Findings Of Fact The Petitioner is a corporation in the business of providing home health care services. The Department of Health and Rehabilitative Services is responsible for licensing home health care agencies. The Petitioner applied for a license to operate such a business by filing an application with the Department on May 13, 1976. In its application the Petitioner indicated that it would serve Pinellas County. The Florida Gulf Health Systems Agency, a private entity created in accordance with Federal Public Law 93-641, was asked by the Department to consider the need for the services that the Petitioner proposed to provide. The Florida Gulf Health Systems Agency ("HSA" hereafter) submitted the application to a Pinellas County subcommittee. Need for the services was considered only in relation to Pinellas County. The HSA issued a "Statement of Need" indicating that there was a need for the services. The Department issued a license to the Petitioner on September 16, 1976. The license, by its terms, did not set any geographic limitation for the Petitioner; however, the Petitioner's application related only to Pinellas County. On April 20, 1977, the Petitioner sent a letter to the Department which provided as follows: We have received numerous requests from our upper Pinellas County hospitals to care for their patients in Pasco County. We are cur- rently licensed to serve only Pinellas County and I am therefore requesting our license be extended to include Pasco County. Our office for that area would be located in Tarpon Springs, which is in Pinellas County. On June 1, representatives of the Petitioner and the Department had a telephone conversation. The Petitioner confirmed the conversation with the following language: Thank you for your attention in the matter of license for the extension of service into Pasco County. It is my understanding, from your conversa- tion with Ms. Schreck, our Director of Nursing, that we can now service patients in Pasco County. It is also my understanding that we must abide by the following specifications: "That our office remain in Pinellas County and that we can prove ade- quate supervision of personnel". The Department confirmed the conversation as follows: This is to confirm our telephone conversation of June 1st. After talking with Ms. Gage, it was decided that it would be permissible for an office to be open in Tarpon Springs if the staff were supervised daily and the super- vision was documented. Should an office be opened in another county, a license would be necessary. Shortly thereafter the Petitioner began serving patients in Pasco County without regard to whether the patients had been hospitalized at Pinellas County hospitals. Petitioner made capital expenditures, added employees, and expanded their operations in order to provide such services. By application dated June 13, 1977, the Petitioner applied for a license for its second year of operation. The application provided that the geographic area served would be Pinellas and Pasco Counties. The application was not submitted to the Florida Gulf Health Systems Agency, and a license was issued by the Department which contained no geographical limitation. In January or February, 1978, the Department advised the Petitioner that it could not serve all patients in Pinellas County, but rather only those who had been discharged from Pinellas County hospitals. The Department's position was reflected in a letter dated February 7, 1978. The Petitioner accordingly indicated that it would file an application for certificate of need (a certificate of need was not required at the time the Petitioner was originally licensed, but was required at this later date). The Department further clarified this position in a letter dated May 1, 1978, and invited the Petitioner to request a hearing. This proceeding ensued. The Petitioner was originally seeking authorization to serve patients in Hillsborough, Manatee, and Pasco Counties in addition to those in Pinellas County. At the hearing the Petitioner dropped its efforts to receive approval to serve patients in Hillsborough and Manatee Counties. On September 1, 1978, the Petitioner was issued a license by the Respondent for the 1978-79 year. The license limited the providing of services to Pinellas County.
The Issue Whether Respondent is guilty of immorality, gross insubordination, or misconduct in office.
Findings Of Fact At all times relevant hereto Walter Phillips, Respondent, was a continuing contract teacher employed by the Pinellas County School Board, Petitioner, to teach woodshop, math, graphics and drafting at Largo High School. In the 1988-89 school year, Brent Roth, a senior at Largo High School, served as teacher's aide to Respondent. Roth was interested in guns and gun magazines and often engaged Respondent in conversation regarding hand guns. On one occasion while looking at a gun magazine at school, Roth showed Respondent an advertisement for a 9 mm Baretta pistol and asked Respondent would he like to own a Baretta. Respondent indicated yes. Several times thereafter Roth told Respondent that he (Roth) knew where he could purchase a gun at a large discount over the retail price, indicating the gun was "hot" or stolen in the robbery of a truckload of weapons. Respondent knew Roth was prone to exaggeration and didn't believe that Roth could obtain such a weapon. Nevertheless, Respondent decided to proceed with these discussions and, if Roth ever procured such a weapon, Respondent would call in the FBI. At no time did Respondent ever give Roth money to purchase a weapon, nor had Roth ever before purchased such a weapon. Respondent is a member of the Coast Guard Reserve and apparently considers himself a federal law enforcement officer, despite the fact that Coast Guard jurisdiction in law enforcement is limited to the navigable waters of the United States and then only to active duty personnel. Nevertheless, Respondent purported to conduct his own investigation. During the time Roth bragged to Respondent about his ability to acquire a Baretta pistol which had been stolen, and therefore, cheap, the Pinellas County Sheriff's Office was conducting an undercover investigation at Largo High School principally to find out if drugs were being dealt at school. They had an agent posing as a student. This agent, detective Wojciechowski, armed with a body recorder, taped several of the conversations in which Respondent, Roth and other students discussed the purchase of a stolen or hi-jacked gun or guns. The taped conversations were not transcribed and, although the undersigned devoted nearly two hours listening to this tape (Exhibit 3), the speakers were not identified and, without devoting an inordinate amount of time to the project, the speakers cannot be identified. Accordingly, from the posture of the evidence presented, Respondent's specific participation in the purported acquisition of a Baretta pistol cannot be determined. When confronted with the undercover deputy sheriff's tape of his conversations relative to the purchase of a stolen gun, Respondent acknowledged that he had engaged in such discussions for the purpose of discovering if the students actually had access to stolen weapons, but not for the purpose of acquiring such a gun. Had the student been able to get possession of a stolen weapon, Respondent would promptly notify the FBI (Exhibit 6). Respondent never notified his principal, Ms. Westfall, or the campus police regarding his "investigation" because he really didn't believe the student could obtain possession of such a weapon and he had insufficient evidence to support such an allegation. In the summary of the conference (Exhibit 6) between Respondent, the school principal, the school personnel officer and the PCTA member, prepared by Steve Crosby, the Director, Personnel Services, and signed by Respondent, the latter is reported to have acknowledged: If the student had been able to get the gun, he [Respondent] would have had him bring it to him at school, rather than taking a chance in meeting him alone. In his testimony at these proceedings, Respondent stated that he never intended for Roth to bring the pistol to school, only to bring some evidence that Roth could obtain such a weapon. If a weapon was to be delivered, Respondent would have arranged for an off-campus place of delivery and then notified authorities. Respondent's testimony is accepted as the factual version of this proposed transfer. It is significant in assessing the seriousness of the allegations that the closest any participant in the "plot" to purchase a gun ever came to a gun was a picture of a gun in a magazine. No money was ever exchanged, no fixed price for a gun was ever established and, in fact, no actor in this play had any real knowledge that the stolen gun or guns was available to be purchased. In his handling of the discussions pertaining to the purchase or acquisition of a presumed to-be-stolen-pistol, Respondent exercised poor judgment in failing to alert local authorities to these discussions. However, since no hard evidence was available that any student had access to such a weapon there was little to investigate; and it is unlikely that the police would have taken action other then ask Respondent to keep them advised of developments. Petitioner's expert witnesses opined that, by failing to report these conversations to school authorities and in planning the delivery of a gun on school premises, Respondent exercised poor judgement. This, in their opinion, created doubt of his ability to make a proper judgment at school and thereby impaired his effectiveness as a teacher. That part of these opinions predicated upon Respondent negotiating with a student for the purchase of a stolen gun to be delivered to the school premises did not have factual support and is disregarded. Respondent has been a certified teacher for fourteen years and, although he doesn't hold a bachelor's degree, he holds a teacher's equivalency. He has been employed by the Pinellas County school system on a continuing contract since 1979. At no time during the Respondent's tenure in the Pinellas County school system has he been subjected to disciplinary action as a result of charges being brought against him for an infraction of statute or rule.
Recommendation It is recommended that the charges of immorality, gross insubordination, and misconduct in office preferred against Walter Phillips be dismissed, his suspension vacated, that he received back pay for the period his pay has been suspended, and that he be restored to his former status as a continuing contract teacher with the Pinellas County School Board. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 7th day of July, 1989. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, SW Largo, Florida 34640 ================================================================= AMENDED RECOMMENDED ORDER =================================================================
