Findings Of Fact Ozzie Thompson is a licensed vending facility operator and holds License Number 493 issued by the Division of Blind Services on May 10, 1982. In June of 1983, Mr. Thompson became the vending manager and operator of the snack bar located in the Alachua County Judicial Building. This facility is leased by the Board of County Commissioners to the Division of Blind Services. Paragraph 4 of the Lease agreement provides, in part, that "....The Grantee (Division of Blind Services) may appoint a blind agent and sighted assistants to conduct the business and shall have the right to supervise the business and to replace the agent or employees at will. The Grantor (Board of County Commissioners) agrees to notify the Grantee immediately of any mismanagement by the agent which may come to the Grantor's attention. The Grantee will immediately remove the agent or employee who is unsuitable or unsatisfactory to carry on the business." Almost immediately after Mr. Thompson assumed the position of manager of the Alachua County Judicial Building vending facility, the vending facility specialist in charge of supervising that facility began receiving complaints. The nature of these complaints were the quality of service, sanitation and the presence of derelicts within the facility for long periods of time. The supervisor also received complaints from female employees at the Judicial Building that Mr. Thompson had a tendency to "bump into" them and make "suggestive" remarks to them. The Office of the Clerk, the security officer and the building superintendent at the Judicial Building likewise received complaints regarding the lingering presence of derelicts or "street people" within the vending facility and comments of a sexual nature from either Mr. Thompson, the derelicts or Mr. Thompson's assistants. The female employees complained that they did not feel comfortable going into the vending facility. While no one actually saw Mr. Thompson drink alcoholic beverages while he was working, he was observed on several occasions to be groggy and appeared to be in an intoxicated condition. Mr. Thompson does take pills for asthma, and the medication makes him drowsy. A vending facility operator at the Federal Building in Gainesville has observed Mr. Thompson to be in an intoxicated condition on two occasions. These occurred in the morning hours, at approximately 9:30 a.m., when Mr. Thompson visited his facility on his way to his own facility located about two blocks away. On these occasions, the odor of alcohol was present and Mr. Thompson's speech was impaired. As a result of the complaints received by employees at the Judicial Building, the observations of the Clerk, the security officer and the building superintendent and the continued, lingering presence of derelicts within the facility, the County Administrator requested the Division of Blind Services to immediately relieve Mr. Thompson from employment at the snack bar. At approximately 9:30 or 10:00 a.m. on June 15, 1984, the day that Mr. Thompson was to be removed and a final inventory taken, Mr. Thompson was not in the snack bar. When he later came into the facility, the odor of alcohol was detected and his speech was impaired. Mr. Thompson explained that he had been at home awaiting a telephone call regarding a recent death of a relative, and admitted that he had had "a little" beer before arriving at the facility.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the license of Ozzie Thompson to operate a vending facility be suspended for a period of two years and that, at the expiration of two years, he be required to complete the vending facility training program as set forth in Rule 6A-18.05, Florida Administrative Code, or its successor, prior to issuance of a license. Respectfully submitted and entered this 20th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 20th day of September, 1985. COPIES FURNISHED: Herbert Sikes, Esquire Office of General Counsel Knott Building Tallahassee, Florida 32301 Ozzie Thompson D706-100 Memorial Parkway Palatka, Florida 32077 Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioner's challenge to a question on the Corrections Officer Basic Recruit Training Examination should be sustained and Petitioner’s score increased by award of additional credit for the answer given by her.
Findings Of Fact Respondent is the state agency responsible for testing and certification of corrections officers within the State of Florida. Petitioner is an applicant for certification, having taken the examination on November 20, 1996. The minimum score required to pass Section 5 of the examination is 80 percent. Petitioner received a score of 78 percent. Examination materials were clearly and unambiguously presented when Petitioner took the examination. The challenged examination contained sufficient and correct information for a candidate to select correct responses. Question number 37 is the subject of Petitioner’s challenge. The question and possible answers were posed by Respondent’s examination as follows: A small, injured child requires care. The parents cannot be contacted, but the child says you can help him. You provide care because of . consent informed consent the Baker Act the Medical Practices Act Petitioner selected “informed consent” as the appropriate answer to the question. Respondent deemed that answer inappropriate due to a minor child’s inability to grant informed consent. The correct answer to the question is the first choice, “consent”. The term necessarily includes “implied consent” which is applicable to minor children and others unable to consent to treatment. Correct responses to the exam questions are supported by approved reference materials. Correct responses did not require knowledge beyond the scope of knowledge that could be reasonably expected from a candidate for certification. The examination question challenged by Petitioner was reliable and valid. The challenged question is not arbitrary, capricious or devoid of logic. There exists no evidentiary basis to award Petitioner additional credit for her examination response.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the relief requested by Petitioner. DONE and ENTERED in Tallahassee, Florida, this 22nd day of May, 1997. DON W. DAVIS 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 22nd day of May, 1997. COPIES FURNISHED: Chasity L. Durbin 708 MacMahon Starke, FL 32091 Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, III, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue in this case is whether Petitioner, Lena Kaye Richardson, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, Lena Kaye Richardson, was employed in October of 1996 at a children's day care center. Ms. Richardson was discharged by the day care center in March of 1997, as a result of background screening pursuant to Chapter 435, Florida Statutes. Ms. Richardson has been employed in child care since 1987. As a result of background screening required for Ms. Richardson to be employed at the day care center, it was determined that on February 9, 1990, she had pled nolo contendere to, and been adjudged guilty of, grand theft by passing worthless checks in violation of Section 832.05, Florida Statutes. Ms. Richardson was placed on probation for five years and required to make restitution. On August 12, 1992, Ms. Richardson's probation was revoked due to violations of the conditions of her probation. During the calendar years 1996 and 1997, Ms. Richardson has been criminally charged twenty-five times before the Second Judicial Court in Leon County, Florida. These charges all involved passing worthless checks in violation of Chapter 832, Florida Statutes. Of the twenty-five charges, nine resulted in a summons being issued and fourteen resulted in the issuance of a capias. Another capias is currently outstanding in the case of State of Florida v. Lena Kaye Glenn (Ms. Richardson's maiden name), Case Number 95-653-MM-A, Second Judicial Circuit, Gadsden County, Florida. Although the Department of Children and Family Services (hereinafter referred to as the "Department") gave Ms. Richardson an opportunity to provide proof that she had taken care of the capias, she has failed to provide such proof. The Department concluded that Ms. Richardson was disqualified from her employment at the day care center based upon her plea of nolo contendere to an offense specified in Section 435.04(2)(r), Florida Statutes. The offense listed in Section 435.04(2)(r), Florida Statutes, is an offense prohibited pursuant to "Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony." Chapter 812, Florida Statutes, is titled "Theft, Robbery, and Related Crimes." Ms. Richardson was adjudicated guilty of an offense under Chapter 832, Florida Statutes, and not Chapter 812, Florida Statutes. All of the offenses Ms. Richardson has been charged with are offenses prohibited under Chapter 832, Florida Statutes, and not Chapter 812, Florida Statutes. The evidence failed to prove that Ms. Richardson has committed any offense which disqualifies her for employment pursuant to Chapter 435, Florida Statutes. Ms. Richardson failed to prove that she is rehabilitated from the offenses she has been adjudicated guilty of. Although sufficient time has passed since her initial conviction in 1990, she has continued to commit violations of Chapter 832, Florida Statutes. Ms. Richardson has proved, however, that she should not be disqualified from employment as required by Section 435.06(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services finding that Lena Kaye Richardson is should be granted an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ORDERED this 6th day of November, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 6th day of November, 1997. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Lena Kaye Richardson 3422 Blue Jay Drive Tallahassee, Florida 32310 John R. Perry, Assistant Legal Counsel District 2 Legal Counsel Department of Children and Family Services 2639 North Monroe Street, Number 252-A Tallahassee, Florida 32399-2949
Findings Of Fact The Petitioner is the Department of Health and Rehabilitative Services. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of a class III violation by Respondent, but assessing no civil penalty for the violation. DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in findings 2 and 3. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence. Included in finding number 3 and 9, except for the last sentence which is rejected. Rejected as unnecessary. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014 Elizabeth Joseph Administrator Jas Manor 645 N.E. 131st Street North Miami, Florida 33161 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Serviced 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent, Dianne Tice, began teaching home economics at the Jan Mann Opportunity School North (Jan Mann) in the 1981-82 school year. Jan Mann is a school devoted to students with behavior problems, attendance problems and learning disorders. Student James Woody, thirteen years old, was a continuing discipline problem for teachers at Jan Mann. At the time of his admission to Jan Mann, there were discussions as to whether Woody was the type of student who should be admitted. The staff psychologist at Jan Mann believed that a more appropriate placement would have been a residential facility. Nevertheless, Woody was admitted to Jan Mann. On March 13, 1984, Woody was attending respondent's fifth period home economics class. Due to his loud, profane language and banging on desks and chairs, respondent sent Woody to the Principal's office with a referral slip. Approximately twenty minutes later, Woody returned to the respondent's classroom and again became disruptive. Respondent then requested the security guard or hall monitor to either talk to Woody or again take him to the Principal's office. The hall monitor spoke with Woody, placed him back in the classroom and told respondent to put Woody outside the classroom with him if Woody caused any further trouble. Thereafter, the respondent was in the front of the classroom when another student asked to be assisted with the placement of buttonholes in some pants she was sewing. The respondent picked up a pair of scissors, a seam ripper and some keys and began walking to the rear of the classroom to get other equipment from a cabinet so that she could assist the student. At this point, Woody again became disruptive -- pounding on desks and using loud, profane language. The evidence is very conflicting as to what then transpired. Woody left his desk, and it is not clear whether respondent told him to leave the classroom before then or whether he was attempting to proceed to the rear of the room in order to use the restroom. In any event, Respondent was walking toward or behind Woody with the scissors, seam ripper and keys still in her hands. They both ended up at the rear door of the classroom, which opens and closes by means of a push bar. Woody was on the outside of the door and respondent was on the inside. The evidence is again conflicting as to whether respondent was attempting to hold the door closed so that Woody could not reenter her classroom, or whether she was attempting to open the door to either bring him back in or see where he had gone. Whatever she was attempting to do, Woody was either pulling or pushing in the opposite direction. The hall monitor, sitting some ten to fifteen feet away from the door, observed Woody at the door outside the classroom pulling on the door, and began to go over to the door when Woody released the door and cafe over to him. The monitor observed blood on Woody's hand and took him to the bathroom to wash his hand. He then went back to respondent's classroom and asked respondent how Woody had gotten cut. Respondent then ran into the bathroom to help. What was said in the bathroom is also the subject of conflicting testimony. Woody at first told school personnel that he cut his hand while banging on a desk. Respondent told him not to try and protect her. Whatever was said, respondent does not deny that Woody may have been accidentally cut with the scissors, seam ripper or keys during the scuffle at the rear door of the classroom. After the incident, respondent told several people that she had cut Woody. There is no evidence, however, that respondent intentionally stabbed Woody's hand during the incident. As noted above, respondent was first employed at Jan Mann for the 1981- 82 school year. Her annual evaluation for that year indicates that she was rated acceptable in all categories of the evaluation and was recommended for re- employment by her then Principal, Robert Edwards. During this first year, respondent was also formally observed by the Dade County School Board Supervisor of Home and Family Education. She was found to be acceptable in all categories and all comments were very favorable. During the 1982-83 school year, respondent was formally observed in her classroom on three occasions. In November of 1982, Assistant Principal Altman rated respondent unacceptable in the two categories of "classroom management" and "techniques of instruction," and acceptable in the remaining six categories. She was given an overall summary rating of acceptable. In January of 1983, respondent was again observed by Ms. Altman and received an unacceptable rating in three categories, but an overall summary rating of acceptable. Approximately one week after the January evaluation, respondent and Ms. Altman were involved in an incident which resulted in respondent filing a grievance against Ms. Altman for allegedly pushing her in the presence of her students. Principal Oden investigated the matter and decided that respondent's allegations against Ms. Altman were unfounded. In March of 1983, a Department of Education consultant performed an instructional program review and found respondent to have met all assessment standards. Additionally, it was noted that respondent was "commended for her management and organization of the facility." Respondent's annual evaluation by Principal Oden, dated June 9, 1983, indicates that she was rated acceptable in all categories except for the category entitled "preparation and planning." Principal Oden remarked that respondent "does a good job at teaching, but needs to devote more attention to planning." Respondent was recommended for re-employment by Principal Oden. During the 1983-84 school year, Respondent had two formal classroom observations. Assistant Principal Willie Shatteen observed her classroom on October 6, 1983, and found her performance to be acceptable in all categories. His written comments included the following: "lesson plans are evident," "materials are arranged far in advance," "students orderly and attentive," and "has knowledge of background of each student to provide for individual's need." In a follow-up letter, however, Mr. Shatteen criticized respondent for not following her lesson plans and for her negative attitude toward constructive criticism. Several conferences were held between respondent and her supervisors in October and November, 1983. By letter dated November 17, 1983, Principal Oden expressed several concerns he had relating primarily to respondent's planning, teaching and classroom management skills, and made ten recommendations for improvement. Principal Oden formally observed respondent's classroom on December 8, 1983, and rated her acceptable in all categories except "preparation and planning," but gave her an overall rating of acceptable. His comments in the area of "preparation and planning" included "improvement may be achieved through better planning." A "conference for the record" was held on December 13, 1983, to discuss the recommendations made in the November 17th letter. Also discussed was the possibility that respondent would not be recommended for continued employment at Jan Mann should she fail to make the necessary improvements discussed in the November 17th letter. Another conference was arranged for a time between January 19, 1984, and January 25, 1984. The record is not clear as to whether that conference occurred. Respondent's lesson plans were submitted to and reviewed by her supervisors every week. While the January 4, 1984, review found that the plans were not organized to include certain items and that a conference was needed, the plans for the following five weeks were found to be "accepted" and, in one instance, "plans are excellent. No improvement is needed at this time." Just prior to the March 13, 1984, incident involving student James Woody, Principal Oden decided that he was going to recommend respondent for a continuing contract. He told her this and her name was included on the list submitted to the School Board containing those recommended for a continuing contract. While be felt that there were some modifications needed in her teaching behavior, he also felt that there was room for her to improve with the beginning of a new year. Had it not been for the Woody incident, Principal Oden would have recommended respondent for a continuing contract. Indeed, his decision of "not recommended for employment" contained on the 1983-84 annual evaluation contains the remark "pending S.I.U. ..." -- referring to the investigation of the Woody incident by the School Board's Special Investigative Unit. Had respondent been cleared of the Woody incident, she would have been recommended by Principal Oden for re-employment on a continuing contract basis. His annual evaluation for the 1983-84 school year, signed on March 21, 1984, rates respondent as unacceptable in the two categories of "preparation and planning" and "professional responsibility," and acceptable in the remaining six categories. Apparently in connection with the investigation of the Woody incident, a psychiatric evaluation of respondent was performed by Dr. Gail D. Wainger, a psychiatrist. After spending approximately one hour with the respondent on March 20, 1984 (the same day that respondent was informed that she would not be recommended for employment), Dr. Wainger concluded that respondent appears to be suffering from chronic paranoid schizophrenia, and that she experiences misperceptions and shows evidence of poor judgment. This diagnosis was based, in part, upon the respondent's expressions to the effect that the school administration was against her and was attempting to get rid of her and also her relating to Dr. Wainger incidents which occurred at an apartment complex in which she formerly resided. Dr. Wainger is of the opinion that respondent would be likely to decompensate during stressful situations. On June 20 and 22, 1984, another psychiatric examination of respondent was performed by Dr. Lloyd Richard Miller, a psychiatrist. Dr. Miller spent approximately three hours with the respondent over two different days, performed some psychological testing, and also reviewed Dr. Wainger's psychiatric report. It was his conclusion that respondent did not suffer from a mental illness, and he did "not view her as guarded, suspicious or paranoid in any way. It was Dr. Miller's opinion that respondent has the sufficient mental capacity to return to work as a teacher. An expert in the area of teaching personnel evaluation and personnel management employed with the Dade County School Board, Dr. Desmond Patrick Grey, reviewed respondent's personnel files, including her classroom performance and annual evaluations, the investigative reports of the Woody incident and Dr. Wainger's psychiatric report. Dr. Grey was of the opinion that respondent's performance evaluations indicate a serious problem that would limit her effectiveness as a teacher; that the Woody incident impaired the integrity of the profession and the respondent; and that respondent has an incapacity to perform the expected function of a teacher. Three employees at Jan Mann testified in respondent's behalf. A school psychologist believed that respondent's character and reputation at Jan Mann were outstanding. A graphic arts aide felt that respondent was excellent dealing with the children and was dedicated in her occupation. A workshop instructor felt that respondent had been a "pretty competent teacher."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Amended Specific Notice of Charges against respondent Dianne Tice be DISMISSED, and that she be awarded back salary for the remainder of the contract period following her suspension. Respectfully submitted and entered this 16th day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985. COPIES FURNISHED: Thomas Robertson, Esquire Merritt, Sikes and Craig, P.A. McCormick Building - 3rd floor 111 Southwest Third Street Miami, Fla. 33130 Carl DiBernardo, Esquire Commercial Bank of Kendall 8603 S. Dixie Highway - Suite 210 Miami, Fla. 33143 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Fla. 33132
Recommendation There are factors in mitigation which should be considered in this case to include the following: Carlson and Benedict had personal reasons for discrediting Beach and their actions show their anamosity toward her. The events which constituted the majority of the charges against Beach happened over one year before the Report was made to the Florida State Board of Nursing by Carlson. Beach worked at Lancaster Youth Development Center approximately seven years. She received good efficiency ratings for her employment from Carlson and Benedict for the period of time covered by the allegations relating to employment of unlicensed persons and unauthorized administration of medication, although, if their testimony is believed, they had knowledge of these matters. The testimony of the witnesses is largely unsupported by any physical evidence with the exception of the testimony of Rollings, whose testimony was rejected because of the changes which she had made from her original statements. Beach called and obtained authority to administer valium to a rape victim, who under any reasonable interpretation of the Department of Health and Rehabilitative Services policy, was entitled to treatment at the infirmary. Having sought authority to administer valium under these circumstances, it is difficult to conclude that she would have administered valium or any other prescription drug to Rollings or Campbell without obtaining authority. Based upon the foregoing findings of fact, conclusions of law, and factors in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Adeline Beach. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Florida State Board of Nursing 1107 Blackstone Building Jacksonville, Florida 32202 Smith and Johnson Post Office Box 508 Gainesville, Florida 32602
The Issue May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer? HEARING AND PROCEDURE At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence. Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law. Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.
Findings Of Fact Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1 An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year college course so as to enter the occupational grouping of "Newswriter 131.267-214." In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of $1,020.00. In the "Counseling and Guidance Goals" portion of the written program it states as goals, "1. To encourage Marilyn's participation in New Option Program. To assist her to see her strong point-- positives. To assist her to view things as a whole and not dwell on detail." Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that: "I, Marilyn J. McFadden; will cooperate in all phases of my Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan. Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term. I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses. If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest. I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan. At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate employment is offered to me, return to work. "Emphasis supplied) Respondent signed and dated this program agreement. (P-1) From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5 Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being. Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative." Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.
Recommendation That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
The Issue Whether Respondent is qualified to hold a certificate as a correctional officer in the State of Florida, by failure to successfully complete the required training, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 29, 1993, as a corrections officer, and was issued Certification Number 141634. On August 17, 1992 the Respondent signed up for and attended orientation for the Public Safety Recruit/Corrections course conducted by the Lake County Area Vo-Tech Center in Eustis, Florida. The contents of the Public Safety Recruit Manual was explained to the class and Respondent received a copy of the manual. The academic grading policy in the manual provides that the minimum passing grade that a student must achieve on each exam is a score of 75 percent. A student may fail only one exam and still remain in good standing at the academy. Respondent signed a Student Acknowledgment of School of Public Safety Requirements and Rules of Conduct. He acknowledged that he had read and understood them and agreed to comply with the standards. Respondent failed the Criminal Justice Standards and Training Commission defensive tactics practical examination with a score of 66. On October 27, 1992, Respondent was notified orally and in a written memorandum from the program coordinator that he had failed the examination. However, he was given until July 29, 1993 to remediate and requalify. Respondent did not take any steps to requalify in this area. On November 10, 1992, Respondent failed Block Test 1 with a score of 59. On November 13, 1992, Respondent was notified orally and in writing of his second examination failure. He was then advised that in accordance with the Master Plan of Instruction and the grading policy of the school that he was terminated from the program. Respondent's final grade for the Public Safety Program was listed as an Incomplete. Respondent was advised that he would be required to retake the entire recruit program in order for him to receive certification. A CJSTC 67 Training Report Form was completed by the Lake County Area Vo-Tech Center for the Public Safety Recruit/Corrections course sequence number 15-92-502-02 and was forwarded to the Florida Department of Law Enforcement, Division of Standards and Training in Tallahassee. The Training Report form reflects that forty-six recruits attended the course. Thirty-nine were listed as having passed and seven were listed as failed or incomplete. Respondent was listed as having failed the program. The Training Report for Respondent's class was received by the Department of Law Enforcement, Division of Standards and Training on April 12,1993. Due to a programmer's error, the Florida Department of Law Enforcement, Division of Standards and Training's Automated Training Management System (ATMS) computer system automatically generates a certificate and certificate number when an individual who is employed is entered into the system regardless of the grade achieved. The procedure in place at the time required a Department employee to visually scan the certificates being generated and remove the ones for those persons who had failed or did not complete the program. Respondent was employed at the time his name was entered into the ATMS. The ATMS generated a certificate with Respondent's name on it, Certificate Number 141634. Respondent was certified as a corrections officer as of January 29, 1993 and the certificate was forwarded to him. Respondent was certified by the Criminal Justice Standards and Training Commission in error and the certification should be revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent has failed to complete a commission-approved basic recruit training program, as required by Subsection 943.13(9), Florida Statutes (1993), and that Respondent's certification must be REVOKED. DONE AND ENTERED this 16th day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of November, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1 - 17 Respondent did not submit proposed findings of fact. COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Karen Simmons, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 John Dubose 242 West 6th Street Apopka, Florida 32702
The Issue Petitioner alleges that Respondent discriminated against her on account of her national origin (Finnish) by refusing to renew an annual contract as a teacher, thereby terminating her employment. The issue is whether this alleged violation of Section 760.10, F.S. occurred, and if so what relief is appropriate.
Findings Of Fact Petitioner, Miriam Lehtimaki Pully (Mrs. Pully) was born in Finland in 1941, and emigrated to the United States in 1958. She became a U.S. Citizen in December 1964. She obtained a Bachelors degree in psychology and sociology at the University of Connecticut; and later, in 1987, received a special education teaching certificate in Delaware after taking some extra courses. In October 1989, Mrs. Pully was hired by the Orange County School Board to teach an educable mentally handicapped (EMH) special education class at Rolling Hills Elementary School. She was interviewed and recommended for hiring by Norma Masterson, the Rolling Hills principal. Her employment application is not part of the record, but at the hearing Mrs. Pully agreed that the application reflected her U.S. citizenship and referred to her Finnish origin. She speaks with a slight Northern European accent that she claims most people mistake for German. If Mrs. Pully's origin was mentioned at all in the interview, it was in passing, and it was never discussed again by Ms. Masterson. At the time of the interview Mrs. Pully had the impression that Ms. Masterson was very positive about her and that she would enjoy a long-term employment relationship. Mrs. Pully also understood, however, that she was being hired "out of field" and that she was hired with special permission on a one-year temporary contract. She lacked credit hours in order to be certified in special education or EMH in Florida. During the 1990-91 school year, Miriam Pully was the only EMH teacher at Rolling Hills. She had from three to five students in various levels from kindergarten through fifth grade. She also had a teacher's aide. During that school year, Norma Masterson talked with Mrs. Pully about her children being left unattended, or insufficiently supervised. Mrs. Pully let them play outside sometimes two hours a day, which was considered by Ms. Masterson to be excessive. Ms. Masterson was also concerned about Ms. Pully's careless record keeping and failure to record accurate attendance. On several occasions on visiting her classroom, Ms. Masterson found the children out of control or ignoring their teacher. In spite of the problems perceived by Ms. Masterson, she did not give Mrs. Pully the "black mark" of "needs improvement" on her evaluation because she did not want Mrs. Pully to be hindered in obtaining a teaching position in her appropriate field. Norma Masterson did not recommend that Mrs. Pully be rehired for another year. Her temporary contract expired in June, 1990. It was Ms. Masterson's understanding that even if there had been no performance problems, she could not rehire Mrs. Pully, as she needed at least six more college credit hours to teach in the EMH field. Over the summer months the teachers' union negotiated on Ms. Pully's behalf, and the school board agreed to rehire her for the 1990-91 school year, if she took additional college courses. She obtained 3 credit hours and was given another temporary contract commencing in August 1990. Norma Masterson observed the same problems immediately in the second year. Another EMH teacher was hired to take the older, higher level students, and Mrs. Pully had the younger students, kindergarten through third grade. At times Mrs. Pully had as many as seven or eight students, but ordinarily she had five or six. She had to share the teacher's aide with Ms. Kelly, the other EMH teacher; and in October the school lost the aide due to funding. After the aide left, other teaching assistants were able to assist the EMH teachers. Ms. Masterson personally conducted observations in Mrs. Pully's classroom on several occasions during the 1990-91 school year. This was part of her job and she conducted similar observations of other teachers. Her opinion was that Mrs. Pully was simply not capable of teaching the mentally handicapped children. She found lack of discipline and inadequate planning for instructional time. She found that children were being taught as a group and individual levels were not being addressed. She still found too much play time and too little time "on task". And she still found inadequate record keeping with regard to report cards and attendance records. On several occasions Ms. Masterson counselled Mrs. Pully about her unkempt appearance or inappropriate dress. In March 1991, Ms. Masterson completed her annual assessment report of Miriam Pully and gave her an "unsatisfactory" overall evaluation, with "needs improvement" in six out of eleven categories. She informed Ms. Pully that she would not recommend that she be rehired. The school board accepted the recommendation, and Mrs. Pully did not receive another contract after June 1991. Mrs. Pully asserts that Ms. Masterson did not approve of her teaching style, but that her style was appropriate and effective. She believes that Ms. Masterson "picked on her" and that other teachers spied on her and took tales to the principal. Mrs. Pully contends that Ms. Masterson tried to get rid of her the first year because she really wanted to hire Ms. Kelly for the job. She also contends that in the second year Ms. Masterson picked on her out of pique that the union successfully got her rehired. Finally, Mrs. Pully contends that the harassment about her appearance, record keeping and the like, was all because she was Finnish and was not one of the "good old girls". The appropriate scope and the evidence in this proceeding do not permit a finding as to which teaching style was "right", nor do they permit a finding as to whether Miriam Pully was properly not rehired by the school board. The relevant issue is whether the alleged discrimination occurred. From the evidence presented, I do not find that Ms. Masterson (or the school board in adopting her recommendation) discriminated against this teacher on account of her national origin. In making her observations and evaluations, Norma Masterson relied on her substantial experience in teaching, school administration, and special education. She also considered the appropriate observations and recommendations of peer teachers and specialists. Ms. Masterson routinely visited classrooms, not just Mrs. Pully's class, to get to know the students and to see where improvements could be made. She also counselled other staff about their appearance, and one staff person was sent home to change when she came to school in a long shirt and leggings. When necessary, Ms. Masterson also addressed other teachers' problems with discipline or record keeping. Her concern about Mrs. Pully's discipline related to the perceived lack of control. Even though special education classes may or may not be disorganized, as acknowledged by Ms. Masterson, the children need to work toward the goals of their individual education plans. Working "out of field", Mrs. Pully did not have the skills necessary to effectively meet the children's needs, contrary to Ms. Masterson's sincere positive expectations at the time of hiring.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Miriam L. Pully's petition for relief be dismissed. DONE AND RECOMMENDED this 24th day of May, 1993, in Tallahassee, Leon County, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1993. COPIES FURNISHED: Miriam L. Pully 57 Lake Drive DeBary, Florida 32713-2873 Frank C. Kruppenbacher, Esquire 390 North Orange Avenue, Suite 1300 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
