Recommendation Based on the foregoing, it is RECOMMENDED that petitioner enter a final order sustaining respondent's suspension and dismissing him from employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of September 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. Frederick Charles Metropolitan Correctional Center Flagler Unit 15801 S.W. 137th Avenue Miami, Florida 33177 Mr. Frederick Charles 35303 Southwest 180th Avenue Trailer 337 Florida City, Florida 33034 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 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 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
Findings Of Fact Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994. Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched. Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent. Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent. On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self- incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began. In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room. Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room. Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident. As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint." Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area." Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend. Respondent's statement reads as follows: On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot. People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it. Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis. On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year. At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident. By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37. Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question. The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Union County School Board imposing a 10 day suspension upon Respondent for violation of school restrictions regarding his presence in an improper location. FURTHER RECOMMENDED that such final order direct the destruction or sealing of school records that document the expulsion of Respondent for possession of a controlled substance due to the absence of credible evidence to sustain such charge. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted. 2.-11. Rejected, subordinate to HO findings. 12.-13. Rejected, legal conclusions, relevancy. 14. Rejected as to first preparatory phrase of the paragraph as unsupported by weight of the evidence. Remainder rejected as unnecessary to result reached. 15.-16. Rejected, subordinate to HO findings. 17.-18. Incorporated by reference. 19.-20. Rejected, subordinate. 21. Rejected, legal conclusion. Respondent's Proposed Findings 1.-10. Accepted, but not verbatim. Incorporated by reference. Accepted. COPIES FURNISHED: Ronald G. Meyer, Esquire Robert J. Sniffen, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Stephen N. Bernstein, Esquire Post Office Box 1642 Gainesville, Florida 32602 Eugene Dukes, Superintendent Union County School Board 55 West Sixth Street Lake Butler, Florida 32054 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of April, 2013.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1992.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary). On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the agent related the following conversation ensued: . . . at that time I asked him, "So, what do you want done? He says, "I just want her taken care of." I said, "Well, what does that mean? What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars. Whatever you need to do, tell me." "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4 I said, well, fine, that it will be $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000. (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an "outcry from the community"; however, the School Board allowed Respondent to resume his duties. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of 364 days in the Dade County Jail without credit for time served; however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing revoke respondent's license number 83209-2. It is further recommended that upon proof of counseling or other rehabilitative measures taken by respondent, the Board exercise its discretion to relicense respondent with examination after a period of six months has elapsed. Respectfully submitted and entered this 28th day of April, 1977, in Tallahassee Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson, R.N. Licensing and Investigative Coordinator Florida State Board of Nursing 6501 Arlington Expressway Bldg. B. Jacksonville, Florida 32211 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Patrick V. Clancy, Esquire 2420 Garfield Street Hollywood, Florida 33020
