification that her application had been approved. Her sponsor for the compulsory year of internship was Joseph M. Matthews, a licensed detection of deception examiner and the Director of the Southern Institute of Polygraph, who remained Petitioner's sponsor until April 17, 1981 when he notified Respondent of his withdrawal as her sponsor. The next month after her employment, on November 13, 1980, Petitioner received notification that her license application had been approved and would be issued upon receipt of a fee and a certificate of insurance. There was no mention of deficiencies under Section 493.565 or 493.566 relative to her application or license requirements: Petitioner commenced her employment, mistakenly believing her employer and sponsor would pay the required fee and send it to Respondent together with her certificate of insurance which had become effective September 8, 1980 (Respondent's Exhibit #4). She was provided business cards indicating that she was an examiner and account executive. She conducted polygraph examinations scheduled by her employer at the direction of and under the supervision of Matthews until she became familiar with the operation of the equipment and then conducted examinations without supervision. Petitioner left her employment with the Southern Institute in February or March of 1981 and interviewed for a job at three (3) other polygraph schools. It was brought to her attention through the search for other employment that she must have a license in her possession to conduct polygraph examinations. At that time she realized that neither she nor her employer had complied with the request to furnish the certificate and fee requested on November 13, 1980. Prior to April 14, 1981 Petitioner sent to Respondent the detection of deception intern fee of $30 together with a certificate of insurance previously requested. Petitioner gained employment with Deception Control, Inc., a business owned and operated by Charles G. Michaels, who notified Respondent on March 26, 1981 that he would sponsor Petitioner. Later, he emphasized by letter that Petitioner would not be administering examinations until she received her intern license from the Department of State. Subsequent to receipt of the fee and certificate of insurance on or before April 14, 1981 allegations were made to respondent Division of Licensing that Petitioner had removed confidential materials from the Southern Institute Of Polygraph at the time she left her employment. These allegations, together with the allegation that Petitioner had conducted polygraph examinations without a license, caused Respondent Division of Licensing to reverse its former approval of her application for licensure. On June 4, 1981 Respondent rescinded its letter of approval dated November 13, 1980 in which it had requested a fee and certificate of insurance and notified Petitioner that her application for licensure had been denied. Respondent contends that the request for license fee and certificate of insurance was a request to "supply additional information" which was not timely supplied and therefore the letter of denial was appropriate. At the hearing no evidence was produced to show that Petitioner removed materials from her former employer's offices or that she betrayed professional secrets and she denied the allegations.
Recommendation Officer recommends that the Respondent agency issue a detection of deception intern examiner's license to the Petitioner. County, Florida. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: William D. Ricker, Jr., Esquire Post Office Drawer 7028 Fort Lauderdale, Florida 33338 Assistant General Counsel Department of State R. A. Gray Building, Room 106 Tallahassee, Florida 32301 Department of State The Capitol
The Issue Whether Petitioner's application for licensure as a psychologist should be approved pursuant to Chapter 490, F.S. This proceeding commenced upon the provisional denial by Respondent Board of Psychological Examiners of Petitioner's application for licensure by exception as a psychologist under Chapter 490, Florida Statutes. The denial was based on the Board's determination that Petitioner's doctoral degree was not primarily psychological in nature in that it did not reflect coursework in biological bases of behavior as required by Respondent's Rule 21U-11.05(2)(a), Florida Administrative Code. Petitioner requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer. At the commencement of the hearing, Petitioner was advised of the procedures and her rights in an administrative hearing. She elected to represent herself ate the hearing. At the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. She submitted two composite exhibits which were received in evidence. Respondent called one witness and submitted one composite exhibit in evidence. Post-hearing submissions by the parties in the form of a Memorandum by Petitioner and a Proposed Recommended Order by Respondent have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact By application dated May 6, 1982, which was received by Respondent on May 13, 1982, Petitioner Ann M. O'Roark applied for licensure by exception as a psychologist pursuant to Chapter 490, Florida Statutes. The application reflected that Petitioner received an A. B. J. degree in journalism from the University of Kentucky in 1955, a M.Ed. from the University of Florida in 1972, and a Ph.D. from the University of Florida in 1974, with a major in Foundations of Education. She was a member of Phi Beta Kappa at the University of Kentucky, and is currently a member of various psychological associations. She was licensed as a psychologist in the Commonwealth of Kentucky in 1975. She has had extensive work experience in Kentucky, Georgia, and Florida since receiving her doctorate degree, primarily in the field of educational psychology, psychological assessment and diagnostic services, organization development consultation services, and individual and group educational/developmental services. Her application reflects that she was certified as an educational psychologist, Rank A-1, by the State of Florida in 1974. (Testimony of Petitioner, Petitioner's Exhibits 1-2, Respondent's Exhibit 1) By letter dated October 28, 1982, Respondent advised Dr. O'Roark that her application was denied for the reason that her doctoral transcript did not reflect coursework in biological bases of behavior, as required by Respondent's Rule 21U-11.05(2), Florida Administrative Code. The letter further provided Petitioner an opportunity to submit additional information concerning her doctoral program, and also advised her of her rights to an administrative hearing. Following the submission of further information by Petitioner, Respondent advised her, by letter dated October 28, 1982, that her application file, including the additional information submitted, had been reviewed, but the board reaffirmed its previous decision to deny the application. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 2) Rule 21U-11.05, F.A.C., provides that in order to be certified by the board as eligible for issuance of a psychology license by exception, an applicant must have received a doctoral degree from an accredited educational institution in a program that is "primarily psychological in nature." Such a program is defined in paragraph (2) of the rule as one that requires the successful completion of one course in each of six specified areas. One of these areas is "biological bases of behavior" and the rule provides examples of courses that qualify in such category as being "physiological psychology, comparative psychology, neuropsychology, and psychopharmacology." At the hearing, Petitioner submitted materials concerning certain courses she had taken in her doctoral program which purportedly contained from one-fifth to one-third of the subject matter in the area of biological bases of behavior. However, none of the courses deals substantially or exclusively with the area of biological bases of behavior. Most of the courses fall within other categories specified in Rule 21U-11.05(2), F.A.C. As a matter of policy, the Board in the past has not permitted an applicant to use portions of several courses to qualify as the one course required in each of the various subject matter areas. The reason for this policy is to insure that one obtains an appreciable knowledge in each of the six specified areas. (Testimony of Petitioner, Perry, Petitioner's Composite Exhibit 2) Petitioner's work as a consultant at the Albany Mental Health and Retardation Center and for the Florida Department of Transportation was characterized by officials of those organizations as very professional and successful. (Testimony of Hertwig and Kietzer)
Recommendation That Petitioner's application be denied. DONE and ENTERED this 2nd day of March, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 2nd day of March, 1983. COPIES FURNISHED: Ann M. O'Roark, Ph.D. 2904 NW 40th Place Gainesville, Florida 32605 John E. Griffin, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Jane Raker, Director Board of Psychological Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent committed the acts alleged in paragraphs 3-7 of the Administrative Complaint and, if so, whether such acts constitute violations of Subsections 231.28(1)(c) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.
Findings Of Fact The respondent holds Florida Teaching Certificate No. 259659 covering the areas of biology and science. At all times pertinent hereto, the respondent was employed as a science teacher at Franklin Junior High School in the Hillsborough County School District. In September, 1986, the Tampa Police Department received information from the principal of Franklin Junior High School and the resource officer that two teachers at the school might be involved in the use of cocaine or some other type of drug. Detective Cindy Stanbro was assigned to investigate the allegation. Detective Stanbro worked in an undercover capacity as a student intern teacher at Franklin Junior High School. Detective Stanbro was placed in the classroom of science teacher Keith Layton, who was aware of her true identity. Detective Stanbro initially reported to Franklin Junior High School on Friday, September 19, 1986. On the Friday that she reported to Franklin Junior High School, she was able to meet the respondent and Michael Behl, the two individuals who were the subjects of the investigation. Before the end of the school day, Detective Stanbro invited the respondent to go out for drinks with a group of teachers. The respondent was unable to go, but he told Detective Stanbro he would take a rain check. On the following Monday, September 22, 1986, at about 1:20 p.m., Detective Stanbro went to respondent's classroom and asked him if he'd like to go to Casa Gallardo to have a drink after school. Respondent stated that he had come to work with somebody else, so he would need a ride home. Detective Stanbro told him that she could take him home, and respondent accepted her invitation. Detective Stanbro and the respondent left the school at about 4:30 p.m. in Detective Stanbro's automobile. After stopping at a music store so that respondent could pick up some cassette tapes, respondent and Detective Stanbro went to Casa Gallardo, arriving at about 4:50 p.m. No one else joined them at the restaurant; however, backup surveillance units were at the restaurant observing Detective Stanbro and respondent. After ordering drinks and engaging in general conversation about the school and why Detective Stanbro wanted to be a teacher, Detective Stanbro brought up the subject of drugs. She asked respondent if he liked to "get high." Respondent said that he did. He said that he liked to smoke marijuana and snort cocaine. Respondent told Detective Stanbro that he had erected a partition in the back of his classroom which allowed him to look out and see his class but did not allow them to observe him. Respondent stated that he had put the partition up so that he could snort cocaine in the back of the room without the students seeing him. Respondent said that he used cocaine during fifth or sixth period because he would be mentally exhausted by the end of the day and he needed something as a "pickup." He stated he used cocaine because he didn't have a coffee maker in his classroom. During the conversation the respondent and Detective Stanbro also discussed prices paid for cocaine. Respondent told Detective Stanbro that he paid $50 for a half gram of cocaine. Detective Stanbro, who acted as if she used cocaine all the time, stated that the price was too high and told respondent that she knew a Colombian dealer from whom she could buy cocaine for $60 a gram. Respondent told Detective Stanbro that when his coke ran out, he would get Detective Stanbro to buy cocaine for him. Detective Stanbro and respondent were not together at the restaurant the entire time, since respondent went to the restroom at some point during the evening. Sergeant Cuesta, who was part of the surveillance unit, happened to be in the restroom when respondent entered. Sergeant Cuesta left the restroom before respondent. Detective Stanbro and the respondent left the restaurant at approximately 6:45 p.m. As they were getting ready to leave the restaurant parking lot, Detective Stanbro asked respondent if he had any cocaine on him. The respondent indicated that he did and produced a small smoke-colored glass vial. Respondent wanted her to snort some then, but Detective Stanbro said she couldn't because she had to go to dance class and she didn't want to be high on cocaine while dancing. She asked him if he would give her some so that she could have it later. She gave him a dollar bill, and he put some of the substance from the vial on the dollar bill. Detective Stanbro folded the bill and kept it. There was approximately a half a gram of cocaine left in the vial. Respondent placed the glass vial back into his pocket. Detective Stanbro took respondent home, then went back to the office and did a Vol-Tox test on the substance provided by respondent. The substance tested positive for the presence of cocaine. Detective Stanbro then placed the dollar bill containing the cocaine into the property room for safekeeping. The evidence was later chemically analyzed by use of ultraviolet spectrophotometry and gas chromatography mass spectrometry tests; which established conclusively that the substance contained cocaine. Detective Stanbro saw respondent the following day at school, September 23, 1986, at approximately 10:20 in the morning. Detective Stanbro was in a little conference room in the back of Mr. Layton's biology class, and respondent came in to see her. Respondent handed Detective Stanbro $60 and stated that he needed to buy a gram of cocaine. Detective Stanbro told him that she would introduce him to the person who was selling the cocaine. However, Detective Stanbro kept the $60. Respondent then left the room. The next contact Detective Stanbro had with respondent was on September 25, 1986, at about 1:45 p.m. Detective Stanbro went to see respondent in his classroom. Respondent was showing a film and the classroom was very dark. Detective Stanbro went to the back of the classroom to talk to respondent. Respondent was at his desk behind the partition. Detective Stanbro asked respondent if he had any cocaine on him, and respondent said that he had a little bit. Respondent stated that she could have a "snoot" if she wanted. Respondent took the glass vial out of his pocket. It was the same vial that he had at the restaurant; however, there was only a small amount of cocaine left in the vial. Detective Stanbro told respondent that she was afraid to snort any cocaine in the classroom because of the children being present, but respondent stated that it was easy and demonstrated by placing the vial, which had a flared screw-in top, up to his nostril and inhaling. Detective Stanbro then took the vial and attempted to put some of the substance in the vial on a Kleenex so that it could be saved for evidence, but there was not enough cocaine in the vial for her to get a sample without scraping the sides, which she thought would look suspicious. During the course of conversation with Detective Stanbro at the back of the classroom, respondent mentioned the $60 he had given her on Tuesday and asked about the gram of cocaine he was supposed to receive. He stated that it was a great deal and that he had never purchased cocaine so cheaply before. He added that the best price he had ever gotten before was $75 a gram. Detective Stanbro told him that they would get the gram of cocaine the next day around lunch time. She left respondent's class at about 2:40 p.m. The next day, Friday, September 26, 1986, at about 10:20 a.m., respondent went to Mr. Layton's classroom to see Detective Stanbro. Respondent acted differently than he had before. He stated that he had just received a $300 electric bill and that he wouldn't be able to buy the cocaine. He wanted the $60 back. He stated that he was being too blatant about his use of cocaine at the school and told Detective Stanbro that he had decided to "cool it" for a while. He also asked Detective Stanbro very specific questions about her college background, including the classes and teachers that she had. Detective Stanbro felt that respondent was acting very suspiciously and concluded that respondent suspected her of being an undercover police officer. After respondent left the classroom at about 10:45 a.m., respondent called Sergeant Cuesta and advised him of the situation. Detective Stanbro went back to the vice office and a decision was made to prepare a warrant for respondent's arrest. At 2:45 p.m. Detective Stanbro returned to the school and placed respondent under arrest for possession and delivery of cocaine of less than a gram in weight. Respondent's arrest occurred during the school day while students were present on campus. The time and place of arrest was the decision of the Vice Control Bureau. Shortly after his arrest, at about 4:15 p.m., Sergeant Cuesta interviewed the respondent after respondent was advised of his Miranda rights and signed a "Consent to be Interviewed" form. Respondent admitted telling Detective Stanbro that he got high on cocaine, but stated that he told her he did not enjoy smoking marijuana. He admitted having cocaine with him and providing some of the cocaine to Detective Stanbro. He admitted to Sergeant Cuesta that he used cocaine at school. He said that working with children was emotionally draining and that he would get very tired at the end of the school day. He stated that because there wasn't a coffee maker in his classroom, he snorted cocaine. Respondent emphasized that he did not use cocaine in front of his students and stated that one of the reasons he put up a screen in front of his desk was to hide his cocaine use from the students. Respondent stated that he bought about a gram of cocaine at a time and it would last him about six months. Respondent became very emotional and stated that he was ashamed of himself for the embarrassment he had caused to his colleagues and to his family. He said he had a drug problem. Respondent's testimony at the hearing was not credible and is rejected. Respondent testified that when he went to the restroom at the Casa Gallardo, there was a stranger in the restroom who offered respondent the vial with the substance in it. The stranger said "Your girlfriend seems to be really into doing things. Why don't you give her some of this?" Respondent stated that the stranger wanted him to buy the substance, but when respondent said no, the stranger just gave him the vial with the substance in it. Respondent testified that he didn't know what was in the vial. However, he also testified that he gave the entire contents of the vial to Detective Stanbro the night they went to the restaurant when she asked for cocaine. It is not only beyond belief that a stranger would approach the respondent in a public restroom and simply give him what turned out to be an expensive contraband drug, it is also beyond belief that the respondent would then give the entire contents of the vial to Detective Stanbro, fully believing that she would later consume the substance, when he had no idea what the substance was. About four months after his arrest, respondent went to see Dr. M. K. El-Yousef, a psychiatrist, for the purpose of establishing that he was not a drug abuser. Respondent was given five tests by a substance abuse counselor and had a one hour interview with Dr. El-Yousef. The only information provided to Dr. El-Yousef was provided by the respondent. Based on the results of the five tests and his interview with the respondent, Dr. El-Yousef opined that respondent "is not a substance abuser" and is a "relatively naive adult who means well as a teacher who got set up and fell as he described." (e.s.) Obviously, Dr. El-Yousef believed that respondent was being truthful in describing the events leading up to his arrest. However, the events respondent related to Dr. El-Yousef simply did not occur. Respondent told Dr. El-Yousef that he met a girl at a bar who had approached him and asked him if he wanted to get high; that he "played it cool and said sure"; that he then bought some cocaine from an individual that the girl pointed out to him; and that when the girl and he left to go to his apartment to use the cocaine, the police picked him up outside the bar. Since respondent was not entirely truthful with Dr. El- Yousef, the validity of Dr. El-Yousef's opinion concerning respondent's drug use or abuse is questionable. His opinion that respondent "got set up and fell as he described" is clearly erroneous. From all the evidence presented, it is apparent that respondent's effectiveness as an employee of the school board has been seriously reduced. The respondent's arrest and subsequent trial and sentencing received a good deal of coverage in the local news media. However, it is not only the amount of coverage that respondent's activities received that has reduced his effectiveness as a teacher, it is respondent's own conduct that has seriously reduced his effectiveness as a teacher. By his conduct, respondent has established that he has extremely poor judgment and a total lack of awareness of the responsibilities of a teacher. Student drug possession is considered a serious matter by the Hillsborough County Schools. If a student at Franklin Junior High is caught with drugs in his possession, he is turned over the police for arrest. Approximately 70 percent of the school resource officer's teaching time is devoted to discouraging drug usage among students. Teachers set an example for their students; they serve as role models. By his conduct, respondent showed that he had little concern about the effect his drug use might have on his students. In his proposed findings of fact, respondent suggests that Detective Stanbro "did entice" the respondent to a bar where the respondent "went along with the prompting of the undercover officer . . ." From the evidence presented, it is apparent that respondent has convinced himself that he was simply an innocent victim "set up" by an attractive woman who used the bait of romance to lure him into talking about drug use. However, respondent's rationalization of the events in question simply does not coincide with the facts, and his perception of this matter only emphasizes respondent's lack of awareness of the responsibilities of his profession. Respondent has completely overlooked the fact that throughout this episode he believed that Detective Stanbro was an intern, a college student placed in the school system to learn by experience and by example how to be a teacher. Had respondent possessed the slightest sense of responsibility to the educational process or his school system, he would not have condoned or encouraged an intern's use of drugs, regardless of the amount of "prompting" he received or his own desire for a romantic relationship. The respondent, however, not only indicated to this "intern" that the use of drugs by a teacher was acceptable, he explained how a teacher could use cocaine in the classroom without getting caught by the students and then demonstrated how easy it was by snorting cocaine in front of the intern during one of his classes. This is clearly not the behavior of an educator who has any concern for his profession. Respondent is currently on court-ordered probation for a period of 15 years. One of the conditions of his probation is that he submit to periodic drug testing. The drug abuse screens reported to the Department of Corrections on August 14, September 10, September 25, October 8, November 10, November 20, and December 8, 1987, did not reveal the presence of cocaine or any other drug. The evidence presented did not indicate that respondent was ever a "heavy" drug user. Detective Stanbro testified that her impression was that respondent was a "casual" user. Further, respondent presented the testimony of a great number of his fellow teachers and other school staff, all of whom testified that respondent had never appeared to be disoriented or intoxicated.
Recommendation Based on the foregoing findings of fact and conclusions of law, and pursuant to Section 231.262(5), Florida Statutes, it is RECOMMENDED that a final order be entered revoking respondent's teaching certificate. DONE AND ORDERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1988. APPENDIX Petitioner's Proposed Findings of Fact: 1-11. Accepted. 12. Accepted generally as stated in paragraph 12 of the Recommended Order. 13-17. Accepted generally. 18-20. Accepted. 21. Accepted though not as stated. 22-23. Rejected as unnecessary and because of lack of competent evidence regarding the school board's action. Rejected because it is not a finding of fact; further, although the drug screen tests are not relevant to the allegations of the complaint, they may be considered as relevant in considering the penalty. Rejected as not a finding of fact. Rejected as a finding of fact; however, report submitted not relied upon for any factual findings. Accepted that Dr. El-Yousef's opinion is questionable for reasons stated in paragraph 1. Rejected as irrelevant. 29-30. Accepted generally in that despondent was not considered a credible witness. 31. Accepted generally. 32-33. Accepted to the degree it relates findings of fact. Respondent's Proposed Findings of Fact: Respondent's only finding of fact, on page five of his proposed order, is rejected for the reasons stated in the Recommended Order. The evidence does not support a finding that Detective Stanbro "did entice" respondent to a bar. There was no evidence that respondent "went along with the prompting" of Det. Stanbro. Merely asking respondent if he liked to get high is hardly prompting. Respondent admitted to both Det. Stanbro and Sgt. Cuesta that he used cocaine in the classroom and Det. Stanbro observed him doing so. Respondent's admissions and his actions can hardly be classified as "only joking." COPIES FURNISHED: J. David Holder, Esquire RIGSBY & HOLDER 325 John Knox Rd., Suite C-135 Tallahassee, Florida 32303 W. Dale Gabbard, Esquire 412 East Madison Street Suite 901 Tampa, Florida 33602 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The psychology grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the psychology grouping is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in the psychology grouping, it is apparent that the psychology grouping had .1 more faculty members than needed for the academic year which began in September, 1977; .8 more instructors than needed for the academic year which began in September, 1978; 1.2 more faculty members than needed for the academic year which began in September, 1979; and 1.8 more faculty members than needed for the academic year which began in September, 1980. Projections for the 1981 academic year indicate that the psychology grouping will again be overstaffed by 1.8 instructors. Overstaffing of instructional personnel such as has consistently occurred in the psychology grouping of academic courses results in several inefficiencies. In order that instructional personnel can carry full course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special projects have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. There has been an increase in student demand for courses in data processing at Polk Community College. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in psychology for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one psychology instructor be terminated. The Respondent, James E. Durant, IV, is a psychology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Psychology Department. In making this recommendation, the administration evaluated the Respondent vis- a-vis other psychology instructors in the following areas: the capacity of the faculty members to meet the educational needs of the community, including consideration of past and anticipated demand for courses and their cost effectiveness, and future curriculum needs; the efficiency of the faculty members as indicated by such factors as professional evaluations; the educational qualifications of the faculty members including their versatility, level of degree, field, and length of service; and whether the faculty members have a continuing contract or annual contract with the community college. The administration concluded that there were no significant differences among instructional personnel in the psychology grouping in the areas of future curriculum needs, educational qualifications and type of contract. This conclusion is supported by the evidence. It does not appear that curriculum needs within the psychology grouping are changing. All of the faculty members in the psychology grouping have either master's degrees or doctorates and have been employed at the community college for a lengthy period. All are on continuing contract. The administration contends that the Respondent is the least cost effective of the psychology instructors and that he has been the least efficient. The administration based its conclusion that the Respondent was the least cost effective of the psychology faculty members through an analysis of weak and cancelled sections that have been taught by psychology faculty members. Weak sections are those classified as having been taught with fewer than fifteen students. Cancelled classes are those for which there was so little student interest that a scheduled course was cancelled. There are several deficiencies with use of a "weak and cancelled section matrix" as a means of determining the cost effectiveness of an instructor. The fact that a class runs weak or must be cancelled can be the result of factors which would reflect favorably upon an instructor. For example, if an instructor develops experimental classes or teaches courses beyond the introductory sort, there is likely to be less demand for the courses, but the courses would have an important function in the community college curriculum. Furthermore, student demand for classes depends to some extent upon factors that are beyond the control of the instructor. Student demand for classes is high, for example, during certain times of the day and low during others. Classes are scheduled by the administration, and not by the instructors. Despite these deficiencies of considering weak and cancelled sections as evidence of poor cost effectiveness, it is appropriate to do that in this instance. For the 1977 through 1981 academic years, the Respondent had a total of 32 weak or cancelled sections. No other faculty member in the psychology grouping had more than 13 weak and cancelled sections during that period, and the four other faculty members combined had only 34 weak and cancelled sections. These figures establish that there is significantly less demand for courses taught by the Respondent than courses taught by other members of the psychology grouping, and that he is therefore the least cost effective instructor within the grouping. The administration's contention that the Respondent is the least efficient instructor within the psychology grouping is supported by the evidence. The Respondent has consistently received the lowest supervisory and student evaluations of instructors within the psychology grouping since the 1975 academic year. Furthermore, there have been more student complaints lodged with respect to the Respondent than for all other members of the psychology grouping combined. The large number of student complaints resulted in remedial action being taken with respect to the Respondent during the 1979 academic year. The Respondent's classes were monitored more closely than is usual, and the number of complaints was reduced for a short period. During the 1980 academic year, however, the large number of student complaints has persisted. Typical student complaints have been that the Respondent is not accessible to answer questions, and that he degrades students by making them wait for inordinate periods outside his office or classroom. While it does appear that the Respondent is trained to teach courses outside of the psychology grouping, it appears that he has taught primarily psychology courses for a number of years. The evidence would not sustain a conclusion that he is qualified to teach in areas where there is a need for instructional personnel. The Respondent has contended that he is qualified to teach mathematics and French; however, there is no competent evidence in the record to support these contentions. The Respondent has contended that inappropriate factors were considered by the administration in recommending that he be terminated. He contends that the reasons given by the administration for terminating him are actually a subterfuge, and that the administration is seeking to terminate him because of the Respondent's political activities, and because of his views on controversial subjects. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order accepting the recommendation that the Respondent, James E. Durant, IV, be terminated from his position as an instructor of the community college, and that the Respondent be terminated effective at the conclusion of the 1980-81 academic year. RECOMMENDED this 29th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1981. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell, Boswell & Conner Post Office Box 1578 Bartow, Florida 33830 Dr. James E. Durant, IV 2605 Reef Court Orlando, Florida 32805 Mr. Frederick T. Lenfestey President Polk Community College 999 Avenue H, Northeast Winter Haven, Florida 33880
The Issue Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year. Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District. The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool. In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted. On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms. Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC). Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released. Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a Glen Springs kindergartner) injecting her with substances that caused partial paralysis. After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs. Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted. During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019. Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.” On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond. Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.” Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated. Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District. Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states: If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues. The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations. The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement. As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination. Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record. Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination. The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement. Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation. Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation. Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher. On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year. At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave. Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted. Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so. Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination. Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief. DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 14th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Karen Clarke School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Marshalee M. Wright Post Office Box 141981 Gainesville, Florida 32614 (eServed) Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
