The Issue Whether respondent's teacher's certificate should be disciplined on charges that he was repeatedly arrested and convicted for passing worthless checks, that he was arrested at the elementary school where he was employed for failure to return a rented vehicle, and (3) that he falsified his application for extension of his teacher's certificate.
Findings Of Fact Respondent holds Florida teacher's certificate number 342272, regular, valid until June 30, 1986, covering the areas of sociology and social studies. At all times pertinent to the charges, respondent was employed as a public school teacher by the Dade County School District. (Testimony of Gray; P-5) Between 1977 and 1981, respondent was arrested sixteen times and charged with twenty-three counts of passing worthless bank checks, one count of failure to return a rented vehicle, one count of uttering a forged instrument and one count of forgery. On many of the charges, adjudication of guilt was initially withheld. Eventually, however, respondent was ordered to serve one year in the Dade County Stockade and was placed on probation for a period of five years following his release. (P-1 through P-22) Respondent, however, continued his habit of writing worthless checks. As a result, his probation officer sought to revoke his probation. On February 26, 1982, the Dade County Circuit Court adjudicated respondent guilty of fifteen offenses for which adjudication of guilt had been previously withheld, and ordered him to serve eight years in the state penitentiary, with twenty years of probation following his release. (P-1 through P-22) From 1977 through 1981, respondent wrote twenty-three bad checks totaling in excess of $9,500.00 (P-1 through P-22) On October 23, 1980, respondent applied for an extension of his teaching certificate. On his application, he indicated that he had never been convicted or had adjudication withheld in a criminal offense, and that there were no criminal charges pending against him other than minor traffic violations. In fact, respondent had been arrested on October 16, 1980, and charged with twelve felony counts of passing worthless bank checks. Moreover, respondent had previously had adjudication withheld on numerous criminal offenses involving felony counts of passing worthless checks. (P-1 through P- 22) Because of his extensive criminal misconduct, respondent's effectiveness as a teacher in the school system has been seriously reduced. He has failed to set a proper example for students. The Dade County School District has removed him from his position and would not recommend he be rehired by another school district. (Testimony of Gray) Respondent offered no testimony or other evidence in defense of the charges.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's teacher's certificate be revoked. DONE AND RECOMMENDED this 16th day of December, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 December, 1982.
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
Findings Of Fact The School Board of Dade County seeks the dismissal of Mactavis Burrows from employment as a teacher's assistant for misrepresentation in his application for employment, and for misconduct in the form of excessive tardiness, absenteeism, and unemployment compensation fraud. Mactavis Burrows was employed by the School Board of Dade County in July 1974 as an emergency substitute teacher. He did not work regularly, but was available on a day-to-day basis to fill in for teachers at various schools in Dade County. In 1979, he became an airport limousine driver, and continued in that position until 1983. In June 1983, he was hired in a non-instructional position as a hall security monitor. On June 3, 1983, he also filed an application for reemployment in an instructional position with the School Board of Dade County. In connection with that employment application, he completed a security check authorization which posed the following question: Have you ever been detained, held, arrested, indicted, or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or have you ever been ordered to deposit bail or collateral for any violation of any law, police regulation or ordinance? (Include offenses for any type of drugs including marijuana and courts-martial while in military service.) Yes No (If "Yes", list in remarks section the date, nature of offense or penalty imposed or other disposition of each case.) Mr. Burrows answered the question "No." He also signed an oath and declaration as part of the application which states: I agree that any omissions or false statements anywhere in this application will constitute reason for dismissal. I also understand that unless this application is completed in detail, it will not be considered. Despite his answer to the question set out above, Mr. Burrows had an extensive arrest history. His arrests included: On December 2, 1971, arrested for shoplifting. On November 22, 1973, arrested for loitering where narcotics are used. On December 11, 1973, arrested for having no valid license driver's license and resisting arrest without violence. On January 29, 1974, arrested for aggravated assault on a police officer and battery. On August 30, 1975, arrested for disorderly conduct. On September 1, 1975, arrested for disorderly conduct. On July 6, 1976, arrested for breach of the peace. On February 8, 1982, arrested for burglary and grand larceny. Mr. Burrow was not convicted of any of these charges. On June 16, 1987, after his application for reemployment was submitted, Mr. Burrow was arrested for unemployment compensation fraud. The School Board of Dade County first offered Mr. Burrows the opportunity to work as a hall monitor. Because he had college courses, he was later offered a position as a teacher's assistant, based in part on his June 3, 1983 application for reemployment. The School Board processes the applications, insofar as they relate to the questions about prior arrests, on an honor system basis. The mere indication that an applicant has been arrested does not mean that the person will not be employed. It triggers a review of the application by the School Board's Special Investigative Unit, which obtains the applicable arrest or court records. The applicant is given the opportunity to explain the situation, and to give any information relating to extenuation or mitigation about the arrest. The Special Investigative Unit will also match the applicant's statement about the disposition of the arrest with court records to determine the completeness and truthfulness of the applicant's disclosure. The School Board takes into account in its hiring decisions the nature of the position for which the applicant is being considered. Mr. Burrows was offered employment as a teacher's assistant. To qualify as a teacher's assistant, an applicant must have a high school diploma, and have completed two years of college. The position does not require a state educator's license. The position is one which places the employee in direct contact with children in the classroom, often on an unsupervised basis. The School Board is concerned with the integrity and background of persons hired for these positions to a greater extent than it would be for positions which do not involve direct contact with pupils. Mr. Burrows' dishonesty and failure to disclose his arrest history would have caused the Board not to offer him a job, had the matter come to the attention of the School Board before he was employed. His explanation for the nondisclosure was that most job applications only ask for convictions, and he had never been convicted of a crime, so he made no disclosure of his arrests. This explanation is unpersuasive. The application required disclosure of arrests. In 1988, after he was employed, Mr. Burrows was the subject of an eight count information filed by the State Attorney for the Eleventh Judicial Circuit for unemployment compensation fraud, in violation of Section 443.071(1), Florida Statutes and for grand theft, in violation of Section 812.014, Florida Statutes, for each of the weeks from January 11, 1986, through April 5, 1986. Mr. Burrows had sought and received unemployment compensation while he was employed by the School Board of Dade County without disclosure of those earnings. Whether he had then been employed as a hall monitor or as a teacher's assistant is not clear from the evidence. Mr. Burrows was arrested on those charges at school, during school hours. He plead guilty to the charges, adjudication of guilt was withheld, and Mr. Burrows was placed on probation with a condition that he make restitution in the form of community service to repay the debt at the rate of approximately $5 per hour. While employed by the School Board of Dade County during the 1987-1988 school year as a teacher's assistant at Miami-Edison High School, Mr. Burrows' performance was inadequate. He was one of two assistants assigned to work with Ms. Shirley Robinson, who taught physically impaired pupils. Their disabilities included cerebral palsy, spina bifada and other physical limitations. As a teacher's assistant, Mr. Burrows supervised and assisted pupils in going back and forth to regular classes from their special education class, assisted pupils in the bathroom (which was necessary due to their impairments) and worked with pupils on instructional tasks. The pupils would arrive by bus at 7:10 a.m. It was essential to have a teacher's assistant present to supervise disabled pupils when they arrived and to help them with their breakfast. Mr. Burrows was required to report to work at 7:00 a.m., although later his time to report to work was changed to 7:20 a.m. Mr. Burrows was consistently late in reporting to work, which created serious problems at the school in covering for Mr. Burrows and finding someone else to supervise the children. This problem was brought to his attention, but his punctuality did not improve. Mr. Burrows also had other problems with attendance. On March 16, 1988, he informed Mrs. Robinson at approximately 9:40 a.m. that he had to return home because the zipper on his trousers had broken. He left the school but did not return that day. On March 24, 1988, Mr. Burrows slept in the teacher's lounge when he should have been working with his pupils. When he learned that Mrs. Robinson had made this incident known to the administration, he became verbally abusive to Mrs. Robinson. Rule 6Gx13-4A-1.21 of the School Board of Dade County states, in pertinent part: (I) All persons employed by the School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. * * * (V) Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law by the rules of the State Department of Education.
Recommendation It is RECOMMENDED that Mactavis Burrows be dismissed from employment with the School Board of Dade County. DONE and ENTERED this 5th of September, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of September, 1989. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami, FL 33165 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, FL 33129 Dr. Joseph A. Fernandez, Superintendent Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, FL 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue The issue is whether Petitioner’s application for licensure as a foster care facility should be approved or denied by Respondent, Agency for Persons with Disabilities.
Findings Of Fact Based upon 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 is an applicant for licensure of a foster home residential facility. She submitted her application to APD on October 16, 2013. The application requested licensure of the facility in Petitioner’s individual name. However, the proposed name of the facility was Comfortable Living, In Good Hands, to be located at 1309 Jules Court, in Eustis, Florida. Petitioner owns the property located at that address, which serves as her current residence. APD is the state agency which licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs, pursuant to section 393.067, Florida Statutes.1/ APD is charged with reviewing all applications and ensuring compliance with all requirements for licensure. On page 10 of the application, Petitioner signed the attestation statement and had her signature notarized. The attestation states: Under penalty of perjury, I hereby attest that all information submitted as part of this application is true and accurate to the best of my knowledge and by submitting same I am requesting a license to operate a facility in accordance with chapter 393, F.S. I also attest to such information on behalf of the above-named applicant for licensure or license-renewal. The application indicated that the individual responsible for on-site management and supervision of the facility was Wanda Strong. However, Ms. Strong failed to provide any of the information under the section which requires details on the education and experience of the person identified as the On-Site Manager. The application also included a series of questions concerning the applicant’s qualifications under Section V: Affidavit. Question 2 under this section asked the following: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child, or the abuse, neglect, or exploitation of a vulnerable adult?” Respondent answered “no” to this question. Question 12 under Section V posed the following question: “Have you or anyone identified as a board member or a party to ownership, been convicted of a misdemeanor or felony?” The application also provided that if the response to this question was “yes,” the applicant was to provide “additional information regarding such situation(s)” on the lines provided. Petitioner responded to Question 12 in the affirmative, but failed to provide any details regarding her conviction. During APD’s review of Petitioner’s application, APD took steps to verify the accuracy of the information provided by Petitioner by conducting a search of DCF records on the Florida Safe Families Network. APD’s records search revealed a DCF report which indicated eight verified findings of neglect against Wanda Strong. Specifically, the report stated that on February 5, 2013, Wanda Strong was the caregiver at the Strong Family Day Care responsible for leaving eight children alone at the facility. Brandie Horne is a Child Protective Investigator employed by DCF. Ms. Horne conducted the investigation of the complaint against Strong Family Day Care, prepared the written report, and made the findings of neglect against Ms. Strong. In the course of her investigation, Ms. Horne conducted interviews of the children present at the Strong Family Day Care, and the mother of the children. Ms. Horne also interviewed Wanda Strong and Karlisa Woods, Ms. Strong’s daughter. Ms. Horne determined that on February 5, 2013, the mother of the children dropped them off at Karlisa Woods’ residence. Ms. Woods then left the children alone when she left to go to work. When Petitioner got off work from her night job, she arrived at Ms. Woods’ house at 7:45 a.m. Petitioner then left the younger children alone a second time, while she took the older children to school. When Ms. Horne interviewed Petitioner, Ms. Strong acknowledged that the mother dropped off her children with Ms. Woods at 6:40 a.m., and that Ms. Strong got off work from her job at 7:40 a.m. However, Ms. Strong denied that the children were left alone. When Ms. Horne interviewed Karlisa Woods, Ms. Woods claimed that she did not leave the children alone, but rather had all of the children accompany her in her vehicle, when she drove to pick up Ms. Strong from her work. Ms. Horne determined that Ms. Strong’s statement was inconsistent with Ms. Woods’ statement, conflicted with the statements of the children, and contradicted text messages received from the mother of the children. On March 13, 2013, Ms. Horne met with Petitioner to discuss the inconsistencies in her statements and the other evidence uncovered. At that time, Ms. Horne orally notified Petitioner that she was closing the investigation with verified findings of neglect. Ms. Strong told Ms. Horne that her contract with the Early Learning Coalition had been terminated as a result of this situation. Petitioner was fully informed and aware of the verified findings of neglect made by DCF Child Protective Investigator Horne. In addition, Ms. Horne distinctly recalled giving Petitioner a Notice of Rights and Responsibilities (Notice), which is routinely given to persons who are responsible for verified findings of abuse, neglect, or abandonment of children. The Notice states that a person receiving verified findings may request a copy of the investigative summary within 30 days after closure. The Notice also included the name and telephone number of the investigator. While at hearing Petitioner acknowledged receiving from Ms. Horne a document with the investigator’s name and telephone number, she could not recall what further information was included on the document. At hearing, Petitioner explained why she answered Question 2 in the negative, stating that she did not receive “paperwork” indicating a finding of neglect. However, Petitioner did acknowledge discussing the final report with Brandie Horne, including that the finding of inadequate supervision would identify her as the person responsible. Making reference to her notes made nearly contemporaneously with her conversation with Petitioner, Ms. Horne testified that on March 13, 2013, at 9:15 a.m., she orally informed Ms. Strong of the verified findings contained in her report. Petitioner’s response to Question 2 falsely represented or omitted a material fact in the license application. Petitioner also omitted material facts by failing to provide information pertaining to her education and experience as an onsite manager, and by failing to provide details pertaining to her criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a Final Order denying the application filed by Petitioner for a license to operate a foster care facility. DONE AND ENTERED this 2nd day of July, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 2nd day of July, 2014.
Findings Of Fact Respondent has a bachelor's degree in secondary education in English, which she received from Penn State University in 1973. After graduation, she took ballet lessons for six months in New York and then returned home to recuperate from pneumonia. She returned to Philadelphia and taught in a private school for a short time. She then attended a graduate program at Temple University and received her certification as a reading specialist in 1977, although she did not complete her master's degree. While she was in graduate school, she was a long-term substitute for one and one-half years in Philadelphia. She returned home to Miami Beach, Florida, because she was assigned to a school which she considered undesirable and because she had some dental problems. Respondent started teaching in the Dade County Public Schools in September of 1980 at Robert E. Lee Junior High School. During most of that school year, William R. Jones, who is currently the principal of Robert E. Lee Junior High School, was the assistant principal for curriculum at that school. As such, he received numerous complaints concerning Respondent and her classroom instruction from other teachers, from students, and from parents. Therefore, he observed Respondent teaching. Jones attempted to help Respondent with her teaching presentation, a fact which was acknowledged by Respondent at the formal hearing in this cause when she admitted that he had helped her a great deal in the field of teaching. However, during the 1980-1981 school year she responded to his assistance inappropriately. She told Jones that he had conditioned her to respond favorably to him sexually, and she told other teachers of her physical attraction to Jones. Respondent began to display bizarre behavior at school. On three occasions she was found lying on the front lawn of the school. The students thought that she was asleep, ill, or possibly dead, and this understandably caused commotion in the classrooms. After the first such occasion, Jones told her not to do it again. However, on two subsequent occasions she was found lying on the front lawn of the school. On another occasion, Respondent hysterically interrupted a conference Jones was having with another member of the school staff. He told Respondent that he was involved in a conference, but she refused to leave. She vacillated between laughing and crying. Finally, Jones advised Respondent that if she did not leave, he would call school security. She continued to refuse to leave, and he was compelled to terminate his conference so that he could talk to her. She then indicated that she had nothing to say to him. At the conclusion of the 1980-1981 school year, after Jones had become the principal of Robert E. Lee Junior High School, he was conducting a faculty meeting. Respondent got out of her seat and began to yell and scream. She ran about the cafeteria where the meeting was being held and made threats toward Jones. Due to this disruption, Jones had to end the faculty meeting and send Respondent home. After observing Respondent's classroom technique, Jones determined there was a need for her to obtain additional help or training in Preparation, planning and techniques of instruction. For example, Respondent changed her classroom activity six or seven times during the class period; she would start the class on an assignment and three or four minutes later, before the class had finished, would change the assignment to something else. Jones requested Respondent to attend the Teacher Education Center. She refused to attend. Jones had Respondent transferred from her regular class of approximately 30 to 35 students to a smaller classroom with 13 to 15 students in the hope that she would be able to cope with this reduced-size class. The attempt was unsuccessful. Both Jones and his new assistant principal, Mr. Bonilla, still found Respondent's performance to be unacceptable. In his final evaluation of the school year, Jones rated her as unacceptable. About halfway through the 1980-1981 school year, Jones advised the executive director for the Division of Personnel Control of the Dade County Public Schools, Dr. Patrick Gray, of Respondent's difficulties. After Jones's and Bonilla's annual evaluation of Respondent at the end of the 1980-1981 school year, Gray held a conference with Respondent and referred her to a psychiatrist, Dr. William Gustafson. As a result of his evaluation, Gustafson advised that Respondent was definitely emotionally disturbed and in need of psychiatric treatment. He further opined that Respondent was definitely not able to function as a teacher at the present. Thereafter, Respondent requested a medical leave of absence without pay for psychiatric reasons, and that leave was approved. About this same period of time, Dr. Gray's office received an undated letter from Respondent charging Jones with numerous acts of unprofessional conduct. Among other things, she alleged that Jones, a married man, was having an affair with a fellow educator and that that person had become pregnant. In fact, that faculty member had never been pregnant. During the 1981-1982 school year, Respondent was on a leave of absence from the Dade County Public Schools on medical leave for psychiatric reasons. It is the school system's policy to pay the premiums on hospitalization, vision and dental insurance during such a leave of absence, and this was done for Respondent. Midpoint in that school year, Respondent advised that she wished to return to work, and Dr. Gray arranged to obtain a medical evaluation by psychiatrist Charles B. Mutter. Dr. Mutter reported that Respondent's judgment was impaired, her insight was nil, and she had marked emotional difficulties warranting further psychiatric treatment. He found she had a schizoid predisposition and was in a borderline state with marked anxiety. As a result of Mutter's evaluation, Respondent did not return to work. On March 2, 1982, Dr. Gray received a report from Dr. Gustafson advising that Respondent had returned to treatment with him. Gustafson stated that she was still quite impaired by her condition, although she had improved in some respects. That same day, Gustafson telephoned Gray to advise that Respondent was no longer in treatment and that she considered Gustafson and Gray to be in a conspiracy against her. Gustafson further opined that Respondent had potential for desperate actions and needed continuing therapy. On June 16, 1982, Gray received a letter from Respondent requesting that her medical leave be extended for another year. However, on July 2, 1982, Gray received a report from Dr. Gustafson recommending only a two-month extension of Respondent's medical leave. On August 4, 1982, Gustafson wrote to Gray stating that Respondent had been successfully able to function as a teacher in a private school over the past summer. At that time, it was his opinion that she could handle the responsibilities of a classroom teacher once again. Gustafson's opinion at that time was based in part on Respondent's representation that she had been teaching a classroom of students during the preceding summer. He stated later that had he known that Respondent was only tutoring one student at a time during her summer employment, a fact which Respondent acknowledged at the hearing, he would have been more cautious about his recommendation that she was able to return to work. On the strength of Gustafson's recommendation, Respondent was returned to work in the Dade County Public Schools. She was assigned to Hialeah-Miami Lakes Senior High School, a school with a low incidence of student disruption and of high student test scores. Hialeah-Miami Lakes was in the top one-third of Dade County schools academically as well as in student activities and in the overall operation of the school. Respondent was assigned to teach English/Communications. Respondent's classes each lasted 55 minutes. During the first nine weeks of the school year, she typically assigned students a test which took approximately five to ten minutes to complete. For the rest of the class, she told them to read material of their own choosing. The students either read or slept. While the students were testing themselves and/or reading and/or sleeping, Respondent stared at the ceiling or else read a book. Sometimes she giggled to herself, even though there did not appear to be anything to laugh at occurring at the time. Some of the students felt that she screamed at students without good cause and "acted crazy." Some students requested to be transferred out of her class. The assistant principal in charge of curriculum at Hialeah-Miami Lakes Senior High School observed Respondent's class and found that there was no teaching being done. Further, although the Faculty Handbook at Hialeah-Miami Lakes requires that a minimum of two grades a week be placed in the teacher's grade book for each student, and although Respondent was advised of this requirement, she had no grades in her grade book by the end of the seventh week of school. Instead, she placed colored squares in her grade book. Although this coloring system may have held meaning for Respondent, a substitute or new teacher for the class would not be able to understand anything from this form of grading system. A conference was held with Respondent, the principal of the school, and the assistant principal for curriculum in the principal's office regarding Respondent's unacceptable performance. At that time, both the principal and assistant principal found Respondent's behavior to be bizarre. She grabbed her arms and started to giggle and laugh even though no one had said anything to precipitate any laughter. Although Respondent insists that her testing of the students was absolutely necessary, it normally takes other teachers one week at the most to accomplish the same testing of the students prior to commencing instruction. Respondent was still testing in the seventh week of school and had not yet begun to instruct or teach the students. Other teachers observed Respondent's behavior during the time she was at Hialeah-Miami Lakes and became concerned to the degree that five of them approached the principal regarding Respondent. Raymond Harrell, the language department head at Hialeah-Miami Lakes, described Respondent's behavior, including her inappropriate giggling. Harrell and another teacher, Gary Graziani, related an incident concerning a school- sponsored television program, which is run every other Friday for 15 minutes and is part of the school curriculum. Respondent was upset about the noise from the televisions and stated to them and others: "We have got to stop the noise, I cannot teach with that noise, it's pounding in my blood." It was suggested that she might take her class to the auditorium on the days that the newscast was run; however, she refused and insisted that the noise must be turned down. She stated: "It's like being behind a train. I just can't take it, I just can't take it." No other personnel at the school, including the teacher who had Respondent's classroom before her, had complained about the noise from the televisions. On another occasion, while Harrell was chairing a department meeting concerning curriculum, Respondent raised her hand and gave a 10- to 15-minute speech about the history of her high school curriculum and the way she did things in Pennsylvania. Her comments had nothing to do with the subject of the meeting, and she told the department head to be quiet and pay attention. Harrell, who has also observed Respondent staring at the ceiling and even talking to the ceiling, is of the opinion that she is absolutely incompetent to be a teacher. During the month of October 1982, the principal of Hialeah-Miami Lakes Senior High School requested Dr. Charles Sherwood, the regional supervisor for the Dade County schools, who has extensive background in reading and in English, to come to Hialeah-Miami Lakes to evaluate the reading program at that school. On October 15, 1982, Dr. Sherwood complied with that request, and, as part of his evaluation, he observed Respondent. Dr. Sherwood observed Respondent give a test to her students which required approximately five or six minutes to administer and take. She collected the test sheets and told the class to find something to read. Some students looked at magazines, others talked with each other, and Respondent sat down in a chair and looked at the ceiling. She was not teaching at all. Although Respondent's students were required to have writing instruction, she did not give them any. Dr. Sherwood questioned Respondent as to the materials and supplies she would be using, and she advised him that she would find some when she needed them. The materials that she did have and intended to use when she finished testing the students were not appropriate for her class. Dr. Sherwood does not believe that Respondent is competent to teach school. When the principal of Hialeah-Miami Lakes raised questions as to Respondent's fitness to teach, she was again referred to Dr. Patrick Gray. Gray again referred her for psychiatric evaluation, and, although Respondent resisted, eventually the evaluation did take place. On November 5, 1982, Respondent agreed to see Dr. Anastasia M. Castiello, a board certified psychiatrist. Dr. Castiello diagnosed her as schizophrenic. Dr. Castiello concluded his report on his November 5, 1982, evaluation of Respondent as follows: . . . Finally, in response to your specific question, i,+ is my opinion that Miss Ronburg's mental condition is such at the present time that she would be unable to properly function as a teacher and as a matter of act [sic], it is unlikely that she could function in whatever capacity in a job situation of any kind. After reviewing Dr. Castiello's evaluation, Dr. Gray concluded that the school system had exhausted its efforts to help Respondent and would not be able to be of further assistance to her. He did not feel that medical leave of absence would achieve any further positive results and therefore recommended the termination of Respondent's employment with the school system. On the basis of his educational background and his experience in the area of personnel control, Dr. Gray believes that Respondent clearly lacks the competence to perform the assigned functions of an instructional staff member in Dade County Public Schools. Effective November 18, 1982, Respondent was suspended from her employment with the Dade County Public Schools, and the school board instituted proceedings to dismiss her from employment. On February 7, 1983, Respondent's attorney took the deposition of Dr. William Gustafson who had first seen Respondent in the spring of 1981. Dr. Gustafson agrees that Respondent is suffering from schizophrenia, which he describes as an inability to differentiate what is real from what is unreal and a difficulty in arranging thoughts in an orderly, reasonable, and rational manner. When he first saw her, Gustafson believed that Respondent was delusional about her situation at Robert E. Lee Junior High School and her feelings about Mr. Jones. He noted her inappropriate laughter, from which it appeared that she was responding to things that were within herself. Although Gustafson believes that Respondent has improved somewhat, as of the date of his deposition, his diagnosis remains the same. Dr. Gustafson has been hampered in his treatment of Respondent by her refusal to come for treatment as often as the psychiatrists recommend to be desirable and necessary for treatment of her condition and by Respondent's refusal to take the medication prescribed for her. After her suspension from her employment, Respondent visited Gustafson, who became concerned that she had suicidal feelings, and he hospitalized her for this reason. She checked out of the hospital within three hours. Gustafson believes that if Respondent continues in treatment and accepts medication, she can recover. She has not, however, admitted that she is sick, and she continues to refuse medication and treatment. As of his deposition on February 7, 1983, Gustafson had not seen Respondent in his office for approximately one month. In fact, he had seen her only three or four times since he hospitalized her in November of 1982 and has no reason to believe that she will come in to see him any more often than she has in the past. He believes that in order to be of assistance to her, he should see her once or twice a week for hourly sessions. Since Respondent has only seen Dr. Gustafson approximately 12 times over the period of two years between her first referral to him and the date of the formal hearing in this cause, Dr. Gustafson cannot be considered as her treating physician, and his opinion is entitled to only the same weight as the opinions of the other two psychiatrists who have evaluated Respondent. The most recent psychiatric evaluation of Respondent was performed by Dr. Charles B. Mutter on March 23, 1983. Dr. Mutter is the same psychiatrist who evaluated her in January 1982. Dr. Mutter found that Respondent's judgment is impaired, and her insight is superficial. He further found that she needs more intensive psychotherapy than she is receiving and is in definite need of medication to help her remain more stabilized." Dr. Mutter concluded that Respondent's present mental state precludes her from teaching. He would only recommend that Respondent be permitted to return to the classroom with two stipulations: that she continue treatment with Dr. Gustafson on at least a twice-monthly basis, and that she take medications prescribed by Dr. Gustafson on a consistent basis. At the formal hearing in this cause, Respondent admitted that she would not take medication for her illness even though she has been advised to do so by the psychiatrists. She also testified that she does not feel that she requires psychiatric treatment in order to perform the role of a classroom teacher. Since all three psychiatrists agree that Respondent needs continuing regular therapy and medication in order to improve, and since Respondent refuses to undergo therapy and take medication, it is clear that until she chooses to follow medical advice she will not improve and cannot function as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the suspension of Respondent Donna Ronburg, dismissing her from her employment with the School Board of Dade County, Florida, and denying her claim for back pay. DONE and RECOMMENDED this 30th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 30th day of June, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132 William du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this unusual case is whether the district school board has just cause to dismiss Respondent from his position as a teacher for administering corporal discipline to his own child in the child’s classroom, where Respondent was acting at all relevant times in his personal, nonprofessional capacity as a parent.
Findings Of Fact The Miami-Dade County School Board (“School Board” or the “district”), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to this matter, including specifically the 2018- 2019 school year, Menelas was employed as a chemistry teacher at Dr. Michael Krop Senior High School pursuant to an annual contract. The incident at issue in this case occurred on February 15, 2019, at Madie Ives K-8 Academy in the classroom of Patricia Costa. Ms. Costa has been a teacher for more than 20 years in Miami-Dade County. During that time, she has taught multiple subjects and held leadership positions at her school. In 2018-2019, Ms. Costa taught sixth-grade U.S. History. One of her students that year was Menelas’s son, T.M. T.M. has been a disruptive and poorly behaved student from preschool onward, despite repeated interventions. Menelas has taken his son to numerous professionals for counseling and other forms of treatment, including medication, to no avail. T.M.’s behavioral issues have caused Menelas substantial emotional distress over the years. T.M. had been in Ms. Costa’s fourth-grade class two years earlier. As a result, Ms. Costa not only had experience with T.M.’s disruptive behavior, but she knew Menelas as well, through parent-teacher communications. There is no direct evidence in the record, however, bearing on whether Ms. Costa knew that Menelas was a fellow teacher. Neither she nor Menelas was asked about that at hearing. As an experienced teacher, Ms. Costa possessed the skills to deal with T.M.’s misbehavior, most of the time. If Ms. Costa called T.M.’s parents, therefore, as she sometimes did, it was because she was at her wit’s end. So, when Ms. Costa phoned T.M.’s mother on February 13, 2019, to request assistance in bringing T.M. under control, it was a sign that the child’s behavior had been especially bad recently. Whatever measures T.M.’s mom took in response to Ms. Costa’s call, however, failed to have the desired effect. Consequently, on the afternoon of February 14, 2020, Ms. Costa sent an email to Menelas in which she wrote: Hope all is well. I have been able to handle [T.M.] without having to involve you this year. However, his behavior lately has gotten out of control. Yesterday, he was disrespectful towards me and I spoke to mom on the phone. That had no affect [sic] on his behavior today. Constant talking during class to the point where I sent him to another teacher and gave him a detention. Secondly, he continues to make a loud clicking sound in other students’ ears and has been asked various times to stop, but he doesn’t. Please have a stern conversation with him regarding his behavior. It is disruptive to the class and hinders the other students’ learning. Should you have any questions, please feel free to contact me. (Emphasis added).1 Menelas replied to this email the following day and might have spoken with Ms. Costa on the telephone as well.2 There is no dispute regarding the substance of their communication, which consisted of Menelas’s request to 1 In light of the circumstances, Ms. Costa’s request that Menelas “have a stern conversation” with T.M. could reasonably be understood as a plea for Menelas to use harsher methods in punishing T.M. than either she (the experienced teacher) or the boy’s mom had been able to employ. Whether Ms. Costa was euphemistically suggesting that Menelas give his son a spanking is unknown, and the undersigned is not inferring that such was her communicative intent. However, the subtext of the email is reasonably clear: teacher and mother have tried, and failed, to subdue T.M., and they now want dad to lower the boom. 2 He does not remember the phone call, and she does not remember the email. Menelas read the reply email out loud at hearing during his testimony, but the writing is not in evidence. observe T.M. at school in Ms. Costa’s classroom that afternoon, and Ms. Costa’s consent to this request. The district asserts that Menelas “used his position as a teacher to convince his colleague [Ms. Costa] to allow him to observe her classroom.”3 The evidence, however, does not support such a finding. As mentioned, Ms. Costa did not testify that she even knew Menelas was a teacher, much less that she had given him preferential treatment for this reason. But even if she were aware of Menelas’s occupation, there is no evidence that Ms. Costa allowed Menelas to visit her classroom as a professional courtesy. In her testimony, Ms. Costa referred to Menelas as “dad,” never as a colleague or fellow teacher; she neither stated, nor implied, that she treated Menelas differently from any other parent. After finishing work on February 15, 2020, Menelas left his school and drove to T.M.’s school, where he checked in at the main office, and then proceeded to Ms. Costa’s classroom. Arriving at 2:45 p.m., which was 15 minutes before the bell, Menelas immediately walked to the front of the class and began addressing the students. Menelas introduced himself as T.M.’s father (not as a teacher) and spoke to the class in that capacity only. There is no evidence that any student in Ms. Costa’s classroom (besides T.M., of course) knew that Menelas was a teacher. Also, while there is no evidence that Menelas sought Ms. Costa’s permission to address her class, Ms. Costa did not interrupt him or ask him to stop. At a minimum, Ms. Costa acquiesced to Menelas’s taking the floor, and it is not unreasonable to infer that she welcomed this, as it soon would have been apparent that Menelas’s plan was to have a “stern conversation” with T.M. for misbehaving in class. In his remarks to the class, Menelas apologized for his son’s disruptive behavior, which, he told the students, had long been an embarrassment to Menelas, and which he taken many steps to correct, without success. 3 Pet.’s Prop. Rec. Order at 5. Addressing his son, Menelas told T.M. that because he had caused his father embarrassment and refused to listen, T.M. would now be embarrassed by Menelas in front of his peers. Menelas directed T.M. to stand before the class, remove—and hand over—his belt, and drop his pants. T.M. complied.4 Menelas instructed T.M. to count to ten, and, as the boy did so, Menelas spanked him with the belt, one strike per number, for a total of ten blows. Ms. Costa did not physically intervene in Menelas’s chastisement of T.M. or verbally object to what she was witnessing; she merely watched.5 There is no evidence that the students reacted to the spectacle in ways that would suggest they were either frightened of Menelas or thought T.M. was in danger; no one screamed or fled, for example. Some students, in fact, actually laughed. Putting aside for now the question of whether Menelas’s act constitutes just cause for termination, there is no dispute that T.M. was not injured by the spanking. Menelas testified that that he had no intention of physically harming his son, and this testimony, being consistent with the objective facts and otherwise credible, is credited as truthful. The manifest objective of this discipline was to embarrass T.M. After spanking T.M., Menelas directed the boy to apologize to Ms. Costa, which he did. In her reply to T.M., Ms. Costa said something to the effect that “it shouldn’t have come to this.” Although there is some disagreement as to Ms. Costa’s exact words, it is undisputed that she did not admonish Menelas or question the propriety of his conduct. 4 T.M. was wearing boxer shorts and thus was not exposed by pulling down his pants. The incident, in other words, did not involve any nudity, and no charge to that effect was brought against Menelas. 5 At hearing, Ms. Costa testified that she tried to call Menelas’s name, as if to stop him, but he became extremely angry and started to yell. The undersigned rejects this testimony, which conflicts with other evidence in the record. The undersigned notes, as well, that in the “Summary of Conference-for-the-Record” dated September 11, 2019, the following statement is included in the allegations against Menelas: “Teacher [i.e., Ms. Costa] did not intervene in the incident.” T.M. returned to his seat, and Menelas left the classroom without incident. The entire episode, from Menelas’s arrival until his departure, lasted approximately five minutes. It is reasonable to infer, and the undersigned finds, that the spanking itself likely took no more than about 15 seconds, assuming that T.M. probably counted off at one-second intervals. Some time would have been taken up, as well, by T.M.’s removing his belt and dropping his pants, and by T.M.’s post- spanking apology to Ms. Costa. Subtracting the few minutes (at most) that these matters would have taken from the five minutes comprising the whole incident leads to the conclusion that Menelas must have spoken to the class for at least a couple of minutes before carrying out the physical discipline. This strongly implies, and it is found, that the spanking was not a sudden and unexpected outburst, but the foreseeable culmination of a series of deliberately unfolding actions pointing towards such an outcome. Any reasonable observer should have seen it coming. The point is that Ms. Costa had reasonable opportunities to take protective measures, and yet she did nothing. If anyone in that classroom had a clear duty to protect the students from potential harm, moreover, assuming there was a genuine threat, it was Ms. Costa. At hearing, Ms. Costa explained her inaction as the result of being shocked by the unusual situation, the likes of which she had never encountered. The undersigned does not disbelieve Ms. Costa’s testimony in this regard, but she does, clearly, have an obvious personal interest in playing up the “shocking” nature of Menelas’s conduct.6 The undersigned is unable to find that Ms. Costa, a veteran teacher whose performance has been exemplary, as far as the record shows, would stand by and allow her students to be placed in harm’s way by an unarmed parent visiting her classroom. The more reasonable inference is that, in the 6 Ms. Costa’s bias arises from that fact that she, herself, could be charged with misconduct in office, for failing to take reasonable measures to protect her students. event, Ms. Costa did not regard Menelas as a real danger to the students, including T.M., because she realized that he was using shame, not violence, as a means of bringing T.M. to heel, which was a common goal of them both. After class, Ms. Costa reported the incident to her assistant principal. In due course, reports were made to the Department of Children and Families (“DCF”) and to the police. Given the absence of any injury to T.M., it is not surprising that, after being informed of the incident, DCF would not take the case, and the state attorney’s office declined to prosecute. It is found as an ultimate fact that Menelas’s spanking of T.M. constituted reasonable corporal punishment of the kind parents are privileged to administer in the state of Florida. Menelas continued teaching without problems for the remainder of the 2018-2019 school year. He received an annual contract for the following school year and remained on the job until his suspension on November 20, 2019. There is no evidence that the incident in Ms. Costa’s classroom had any adverse effects on Menelas’s effectiveness as a teacher. Menelas has no record of prior discipline relating to his employment with the district. DETERMINATIONS OF ULTIMATE FACT The district has failed to prove its allegations against Menelas by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order exonerating Blucher Menelas of all charges brought against him in this proceeding, reinstating Menelas to his pre-dismissal position, and awarding Menelas back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 28th day of August, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact The proposed site for the resource recovery unit is located on 160 acres of the northeast quarter of Section 17, Township 53 South, and Range 40 East in Dade County. This site is presently undeveloped and bordered on the east by the Dade County Northwest 58th Street landfill. The resource recovery facility as proposed consists of a three thousand (3,000) tons per day solid waste resource recovery facility and two 38.5 meggawatt steam electric generating turbines, and one 80 acre landfill. The proposed operations call for the separation of ferrous and aluminum metals and glass from combustible material. The combustible material is to be pulped, dried, and burned in four (4) boilers to produce steam for the generation of electricity. On a daily basis the resource recovery boilers will require 1.76 million gallons of water to operate the cooling towers. Cooling tower blow- down, boiler blow-down, and landfill leachate will be utilized in a hydro- pulping process to process the solid wastes prior to combustion. As a result of this waste water usage, no industrial waste water will be discharged from the site. Potable water will be supplied by the Miami Dade Water and Sewer Authority. Sanitary wastes will be treated in a sewage treatment plant on the site. The cooling water will be withdrawn from a portion of the Biscayne Aquifer contaminated by leachate from the Northwest 58th Street landfill. The South Florida Water Management District has concluded that the Biscayne Aquifer would be capable of supplying the non-potable water requirements of the proposed facility. In addition, the withdrawal of water for the facility would alleviate the impact of the leachate plume from the 58th Street landfIll, which plume of contaminated water is moving eastward to the Miami Springs wellfield. The construction of the resource recovery facility would allow the closing of the 58th Street landfill and would thereby prevent the continued production of contaminated leachate and would reduce problems of flies, rodents, and odors. The construction of the resource recovery facility will involve extensive grading, filling, and removal of vegetation on the proposed site. Due to previous drainage and development of the surrounding area, however, the site is situated in a degraded everglades habitat the hydrologic regime of which has been drastically altered and now supports relatively little wildlife. Surrounding land uses would make future restoration difficult. The destruction of the grasses, and other vegetation on the site would have little environmental impact. The resource recovery facility site is owned by Dade County and will be operated by Dade County Resource Recovery, Inc. Steam produced at the resource recovery facility will be sold to Florida Power and Light Company for the generation of electricity. Some 61 meggawatts of electricity will be generated and distributed throughout the Florida Power and Light transmission system. The electricity generated by this facility will eliminate the need for over one million barrels of imported fuel oil each year and will produce a net savings to the customers of Florida Power and Light. The resource recovery facility will utilize cyclonic collectors and high efficiency electrostatic precipitators to remove fly ash from the burning of processed refuge. Plant air will be injected into the boiler or will be passed through activated carbon filters to eliminate odors. As a result of these control measures, the resource recovery facility will comply with state and federal emission limitations and ambient air quality standards. Although the facility may contribute slightly to a violation of the Dade County Ambient Air Quality Standards, the Director of the Dade County Environmental Resources Management Board did not feel that the facility would cause a problem. The resource recovery facility would utilize the latest reasonably available control technology for the control of emissions to the atmosphere. The use of the proposed equipment will result in a very small incremental increase of sulphur dioxide and particulate matter into the ambient air. These emissions are less than the federal significant deterioration limits and the increases in air pollution levels are not expected to significantly degrade air quality in the area. The Florida Public Service Commission report of October 7, 1977, states that 62 meggawatts of electricity would enhance the reliability of Florida Power and Light's system and would displace residual fuel oil so that some benefit would be derived from construction of the facility. The Division of State Planning did not submit a report as required by Section 403.507(1)(a), Florida Statutes. The Department of Natural Resources, Game and Fresh Water Fish Commission, Department of Commerce, and South Florida Regional Planning Counsel offered comments on the facility supportive of its construction and operation. Comments and objections from the Department of Health and Rehabilitative Services, South Florida Water Management District, the Division of Archives, History and Records Management, were resolved by the provision of additional information and proposed conditions of certification. No opposition from these agencies was presented at the conclusion of the hearing. The Department of Environmental Regulation recommended certification of the Dade County Resource Recovery facility in accordance with the proposed general and special conditions of certification. The applicant has stipulated and agreed that the general and special conditions of certification, as proposed at the hearing, should be imposed if certification is granted. At the conclusion of the presentations by the parties to this proceeding, opportunity was given to the general public to comment on the application for site certification. No such individuals appeared and no comments were offered. After examining the sum and substance of the testimony and evidence offered, it appears that the construction of the resource recovery facility would provide for the closing of inadequate sanitary landfills and inadequate air polluting incinerators. Further, the operational safe guards of the proposed facility are sufficient to protect human health, wildlife and aquatic life. Finally, the construction and operation of the proposed facility will not violate state air or water pollution standards.
Recommendation It is therefore recommended that the proposed site be found and held to be in conformity with existing land use plans and zoning ordinances in effect as of this date, and it is further recommended that the responsible zoning or planning authorities be restrained from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Copies furnished to all parties
