The Issue The issue in this case is whether Respondent violated Sections 231.28(1)(a), (c), (d), and (i), Florida Statutes (1997), and Florida Administrative Code Rule 6B-1.006(5)(a) and (h) by having his teaching certificate permanently revoked in New Jersey for dealing in stolen property and failing to disclose the revocation on the application for renewal of his Florida teaching certificate. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 165660. Respondent's Florida teaching certificate is valid through June 10, 2001. On January 13, 1994, the State of New Jersey permanently revoked Respondent's educator's certificate in New Jersey for dealing in stolen cars with a student, for failing to report his criminal arrest to the New Jersey Board of Education (the "Board"), and for failing to notify the Board of the progress and status of the matter. Respondent was represented by counsel in an administrative proceeding that lasted over two years. The Board and the Township of Irvington in Essex County, New Jersey, filed charges against Respondent on October 18, 1991. Respondent filed an answer and affirmative defenses. On January 15, 1992, the Board referred the matter to the Office of Administrative Law to conduct an administrative hearing. An Administrative Law Judge (the "ALJ") conducted an administrative hearing on September 15 through October 1 and on December 15, 1992. During the hearing, Respondent testified in his own behalf. In relevant part, the ALJ found that Respondent knowingly and intentionally acquired, possessed, and used stolen cars. The ALJ further found that Respondent executed a false bill of sale for one of the vehicles, forged one of the owner's signatures, applied for and obtained fraudulent registrations for the stolen vehicles, was involved in dealing in stolen cars with a student, failed to notify the Board of his arrest for dealing in stolen property, and failed for many months thereafter to apprise the Board of the status of the matter. The ALJ recommended that Respondent should forfeit his tenured teaching position and be dismissed from his position. The Initial Decision of the ALJ was forwarded to the New Jersey Commissioner of Education (the "Commissioner"). Respondent filed exceptions to the ALJ's findings and conclusions. Respondent's exceptions were considered by the Commissioner. By Final Decision entered on June 9, 1993, the Commissioner accepted the findings and conclusions of the ALJ which found Respondent guilty of receiving and dealing in stolen automobiles with a student and for failing to disclose his arrest. The Commissioner ordered that a copy of the Final Decision be forwarded to the State Board of Examiners for its review and, in its discretion, further appropriate action. The Commissioner mailed a copy of its Final Decision on June 9, 1993. However, the documentary evidence does not show the addressee or address of the mailing. On September 23, 1993, the Board of Examiners issued an Order to Show Cause why Respondent's educator's certificate should not be revoked. On October 13, 1993, the Board of Examiners mailed the Order to Show Cause both by U.S. Mail and by certified mail. The evidence does not show the addressee or the address of the mailing. The certified mail was returned unclaimed. Respondent did not contest the Order to Show Cause. On January 13, 1994, the Board of Examiners permanently revoked Respondent's educator's certificate in New Jersey. On March 1, 1994, the Board of Examiners mailed a copy of the order of revocation. The evidence does not show the addressee or the address of the mailing. On June 26, 1996, Respondent submitted an application for renewal of his professional Florida Educator's Certificate. By sworn statement, Respondent certified that the responses to questions and information in the application for renewal were true, correct, and complete. In relevant part, the renewal application asked: Have you ever had a teaching certificate revoked . . . by a state other than Florida . . . . If YES, you must give the state where your certificate was revoked. . . . Respondent answered "yes" to the question on the renewal application. However, Respondent gave Florida as the state in which his certificate had been revoked and then represented that his teaching certificate had been reinstated. In the application for renewal of his Florida teaching certificate, Respondent failed to disclose the revocation of his teaching certificate in New Jersey. Respondent knew, or should have known, that his teaching certificate in New Jersey had been revoked. Respondent had constructive knowledge of the revocation of his teaching certificate in New Jersey. The evidence creates a rebuttable inference that Respondent knew, or should have known, of the revocation of his New Jersey teaching certificate. Respondent failed to present evidence to rebut the inference. Failure to disclose the revocation of his New Jersey teaching certificate on the application for renewal of his Florida teaching certificate was a reckless and careless disregard for the truth.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 231.28(1)(a), (c), (d), and (i), and Rule 6B-1.006(5)(a) and (h), and permanently revoking Respondent's teaching certificate in Florida. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 4th day of October, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennet & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Howard O. Smith 1304 West 7th Street Sanford, Florida 07071
The Issue Whether Respondent has grounds to deny the renewal of Petitioner's foster home license.
Findings Of Fact Petitioner was first licensed as a foster parent in Dade County, Florida, in 1993. Her foster parent license was renewed each year until she was notified on October 30, 1998, that her license would not be renewed. Petitioner had received the requisite training as a foster parent and she knew, or should have known, her responsibilities and the minimum qualifications for licensure. At all times pertinent to this proceeding, Petitioner has been married to Marvin Bingham. Petitioner and Mr. Bingham separated in late 1994, and were not reunited until December 1995. In December 1996, Shana Donovan, a teenage girl, 1/ was placed in the foster care of the Petitioner. On April 30, 1997, four young siblings were placed in Petitioner's foster care after Petitioner applied to adopt the children. The Department recommended that the adoption be postponed until after January 1, 1998, because of changes in the Florida college tuition program. Petitioner required Shana Donovan to leave her sixth period academic class early so Shana could baby-sit the four young siblings. Petitioner failed to comply with the teacher's request for a conference to discuss Shana's absences from class. Shana failed her sixth period class. Petitioner expected Shana to do most of the housework or to supervise the younger children while they did housework. One of the younger children was scheduled for tutoring sessions. These sessions were scheduled for Saturdays to accommodate Petitioner. Petitioner repeatedly failed to transport the child to the tutoring sessions. As a consequence, the tutoring sessions were cancelled. Petitioner failed to ensure that the younger children took medication that had been prescribed to improve their behavior at school. The children's behavior became a problem in school because they did not consistently take their medicine. Petitioner failed to attend a scheduled family services planning team meeting at which plans for the four siblings were to be developed. Petitioner had been specifically requested to attend this meeting. Petitioner failed to attend a citizen review panel of the juvenile court. The four siblings were removed from Petitioner's home after the citizen review panel recommended that action. Petitioner and Mr. Bingham continued to experience marital difficulties. They engaged in heated arguments in front of the foster children in their care, which resulted in law enforcement officers being called to the house. Helen Cuadra, an adoption specialist employed by Respondent, referred Petitioner and her husband to a marriage counselor. In the Spring of 1998, Petitioner and Mr. Bingham separated. In March of 1998, Petitioner obtained an injunction for protection against domestic violence against Mr. Bingham. This injunction, commonly referred to as a restraining order, was entered by a circuit judge in the domestic violence division. After they separated in the Spring of 1998, Petitioner changed her home telephone number without notifying the Department. Petitioner was uncooperative when Department caseworkers attempted to schedule inspections of the home. On April 3, 1988, Petitioner had Mr. Bingham's name removed from her foster home license. In June 1998, Petitioner ordered Shana to leave her house and, in the middle of the night, transported her, along with her belongings, to the residence of Mr. Bingham. This action was caused, in part, because of Shana's interest in Petitioner's boyfriend. Shana was seventeen years old at this time and still in Petitioner's foster care. After Shana left her house, Petitioner began to harass Shana by telephone and by mail. Shana's caseworker aptly described Petitioner's behavior as stalking. In August 1998, Petitioner was arrested for aggravated assault against Mr. Bingham after she rammed his truck following a high-speed chase. Those charges were pending at the time of the formal hearing. Petitioner suffered financially after she and Mr. Bingham separated. Petitioner was in bankruptcy at the time of the formal hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the renewal of Petitioner's foster care license. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of national origin,1 in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2005).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Neiman Marcus Group, Inc., owns and operates specialty retail stores. Its headquarters are located in Dallas, Texas. In the summer of 2005, Neiman Marcus began hiring personnel to work in a new store that would open in the fall of 2005 in the Town Centre mall in Boca Raton, Florida. Ms. Jean-Pierre is a permanent resident alien in the United States. She was born in Haiti in 1970 and entered the United States in 1983. In September 2005, Ms. Jean-Pierre was employed as a sales associate in the accessories section of the Nordstrom department store in the Town Centre mall when she was approached by two women who inquired about Chanel sunglasses. They requested her business card and later called to tell her that they were very impressed with her sales skills. They asked if she was interested in working as a sales associate at the new Neiman Marcus store. Ms. Jean-Pierre applied for a position with Neiman Marcus, went through an interview and a drug test, and was hired to begin work on October 24, 2004. Hurricane Wilma hit South Florida on October 24, 2005, and the Neiman Marcus employees were not able to go to the hiring site during the week following the hurricane. As a result, the newly-hired employees who were to begin work on October 24, 2005, including Ms. Jean-Pierre, were told to report to work on November 1, 2005. Ms. Jean-Pierre's group of newly-hired employees joined the group of newly-hired employees that were to report to work on October 31, 2005. Because there were a large number of people, they were split in two groups. Ms. Jean-Pierre's group went to the store site to begin training on the first day they reported for work, while the other group reported to the hiring center to receive training and to complete the paperwork required of newly-hired employees. Ms. Jean-Pierre's group went to the hiring center on November 3, 2005, for training and to complete their paperwork. All newly-hired employees of Neiman Marcus are required to complete an Immigration and Naturalization Service Employment Eligibility Verification form, known as the "I-9 Form." The I-9 Form consists of three pages. The first page is divided into three sections, two of which must be completed for newly- hired employees. The second page consists of the instructions for completing the I-9 Form, and these instructions "must be available during completion of this form." The third page is headed "Lists of Acceptable Documents" and consists of List A, List B, and List C. Section 1 on the front of the I-9 Form, Employee Information and Verification, must be completed and signed by the employee. The employee must include his or her name, address, maiden name (if applicable), date of birth, social security number, and an attestation, given "under penalty of perjury," that the employee is either a "citizen or national" of the United States, a "Lawful Permanent Resident," or an "Alien authorized to work" in the United States. Section 2 of the I-9 Form, Employer Review and Verification, must be completed and signed by the employer. The employer is required to examine one document from List A ("Documents that Establish Both Identity and Employment Eligibility"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Eligibility"). The document or documents provided by the employee must be listed in Section 2, and the employer or a representative of the employer must sign the form, attesting, "under penalty of perjury," that he or she has "examined the document(s) presented by the above-named employee, that the above listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment of (month/day/year) and that to the best of my knowledge the employee is eligible to work in the United States." The "Instructions" sheet that must be available during completion of the I-9 Form directs the employee to complete Section 1 of the form "at the time of hire, which is the actual beginning of employment." The instructions direct the employer, in pertinent part, to complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. . . . Employers must record document title; 2) issuing authority; 3) document number; 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. (Emphasis in original.) When newly-hired employees report to the hiring site for training, they are placed at a computer to type in the information required in Section 1 of the I-9 Form. It is Neiman Marcus's policy to provide all newly-hired employees, at the time they are completing Section 1 at the computer, a copy of the page setting forth the "Lists of Acceptable Documents," with a copy of the "Instructions" page stapled to that document. When the information required in Section 1 is complete, the I- 9 Form prints out of the computer with the employee's information included. The employee signs the form, and the Neiman Marcus representative examines the documents presented by the employee and completes and signs Section 2 of the I-9 Form. Neiman Marcus requires all newly-hired employees to present original documents from List A or List B and List C for verification within 72 hours of the beginning of employment. If an employee fails to provide the necessary original documents or a receipt for the application of the documents within the 72- hour timeframe, it is Neiman Marcus's policy to suspend the employee's employment with Neiman Marcus and to allow them a week to provide documents required for identification and employment verification. If the newly-hired employee is unable to produce the necessary documents, the employee is terminated, but the employee is advised that they are welcome to re-apply for a job when they are able to produce the original documents that satisfy the requirements on the I-9 Form. It is not Neiman Marcus's policy to specify the documents a newly-hired employee must present to verify his or her identity and employment eligibility. Rather, Human Resource Managers at the various Neiman Marcus stores have been told not to specify any document that must be produced to satisfy the identification and employment verification requirements on the I-9 Form. Donna Bennett is, and was at the times pertinent to this proceeding, the Human Resource Manager for the Neiman Marcus store in Boca Raton. Amy Wertz was the Human Resources Coordinator and worked for Ms. Bennett at the times pertinent to this proceeding. When Ms. Jean-Pierre reported to the hiring center on November 3, 2005, she completed Section 1 of the I-9 Form on the computer provided by Neiman Marcus and, to verify her identity, presented her Florida driver's license to Ms. Wertz, who was the Neiman Marcus representative verifying employment eligibility for the newly-hired Neiman Marcus employees in Ms. Jean-Pierre's group. Ms. Jean-Pierre advised Ms. Wertz that her "Green Card"3 and her Social Security card had been in her car, which was stolen from the parking lot of her condominium building after the Hurricane Wilma. Ms. Jean-Pierre did not provide Ms. Wertz an original document from either List A or List C to verify her employment eligibility on November 3, 2005. She did give Ms. Wertz her Social Security number and a copy of her Permanent Resident Card, income tax return, and pay stub from her previous employment. Ms. Wertz would not accept these documents for purposes of satisfying the I-9 Form requirement of verification of employment eligibility. On November 3, 2005, Ms. Wertz advised Ms. Bennett that Ms. Jean-Pierre had failed to produce the original document from List A or List C required to verify her employment eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean- Pierre home to look for an original document that would satisfy the requirements for establishing her employment eligibility. Ms. Jean-Pierre reported for work on November 4, 2005, without an original document from List A or List C. Ms. Bennett went to the official website of the United States Citizenship and Immigration Services to verify the government policy on the production of documentation to establish employment eligibility. After reviewing the information on the website, Ms. Bennett advised Ms. Jean-Pierre that, if she produced a receipt showing she had applied for a replacement document among those on List A or List C, she could have an additional 90 days in which to produce the original document. Ms. Bennett did not contact Neiman Marcus's corporate legal department with regard to this information before she passed it on to Ms. Jean-Pierre. On November 5, 2005, Ms. Jean-Pierre provided either Ms. Wertz or Ms. Bennett a document printed from the United States Citizenship and Immigration Services website entitled "I-90 Form: Application to Replace Permanent Resident Card" and told them that she had an appointment with the Immigration and Naturalization Service at the end of November 2005.4 Ms. Bennett believed that this document was an acceptable receipt for an application for a replacement document, and she advised Ms. Jean-Pierre that she had 90 days from November 5, 2005, in which to produce the original document. A notation was made on the I-90 Form that "[y]ou have 90 days from today." Ms. Bennett did not consult with anyone at Neiman Marcus corporate headquarters regarding the sufficiency of the document provided by Ms. Jean-Pierre or receive authorization to allow Ms. Jean-Pierre an additional 90 days in which to produce the original document. In late November 2005, Ms. Wertz told Ms. Bennett that Ms. Jean-Pierre had missed her appointment with the Immigration and Naturalization Service because of a death in her family. Ms. Bennett became concerned that Ms. Jean-Pierre did not take seriously the requirement that she provide original documents to establish her employment eligibility within the 90-day grace period, which, according to Ms. Bennett's understanding, began to run on November 5, 2005. Ms. Bennett called Ms. Jean-Pierre into her office and spoke with her about the importance of providing the necessary original documentation. Ms. Jean-Pierre told her that she would take care of the matter. On or about December 15, 2005, Ms. Jean-Pierre produced to Ms. Bennett a document identified as a Citizens and Immigration Services form I-797C, Notice of Action. The "Case Type" specified on the document was "I-90 Application to Replace Alien Registration Card"; the "Receipt Number" noted on the document was "MSC-06-800-46861" the date on which the application was received was noted as December 14, 2005; the applicant was identified as "A37 888 854 Jean-Pierre, Nita"; and the "Notice Type" specified on the document was "Receipt Notice." When she gave Ms. Bennett this document, Ms. Jean- Pierre told Ms. Bennett that it would take between six months and one year to receive the replacement card because of September 11, 2001. Ms. Bennett became concerned that Ms. Jean- Pierre would not be able to provide the required original document within the 90-day grace period. At this time, she contacted Susan Moye, a manager in Associate Relations at Neiman Marcus's corporate headquarters in Dallas, Texas, and arranged to have the I-797C form faxed to Ms. Moye. Ms. Moye consulted with Neiman Marcus's legal department about the sufficiency of the I-797C Form Ms. Jean- Pierre had provided on December 15, 2005. Ms. Moye was advised that this document was not sufficient to meet the I-9 Form requirement that the employer examine the original of one of the documents included on List A or List C to verify employment eligibility. Ms. Bennett was absent from work for a period of time due to the illness and death of her father. During her absence, Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean- Pierre's employment status. Ms. Moye directed Ms. Wertz to notify Ms. Jean-Pierre that the I-797C form she had provided was not sufficient to verify her employment eligibility and that she was suspended from employment for one week to give her the opportunity to obtain an acceptable original document. Ms. Jean-Pierre did not provide the required documentation by the end of the one-week period of her suspension. Ms. Bennett returned to work on December 27, 2005. Ms. Bennett spoke with Ms. Moye about the matter on December 27, 2005, and Ms. Moye told her that Ms. Jean-Pierre needed to provide an original document in order to establish her eligibility for employment and that the document Ms. Jean-Pierre had provided on December 15, 2005, was not an acceptable original document. Ms. Moye advised Ms. Bennett that she would need to terminate Ms. Jean-Pierre. At the time she directed Ms. Bennett to terminate Ms. Jean-Pierre, Ms. Moye was not aware of Ms. Jean-Pierre's race or national origin.5 Ms. Bennett called Ms. Jean-Pierre into her office and explained to her that it was Neiman Marcus's policy to require original documentation of identification and employment eligibility within three days of beginning employment; that the document she provided on December 15, 2005, was unacceptable; and that she was terminated. During this meeting, Ms. Jean-Pierre argued that the document she had provided on December 15, 2005, was acceptable. Ms. Bennett explained to Ms. Jean-Pierre that, in accordance with Neiman Marcus's policy, she needed to produce the original document, not the receipt for an application for a replacement document. When she terminated Ms. Jean-Pierre, Ms. Bennett told her that she was welcome to re-apply for a job when she was able to produce the appropriate documents to establish her employment eligibility. Ms. Bennett did not tell Ms. Jean-Pierre that a "Green Card" was the only acceptable document to establish her employment eligibility. Nor did she tell Ms. Jean-Pierre that she needed to provide more documentation than others because she was Haitian. In January 2006, Ms. Jean-Pierre returned to the Neiman Marcus Boca Raton store and provided Ms. Bennett with a receipt showing that she had applied for a Social Security card on January 10, 2006. Ms. Bennett faxed this document to Ms. Moye, who responded that the receipt was insufficient and that Ms. Jean-Pierre needed to produce an original document. On January 5, 2006, Ms. Jean-Pierre obtained a stamp on her passport indicating that employment was authorized for her, which authorization would expire on January 4, 2007. Ms. Jean-Pierre received her replacement Social Security card on January 16, 2006. Ms. Jean-Pierre did not present an original Social Security card to Neiman Marcus or her stamped passport to Neiman Marcus as verification of her employment eligibility. Ms. Bennett has previously terminated newly-hired employees who failed to timely provide the documents required to establish employment eligibility. Those employees were invited to re-apply when they received their original documents. Several re-applied, provided their original documents, and were re-hired. Of the more than 59 newly-hired employees reporting to work on or about November 1, 2005, Ms. Jean-Pierre was the only employee who failed to produce to Neiman Marcus the required original documentation verifying her employment eligibility. Summary The direct evidence presented by Ms. Jean-Pierre is not sufficient to establish that Neiman Marcus discriminated against her on the basis of her national origin. Ms. Wertz and Ms. Bennett were aware that Ms. Jean-Pierre was from Haiti residing in the United States, but the evidence establishes that both Ms. Wertz and Ms. Bennett were concerned about her failure to produce any original documents as required for verification of employment eligibility and that Ms. Bennett talked to her about the seriousness of the issue and urged her to get the necessary document. Ms. Jean-Pierre's testimony that Ms. Bennett told her she needed more documentation because she was a Haitian is unsupported by any other testimony or documentary evidence. Finally, Ms. Moye, the person who directed Ms. Bennett to terminate Ms. Jean-Pierre, was not aware that she was born in Haiti. Ms. Jean-Pierre's testimony that both Ms. Wertz and Ms. Bennett insisted she must provide a "Green Card" to verify her permanent residence is, likewise, unsupported by any other testimony or documentary evidence. In any event, this evidence would not, of itself, establish that either Ms. Wertz or Ms. Bennett was motivated by the intent to discriminate against Ms. Jean-Pierre because she is Haitian. The evidence presented is sufficient, however, to support an inference that Ms. Jean- Pierre misunderstood the information she received from Ms. Wertz and Ms. Bennett and assumed that they were referring to an original Permanent Resident Card rather than an original document included on the "Lists of Acceptable Documents."6 Ms. Jean-Pierre acknowledged in her testimony that, when Ms. Wertz told her she needed to verify her permanent residence, she interpreted this to mean that she needed to get a replacement copy of her Permanent Resident Card. Similarly, Ms. Jean-Pierre may have interpreted Ms. Bennett's statements that she needed to produce an original document as requiring that she produce a Permanent Resident Card. The evidence presented by Ms. Jean-Pierre is sufficient to establish that Ms. Jean-Pierre is entitled to protection from employment discrimination on the basis of her national origin; that she was qualified for the position of sales associate with Neiman Marcus; and that she was subjected to an adverse employment action because she was terminated from her employment. Ms. Jean-Pierre stated unequivocally in her testimony, however, that she did not know of any other person who failed to verify their employment eligibility that was allowed to work at Neiman Marcus. She has, therefore, failed to establish a prima facie case of employment discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Nita Jean-Pierre on September 20, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2008.
The Issue Whether Respondents' application for renewal of their family foster home license should be denied on the grounds set forth in the agency's August 16, 1995, letter to Respondents?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Respondents Jose and Emma Perez were licensed to operate a family foster home at their residence in Hialeah, Florida (hereinafter after referred to as the "licensed home"). Before obtaining their license, Respondents were required by the Department to sign an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). Respondents signed the Agreement on or about July 1, 1994. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment." 1/ On or about January 13, 1995, Respondent Jose Perez was involved in a physical altercation with his brother-in-law. The altercation took place in the licensed home. 2/ The brother-in-law was living with Respondents in the licensed home (on a temporary basis) at the time of the incident. 3/ During the altercation, Jose threw a glass object in the direction of his brother-in-law. The object hit a wall and shattered upon impact. A piece of flying, shattered glass accidentally struck Respondents' daughter, Jessica, 4/ who was sleeping in her bedroom. Jessica sustained a cut on her forehead. Jose was subsequently arrested for aggravated battery by the Hialeah Police Department. 5/ Some time after the incident, the Department placed two foster children, A.A. and H.A., in Respondents' care. In the summer of 1995, Respondents filed with the Department an application to renew their family foster home license. The application was ultimately assigned (for review and investigation) to John Gallagher, a senior (foster) licensing counselor with the Department. On July 19, 1995, Gallagher went to the licensed home. Outside the home, on the northwest portion of Respondents' property, Gallagher observed a considerable number of, what appeared to be, discarded items. Inside the home, the floors were dirty and littered with a large amount of trash. On the floor in one of the rooms was dog feces, which Gallagher instructed Respondents to "pick . . . up immediately." During his visit to the licensed home on July 19, 1995, Gallagher had Respondents sign a "Bilateral Service Agreement," which was similar, but not identical, to the Agreement that Respondents had signed the year before. All of the necessary paperwork, however, was not completed during the visit. Upon leaving the home, Gallagher told Respondents that he would stop by again at the end of the day or on the following day to finish the paperwork. At 9:00 a.m. the next day, July 20, 1995, Gallagher returned to the licensed home. He was accompanied on this visit by Maria Siervo, another (foster care) licensing counselor with the Department. The conditions both outside and inside the home were not materially better than they had been the day before when Gallagher had paid his first visit to the home. In the clutter outside the home on the northwest portion of the property was a bucket (with no top or covering) that contained broken glass and a discarded baby diaper. On a table outside the home was a baby bottle containing congealed milk. Both the bucket and the bottle were readily accessible to A.A., the older of the two foster children in the licensed home. (A.A. was approximately two years of age.) Inside the home, the floors were still covered with a considerable amount of dirt and trash. They obviously had not been swept or mopped. A.A. was walking around on these floors without any shoes or socks on in her bare feet. There was a freestanding fan in the bedroom that A.A. and H.A. shared that did not have a protective covering. When Gallagher was in the bedroom, he saw the fan operating and A.A.'s fingers come within a few inches of the fan's exposed, moving blades. Gallagher instructed Respondents to either obtain a protective covering for the fan or remove it from the home. There were no screens on the windows of the home to keep insects out of the living area. 6/ In addition, two doors to the home were "wide open" throughout Gallagher's and Siervo's visit. H.A. was in a playpen that was old and dirty. In Gallagher's presence, a cat with sharp claws (which was not Respondents') started climbing up the side of the playpen. The cat was removed from the premises, however, before it was able to join H.A. in the playpen. The cat was not the only animal in the home on July 20, 1995. Gallagher also discovered newborn puppies underneath a bed in the home. Gallagher and Siervo spoke with Respondents during their July 20, 1995, visit about the unclean, unhealthy and hazardous conditions that existed in the licensed home. They asked both Respondents why the home was not clean. Jose responded by stating that he worked all day and that it was his wife's responsibility to clean the home. Emma stated that she was planning on cleaning the home, but that she was "lazy" and had not yet gotten around to it. Later that same day, after he and Siervo had left the licensed home, Gallagher reported what he had observed on his two visits to the home to the Department's abuse hotline. Two additional reports, both alleging that there was violence in the home, were subsequently made to the abuse hotline. All three reports were assigned to Darlise Baron, a protective investigator with the Department, for investigation. As part of her investigation, which began on March 20, 1995, Baron visited the licensed home. Conditions had improved since Gallagher's and Siervo's visit to the home on July 20, 1995. As Baron stated in her investigative report: Upon PI['s] arrival at address . . ., PI did not see any immediate danger for the children. The family had clean[ed] up the house. The floor was swept, kitchen was clean, no dirty dishes in the sink or around kitchen, the bathrooms were clean, the children's room was clean, the beds [were] made w/clean sheets. Mom['s] room had clean clothes on the bed being folded to be put away. There was dog feces seen on the floors. The large bags of garbage w[ere] placed on the curb, which was fil[l]ed w/clothes and grass. The fan w/out cover was placed in mom's room w/door close[d] to be thrown away. The dirty baby's bottle was not seen. . . . Nonetheless, in view of the information that she had concerning the conditions that had previously existed in the home and the incident that had occurred in the home involving Jose and his brother-in-law, 7/ Baron determined that the reports that were the subject of her investigation should be classified as proposed confirmed and she so indicated in her investigative report. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Respondents' application for the renewal of their family foster home license, without prejudice to Respondents applying for a new license after July 31, 1996. 12/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of March, 1996. STUART M. LERNER, 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 18th day of March, 1996.
The Issue The issue to be addressed is whether Respondent violated section 1012.795(1)(d) and (j), Florida Statutes (2011), and/or Florida Administrative Code Rule 6A-10.081(5)(a), and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate number 972355, covering the area of elementary education. Respondent’s certificate was issued on July 1, 2008, renewed on March 5, 2013, and is valid through June 30, 2018. Respondent moved to the State of Florida in approximately March of 2011, from the State of Maine. She, her husband, and two small children moved into an apartment in Ocean Park Apartments at 801 First Street South, Jacksonville, Florida. Respondent’s apartment faced the beach and was within 100-200 yards from the beach. Shortly after moving there, Respondent obtained renters’ insurance through Geico. The renters’ insurance was issued on approximately March 23, 2011. On March 26, 2011, Respondent called the Jacksonville Beach Police Department to report a burglary at her residence. Respondent reported that she and her husband had taken their children to the beach for the day, and upon their return that afternoon, she and her husband placed the stroller, containing a beach bag and various other belongings they took to the beach, inside the front door to the apartment. Respondent and her husband then went upstairs to put the children down for a nap. When they returned downstairs approximately an hour later, the stroller and its contents were missing. Officer Michael Abate of the Jacksonville Beach Police Department responded to Respondent’s call. He found no signs of forced entry or any other indications that there had been an intruder. However, the home was apparently unlocked at the time of the reported incident, which would negate the need of forced entry. Assuming for the sake of this Recommended Order that the burglary occurred,1/ it appears that the theft was a crime of opportunity, given the apartment’s proximity to the beach and the number of people in the area on a spring weekend. Respondent furnished to Officer Abate a list of approximately twelve items she claimed were stolen: the baby stroller; a beach bag; a canon digital camera; an Apple iPad; sunglasses; flip flops; a Coach® wallet; a Maine Driver’s License; a Bank of America credit card; $100 in cash; children’s shoes; and towels. On May 5, 2011, Respondent went to the police department and provided a more extensive list (supplemental list) of items she claimed were stolen. This list contained 47 items as opposed to the 12 originally described for Office Abate. In addition to the number of items described, there were a number of discrepancies between the first and second lists. For example, the original list identified $100 in cash. The supplemental list reported $160 in cash. The Coach® wallet was originally valued at $200, while the supplemental list valued the wallet at $248. The value of a pair of sunglasses changed from $150 to $199, and the digital camera’s value was amended from $799 to approximately $1,200. Other items added to the claim in the supplemental list included an iPhone 4, Otterbox Defender case, and Invisible SHIELD screen protector; an iPad case; a Kobo E-reader; make-up and name-brand cosmetics; monogrammed beach wraps; and a pair of Lacoste sunglasses in addition to the pair of sunglasses previously listed. On April 1, 2011, Respondent filed a written claim with Assurant Insurance Company, which provided her renter’s policy. The value of the claim submitted was $6,024.56. With the exception of her wallet and driver’s license, Respondent claimed that all of the missing items were purchased within a year of the alleged theft. No depreciation was acknowledged for any item. Assurant referred the claim to its special investigations unit for further review, which was conducted by Special Investigator Charles Beall. Mr. Beall interviewed Respondent by telephone on May 17, June 21, and August 3, 2011. During his investigation, Mr. Beall had discovered that some photographs submitted by Respondent of items supposedly taken in the burglary were actually taken two to three weeks after the burglary had been reported. Moreover, the photographs were taken with the camera that was listed as stolen. When Mr. Beall confronted Respondent in the telephone conference on June 21, with the times the pictures were taken, she could not provide an explanation. Respondent was hired at a Duval Charter School at Baymeadows on June 21, 2011. She continues to teach there. Mr. Beall also discovered during his investigation that a receipt from Amazon.com submitted by Respondent for the camera equipment was altered to reflect a higher purchase price by $639. The original receipt indicated that a single item, the camera, was purchased for $599. The receipt was altered to show the purchase of two items (a more expensive camera and a separately purchased lens) for $1198.95. When asked to confirm the information on the invoice she had provided to Assurant, Respondent initially confirmed the information as accurate. When confronted with the information received from Amazon regarding the purchase, Respondent admitted to altering the Amazon.com invoice in order to make up the monetary difference in her claims deductible. It is found that neither the camera, nor the items photographed with the camera after the date the theft was reported to the Jacksonville Beach Police Department, was actually stolen. Based upon its investigation, Assurant denied Respondent’s claim in full and notified Respondent of the denial by certified mail dated August 1, 2011. It also referred the case to the National Insurance Crime Bureau and to the Florida Department of Financial Services, Division of Insurance Fraud. Investigator Ed Johnson (now Lieutenant) from the Division of Insurance Fraud was assigned to the case, and during his investigation interviewed Respondent. During the interview, Respondent provided a sworn statement, which reads in part: In March of 2011 my family moved to the above listed address. Within two weeks of our arrival, we were the victims of a theft. I then filed a police report with the Jacksonville Beach Police Department, and filed a claim with my insurance company. While filing a report and claim, I purposely [sic] and untruthfully stated that a Canon T2i camera was stolen. Through the investigation of Mr. Charles Beall at Assurant Insurance it was determined that my claim for the camera was false, and my claim was denied. I falsified the camera being stolen in order to make up for the deductible on my claim. I also claimed that my ME (Maine) license was stolen. It has been determined that my ME license was actually used to acquire a Florida Drivers License on April 11, 2011.[2/] Lt. Johnson prepared and submitted an arrest warrant for Respondent’s arrest on September 29, 2011, and a warrant was issued that same day. Respondent was charged with filing false insurance claims, a third-degree felony. Respondent was arrested the following day. On December 14, 2011, Respondent entered a pre-trial intervention program. On October 2, 2012, based upon her completion of the program, the State Attorney’s Office declined to prosecute the charges. On April 29, 2013, Respondent submitted a letter to Pam Stewart as Commissioner of Education, in response to the preliminary investigation by DOE. The letter stated in pertinent part: In April, 2011, my home was robbed, while myself and my husband were settling our two young children upstairs for a nap. Our stroller was taken, along with all of the contents. The contents totaled less than $5,000, however the emotional toll was far more extensive. In the aftermath of such an event, our emotions were heightened, and we were in dismal spirits. Although we had renter’s insurance, we knew that we would struggle financially to replace all of the items that were stolen. At that time, I made a foolish decision to add an extra item to my insurance claim to make up for our deductible, so that we wouldn’t end up losing money. * * * They reported the case to local law enforcement, and I met with a Detective to explain how a law-abiding, well-respected community leader such as myself,[3/] had made such a decision. The Attorney General decided to pursue the case, and charge me of [sic] Insurance Fraud in the 3rd degree. I fully cooperated with law enforcement officers, and drove myself [to] the jail to accept my consequence. I bonded out of jail, hired a lawyer, and enrolled in a “Pre-Trial Diversion” program. . . . I completed several hours of community service, and paid a hefty fine during my “Pre-Trial Diversion” program. After a year, upon successful completion of the program, the charges were dropped, and I am left with an arrest record. I feel like I have paid the price for what I did, and learned several valuable lessons during the recovery process. My family has moved on financially from this crisis, but the emotional scars will remain. Educating children is my truest love. Giving back to my community and country by educating our future leaders, and enhancing the lives of people around me is really who I am. This situation has encouraged me to reflect deeply upon my character, and what I am passionate about. I appreciate your time and careful consideration regarding this situation. I made a poor decision, for which I have suffered immensely for [sic]. In both the letter submitted to the Commissioner of Education and during her appearance before a panel of the Education Practices Commission, Respondent consistently maintained that the residence was in fact robbed. Respondent’s admission that she inflated the amount of her insurance claim in order to cover the amount of her deductible is consistent with a burglary occurring. The fact that there was no evidence of forced entry into an unlocked home near the beach is not clear and convincing evidence that the theft did not occur.4/ Petitioner’s claim that Respondent was lying when she made statements that there was in fact a theft at her home is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(d), Florida Statutes. It is further recommended that the Commission suspend her teaching certificate for a period of two years, followed by a period of probation for three years, and impose a fine of $1,000, payable within one year of the entry of the Final Order. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of December, 2014.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Gladys Soledad Valladares (Petitioner) applied for licensure as a physician through endorsement by application dated September 23, 1985. (Joint Exhibit 1). On page (4) of the application is the question: Are you now or have you ever been emotionally/mental ill? Have you ever received psychotherapy? (Joint Exhibit 1). Petitioner filled both blanks with the word "No". (Joint Exhibit 1). Also on page (4) of the application is the question: Have you ever had to discontinue practice for any reasons for a period of one month or longer? (Joint Exhibit 1). Petitioner answered this question "yes." (Narrative Report attached to Joint Exhibit 1). Petitioner provided an explanation for discontinuing practice in March, 1981, citing personal reasons and her parents' health problems. In support of her application, Petitioner had Dr. Franklin Behrle, former director of the New Jersey residence program at the College of Medicine and Dentistry, submit an evaluation form on which he commented that "Petitioner did not complete her first year of pediatric residency; showed signs of inability to cope with the demands and pressures of residency and finally terminated April 26, 1981." (Joint Exhibit 3). Specifically, the Board denied Petitioner's application based on the following grounds: You submitted false information on your application for licensure and your response to the question, "have you ever received psychotherapy?" See, Section 458.331(1)(a) and (2), Florida Statutes. The application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skills and safety. See Section 458.331(3), Florida Statutes. Specifically, the poor recommendations submitted in support of your application for licensure indicates your lack of ability to practice with skills and safety. Dr. Valladares failed to make reference in her application to counseling received from Dr. Jorge Guerra in 1983 while she was in residency in Jacksonville. The Board of Medicine interprets that counseling as psychotherapy and takes the position that Dr. Valladares should have answered the application question about psychotherapy in the affirmative. Dr. Valladares did not consider those visits to be psychotherapy because to her, it seemed minor. Psychotherapy meant to her something more than what she received from Dr. Guerra. Dr. Valladares attended medical school in Havana, Cuba, after which she immigrated to the United States. She continued her medical education in Seville, Spain, where she received her medical degree. Dr. Valladares took and passed the ECFMG examination in July, 1979. She twice took the FLEX examination, once in December, 1984, and again in June, 1985, when she finally passed it. In November and December, 1983, Dr. Valladares saw Dr. Jorge Guerra, a psychiatrist, five times. She saw Dr. Guerra because of difficulty in dealing with stress she underwent while enrolled in a residency program at University Hospital in Jacksonville, Florida. Dr. Guerra prescribed dexyrel and xanax for Dr. Valladares to be taken over a six week period. Dr. Valladares took voluntary leave from her residency during part of this time. The leave was taken because the prescribed medication made her drowsy and too sleepy to satisfactorily perform her residency duties. After returning from leave, she satisfactorily completed one year of residency for which she was awarded a certificate. (TR 85-88; Exhibit 9). Due to the brief duration of Dr. Guerra's treatment, Dr. Valladares did not consider his treatment of her to be psychotherapy as she considered that psychotherapy related to "more serious conditions which she did not have." She did not consider her stress to be serious because of her observation of other residents who also experienced stress and were not labeled psychic. Dr. Guerra, who testified by deposition, related that Dr. Valladares did not have an emotional or mental condition that would preclude her from safely practicing medicine. He initially treated her and diagnosed her condition as manic-depression however, near the end of his treatment the diagnosis was changed to a dysthymic disorder. (Depo. p. 13). Dr. Guerra came to treat Dr. Valladares based on a referral from Dr. Gladys P. Soler, Chief, Ambulatory Pediatrics at the Jacksonville Health Education Program. In making the referral, Dr. Soler advised Dr. Guerra that Petitioner thought that she was not coping at the time because she was too demanding of herself and had placed unrealistically high expectations upon herself. Upon checking with Dr. Soler as well as the chief resident at University Hospital, Dr. Guerra found that Petitioner was in fact performing satisfactorily but basically had a "tendency to be a perfectionist and she wanted to do a perfect job, even though there was not (sic) complaint of her performance, she was demanding too much of [herself]" (Depo. p. 10). Dr. Valladares received a number of favorable recommendations in support of her application from doctors who worked with her during her residency. These recommendations are from Dr. Julia F. Pons; Dr. Tajvar Joudarzi, Assistant Professor in the Pediatric Ambulatory Department, University Hospital, Jacksonville; Dr. Sidney Levin, Professor and Chairman of the Department of Pediatrics, University Hospital, Jacksonville and Dr. Gladys P. Soler. The letter from Dr. Soler is particularly favorable. Dr. Soler writes: I have always found her to be extremely reliable regarding her responsibilities and duties and able to manage both staff and patients very well. During this time I have had the pleasure to observe her fast development, competent all-round pediatrician with deep medical knowledge, high ethical standards and devoted to her patients... Dr. Valladares has a very likeable and pleasant personality, she is positive, mature and is able to accept constructive criticism well. Her clinical judgments and abilities, her insight and observations about issues surrounding the patient as well as her concern and sensitivity to the needs of the children and parents is remarkable. The Board of Medicine asked the Director of Medical Education at University Hospital for a routine residency evaluation. That evaluation was completed by Dr. Levin, the Chairman of Pediatrics. Dr. Levin wrote one of the four letters of recommendation referred to above. On the evaluation form, he scored her residency as mostly "good" with one "fair" and two as "don't know." (TR 227). Dr. Levin recommended her with some reservation. His comments are that Dr. Valladares had "some emotional problems which impaired function." Although he mentioned Dr. Valladares as having two episodes of severe depression and had trouble handling stress, in fact, she only had one episode of depression which was not severe. Dr. Levin also wrote that Dr. Valladares was not allowed to stay beyond the first year of residency, a fact contradicted at hearing. Dr. Levin testified at hearing that Dr. Valladares satisfactorily completed the first year of residency and that he signed her certificate. He also wrote a letter of recommendation for Dr. Valladares dated August 22, 1984, stating that during her residency she was known to be a person of good moral character. (Exhibit D, TR 218.) Notwithstanding his letter of recommendation, Dr. Levin recommended that the Board evaluate her present psychiatric status. (Exhibit 4) Pursuant to Dr. Levin's recommendation, the Board asked Dr. Valladares to submit to a psychiatric evaluation. This was done and the evaluation was completed by Dr. Norma M. Campos. Dr. Campos is a Board certified psychiatrist who attended the University of Madrid, Madrid, Spain. Dr. Campos completed a three year residency at Vanderbilt University and is licensed in the State of North Carolina, Tennessee and Florida. She is Board certified and was tendered and received as an expert in psychiatry. Dr. Campos examined Dr. Valladares during March 1986. Dr. Valladares underwent the formal psychiatric evaluation at the Board's request. Dr. Campos' report and evaluation related to the problems of depression that Dr. Valladares suffered during March, 1983. Dr. Campos found, at the time of her treatment of Dr. Valladares, no psychological problems, no showing of any inability to practice medicine at the time and related that the dysthymic disorder that Dr. Valladares, suffered was merely a state of depression, without psychotic features, which stemmed from exposure to stressful situations. Dr. Campos found it common for everyone to suffer depression at times and this was especially so with residents due to the demanding training programs that they must undergo and endure, coupled with the long hours of duty that they serve. Concluding, Dr. Campos highly recommended Dr. Valladares without reservation. She found her to be totally competent to practice medicine with reasonable skill and safety. Dr. Campos' evaluation was filed with the Board during March, 1986. (Exhibit 5). Despite her recommendation, the Board denied Dr. Valladares' application. Lest there be any doubt as to her ability to satisfactorily function as a medical doctor, Dr. Valladares voluntarily sought evaluations from Dr. Charles Kram, Ph.D., a psychologist at the University of Miami and David G. Pinosky, M.D., a psychiatrist. Both were recommended by the Board's staff. Dr. Valladares asked the Board's staff to recommend someone to evaluate her as she wanted the Board to have complete confidence in their reports. Both professionals submitted reports to the Board. Dr. Kram's report concludes: There is no indication present in these test data to suggest the presence of mental nor of emotional pathology. Dr. Pinosky's report concludes as follows: I found no evidence of a significant emotional or mental disorder that would preclude Dr. Valladares from safely practicing medicine. (Exhibits 6 and 7). Dr. Pinosky also commented about the negative answer on Dr. Valladeres' application and concluded as follows: Dr. Valladares' application was denied because of the Board's concern regarding her emotional status and also because she answered "No" to the' question regarding previous "psychotherapy." Dr. Valladares had misinterpreted this question to mean more prolonged psychiatric intervention for more chronic and severe psychiatric disorders. She considered brief psychiatrist intervention to be outside the scope of that question. She denies any fraudulent attempt at deception and is now painfully aware of her confusion regarding this matter. Prior to performing her residency at University Hospital in Jacksonville, Dr. Valladares served in a residency program in New Jersey. A routine evaluation request was sent to the head of the New Jersey residency program. Dr. Franklin Behrle wrote that Dr. Valladares left her residency for an inability to cope with the demands and stresses, was terminated after nine months, and would not have been accepted back into the program. However, Dr. Behrle's testimony respecting this point was contradicted at the hearing. During hearing, Dr. Behrle testified that he had no first hand observation of Dr. Valladares' residency; that she was given an executed copy of the second year residency contract; that there was never issued a written document to Dr. Valladares that her second year contract was cancelled; that she satisfactorily completed nine months of the residency program for which she received a certificate; and, that he wrote and signed a letter of recommendation for Dr. Valladares dated May 13, 1981, saying that she withdrew from residency for personal reasons and that he recommends her for "any future residency program she will enroll in the future." (Exhibit 10).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent issue a license to practice medicine to Dr. Valladares based on her showing, during the hearing herein, that she meets all qualifications for licensure by endorsement pursuant to Subsection 458.313(1), Florida Statutes, provided she satisfy any other necessary criteria for licensure. RECOMMENDED this 1st day of March, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 1st day of March, 1988. COPIES FURNISHED: Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Grossman, Esquire Assistant Attorney General 1601, The Capitol Tallahassee, Florida 32399-1050 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
The Issue The issue in this case is whether the Education Practices Commission should deny Petitioner's application for a teaching certificate on the grounds that she lacks good moral character, has committed act(s) for which such a certificate could be revoked, and is guilty of gross immorality or an act of moral turpitude based on a plea of guilty to a felony and a judgment against her in a civil proceeding.
Findings Of Fact Petitioner Shirley McCallum Simmons is academically certified to be an exceptional student education (ESE) teacher and a non-native English speaking language students (ESAU) mathematics teacher. She teaches at Royal Palm Beach High School. Ms. Simmons' April 28, 2003, application for Florida Educator's Certificate Number 910106 (a permanent teaching certificate) was denied. Respondent, as Commissioner of Education and head of the Department of Education (DOE), recommends to the EPC that it deny Ms. Simmons' application for a permanent teaching certificate based on a finding that she lacks good moral character. The Amended Notice of Reasons for the denial of the application is as follows: On or about January 6 or 7, 1998, Applicant engaged in a conspiracy with others to obtain a passport through the use of false and fictitious statements. As part of this conspiracy, Applicant knowingly and unlawfully provided a false affidavit to the United States Department of State concerning her relationship to and the identity of an applicant for a passport. Applicant was indicted and charged with: Count 1, Conspiracy to Commit Passport Fraud; Count 2 (Count 5 of Indictment), Making False Statement in an Application for a Passport; and Count 3 (Count 6 of Indictment), False Statements. On or about January 28, 1998, Applicant pled guilty to Count 1. The other counts were dismissed. The court adjudicated Applicant guilty. Among other sanctions, the court placed Applicant on probation for 2 years and ordered her to pay a fine of $100.00. On or about April 1, 1997, the Applicant married Raymond Douchard, an individual she had only known briefly. Shortly thereafter, the Applicant applied for four (4) insurance policies on her husband's life totaling One Million Two Hundred Thousand Dollars ($1,200,000.00) in coverage. The policies became effective April 9, 1997, April 11, 1997, June 28, 1997 and July 1, 1997. On or about July 6, 1997, Applicant's husband was murdered as a result of a gun shot wound to his head. His body was discovered in a trunk of a vehicle parked behind a business entity in Broward County named Flanagan Lounge. Applicant immediately filed death claims with the insurance companies to collect on the policies. After a refusal of coverage, Applicant filed a federal lawsuit against one of the carriers, Shirley M. (Douchard) Simmons v. Valley Forge Life Insurance Co., Case Number 00-8514-CIV- HURLEY. Following a trial on the matter, a jury rendered its verdict on January 25, 2002 determining that the policy was properly rescinded on several basis, including that the Applicant had a murderous intent and the death of her husband was caused by the criminal acts of Applicant. Ms. Simmons has a bachelor's degree in social work from Florida State University, and a master's degree in educational leadership from Lynn University. She also received a certification in law enforcement from Palm Beach Community College, and a bachelor's degree in cosmetology from Dudley University in North Carolina. Ms. Simmons enrolled in ROTC while in college, then was commissioned as an army officer. She served in Germany until approximately 1986 or 1987. When Ms. Simmons returned to the United States and left military service, she was employed with the Palm Beach County Sheriff's Department for five to six years. To avoid working night shifts after her son was born in 1989, Ms. Simmons decided to go into business for herself. Ms. Simmons opened a salon called The Beauty Spa in 1992. At about the same time she began volunteering in public schools, received her academic certification to teach, and began work with the Palm Beach County School District. Ms. Simmons had been married and divorced twice when she met Raymond Douchard in 1995, whose name she believed was Robert Douchard. On April 1, 1997, Ms. Simmons and Mr. Douchard were married, but they never lived together. Ms. Simmons said they never lived together because he lied to her, including about his real name before they got married. He would also, according to Ms. Simmons, disappear for three or four days, telling her he was with a friend or cousin in Boca Raton. She felt there was something wrong or suspicious. Mr. Douchard was an automobile mechanic. Ms. Simmons testified that he told her that he was involved in stealing vehicles and sending them to Haiti. In March 1997, before they married, Mr. Douchard obtained three separate life insurance policies, each for $300,000, with Ms. Simmons as the beneficiary. Ms. Simmons was the owner of a fourth policy, also for $300,000.00 naming Mr. Douchard as the insured and Ms. Simmons the beneficiary. Ms. Simmons testified that the policy was intended to put her at ease because she did not trust Mr. Duchard. Although they were not married at the time, Ms. Simmons signed the Midlife application as beneficiary using the name Shirley Douchard. Her claim that it was after her marriage and that someone else back dated the application to "3/27/97" is not credible. Other policies were signed "Shirley Simmons, Fiance." Ms. Simmons said that Mr. Douchard set up appointments on March 27, 1997, with a life insurance agent who came to her salon, and prepared the applications for the policies. Ms. Simmons testified that she knew the policies had a two-year contestable period in the event of a death because she had similar policies on her former husbands. At least one insurance company was paid with a check drawn on the account of The Beauty Spa. On Sunday evening, July 6, 1997, at approximately 10:00 p.m., the body of Raymond Douchard was found in the trunk of a car parked behind a place called "Flanigan's Lounge" in Broward County. He had been shot in the head while in the trunk. The medical examiner estimated that the time of death was between 12:00 a.m. and 6:00 a.m., the morning of July 6, 1997. Homicide detective Glenn Bukata informed Ms. Simmons of Mr. Douchard's death and interviewed her at The Beauty Spa and at her home on the evening of July 8, 1997. She told him that she had last seen Mr. Douchard after she beeped him and he came to The Beauty Spa between 11:00 p.m. and 12:00 a.m. the evening of Saturday, July 5, 1997. After he was with her for approximately 45 minutes, Ms. Simmons said Mr. Douchard received another page on his beeper and left. During the homicide investigation, Ms. Simmons was interviewed at least ten more times, including the longest questioning for 12 to 14 hours that lasted from 12:15 p.m. until 2:15 a.m. Detective Bukata found Ms. Simmons various statements to be evasive and contradictory. Although her stories about who might have been responsible for Mr. Douchard's death changed, Ms. Simmons never admitted that she was guilty or involved. On December 11, 1997, Ms. Simmons was married for a fourth time to Deniche Altime, a Haitian immigrant who was in the United States illegally. Ms. Simmons took Mr. Altime to the passport office in Miami to apply for a passport, where he used her nephew's name and identification. Ms. Simmons initially testified that she only signed the United States Department of State Affidavit Identifying Witness, in support of the passport application claiming to be Mr. Altime's aunt, who had known him for 20 years. At the hearing, she conceded that, in addition to her signature, the handwriting filling out the affidavit also could be hers. Ms. Simmons said she was complicit in the passport misrepresentation because Mr. Altime became violent after they married, always carried a gun, and she was afraid of him. When Mr. Altime returned to the federal office to pick up his passport, he was arrested and subsequently deported. Ms. Simmons was arrested and charged with conspiracy to commit passport fraud. On January 29, 1998, she pled guilty to one count in violation of 18 USC § 371. She was placed on probation for two years, prohibited from possessing a firearm, and assessed a penalty of $100. At the time she entered her guilty plea, court documents indicate that Ms. Simmons was represented by counsel. Other than her self-serving testimony, which is rejected, there is no evidence that Ms. Simmons did not understand her plea of guilty to conspiracy to commit passport fraud or that she claimed, after he was deported, that her crime was based on a fear of Mr. Altime. After Ms. Simmons was released from federal custody, she was arrested by Broward County authorities and charged with first degree murder in the death of Mr. Douchard. She was in jail for about two years with no bond. Having been born in Jamaica, Ms. Simmons was considered at risk for fleeing the country. Ms. Simmons was tried for murder and, at the conclusion of the prosecution's case, the defense motion for judgment of acquittal was granted. After the murder charges were dismissed, Ms. Simmons filed suit against Valley Forge Life Insurance Company, Midland Insurance Company, Jackson National Life Insurance Company, and Primerica Life Insurance Company in 2000, to collect on the policies that named Raymond Douchard as the insured. Primerica settled before trial. On January 25, 2002, a jury verdict was entered against Ms. Simmons based on findings of "Material misrepresentations, fraud in policy application, murderous intent of beneficiary, and disenfranchisement - Florida Slayer Statute." Ms. Simmons filed for bankruptcy to discharge a judgment against her for $13,845 in the civil case and debts that she said accumulated during her two years in jail. There is evidence, however, that her testimony that she had good credit in March and April 1997, when she married Mr. Douchard was not the truth. Lieutenant Jeffrey Jackson worked with Ms. Simmons at the Sheriff's Department for approximately five-to-seven years, beginning in 1989 or 1990. He recalled that she was a good employee, who handled the different inmate population in her assigned housing unit well. Sheila Henry, a principal with the Palm Beach County School District for 27 years, was the principal at Royal Palm Beach High School for the two years (2004-2006) that Ms. Simmons worked there. Ms. Henry described Ms. Simmons as a good employee, who taught ESE classes, with no complaints from students or parents. Ms. Simmons' evaluations support a finding that she is a competent teacher. Ms. Henry was not aware of any civil or criminal proceedings against Ms. Simmons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission deny the application of Shirley Simmons for a permanent educator's certificate. DONE AND ENTERED this 6th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511
