The Issue Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 25th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
The Issue Whether Petitioner's furlough should be revoked based on his failure to comply with the terms of the furlough agreement which he executed on April 6, 1981. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.
Findings Of Fact Petitioner, Samuel Grant, is a seventeen (17) year-old male who was furloughed to the Department of Health and Rehabilitative Services, Youth Services Division, on April 14, 1981. At that time he agreed to abide by a furlough agreement which required, inter alia, that he (1) obey all laws; (2) not change or leave his residence, employment, or school, or leave the county without the consent of his counselor or other authorized HRS representatives; (3) that he keep in contact with his counselor and (4) that all instructions of his counselor be carried out. Additionally, he agreed to abide by a 9:00 P.M. curfew on week days and an 11:30 P.M. curfew on weekends; attend community mental health for counseling; attend school or find gainful employment and make weekly contact with his counselor on Wednesdays of each week. (Petitioner's Exhibit 2.) On September 8, 1981, the Youth Services Division revoked Petitioner's furlough agreement based on the following facts: (1) Petitioner failed to obey laws and he gambled for his income; (2) failed to follow instructions of his parents and counselor; (3) continuously violated his curfew and (4) failed to attend school or maintain employment. (Petitioner's Exhibits 1 and 3, and Testimony of Jesse Morris, Petitioner's counselor while furloughed at the Belle Glade Youth Center.) The evidence herein also reveals that Petitioner was expelled from school because he possessed marijuana and his mother testified herein that he violated his curfew on numerous occasions. Petitioner's mother indicated that he spent nights away from home on a number of occasions and that he was afforded an opportunity to work with his father, a contractor, who extended a job offer to Petitioner. Petitioner has repeatedly run afoul of criminal laws from December, 1978, through October, 1980, including, but not limited to: (1) unauthorized use of a motor vehicle; (2) malicious mischief; (3) resisting arrest with violence; (4) possession of burglary tools, night prowling, and (5) burglary and grand larceny. Petitioner does not dispute the above findings; offered that he felt that he was not breaking the law and that he did not consider that it was "right" for him to attend school. He offered no explanation as to his failure to accept the offer of employment extended by his father.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's Order of September 8, 1981, revoking Petitioner's furlough, and ordering him to be reassigned to another program or facility as soon as practical, be SUSTAINED. RECOMMENDED this 1st day of February, 1982, 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 1st day of February, 1982. COPIES FURNISHED: Samuel L. Grant c/o Florida School for Boys Route 7, Box 250 Okeechobee, Florida 33472 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401
The Issue The issue for consideration in this hearing is whether Respondent's Rule 6A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a properly promulgated rule.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, School Board of Palm Beach County, (Board), was the agency responsible for providing public school bus transportation to eligible students in the public schools of Palm Beach County, Florida. The Petitioners were the parents of children enrolled in and attending Hammock Pointe Elementary School, a public school in Palm Beach County operated by the Respondent. Prior to January 17, 1992, the Petitioners' children were enrolled in and attending Whispering Pines Elementary School, operated by the Board, and, because that school was located sufficiently far from the students' homes, were receiving public school bus transportation furnished by the Respondent. After the beginning of the 1991-1992 school year, the Respondent advised the Petitioners that in January, 1992, their children would be reassigned from Whispering Pines to Hammock Pointe Elementary School located somewhat closer to their residences at the Boca Palms apartment complex located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the new school was to begin on January 21, 1992. The Petitioners were also advised that because Boca Palms was located within two miles of Hammock Pointe School, based upon the Board's interpretation of the pertinent rules regulating school bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided with public bus transportation to that school. This interpretation was made by the Board's Director of school bus transportation. Rule 6A-3.001, which implements the provisions of Sections 230.23 and 234.01, Florida Statutes, requires school boards to provide bus transportation to those students whose homes are beyond a reasonable walking distance from the assigned public school. The term, "reasonable walking distance", for a student who is not handicapped, is defined by the rule as: ny distance not more than two (2) miles between the home and school or one and one- half (1 1/2) miles between the home and the assigned bus stop. Such distance shall be measured from the closest pedestrian entry point of the property where the student resides to the closest pedestrian entry point of the assigned school building or to the assigned bus stop. The District shall determine the shortest pedestrian route whether or not it is accessible to motor vehicle traffic. Though the rule does not specifically define it, the Board's Director of bus transportation interpreted the phrase, "closest pedestrian entry point of the property where the student resides" as meaning that point where the public right of way ends whether or not that point constitutes a pedestrian entry point. Measuring the shortest pedestrian route from the school building to the junction of the public street adjacent to the apartment complex and the complex entry drive, the Board indicates a distance of 1.9 miles, within the rule definition of reasonable walking distance. Mr. Wattenberg, the Petitioners' expert, who personally walked the route with a walking wheel, determined the distance from the gate to the school to be 10,692 feet. The distance from the aforementioned junction, down the complex entry drive to the actual gatehouse, is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance leaves a balance from the school to the junction of 10,415 feet. This is barely under 2 miles, (10,560 feet). From the gate to the closest residence within the complex is an additional 255 feet, and from the gate to the southwest corner of the complex is an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant on the basis of his interpretation of the term "entry point of the property" which, he feels, is the individual students' homes. All of those would lie well outside the 2 mile cut-off point. His position has some merit in light of the fact that the complex is surrounded by either a man made or vegetative fence which restrict pedestrian entry and exit to through the gate. Were the children to be able to walk directly from their homes to the school, they would have less distance to travel because all homes are currently located in an area to the south of the gate, and the walking route, for the most part, is to the south and east of the complex. However, under the circumstances here, the children have to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and then from 255 to 1,000 feet more from the gate to their homes. Together, this is all in excess of 2 miles, but the Department's interpretation makes the controlling distance less than 2 miles. Even if the distance is less than 2 miles, however, the Board will provide transportation if it is determined that hazards exist along the route that would endanger the student. Here, the Board has also taken the position that the route to be followed by the students does not present any hazardous conditions within the meaning of Section 234.021, Florida Statutes. This position is supported by the opinion of Sergeant Szczepanski, the Sheriff Department's head of the school crossing division. She is familiar with the route proposed from Boca Palms to the school and drove it at the request of the Board's head of risk management. Her viewing convinced her that there was a hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with that individual was satisfied that the danger has been abated. If she felt it were unsafe she would say so and when she has done so in the past, the Board has uniformly acceded to her determination and provided bus transport. Whenever hazardous conditions are identified, the bussing is provided only so long as those conditions persist, and when the hazard is removed, the bussing is terminated. Ms. Falana, the Board's risk management expert reviewed the route several times while the school was being considered and built and found nothing which, to her, met the statutory criteria. As she saw it, going by the statutory criteria, there was no need even for crossing guards, but there is at least one guard along the projected route and a total of three for the entire school area. Ms. Falana walked the route herself and did not merely drive it. She was specifically looking for hazards to children and found none. She coordinated with Sgt. Szczepanski and determined that there were no complaints registered by any of the parents with the bussing division, with her office, or with Sgt. Szczepanski's office. Ms. Falana recognizes that along the projected route there is a dogleg with a rise in the side of the street, (without a walkway), where a child might slip down into the roadway. She feels this is not a problem, however, because there are other similar areas in the county and there has never been an accident at one of those sites. Only where children have to cross a major highway or an unusual traffic situation is a crossing guard required. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's assessments of the hazard situation and contends there are several. One is at the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the view of drivers. The intersection at 8th Street and 57th Avenue is also dangerous but there will be a crossing guard there. From 57th Avenue east the route is on a service road which runs along a canal that has no sidewalk or guardrail. Mr. Wattenberg, an adult, required 45 minutes to traverse the route which has 10 cross streets intersecting with it. There will be between 40 and 45 children who will have to make this walk at least twice a day, five days a week, in all kinds of weather. The evidence is not clearly dispositive of the issue. According to Mr. Baker, the Board's director of transportation, the decision on whether to provide bus transport is made on the basis of both distance and hazardous conditions. He measured the distance electronically with a measuring device calibrated for accuracy both before and after each use. There is no dispute as to the actual distances involved, only at what point the distance is to be measured. School Board policy requires that the distance be measured according to the terms of the Department of Education rule, (6A- 3.001(3)), which refers to "... the closest entry point of the property where the student resides." He measured the shortest route from the school to that point where the public sidewalk meet the private property on the abutting thoroughfare and found the distance to be 178 feet short of two miles. On that basis, the transportation was denied. Mr. Baker also looked at the issue of hazardous conditions and relied on the determination of Ms. Falana who has the authority to determine if there is such a condition. Here, she determined there was no hazard requiring transport within the criteria in the statute. To be certain of his position, Mr. Baker wrote to the State Department of Education which rendered an opinion that the starting point for measurement is the point of demarcation between the public street and the private property. According to Mr. McBride, the Department of Education's school bus chief, there is no statutory definition of "pedestrian entry point." However, the Department, and the state auditors, always use the property line between private and public property as the line of demarcation. In this case, then, even though the entry gate is 277 feet further in from the property line, the entry to the property, for bussing purposes, is at the property line at the street. To the best of his knowledge, there has been no official determination on this point by court, rule, or statute. Ms. Gudermuth, one of the Petitioners, indicates that at the present time, since the school change, the management at Boca Palms has been providing bus transport for the 35 or so children who are involved. If the complex did not do so, she would not allow her seven year old child to walk to the school. She could take her daughter to school in the morning, but because she works outside the home, could not come to get her after school without switching to part time work. Many other parents are in the same situation. Car pooling is not a viable option because she, and each other parent who participated, would still need to take time off from work when it was her or his turn to drive. Boca Palms has indicated that though it is currently providing transportation to its tenants by leased bus, it cannot continue to do so. Because of the cost of $1.00 per mile per student, plus insurance and driver salary, the cost cannot reasonably be passed on to tenants through rent increases because of existing economic conditions. When the issue was raised with several of the parents, they were uniformly opposed to it.
Findings Of Fact Until on or about December 22, 1978, respondent held petitioner James Alan O'Neal in custody at its Alyce D. McPherson School in Ocala. No question as to the validity of petitioner's initial commitment to respondent's custody arises in these proceedings. On or about December 22, 1977, respondent released petitioner to the Social Economic Services Group Home in Gainesville, Alachua County, on conditions set forth in a furlough agreement, which petitioner signed and which was received in evidence as petitioner's exhibit No. 8. The fourth numbered condition in the furlough agreement is that petitioner "[n]ot change or leave residence . . . or . . . county of residence without the consent of the counselor." Marty Richardson works for respondent as an intake counselor at the juvenile detention center in Daytona Beach. He first met petitioner at quarter of six one morning on or about March 19, 1978, shortly after petitioner had been arrested for breaking and entering. After Mr. Richardson gave petitioner Miranda warning, he heard petitioner admit that he had broken into a house in Volusia County and stolen drugs from the house. Frank Lynch, employed by respondent as a probation aftercare counselor in Gainesville, testified without contradiction that no counselor gave his consent for petitioner to leave Alachua County.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's revocation of petitioner's furlough be upheld. DONE and ENTERED this 14th day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph E. Hodges, Esquire 3rd Floor, Oak Park Executive Square 2002 N. W. 13th Street Gainesville, Florida 32601 James O'Neal Alyce D. McPherson School Post Office Box 1359 111 S. E. 25th Avenue Ocala, Florida 32670
The Issue At issue is whether Petitioner’s foster home license should be revoked.
Findings Of Fact Petitioner holds a bachelor's degree in social work from Florida International University. Since his graduation in December 1995 he has been steadily employed in a variety of positions which involve dealing with foster children and special education students. Davis' employment included work for the Department as a foster care counselor and a protective investigator. In addition, he has a long history of involvement in his church, including teaching Sunday school and volunteer work with youth in the community. Relatives, including a mother and sister, live in the area and are supportive of his desire to continue as a foster parent. For all these reasons, the Department held high hopes for Davis as a foster parent when he sought and received a foster home license in the fall of 2001. Notwithstanding his extensive experience with exceptionally needy children Davis was required to and did attend the 30-hour training course required of all new foster parents. Davis, like all foster parents, entered into a detailed contractual agreement with DCF which sets forth the obligations of foster parents and states that non-compliance will lead to revocation of the license. The contract is lengthy, but for purposes of this case it suffices to say that it obligates foster parents to provide adequate, age-appropriate supervision at all times. In order to assist the foster parents in fulfilling this and other obligations, DCF is contractually obligated to support foster parents in a number of ways. The foster parent must be informed in as much detail as is available to DCF of a child's special needs or limitations. If the child is taking prescribed medication, DCF is obliged to provide the medication when the child is brought to the foster home, along with instructions for administering the drug. DCF is also required to exercise professional judgment when placing a child in a foster home to assure, to the extent possible, that the foster parent is capable of managing the child. Shortly after Davis was licensed, DCF assigned to him a particularly difficult child, K.N. At the time K.N. was brought to Davis on December 4, 2001, the child, a boy, was 12 years old. Davis was informed that K.N. was on medication, but DCF did not provide the medication. Davis made several efforts to secure the medication for K.N., but he was not successful. At the time K.N. was placed in Davis' home, Davis already had one foster child, D.L. Davis had previously committed to D.L. and to other neighborhood teenagers to take them in his van to the Soul Bowl high school football game in Tallahassee on December 9, 2001. The trip was uneventful until the return drive. During the trip back from Tallahassee, K.N.’s difficult behavior irritated the other children. In the ensuing horseplay, K.N. ended up with his pants down for approximately the final hour of the return trip. Details of the incident are impossible to state with certainty. The Department presented no testimony of any individual with personal knowledge of the incident. Davis and a teenage girl who was on the trip testified to their recollections. The undersigned, having carefully viewed their demeanor under oath, credits their testimony as candid; they were clear and precise with regard to elements of the day that they did recall, and honest in stating where their recollections were imprecise. The Department repeatedly asserts that K.N. was "naked" but the use of this word, as it is commonly understood, is unsupported by any competent evidence. It cannot be ascertained from the record, for example, whether K.N. was wearing underwear as well as pants, and if so, were the underwear pulled down as well? The only direct testimony regarding whether or not K.N.'s genitals were exposed to the other children was offered by Davis, who believes that K.N.'s genitals were always covered. K.N. and D.L. denied any improper touching to DCF's investigator, according to his written report. After years of driving youth from his church and community on field trips, Davis, like anyone who drives carloads of children, had learned to filter out background noise in order to focus on safe driving. Yet, like anyone responsible for a vanload of kids, he also had to remain cognizant of behaviors in the back seat(s). At some point, Davis became aware that there was an issue concerning K.N.'s pants. Davis, as well as the teenage passengers in the car, acting on Davis' instructions, made efforts to convince K.N. to get his pants back up. K.N. refused. It was raining for at least a portion of the time while Davis was attempting to deal with the situation from the driver's seat. The testimony offered by Davis on his behalf establishes that the situation among the children, particularly K.N., could have been dealt with more aggressively and with better results. The wiser course would have been for Davis to pull over, rearrange seating, verbally re-direct K.N. and the other passengers, and, as a last resort, summon the police. It is equally clear that Davis was the only adult in the car and responsible to deliver the children home safely on a rainy day. He had tuned out the back seat noises to focus on driving when it seemed reasonable to do so, and, once aware of the situation with K.N.'s pants, decided to manage it as best he could from the driver's seat and get everyone back home as quickly as possible. The situation was resolved when Davis drove his van to the north Dade home of Davis’ sister, who had a good rapport with K.N. K.N. complied promptly with her instruction that he get himself properly dressed. Soon after the trip, K.N. related a lurid and untruthful version of events to a third party. A complaint against Davis to the state's child abuse hotline resulted. Davis felt mistreated by the DCF investigator who was dispatched to look into the allegations. Davis perceived that the investigator had prejudged the complaint and deemed Davis to be guilty of participating in and/or allowing sexual abuse of K.N. Rather than complain to the supervisor of the investigator who offended him, Davis made another bad decision---he refused to honor the investigator's request that he provide the names and whereabouts of the other passengers in the van. Davis' failure to provide this information immediately was not deemed by DCF as a serious enough offense to warrant immediate removal of the foster children. Nor did it prejudice DCF in these proceedings, for Davis did provide the names to DCF well in advance of the final hearing. Davis' refusal to provide the names when first asked to do so was self-defeating in the extreme, for the passengers were in a position to corroborate what the investigator was told by both foster children: that Davis had not provoked the removal of K.N.'s pants, and had made efforts to ameliorate the situation as soon as he became aware of it, and was successful to the extent that the other children cooperated with his request to encourage K.N. to pull his pants up, which K.N. was fully capable of doing. The Department contends that "there is no amount of additional training or any other remedial action (short of license revocation) that would alleviate the Department's concern about [Davis'] ability to provide proper care and supervision to foster children." This contention is rejected for two reasons: First, although the substance of DCF's investigation was completed by December 12, K.N. remained in Davis' home until December 17, at which time Davis realized that he was not capable of handling K.N.'s behaviors and returned him to the custody of his foster care counselor. Second, Davis requested and received DCF's permission to keep his other foster child, D.L. "through the holidays." That time frame was generously interpreted by DCF staff; they did not take D.L. from Davis' care until February 8, 2001. Davis is appropriately regretful that he was not adequate to the task at hand on December 9. He also understands the inappropriateness of failing to fully cooperate with DCF's investigation in a timely fashion. Although the future is impossible to predict, it is reasonable to credit Davis' word that he has learned from these mistakes. Davis is willing to unconditionally accept additional training, supervision, and assistance from DCF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the April 1, 2002, charges against Davis. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 9th day of September, 2002. COPIES FURNISHED: Travis Davis 2922 Northwest 92nd Street Miami, Florida 33147 Rosemarie Rinaldi, Esquire Department of Children and Family Services 401 Northwest Second Avenue Suite N-1014 Miami, Florida 33128 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josefina Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy. They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them. DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Miami, Florida 33128 Arthur Spiegel, Esquire 1800 Northwest Seventh Street Miami, Florida 33125 Richard Doran General Counsel 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue Hubbard's furlough was terminated by the Department of Health and Rehabilitative Services because Hubbard allegedly had drunk alcoholic beverages and had become intoxicated contrary to the terms of his furlough agreement. The Factual issue was whether Hubbard had drunk alcoholic beverages and become intoxicated.
Findings Of Fact Bruce Warren Hubbard was committed to the custody of the Department of Health and Rehabilitative Services by a court off competent jurisdiction in December, 1979. On May 5, 1980, Hubbard entered into a furlough agreement and was released from the Dozier School for Boys to return home and remain under the supervision of a Department counselor. The furlough agreement, which was received as Exhibit 1, provides in pertinent part that Hubbard would obey all laws and carry out the instructions of his counselor. Hubbard's counselor, James E. Horne, stated that he specifically instructed Hubbard to refrain from frequenting bars and drinking alcoholic beverages. Subsequent to receiving these instructions, Hubbard violated his counselor's instructions and the terms of his furlough by drinking, and his furlough was revoked. At an informal hearing held on this revocation on or about July 30, 1980, Hubbard entered into a contract as a condition for continuing his furlough which provided in part that Hubbard would not drink alcoholic beverages or take drugs and would be at home time set by his parents. Hubbard's father, Geoffrey Hubbard, stated that Hubbard lived at the family home. Geoffrey Hubbard stated that Hubbard was drunk on August 29, August 30 and August 31, 1980. Hubbard's father further stated that Hubbard came home on September 12, 1980, grossly intoxicated at 7:15 p.m. after he was due under his contractual curfew at 4:30 p.m. After being told to stay at home, Hubbard left again at 8:30 p.m., returning again at 9:30 p.m. more intoxicated than when he had left. On September 18, 1980, Hubbard came home drunk at 9:00 p.m. after he had been due at 8:30 p.m. After September 18, 1980, Geoffrey Hubbard contacted Horne, Hubbard's counselor, and advised Horne about Hubbard's drinking. Horne initiated the action to revoke Hubbard's furlough, which gave rise to this hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the revocation of the furlough of Bruce Warren Hubbard be approved, and that he be returned to the Dozier School for Boys for the remainder of his period of commitment to the Department's custody. DONE and ORDERED this 14th day of January, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981. COPIES FURNISHED: Jeffery B. Morris, Esquire Department of HRS 5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231 Bruce Warren Hubbard c/o Hatton House, Cluster 1 Dozier School for Boys Post Office Box 490 Marianna, Florida 32446 James Edwards School Training Director Dozier School for Boys Post Office Box 490 Marianna, Florida 32446 Mr. and Mrs. Geoffrey Hubbard 212 Nancy Street Daytona Beach, Florida 32014
The Issue The issue is whether Petitioner is eligible to participate in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 as a substitute teacher for the Lee County School Board.
Findings Of Fact Petitioner has been an employee of the Lee County School Board (the School Board) from February 28, 2001, through the date of the final hearing. The School Board is a participating member in the FRS. Petitioner has never been a full-time employee of the School Board and has never been eligible for service credits for purposes of the FRS. From February 28, 2001, until some time in May 2004, the School Board employed Petitioner in a temporary, part-time position. From some time in May 2004 through the date of the final hearing, the School Board has employed Petitioner as a substitute teacher. From February 28, 2001, through some time in May 2004, the School Board required part-time employees such as Petitioner to participate in a plan identified in the record as the Bencor FICA Alternative Plan (the Bencor Plan). The Bencor Plan provided retirement benefits for temporary teachers, who were not eligible for FRS retirement benefits. On May 25, 2004, Petitioner submitted a Distribution Request Form to withdraw her accumulated savings from the Bencor Plan. Petitioner was eligible to withdraw her retirement benefits from the Bencor Plan, because she changed her employment status from a temporary teacher to a substitute teacher. Some time in May 2004, Petitioner began teaching as a substitute teacher for the School Board. Petitioner has continued as a substitute teacher for the School Board through the date of the final hearing. As a substitute teacher, Petitioner is not a full-time employee, who is eligible for service credits for purposes of the FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for FRS benefits. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2010.
