The Issue Whether the Petitioner is eligible for developmental services provided by the Department of Children and Family Services?
Findings Of Fact The Petitioner, Sharon G. Young, is a 23-year old white female, who is currently a patient in a rehabilitation facility for treatment of permanent disabilities suffered when she contracted encephalitis when she was 19-years old. After a series of serious seizures as an infant, Petitioner was identified has having a seizure disorder and mental disabilities. As a result she was medicated with Phenobarbital and placed in special education programs in the public school system. She was tested in this program periodically. Because Petitioner's current condition prevents assessing her status now to determine what her condition was prior to contracting encephalitis, the degree of her mental disability must be determined using the tests performed by the school system. Reports of tests performed in 1978, 1983, 1986, and 1989 were introduced. The Department's expert, Filipinas Ripka, conducted the review of these tests' reports to determine whether Petitioner was eligible for services. Ms. Ripka was accepted as an expert in psychological testing. She did not examine the Petitioner, and had never tested the Petitioner. Her opinion was based solely upon review of the reports prepared by the school psychologists in the years indicated above. According to her testimony, Ms. Ripka gave different emphasis to the various tests and reached different conclusions regarding Petitioner's condition than the school psychologists. The initial test in 1978 was conducted when Petitioner was approximately 3 years, 7 months old (40 months). That test report references an earlier evaluation on February 16, 1978, when Petitioner was 33 months old. At 33 months the Petitioner exhibited expressive language development of 12 months, receptive language development of 16-20 months, perceptual performance abilities in the range of 20-25 months, social skills at 30 months, fine motor skills at 18-23 months, cognitive/linguistic/ verbal skills at 17-20 months, and gross motor skills at 18-20 months. The school psychologist examined and tested Petitioner, and observed that she was easily distracted and had a short attention span. Assessment of Petitioner was attempted using several different tools. On those tests upon which Petitioner could be scored, she tested in the mild range of retardation with an IQ of 50. She was unable to perform certain of these tests sufficiently to reliably score her; however, the results of those tests were consistent with the findings that she was mildly mentally retarded, i.e., had an IQ of 50. In 1983, the Petitioner was retested. That report references tests performed in 1981, and their results showed Petitioner had a Verbal IQ of 82, a Performance IQ of 73, and a Full Scale IQ of 76. The examiner found the Petitioner was functioning at the borderline level according to a Wechsler Intelligence Scale of 70. However, she demonstrated an inability to copy abstract symbols, which placed her six standard deviations below the expectancy of her age group on the Bender Visual Motor Gestalt Test. She was two standard deviations below her expectancy on the VADS score, indicating a significant weakness for processing digits. Her Draw-A-Person Test was interpreted to indicate neurological impairment. The Petitioner was re-tested in 1986 when she was 11 years old because she was not performing well and was having academic difficulty in her school placement. Petitioner had scored in the 19th percentile in reading, the 16th percentile in math, and 23rd percentile in language on the Stanford Achievement Test. Upon testing, Petitioner had a Verbal IQ of 70, and Performance IQ of 68, and a Full Scale IQ of 68 on the Wechsler Intelligence Scale for Children-Revised. Petitioner had a score of 58 on the Peabody Picture Vocabulary Test, or an age equivalence of 6 years, 6 months. Her Bender Visual Motor Gestalt Test showed an age equivalency of 5 years, 8 months, and her error score was more than four standard deviations below the mean age. Her short-term retention was within one standard deviation relative to chronological are. In 1989, Petitioner was tested for triennial evaluation. Petitioner was 13 years old and cooperated with the examiner. On the Wechsler Intelligence Scale, Petitioner received a Verbal IQ of 64, a Performance IQ of 80, and a Full Scale IQ of 70 plus or minus 3. The examiner concluded that there was a 68 percent probability that her true IQ was between 67 and 73. She showed a significant difference between her Performance IQ and Verbal IQ. The examiner found Petitioner functioned in the lower end of the Borderline range of intelligence, and that her strengths were her ability to visually analyze and her fine motor skills. Her lowest scores were in the area of word knowledge. She demonstrated a processing deficit in visual-motor integration. The Respondent is the state agency charged with providing developmental services to eligible persons in Florida. A score of 70 or less places a person two standard deviations below the mean score on the Wechsler Intelligence Scale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is eligible for developmental services. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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) 921-921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Robert Bencivenga, Esquire Jacksonville Area Legal Aid, Inc. 126 West Adams Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services 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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the parties pre-hearing stipulation and the entire record compiled herein, I hereby make the following relevant findings of fact. By its Administrative Complaint filed November 5, 1982, Petitioner seeks to suspend the Respondent, Robert L. Devlin, from the right to operate and practice the fitting and selling of hearing aids for a period of thirty days and to place his license on probation for a period of one year with the licensee's customer record subject to monthly audit by the Petitioner. Alternatively, Petitioner seeks to impose any other penalty authorized by law. During times material, Robert L. Devlin, Respondent, was the holder of a Certificate of Registration (number 244-10-68) for the fitting and selling of hearing aids. On December 3, 1981, Respondent was employed by Better Hearing Aid Services located at 2430 East Commercial Boulevard, Ft. Lauderdale, Florida. William Jellison was tested for a hearing aid on December 3, 1981, at the Ft. Lauderdale location of Better Hearing Aid Services. Someone in a position of authority accepted fifty dollars ($50.00) cash from William Jellison as a deposit on a hearing aid and gave him a receipt therefor on December 3, 1981. (stipulated facts) Phillip C. Kribbs 1/ is not licensed to test, fit or sell hearing aids the Petitioner during times material herein. William F. Jellison visited the offices of Better Hearing Aid Services on December 3, 1981 for the purpose of purchasing a hearing aid mold. Jellison spoke to Kribbs who advised him that he needed a hearing aid test. Kribbs called out certain words and requested Jellison to repeat the words that Kribbs called out. During that testing procedure, the Respondent was present, although he was taking care of other chores in the Better Hearing Aid Services office. Kribbs gave Mr. Jellison a receipt which reflected that it was a new hearing aid to be purchased; a customer discount of one hundred ($100.00) dollars was reflected on that receipt; a cash downpayment of fifty ($50.00) dollars was reflected and a balance due of five hundred forty nine (549.00) dollars was shown as the amount remaining due. On the following day, Mr. Jellison was curious as to what he could purchase the hearing aid for at another company and determined that he could purchase the same hearing aid at another store for approximately two hundred ($200.00) dollars less. With that knowledge, Mr. Jellison attempted to cancel his purchase of the hearing aid from Better Hearing Aid Services by serving notice of his intent to cancel in the form of a telegram on the offices of Better Hearing Aid Services which was followed that same day by a telephone communique. Mr. Jellison did not take delivery of the hearing aid which he was tested for by Better Hearing Aid Services on December 3, 1981. Phillip Kribbs was employed as an apprentice by Better Hearing Aid Services during the period June, 1980 through February, 1983. During his employment as an apprentice for Better Hearing Aid Services, part of his duties included giving a "pure tone and word test" Kribbs twice sat for the registration examination and was unsuccessful on both sittings. Kribbs conducted all of his duties respecting testing under the direction and supervision of the Respondent while employed as an apprentice for Better Hearing Aid Services. Finally, Kribbs acknowledged tendering Mr. Jellison a receipt for the deposit for a hearing aid which was completely written by him (Petitioner's Exhibit Number 3).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent's license for the fitting and selling of hearing aids and his right to operate and practice thereunder be placed on probation for a one (1) year period with the licensee's customer records subject to monthly audit by the Department. RECOMMENDED this 29th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983.
Findings Of Fact Ms. Joan Westhrin was accepted, over objection, as an expert hearing aid specialist, and her testimony as follows, is also accepted and adopted as findings of fact. Hearing aid specialists are licensed to perform audiometric testing. Audiometric testing is the function of presenting pure tones through headphones to establish a threshold of hearing. A threshold of hearing is the basis for the smallest amount of sound which the human ear can perceive. The testing is done by using air conduction by way of headphones and bone conduction. A comparison is made between the air conduction and the bone conduction results on the audiogram to determine if the client has a sensory neural hearing loss, meaning a loss in the nerve, or a mechanical function that would indicate that it is something that should be referred to a medical doctor for medical attention. During hearing examinations, the hearing aid specialist must also do an audioscopic examination, or a physical look into the ear canal, to rule out any anomaly that might be developing in order to determine whether the client is a candidate for medical testing. Ear mold impressions provide an exact duplicate of the ear canal so that a hearing aid may have an exact fit in the ear. A cotton block is used in the ear to prevent the impression material, silicone, from traveling down to the ear drum, and the material is left in the ear about five or six minutes to set properly. A hearing aid specialist must perform a complete audiological examination in order to provide a client with an appropriate hearing aid. Specific training is required for an individual to provide a safe examination, testing, ear mold impressions, and selection of a hearing aid for a client. Otherwise, an untrained individual may adversely impact on the client when performing the hearing test and providing a hearing aid. The parties' joint prehearing statement stipulated that the following are "facts which are admitted": The Respondent's name is Jack Lee Beckwith. The Respondent has been, at all times material hereto, a licensed hearing aid specialist in the State of Florida. The Respondent's hearing aid license number is AS 0001775. The Respondent's address is 14 Wildwood Trail, Ormond Beach, Florida 32174-4343. The Respondent is listed as a sponsor on the application of Jean Dewey for a hearing aid trainee and did not sponsor her until December 5, 1989. The Respondent is listed as a sponsor for David Dewey as a hearing aid specialist trainee and did not sponsor him until December 5, 1989. When Respondent became the Deweys' sponsor, he assumed responsibility for supervision of them as trainees. David Dewey is not guilty of canvassing, as set forth in Chapter 484. Jean Dewey is not guilty of canvassing, as set forth in Chapter 484. Despite the stipulations contained in sub-8 and sub-9 above, Petitioner presented, without objection, evidence geared to the issue of Respondent telling Mrs. Dewey to canvass. After Petitioner had rested, Respondent moved to dismiss the administrative complaint in part upon grounds that there had been no showing that Respondent had told Mrs. Dewey to canvass and upon the language of the stipulation, which was worded similarly to a prior request for admission. In response, Petitioner's counsel asserted that there had been no meeting of the minds in the stipulation because she thought she was only agreeing that Mr. and Mrs. Dewey had never been adjudicated guilty of canvassing. The motion to dismiss was taken under advisement for resolution in this recommended order (TR 134-135). The Jeanne Lyons Trust bought Brill's Hearing Aid Center in Daytona Beach in June, 1989. At that time, Jeanne Lyons was 100 percent owner of the Jeanne Lyons Trust and the Trust owned 100 percent of Brill's Hearing Aid Center, Inc. Jeanne Lyons is married to David F. Lyons. Mr. Lyons was not employed by the trust or by the hearing aid center corporation or by his wife in any capacity, but at all times material to this administrative complaint, he acted as "go-between" for all three. From 1988 to 1992, Mr. Lyons served on the Board of Hearing Aid Specialists. He is, and at all times material has been, a licensed hearing aid specialist. Respondent Jack Beckwith was an employee of the corporation, Brill's Hearing Aid Center, Inc., in Daytona Beach, Florida. He formed a separate management corporation with his wife, who is also a licensed hearing aid specialist. The management corporation was hired by the Jeanne Lyons Trust to manage Brill's in Daytona Beach and to help expand Brill's operations south into New Smyrna Beach and north into Palm Coast. The purpose of the management corporation was to avoid paying the Beckwiths as employees for the expansion work. In each of the new locations, a lease within an optometrist's office was negotiated by Mr. Lyons in approximately July, 1989. Respondent Beckwith is married to Kim Beckwith. Karen Martin was Mr. Beckwith's office manager at the Daytona Beach Brill's Hearing Aid Center. David James Jenkins is the son-in-law of David and Jean Dewey, a married couple. Mr. and Mrs. Lyons, Mrs. Beckwith, Ms. Martin, Mr. Jenkins and Mr. and Mrs. Dewey were not charged in the administrative complaint herein. Karen Martin had known Jean Dewey through prior employment. In July or August 1989, Ms. Martin set up a luncheon meeting for Mrs. Dewey and her husband, David Dewey, with Jack Beckwith. Mr. Beckwith ultimately introduced Mr. Dewey to Mr. Lyons sometime in August, 1989. The Deweys seemed good prospects to manage one of Brill's branch centers. On behalf of his wife and her trust and corporation, Mr. Lyons approved Mr. Beckwith's hiring the Deweys and becoming their sponsor to train as hearing aid specialists. At all times material, Mr. and Mrs. Dewey believed themselves to be in the employ of Respondent Beckwith and Mr. Lyons, operating as partners in Brill's. In negotiations with the Deweys, Mr. Beckwith estimated that Mr. Dewey could make $60,000.00 a year and Mrs. Dewey could make $40,000.00 a year based upon a 20 percent commission on gross deposits from hearing aid sales out of the New Smyrna Beach office after the Deweys became fully licensed as hearing aid specialists. He explained that licensure as a trainee and training were prerequisites to becoming fully licensed as hearing aid specialists. Both Mr. and Mrs. Dewey had a background in sales. Their testimony clearly reveals that they saw the selling of hearing aids from the perspective of marketing a product on a lucrative commission basis rather than from the viewpoint of a health care technologist. The commission arrangement proposed by Mr. Beckwith on behalf of the Jeanne Lyons Trust d/b/a Brill's Hearing Aid Center, Inc. was very attractive to them. They wanted to get started as soon as possible to make an increased commission over what they were being paid in other employments at the time they interviewed with Mr. Beckwith. They also found it attractive that they could work together near their home. Another factor motivating the Deweys to get started as soon as possible was that Mr. Dewey was employed at a marina which was about to close, and the marina closing would entirely eliminate Mr. Dewey's income. The Deweys were so enthusiastic about Mr. Beckwith's proposal that they nominated their son-in-law, David James Jenkins, to work in Brill's new Palm Coast office. During September 1989, Mr. and Mrs. Beckwith, with the approval of David F. Lyons, provided some free informal training sessions for Ms. Martin, Mr. Jenkins, and Mr. and Mrs. Dewey, just to see if they would really like hearing aid work and be adaptable to it before the Deweys and Mr. Jenkins quit their existing employments. This was not intended by Mr. Beckwith to be a real apprentice-type program. These sessions occurred twice a week and involved playing an instructional tape, handing out some printed statutes, rules, and technical materials, practicing with an audiometer, and learning to make ear molds. Each potential trainee was given his own audiometer to take home just for practice. On or about October 1, 1989, David Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. His application for the trainee license listed Jack Beckwith as his sponsor. On or about October 1, 1989, Jean Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. Her application for the trainee license listed Jack Beckwith as her sponsor. On or about October 2, 1989, Mr. Beckwith sent Mr. and Mrs. Dewey to operate Brill's Hearing Aid Center in space leased from Cady and Timko, optometrists, in New Smyrna Beach, Florida. The Deweys had precipitously quit their previous employment and had no income. Mr. Beckwith established what days of the week and hours they worked at Brill's, what they wore, and how they should be paid. He told them they could not be paid as employees until they were accepted and issued trainee numbers by the Department as trainees. Mr. and Mrs. Dewey were not paid any wages between October 1, 1989 and December 12, 1989. Due to the delay in receiving trainee licenses and numbers from the licensing agency and their lack of income, Mr. Dewey became infuriated and pressed both Mr. Beckwith and Mr. Lyons for action on licensing. As a result, he received sporadic checks from Brill's Hearing Aid Center. The amount of the checks apparently did not amount to projected commissions. The checks were signed by Jack Beckwith with the permission of David and Jeanne Lyons. The checks were referenced on their face as "loans". Mr. Dewey claimed that the purpose of this notation was so that Mr. Beckwith or others could avoid paying employee-related taxes. Mr. Lyons and Mr. Beckwith asserted that the notation was to insure that Mr. Dewey paid back Mrs. Lyons' advances after Mr. and Mrs. Dewey received their trainee licenses and went on the regular payroll. Mrs. Dewey received no checks. The lease Mr. Lyons had negotiated with Cady-Timko, O.D., P.A. provided for Brill's Hearing Aid Center, New Smyrna Beach to have ". . . [a]ccess to patient files to contact patients to tell them of hearing aid services available . . . [and] opportunity to confirm optometrist appointments and ask if they would like hearing test also." Sometime in October 1989, Mr. Beckwith also sent Mr. Jenkins to operate the newly leased office of Brill's Hearing Aid Center, Palm Coast, Florida. Mr. Jenkins claimed to have worked briefly at a Brill's Center in Ormond Beach, but there is no other evidence that there even was a Brill's Center in Ormond Beach. Mr. Jenkins quit the Palm Coast office approximately November 1, 1989 because no clients came there and he was "starving to death." He testified that he was instructed by Mr. and Mrs. Beckwith to make cold calls to potential hearing aid customers from all of the files in the adjacent optometrist's office in Palm Coast, but that he, Mr. Jenkins, so feared rejection that he asked his wife, Mrs. Jenkins, to make the calls. Mr. Jenkins also testified that he did some audiometric testing and that Mrs. Beckwith checked all the audiometric testing he did, but he was vague as to whether this was done at Brill's office in Palm Coast or during his pre-training. His testimony was unclear as to whether Mrs. Beckwith also personally supervised all his audiometric testing. Mrs. Beckwith was not charged with any violations. Respondent Beckwith was not charged in the pending administrative complaint with anything done by Mr. Jenkins. Mr. and Mrs. Jenkins were not charged with any violations. On or about October 15, 1989, Jack Beckwith signed and mailed to the Department of Professional Regulation a Brill's Hearing Aid Center, Daytona Beach check for $400.00 to cover trainee applications for Mr. and Mrs. Dewey, Mr. Jenkins, and Ms. Martin, at $100 apiece. The applications and check were not received or processed by the Department until December 1, 1989. The actual trainee licenses were issued for Mr. and Mrs. Dewey on December 5, 1989. Mr. Beckwith's clear testimony that he submitted the check and four applications together by mail on October 15, 1989 is credible and compelling as opposed to other witnesses' inferences of a December 1, 1989 submittal date because the check face references the four applications specifically, including Mr. Jenkins' application, and the evidence is unrefuted that Mr. Jenkins quit his association with Brill's on or about November 1, 1989. No motive or reasonable rationale was advanced as to why Respondent should mail in $100 of Brill's money to register Mr. Jenkins as a trainee on December 1, 1989, thirty days after Mr. Jenkins had already quit. As noted above, the parties have stipulated as fact that Jack Beckwith did not become the Deweys' sponsor until December 5, 1989. At all times material, the training course and apprenticeship program under a sponsor approved by the licensing agency took approximately six months to complete before the applicant could sit for the hearing aid specialist licensure exam. From all accounts, it appears that it was standard operating procedure in the industry for sponsors to allow trainees to perform all services under direct supervision of their sponsor from the date the application for trainee status was mailed to the licensing agency. In this case, that date would have been October 15, 1989. David Dewey and Jean Dewey were not registered as trainees with the Board of Hearing Aid Specialists until December 5, 1989. According to the testimony of Theresa L. Skelton, the Department's policy was to treat applicants as trainees as soon as it received their checks, which in this case was December 1, 1989. Apparently in 1989, the agency did no extensive background check on applicants, and trainee licensing was largely a ministerial act if the proposed sponsor was legitimate. As far as the Department was concerned, trainees could legally perform all services under sponsor supervision as soon as their application and check were processed. See also, Sections 484.0445(1) and (2) F.S. infra. In October 1989, when Mr. Beckwith sent Mr. and Mrs. Dewey to the Brill's office in New Smyrna Beach, he instructed them to sell batteries and make appointments for persons who answered a newspaper advertisement he had placed to announce opening that branch office. He also told them to telephone current patients of the Daytona Beach Brill's Hearing Aid Center who lived in New Smyrna Beach and tell them that they no longer had to travel to Daytona Beach but could be serviced more conveniently at the new New Smyrna Beach location. Mr. Beckwith testified that he also told Mrs. Dewey to telephone "recall patients" for the optometry office. Recall patients were patients of the optometry office who needed to be reminded to come in to pick up glasses already ordered or who were due for a new eye appointment. Mrs. Dewey was also told to announce the opening of the hearing aid center to any of the optometry recall patients whose records bore Dr. Cady's notation, "HL" for "hearing loss", and also simultaneously make appointments for hearing tests. Mr. Beckwith intended that all appointments would be made for Wednesdays when he would come to New Smyrna Beach to do hearing tests and fit and deliver hearing aids. This testimony is in accord with the conditions of Brill's lease with Cady-Timko O.D. P.A., negotiated by Mr. Lyons. Mrs. Dewey testified credibly that Mr. Beckwith approved a script for her use for these telephone calls. Nothing in the script clearly shows that she was calling exclusively optometric recalls, Brill's old patients, or making "cold" calls. However, it mentions nothing about existing eyewear or appointments, and it does offer a free hearing test. Mrs. Dewey further testified that Ms. Martin instructed her how to use Dr. Cady's files to make a list and call all of Dr. Cady's patients over a certain age, regardless of an "HL" notation, paying special attention to those with insurance coverage. Mrs. Dewey understood these instructions also came from Mr. Beckwith and made telephone calls pursuant to the method outlined by Ms. Martin. Mr. Beckwith denied giving these instructions or approving the script. Mrs. Dewey's testimony and the list show that after the first two pages going through Dr. Cady's files with names beginning with the B's and C's of the alphabet had been prepared by Ms. Martin and one appointment scheduled on Tuesday, October 17, 1989 and one on Wednesday, October 18, 1989, Mrs. Dewey started back at the A's and prepared a more extensive list of names. This suggests that Mrs. Dewey went behind Ms. Martin's work and selected from Dr. Cady's files some names which Ms. Martin had excluded. Comparison of the list with a 1989 calendar shows that Mrs. Dewey booked approximately 35 appointments for dates between October 2, 1989 and December 12, 1989, without regard to whether they fell on Wednesdays. Most of the appointments she booked were for days other than Wednesdays. They included days between December 5, 1989 and December 12, 1989 while Mr. Beckwith was listed as the Deweys' sponsor. Mrs. Dewey, whose background was in sales, considered what she was doing to be "telemarketing". Neither Dr. Cady's files nor Mrs. Dewey's list showed that any person she telephoned had expressed an interest in hearing aids before Ms. Martin or Mrs. Dewey contacted them. Mrs. Dewey's list clearly shows that most of the people called either did not acknowledge that they had a hearing loss or were not interested in a hearing test and/or hearing aids. Mr. Dewey testified that between October 2, 1989 and December 12, 1989, he performed unsupervised audiometric testing, the taking of ear mold impressions, and the sale and dispensing of hearing aids to 20-24 persons and that he did so either with the instructions or knowledge of Mr. Beckwith and outside Mr. Beckwith's presence because Mr. Beckwith remained in Daytona Beach except on Wednesdays. Mr. Lyons and Mr. Beckwith denied issuing such instructions and denied even any knowledge that this had occurred until Mr. Beckwith was served with the administrative complaint. Mr. Beckwith testified that when he was present on Wednesdays, Mr. Dewey would sit in with him and observe testing and delivery and that whatever he allowed Mr. Dewey to do in his presence was overseen by him and he signed the appropriate documentation. He denied knowing that Mr. Dewey was also practicing as a hearing aid specialist when he was not present. Mr. Dewey conceded that Mr. Lyons specifically instructed him not to make any deliveries, and it is clear from Mr. Dewey's testimony that he thought Mr. Lyons' instruction meant "no home deliveries to patients", instead of "no delivery of finished hearing aids to clients anywhere, including the office," which would be a partial definition of "no dispensing." Although Mr. Dewey has claimed to make sales of hearing aids, he also has, since 1989, consistently maintained that he never "delivered" a hearing aid to a client. His testimony at formal hearing does not render clear whether or not he actually fitted a completed hearing aid on a client or ever actually collected money for a "sale" without supervision by Mr. or Mrs. Beckwith. Mr. Dewey testified that Mr. Beckwith or Mrs. Beckwith signed all paperwork as being responsible for the tests, etc. which he performed in their absence. No documentation of hearing tests or hearing aid sales by Mr. Dewey were submitted; no clients Mr. Dewey allegedly serviced testified; no bank deposits showing income from the New Smyrna Beach location were offered; and Mrs. Beckwith did not testify. Mr. Beckwith testified he personally delivered no hearing aids from the New Smyrna Beach office. On or about December 6, 1989, but before the Deweys had received their trainee licenses or been informed that they had been licensed as of December 5, 1989, they invited George Selas, a competitor and a licensed hearing aid specialist, whom Mrs. Dewey had known for some time, into the New Smyrna Beach office of Brill's Hearing Aid Center. When they explained the "telemarketing" that Mrs. Dewey was doing, Mr. Selas informed them that it was illegal and that they should not be practicing as hearing aid specialists before trainee numbers were issued to them by the Department. The Deweys immediately notified the Department by telephone on December 6 and in writing on December 7, 1989 of everything they had been doing and disassociated themselves from Respondent Beckwith, Mr. and Mrs. Lyons, and Brill's. That would mean that after December 6 they no longer operated out of their sponsorship situation with Mr. Beckwith, despite any booked appointments. As of December 12 or 13, 1989, they formally changed their sponsorship to Mr. Selas. They finished their training and apprenticeship under his sponsorship and were licensed as hearing aid specialists in 1990. As a result of information received from Mr. Dewey and Mr. Selas, Dr. Cady gave notice he was terminating the lease for Brill's New Smyrna Beach office. Mr. Selas and Brill's, represented by Mr. Beckwith, were competing for the same contract with an HMO in 1989-1990. Respondent attributes all of Mr. Dewey's actions to collusion with Mr. Selas in order to obtain the HMO contract and rent the space occupied by Brill's in New Smyrna Beach. These inferences are based upon inadmissible hearsay from someone at the HMO who allegedly got an anonymous phone call, and Dr. Cady's understanding of something Mr. Dewey may have said either to Dr. Cady or to his office manager.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order finding Respondent guilty of violating Sections 484.056(1)(h) and (t) F.S., not guilty of all other charges, and revoking his license. DONE AND ENTERED this 6th day of January, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted, except as to the use of the word "employed." See the Conclusions of Law. 4 Rejected upon contrary evidence of greater weight and credibility in Finding of Fact 33. 5-7 Accepted. 8 Accepted as modified in Finding of Fact 21 to better conform to the record and statute. 9-10 Accepted, except that receipt of the check was testified to be December 1, 1989. Rejected in part as a conclusion of law. See Finding of Fact 21 and the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 33 upon the greater weight of the credible evidence. Accepted. 14-16 Rejected only upon the word "employment" as a word of art. See Findings of Fact 15, 27-31 and the Conclusions of Law. 17 Rejected as a conclusion of law. See Findings of Fact 21, 27-31 and the Conclusions of Law. 18-22 Accepted, except for unnecessary, subordinate, and/or cumulative material and legal argument. Rejected as a conclusion of law. Covered in Findings of Fact 21, 27-33 and the Conclusions of Law. Accepted. 25-26 Covered only as necessary in Finding of Fact 22-25. 27-29 Accepted except as to word "employee." See Conclusions of Law. 30-31 Rejected as unnecessary or subordinate. Rejected as a finding of fact; see the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 9 and 15. 34-35 Rejected upon the greater weight of the credible evidence in Findings of Fact 15-16. Rejected as a mere recitation of nondispositive testimony. Rejected as not proven. Respondent's PFOF: 1-7 Accepted. Rejected as a conclusion of law. See Finding of Fact 20-21 and the Conclusions of Law. Sentence 1 is rejected as a legal conclusion. Sentence 2 is accepted in part in Finding of Fact 15-16 and 21 and otherwise rejected as a legal conclusion. The remaining sentences are accepted except that unnecessary, subordinate or cumulative material has not been adopted. 10-12 Accepted except that unnecessary, subordinate or cumulative material has not been adopted. The first sentence is rejected a mischaracterizing Mrs. Dewey's testimony. The second sentence is rejected upon the greater weight of the credible evidence as a whole. Accepted. First 15 Rejected as not proven. Dr. Cady's deposition is vague on this point. See Findings of Fact 34-35. Second 14 The first sentence is accepted. The second sentence is rejected as a mischaracterization. The third sentence is accepted. Second 15 Rejected as legal argument. 16 Rejected as legal argument. COPIES FURNISHED: Raymond Shope, Esquire Northern Trust Bank Building, Suite 225 4001 Tamiami Trail North Naples, FL 33940 Susan E. Lindgard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792
The Issue Whether just cause exists for Petitioner to suspend Respondent from her teaching position, without pay, for seven days.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes (2013).2/ At all times relevant to this proceeding, Respondent was employed by Petitioner as a teacher at Atlantic High School ("Atlantic") in Delray Beach, Florida. During the 2013-2014 school year, Respondent was assigned to supervise the credit lab at Atlantic. Respondent has been employed by Petitioner since 2006 and has not previously been disciplined. Administrative Charges On December 9, 2014, Petitioner filed its Petition, which constitutes the administrative charging document in this proceeding. The Petition alleges that Respondent slapped a male student in the face, and that this conduct violates the following: School Board Policies 0.01(2)(c) and (d) 1.013(1), 3.02(4)(a) and (d), 3.02(5)(a)(i), (ii), and (vii), and 3.27; Florida Administrative Code Rules 6A-5.056, 6A-10.080(2) and (3), and 6A- 10.081(3)(a) and (e); and the Collective Bargain Agreement Between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association ("CBA"), Article II, Section M. The Petition further alleges that these violations constitute just cause, pursuant to section 1012.33, to suspend Respondent from her teaching position, without pay, for seven days. Notably, the Petition does not allege that Respondent grabbed the student's face and does not seek to impose discipline on that basis. The Petition also does not allege that Respondent was charged with a crime or seek to impose discipline on that basis. Evidence Adduced at the Hearing The incident giving rise to this proceeding occurred on or about Thursday, March 6, 2014, the date on which the District celebrated "Take Our Daughters and Sons to Work Day." Respondent took her minor son to work with her at Atlantic that day. Respondent's son left her classroom briefly to use the restroom. When he returned to the classroom, he told Respondent that a male student had called him a "[racial slur]". He was able to identify the student, by the clothing he was wearing, as Rodney Michel. Respondent did not write a disciplinary referral on Michel for the alleged incident. At or around 3:00 p.m. on the afternoon of Monday, March 10, 2014, as Respondent was leaving school, she went to the credit lab classroom to confront Michel regarding the racial slur that her son claimed Michel had called him. According to Respondent, when she entered the classroom, Michel was standing on a chair and behaving aggressively, and when she confronted him, "he jumped down in my face." Respondent testified that she grabbed Michel's face to make him listen to what she had to say, and that she told him he was wrong to have called her son the racial slur. She then left the classroom. Shirley Starling Teague was the credit lab teacher that afternoon, and she was in the classroom when Respondent entered. She saw Respondent walk to a particular area of the classroom. Thereafter, she heard a sound. When asked on direct examination "what did you think that sound was that you heard?", she answered, "[i]t sounded like a slap." Teague did not see Respondent slap Michel or grab his face because her view of them was blocked by a partition around a computer table. Teague testified that she had not seen Michel standing in a chair. She believed she would have seen him if he had done so because the partitions were not high enough to have blocked her view of a student standing in a chair. Teague testified that as Respondent exited the classroom, she told Teague, "he called my son a [racial slur]." The students in the credit lab had become unruly, so Teague investigated. At some point, students told Teague that Respondent had slapped Michel's face. On direct examination, the following testimony was elicited from Teague: Q: And did any child say what happened? A: Yes. Q: What did they say happened? A: They said that Ms. Grant slapped Mr. Michel. The following testimony also was elicited on the direct examination of Teague regarding a statement by student D.L.: Q: Okay. And do you know if she observed what happened that day? A: To my knowledge, yes. Q: And did she say anything to you about what she had observed? A: Yes. Q: And what did the student D.L. state? A: She said that Rodney had gotten slapped and it wasn't right, that we were going to let it go. She felt that we were going to let it go. Teague testified that Michel never told her that Respondent had slapped him.3/ She examined Michel's face but was unable to determine whether there was any swelling. On cross-examination, Teague acknowledged that the only information she had regarding whether Respondent had slapped Michel had been relayed to her by students. As part of the School Police Department investigation, students provided statements that they had seen Respondent slap Michel. Some statements were made on "Witness Statement" forms and were dated March 10, 2014. These statements were not sworn or affirmed and the time at which each statement was made was not recorded on the form. Other statements were made on "Sworn/Affirmed" forms. Of these statements, some were made on March 10, 2014, at "1930" (7:30 p.m.), and others were made on March 11, 2014, at "0900" (9:00 a.m.). None of the statements contained a witness signature or otherwise indicated they had been sworn. Mary Powers, the assistant principal in charge of night school and adult education at Atlantic, testified that after the incident, Michel was brought to her office by others who had been outside the credit lab classroom at the time of the incident. Michel told Powers that Respondent had slapped him in the face. Powers examined Michel's left cheek, and testified that it appeared swollen. Kia Allen, assistant principal at Atlantic, also saw Michel's face after the incident, and testified that his jaw appeared swollen. Petitioner presented the testimony and written statements of school personnel that they saw Michel shortly after the incident, that he appeared upset, and that they were told that Respondent had slapped him. Petitioner did not present any witness who testified that he or she saw Respondent slap Michel.4/ Respondent herself was the only witness who testified at the hearing who actually saw the entire interaction between Michel and herself on March 10, 2014. As previously stated, Respondent denied having slapped Michel, but testified that she had grabbed his face. As a result of the incident, Respondent was charged with battery, pursuant to section 784.03(1)(a), Florida Statutes.5/ This statute states that "[t]he offense of battery occurs when a person: 1. [a]ctually and intentionally touches or strikes another person against the will of the other; or 2. [i]ntentionally causes bodily harm to another person." There is conflicting evidence as to whether Respondent pled "no contest" or "guilty" to the battery charge.6/ Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner did not prove, by clear and convincing evidence, that Respondent slapped Michel as alleged in the Petition. Reduced to its essence, the competent evidence in the record regarding the incident between Respondent and Michel consists of the following: Respondent's testimony that she entered the credit lab classroom, confronted Michel and grabbed his face, and that she did not slap Michel's face. As noted above, Respondent was the only witness testifying at the final hearing who was actually present and saw the entire incident between herself and Michel.7/ Testimony by Mary Powers, Kia Allen, and other school personnel who observed Michel's face after the incident, and who testified that Michel's cheek or jaw appeared swollen and that he was upset. Testimony by Teague, who said she heard a sound that she characterized as sounding like a slap. This evidence does not clearly and convincingly establish that Respondent slapped Michel. The testimony by Powers, Allen, Teague, and others to the effect that Michel and other students told them that Respondent slapped Michel is hearsay. Additionally, all of the students' statements, verbal and written, that they saw Respondent slap Michel are hearsay. This hearsay does not merely "supplement" or explain"8/ the competent evidence in the record; it constitutes the only evidence in the record9/ that definitively would establish the material fact at issue in this proceeding——that is, whether Respondent slapped Michel. Stated another way, the competent substantial evidence in the record does not clearly and convincingly establish that Respondent slapped Michel. In its Proposed Recommended Order, Petitioner posits that the students' written statements and their verbal statements to Teague, Powers, Allen, and others fall within various exceptions to the hearsay rule. For the reasons discussed below, it is determined that these statements, verbal and written, do not fall within an exception to the hearsay rule. Accordingly, they do not constitute competent evidence on which a finding that Respondent slapped Michel may solely be based. Although there is other competent substantial evidence in the record that suggests that Respondent slapped Michel, that evidence does not clearly and convincingly establish that material fact. Thus, it is determined that Petitioner did not meet its burden to prove, by clear and convincing evidence, that Respondent slapped a student in the face, as alleged in the Petition. As such, Petitioner failed to establish that Respondent violated the rules and policies cited in the Petition as the basis for its proposed discipline. Therefore, Petitioner has not demonstrated just cause to suspend Respondent from her teaching position, without pay, for seven days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order dismissing the charges against Respondent. DONE AND ENTERED this 3rd day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 3rd day of February, 2016.
Findings Of Fact Petitioner Horrigan has owned Better Hearing Aid Services, St. Petersburg, Florida since the company was started in 1957. Be is a certified hearing aid specialist and has been licensed each year through 1979. Petitioner Whittington has been a certified hearing aid specialist since 1957 and has managed Better Hearing Aid Services since 1968. During the early part of 1979 Petitioner Horrigan decided to sell his business and Whittington decided to retire at the end of 1979. Both Petitioners are well past 65 and Horrigan has had more than one heart attack. To seek buyers for the business an ad was placed in the June 1979 issue of the Hearing Aid Journal (Exhibit 1) Both Petitioners were aware of the requirement for completion of the continuing education course for renewal of certificates hut since both of them planned to retire in 1979 neither intended to renew his license for 1980. Bulletins reminding registrants of this requirement were sent to all certificate holders by Respondent on February 13, August 8 and October 1, 1979. Attempts to sell the hearing aid business in 1979 were unsuccessful. Accordingly, late in 1979, Horrigan decided it would be necessary for him to renew his certificate to keep the business open until he could find a buyer. Continuing education courses were given at various places in Florida during 1979 and Horrigan planned to go to Daytona Beach to take the course given 2 December 1979. On 27 November 1979 Horrigan was hospitalized for 9 days for a condition related to his previous heart attacks and was unable to take the course. Whittington was not aware that Horrigan was hospitalized until after the 2 December continuing education course was given. Had he known Horrigan couldn't attend, Whittington testified he would have attended so he could qualify for renewal of his certificate and keep the business open until a buyer was found. The next continuing education course given in Florida after 2 December 1979 was on January 24-25, 1980 at St. Petersburg, Florida. Both Petitioners attended this course and immediately upon completion submitted their applications for renewal of their certificates. Both applications for renewal were denied because they had not taken the continuing education course in calendar year 1979. Both Petitioners are highly qualified to sell hearing aids and denial of their applications for renewal of certificates is not in the public interest.
The Issue The issue is whether Respondent lawfully denied Petitioner's application to sit for the September 1997 hearing aid specialists' examination.
Findings Of Fact By Application dated October 31, 1996, Petitioner requested a license as a hearing aid specialist. The 1996 application answers no to questions asking if Petitioner ever had a hearing-aid "license" disciplined or application denied by another state. The application leaves blank a question asking for the identification of the states in which the applicant is or has been "licensed" to dispense hearing aids. Based on the information contained in the 1996 application, Respondent approved the application, on November 8, 1996, so that Petitioner could take the laws and rules examination on January 10, 1997. Due to past experience, this was the only part of the examination that he was required to take in order to obtain a Florida license. Subsequently, Respondent learned that Illinois had revoked a hearing aid specialist certificate held by Petitioner. Respondent's board members discussed this issue with Petitioner at the Board Meeting of January 31, 1997. After a full discussion of he facts, the Respondent's board members decided not to deny Petitioner's 1996 application, but to issue a probationary license, if he passed the laws and rules examination. The Board's favorable decision was made in the presence of Petitioner and confirmed by letter to him dated March 12, 1997. The letter states in part: The Board met on January 31, 1997 and re- considered your application for examination and licensure as a hearing aid specialist. After discussion the Board voted to allow you to take the examination and gave approval for licensure pending a passing score on the examination. They also as a condition for licensure voted for one (1) year of probation once you become licensed and for you to [in]cur any cost involved in this issue. Although unknown by all parties at the January 31 Board Meeting, Petitioner had failed the January 10 examination, as he was informed by letter dated February 17, 1997. By Application dated June 10, 1997, Petitioner again requested a license as a hearing aid specialist. This 1997 application is the subject of the present case. The 1997 application states that Illinois had revoked his license to dispense hearing aids and, rather than providing the requested details, states, "in file." The 1997 application adds no additional information in response to the question asking whether other states have disciplined Petitioner's licenses or denied his applications to dispense hearing aids. However, by letter dated February 20, 1997, Colorado had denied Petitioner's application for a "registration" to sell hearing aids, and Petitioner had retained an attorney to contest that decision. Petitioner claims that a material distinction exists between licenses, on the one hand, and registrations or certificates, on the other hand. His contention is that Respondent's application form inquires only about licenses and not registrations or certificates. However, Petitioner understood from his past dealings with the Board that they viewed his history in Illinois as material, and the Illinois final and recommended orders revoke Petitioner's "certification," not his "license." By Order filed September 24, 1997, Respondent denied the 1997 application because of the discipline in another state, in violation of Section 484.056(1)(c), Florida Statutes, and misrepresentations in the application, in violation of Section 484.056(1)(b), Florida Statutes. By Amended Order filed August 4, 1998, Respondent added two reasons for denial. First, Petitioner was convicted of a crime related to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, in violation of Section 484.056(1)(d), Florida Statutes. Second, Petitioner did not meet the requirement of good moral character, in violation of Section 484.045(1)(b), Florida Statutes. Petitioner has pleaded no contest three times to an attempt to purchase a controlled substance or possession of a controlled substance--twice in 1995 and once in 1998. Each time, the court withheld adjudication and sentenced him to probation. In December 1997, Petitioner was arrested for resisting arrest, obstructing an officer without violence, and fleeing and attempting to elude the police. He pleaded no contest and the court withheld adjudication and fined him $250.
Recommendation It is RECOMMENDED that the Board of Hearing Aid Specialists deny Petitioner's application for licensure. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Joe Baker, Executive Director Board of Hearing Aid Specialists Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 E. Raymond Shope, Attorney 1404 Goodlette Road, North Naples, Florida 34102 Donna Erlich Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Is Petitioner entitled to receive supported living services from Respondent? See Section 393.066, Florida Statutes.
Findings Of Fact Petitioner is 18 years old. He lives with his paternal grandmother and step-grandfather at 3109 Brandywine Drive, Tallahassee, Florida. On March 23, 1994, the Petitioner applied for developmental services. Petitioner's natural mother was institutionalized for retardation for an indeterminate length of time at a Sunland Center. Shortly after the Petitioner's birth, his mother left the Petitioner and his father. Petitioner has lived with his paternal grandmother since he was 13 weeks old. Petitioner's grandmother raised her own three children and has experience in child rearing and the development of children. She noticed that Petitioner's development was slow when Petitioner did not begin walking at age 17 months and did not begin to speak intelligible words until 30 months of age. Petitioner was taken to the Florida State University Psychology Clinic at age 4 years 3 months (4.3 years) in an effort to determine why his development was slow. This was the first time the Petitioner's Intelligence Quotient (IQ) was tested. He obtained a 77 on the Stanford-Binet L-M test, and an 87 on the Vineland Adaptive Behavior Scales. FSU advised the Petitioner's grandmother that Petitioner might have developmental problems and to observe him closely and retest him if he had problems in school. As a result, Petitioner's IQ was tested several times between ages 5 and 17. Testing dates and scores of these test are as follows: October 80 4.3 Stanford-Binet FSU Psy. Clinic IQ 77 Vineland Adaptive FSU Psy. Clinic 87 July 81 5.0 FSU Psy. Clinic Stanford-Binet IQ 84 May 84 7.10 WISC-R FSIQ 84-87 85 9.0 WISC-R FSIQ 80 April 86 9.9 WISC-R Psych. Assoc., Dr.Cook FSIQ 69 June 86 9.11 WISC-R Leon Cty. School, Barnes FSIQ 72 March 91 14.8 WISC-R Leon Cty. School, Popp FSIQ 69 April 92 15.9 Vineland Adapt. Psych. Assoc. Dr. Clark 62 July 93 17.0 WAIS-R, Psych. Assoc. Dr. Deitchman 70 Dr. Thomas Clark, who holds a doctorate in clinical psychology and is a board certified clinical psychologist, testified regarding intelligence testing and his examination of the Petitioner and the records of Petitioner's intelligence testing. The numbers in the far right column in Paragraph 5, above, all reflect the IQ of the Petitioner. IQ scores of 70 or lower placed a person two or more standard deviations below the mean on standardized intelligence tests. Individuals with mental retardation, who may exhibit higher IQ test scores when they are younger, may have their scores decrease as they get older. This is a recognized phenomenon in the mildly retarded. Scores on IQ tests may be inflated by a practice factor which occurs when the test is administered more than once within a six-month period. The record reflects that the Petitioner was tested two times in 1986, and his second score of 72 was higher because of the practice factor. The increase of Petitioner's score was within 2 to 3 points above his general performance on the first test in 1986 and his subsequent tests in 1991, 1992, and 1993, which is the predicted increase due to the practice factor. Since age 9.9, with the exception of the 72 due to the practice factor, the Petitioner has not scored above 70 on an IQ test. Based upon his examination and testing of the Petitioner and his review of the Petitioner's records, Dr. Clark's professional opinion was that the Petitioner was more than two standard deviations below the average in intellectual performance. Although the Petitioner suffers from Attention Deficit Disorder and has some emotional problems, Dr. Clark stated this did not alter his opinion regarding the Petitioner's IQ or his intellectual performance. Dr. Clark found that Petitioner's adaptive behavior was low for Petitioner's IQ. The parties stipulated that the measurement of Petitioner's general intellectual functioning existed concurrently with deficits in his adaptive behavior as manifested during the period from conception to age 18. Based upon its assessment, the Leon County Schools recommended that the Petitioner be placed in the community-based educational program which is designed for students who are mentally retarded within the educable range. The Petitioner has been awarded Supplemental Security Income under Title XVI of the Social Security Act upon a determination that he is mentally retarded. Since his completion of school, the Petitioner has been attending workshops conducted by Goodwill Industries to develop job skills and job coping skills. He has been unable to maintain employment, and has been discharged from all of the positions to which he has been referred. Petitioner was referred to the Department of Health and Rehabilitative Services Developmental Services by officials of Vocational Rehabilitation (Composite Exhibit 1-C). Petitioner's grandparents take him shopping, assist the Petitioner in maintaining his daily life, live with Petitioner on a daily basis, and give him support and try to assist him in controlling his "excessive loud talking". Without the care of his grandparents, the Petitioner would not be able to maintain the activities of daily living. Petitioner's friends include neighborhood children whose ages range from 3 years to 12 years. Their parents have requested Petitioner no longer play with them due to his size, age and conduct. Petitioner's testimony and demeanor while testifying reveal a young adult who is mentally retarded and whose adaptive skills are consistent with his IQ. Petitioner's grandmother testified that even though he is 18 1/2 years old, the Petitioner acts like a boy between 9 and 10 years old. The Respondent's position was that Petitioner's earlier test scores indicated that he was not two deviations below average intellectual performance, and the Petitioner's later test scores were adversely impacted by his emotional and attention deficit problems; therefore, Petitioner was ineligible for developmental services. The testimony of Dr. Clark clearly refuted the assertion that the Petitioner's earlier high test scores indicated a higher IQ, and refuted the alleged negative impact upon IQ testing of Petitioner's attention deficit and emotional disorder. Petitioner presented competent evidence and expert testimony concerning Petitioner's intellectual function to establish that Petitioner's performance was two or more standard deviations from the mean score on a standardized intelligence test. Petitioner's showing was unrebutted by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is; RECOMMENDED: That a Final Order be entered approving Petitioner's eligibility for developmental services. DONE and ENTERED this 23rd day of March, 1995, in Tallahassee, Florida. STEPHEN F. DEAN 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 23rd day of March, 1995. APPENDIX TO RECOMMENDED ORDER Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Subsumed in Paragraph 14 Paragraph 3 Paragraph 15 Paragraph 4 Subsumed in Paragraph 14 Paragraph 5 Subsumed in Paragraph 16 Paragraph 6 Paragraph 17 Paragraph 7 Paragraph 2 Paragraph 8 Paragraph 3 Paragraph 9 Paragraph 4 Paragraph 10 Paragraph 5 Paragraph 11 Subsumed in Paragraph 9 Paragraph 12 Irrelevant Paragraphs 13,14 Subsumed in Paragraphs 16-19 Paragraphs 15-17 True, but made part of Statement of Case Paragraphs 18-21 Subsumed in Paragraph 20 Paragraphs 22-25 Subsumed in Paragraphs 6-10,21 Paragraph 26 Paragraph 11 Paragraph 27 Paragraph 22 Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Rejected as contrary to the more credible evidence summarized in Paragraph 20. Paragraph 3 Paragraph 5 in which the typographical error regarding the test of October 1980 is corrected. The facts set forth in the footnotes are rejected, particularly the assertion that Dr. Cook's reference to a "recent" administration of an IQ test did not fix the date of the test sufficiently to say whether the practice effect would impact its administration. Paragraph 5 Subsumed in Paragraphs 7 and 21 Paragraph 6 See comments for Paragraph 3. As stated in the findings, this premise was specifically rejected. Paragraph 8 Paragraph 1 Paragraph 9 Irrelevant Paragraph 10 Subsumed in various other findings. Paragraph 11 True; however, the Petitioner's application is based solely upon his allegation that he is mentally retarded. COPIES FURNISHED: Daniel W. Dobbins, Esquire 433 North Magnolia Drive Tallahassee, FL 32308 John R. Perry, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252A Tallahassee, FL 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
