Findings Of Fact At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Reject as to two week time period. See HO #7. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #11. Accepted. See HO #15. Accepted. See HO #16. Accepted. See HO #17. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Rejected. Witness incompetent to render legal conclusion. Rejected. Improper summary, Accepted. See HO #21. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #8-#10, #11, #13 and #15. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games. See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as contrary to fact. See HO #6 and #7. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law. Rejected. Improper summary. See HO #19 and Conclusions of Law. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544. COPIES FURNISHED: Wilbur C. Smith, III, Esquire Post Office Drawer 8 Fort Myers, Florida 33902-0008 Craig R. Wilson, Esquire 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, 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 24th day of March, 2009.
Findings Of Fact Respondent holds state teacher's certificate No. 333895, Rank 3, type 04 graduate, valid until June 30, 1983 (Exhibit 9). During the school years 1976-1979 Respondent was employed at Riverdale High School and during the school years 1900-1981 he was employed at Cape Coral High School both of which are in Lee County. Respondent was assigned to the Social Studies Department where the principal subject he taught was history. 3 In June, 1978 while employed part-time at Sam Solomon's Department Store in Ft. Myers, Florida, Respondent attempted to steal a color TV set by placing it in a box labeled "earthenware" with a $30 price tag and having a friend take it to the checkout counter. The plan was foiled by store security officers who had earlier seen the TV in the sealed box and were on the lookout for someone attempting to remove the box from the store. While employed at Riverdale High School Respondent made improper sexual advances to several male students. One of these students became sufficiently upset about the improper advance that he struck Respondent in the face with his fist. On one of these students he performed fellatio while giving the student a ride home from school. Five of these students reported the incident to teachers, coach or school administrative personnel. Some of these teachers advised the student to tell his parents. Others reported the incident to the assistant principal who advised the principal. No evidence was presented that the principal took action at the time to have these charges investigated. While employed at Cape Coral High School Respondent made improper sexual advances to at least two male students. On one occasion in the classroom after class Respondent performed fellatio on a minor male student. Respondent was a good teacher who was generally well liked by both teachers and students. He is active in his church and highly regarded by fellow church members. Respondent categorically denied any misconduct relating to students.
Findings Of Fact Respondent was employed by the Bradford County School Board as a cosmetology instructor on a continuing teaching contract at the Bradford-Union Area Vocational-Technical Center (Va-Tech Center) in Starke, Florida, for the school year 1983-1984. Respondent's class was designed to prepare students to become licensed cosmetologists. On one occasion prior to Christmas, 1983, Mary Lee Wolf and Rose Smith, students of Respondent, brought an unopened bottle of wine onto the Vo-Tech Center grounds and presented it to Respondent during a class. There is no evidence that Respondent solicited the gift. Subsequently, on another date and after class hours, students Mary Lee Wolf, Tina Moyer, Bonnie Banks and Respondent's teaching aide, Helen Van Wart, opened the bottle and drank wine from cups in Respondent's presence. Respondent was served a cup, but there is no direct, credible testimony that Respondent personally consumed any wine. There is no evidence that any of those who consumed the wine were minors. In February 1984 the Ace Beauty Company, in conjunction with the Florida Cosmetology School Association, put on the Florida Sunshine Trade Show in Tampa, Florida. Attendance by students in Respondent's class at this particular trade show was encouraged by Respondent and pre-authorized by the Vo- Tech Center Director, David B. Smith, Jr. Mr. Smith made no provisions for a teacher's aide to fill in for Respondent on Monday, February 13 and Tuesday, February 14 because Respondent informed him that all but one or two of her students would be attending the trade show from February 11 through February 14, 1984. In fact, seven students did not attend and those who attended returned late February 13. On Friday, February 10, 1984, Mr. Smith approved use of the Vo-Tech Center van for Respondent's field trip, provided only Respondent drive the van. The same day, Respondent gave Mr. Smith a signed Application for Leave, requesting leave from February 11, 1984 through February 14, 1984. Past experience indicated trade shows may exceed the printed agenda. Saturday morning, February 11, 1984, Respondent and the eleven students travelling to the cosmetology show in Tampa, met in the Vo-Tech Center parking lot to board the van. While passing luggage to the Respondent for loading into the van, Bonnie Banks saw liquor bottles protruding from paper bags and remarked to Respondent that it looked like a party was planned. Respondent did not answer her Various students drank mixed alcoholic beverages from paper cups while standing near the van. Those involved took some care to shield their activities from Respondent and there is no direct credible evidence in the record to indicate Respondent was present or observed this alcoholic consumption on the school parking lot. Before climbing aboard the van, several of the students heard Respondent comment to the effect that the students were all adults and she expected them to behave that way. Some interpreted this to mean they were being given tacit permission to drink alcoholic beverages; others interpreted it as a warning either not to drink alcoholic beverages on the trip or not to let Respondent observe them drinking, if they did. Some of the students drank mixed alcoholic drinks from paper or plastic cups in the van while Respondent drove the van to Tampa. Mary Lee Wolf "tasted" some Kahlua liquor from a bottle in a brown paper bag. At one point, another liquor bottle in a brown paper bag rolled forward on the floor near Respondent in the driver's seat and Respondent passed it back to students behind her with an admonition to the effect of "keep it down back there." While it is unclear whether this comment was directed to Ms. Wolf or to someone in control of the rolling bottle, of those students who observed the bottle incident, all understood Respondent's comment to mean "don't let the liquor be seen" as opposed to "stop drinking and don't be so loud." While en route to Tampa, Respondent stopped in Gainesville, Florida, to refuel. At this stop, students Paula Tanner, Bonnie Banks, and Kay Kane left the van, purchased a six pack of beer at an adjoining convenience store and brought it back in a brown bag to the van. Respondent was in an adjoining bakery and did not see the beer loaded. Thereafter, various students drank beer from paper and plastic cups while Respondent drove the van. There is no evidence that any of these students was a minor and there is no direct, credible evidence Respondent consumed any alcoholic beverages in the van. Also at the Gainesville stop, Respondent drove from the gas pumps to another parking location without closing one of the van doors. The open door contacted the bumper of a parked car. There was little or no visual damage to the van but the students had difficulty closing the door again. Respondent had the necessary minor repair work done to the van in the Vo-Tech mechanical shop upon her return but did not report the accident to Director Smith. When Respondent unloaded the van in Tampa, several beer cans littered the van floor and a liquor bottle was dropped and broken in proximity to Respondent. Upon arrival in Tampa, Respondent registered in the Hyatt Regency Hotel, where the trade show was located. For financial reasons, several students had pre-registered in the less expensive Econo-Lodge some distance from the trade show. Respondent permitted Rose Smith to transport these students to and from the Econo-Lodge accommodations to the cosmetology show at the Hyatt Regency throughout the group's stay in Tampa. She jestingly told Rose Smith to say she was Respondent. On Sunday evening, after all educational activities ceased, Rose Smith also drove several of the students to the Confetti Lounge where they consumed alcoholic beverages. Rose Smith and some other students consumed alcoholic beverages in the van on this occasion. Respondent did not accompany the group to the Confetti Lounge. The Florida Sunshine Trade Show ended at 4:00 p.m., Monday, February 13, 1984. Respondent drove the van back to Starke that evening. During the return trip, some students complained of what they considered excessive speed. Respondent's reply to Paula Tanner's complaint was that if she did not like the ride she could get out and walk. The group arrived at the Vo-Tech campus at approximately 10:30 p.m. People were present on the grounds, in the classrooms, and in the administration offices when the cosmetology students arrived and for some time thereafter Respondent waited at the Vo-Tech Center for most of the students to be picked up. At student Lisa Morgan's request, she eventually took the remaining students home, but Ms. Morgan refused Respondent's offer to wait with her and insisted on waiting for her own ride which did not arrive until after 1:30 a.m. Tuesday morning, February 14, 1984. Respondent retained the Vo-Tech van at her home on Tuesday, February 14, 1984. On February 15, 1984, she reported for work. This is the day the van was repaired. In separate conversations with Barbara Casey, secretary to Director Smith, and with Martha Smith, (Mrs. David Smith) media specialist, Respondent gave the impression she had returned to Starke late Tuesday night. Respondent also submitted a newspaper release to that effect. On or about Friday, February 17, 1984, Respondent submitted to Director Smith a per-diem voucher requesting compensation from 9:30 a.m., February 11, 1984 to 11:00 p.m., February 14, 1984 when she had in fact returned at 10:30 p.m., February 13, 1984. At Mr. Smith's request for a supporting agenda she submitted a typed agenda for the trade show indicating activities through part of Tuesday, February 14, 1984. Four other per diem requests submitted by Respondent during the previous four years for field trips had exceeded the time periods established in their respectively attached agendas. In each instance, Mr. Michael Reddish, finance officer, reduced the time requested and made a reduced per diem reimbursement payment to coincide with the agenda submitted. Each time he did this he informed Director Smith of these actions; neither Smith nor Reddish informed Respondent of these actions, but it may be inferred that she was aware her per diem reimbursement payments were being reduced from the hours she had requested so as to coincide with the agendas she had submitted simultaneously with her per diem reimbursement requests. The per diem reimbursement request submitted on February 17, 1984 with supporting agenda amounted to a request for fifty dollars ($50.00) more than the actual time spent by Respondent on the trade show trip. Respondent's class procedures involved several sources of funds: individual student contributions to a profanity jar, proceeds of a class hot dog sale, fees charged to patrons for student beauty services, charges to students for supplies used by them in class, charges to students for sale of materials such as shampoos and permanents which they took home, and charges to students for special purchase items such as mannequins. Mannequins are false "heads" with rooted hair for hair services' practice. The profanity jar was apparently Respondent's idea to teach decorous language for purposes of future employment. Students who "cussed" were required to deposit various amounts of small change into the jar for each infraction. The amount in this jar at any point in time was never established by any credible evidence, nor has it been established what became of it or that Respondent emptied it. Proceeds from the class hot dog sale were originally intended to be used for groceries for use only for those students attending the trade show field trip. Instead, Respondent responded to non-attenders' complaints and purchased hairspray for the whole class. Although the highest "guesstimate" for hot dog monies was $25, the exact amount of proceeds from the hot dog sale has never been established by any direct credible testimony. At the beginning of the 1983-1984 school year, Director Smith and Respondent agreed that because Vo-Tech and the students each derived some benefit from student use of supplies, the school would charge students half price for supplies they wished to use at home. These types of supplies were initially purchased by the school from internal student money generated from student work on patrons and from sale of the supplies to students. They were internal funds and not county monies in Director Smith's eyes. Director Smith required that funds received from students and patrons be accounted for daily but no one in his office checked up on this. It was left to a teacher or a student to report these amounts on "Report of Monies" logs from each class daily. There is confusion in the testimony of Director Smith, Ms. Edwards, secretary-bookkeeper, and Ms. Norman, school clerk, as to what constituted retail sales and what constituted internal funds, and as to whether wigs and mannequins on hand constitute "supplies" (always retail sales) or are always classified in the category of special pre-paid purchase items. Students could purchase mannequins through the school office but mannequins were normally purchased by the school with county money and Mr. Smith's understanding was that in the 1983-1984 school year there had been only one purchase of mannequins made with county monies and therefore they were not for resale. Ms. Edwards and Ms. Norman thought sale of supplies to students could not generate internal funds and was not permitted, contrary to Mr. Smith's understanding, and both ladies were vague as to whether there had been another set of mannequins for students to purchase. All three administrators agreed resale of items purchased with county funds was improper. Ms. Edwards and Ms. Norman are the persons who determined no amounts of monies in any category had been turned in from Respondent's class in the 1983-1984 school year. On one occasion, student Elizabeth Kelly paid for a mannequin in advance with a check from her grandfather to her, which she endorsed over to Helen Van Wart. She eventually received the mannequin from Helen Van Wart. On another occasion, Bonnie Banks delivered a blank check for $24.00 to Respondent. It was cashed with the name "Betty J. Hutson" filled in and also endorsed on the back. That name is Respondent's name and Bonnie Banks thought that was Respondent's signature but no predicate/foundation/reason exists in the record for that assumption. Bonnie Banks also received her mannequin. In the 1983-1984 school year, money for all supplies regardless of how categorized were collected by Respondent's teacher's aide, Mrs. Van Wart, but the keys to the supply cabinet were freely given out to students. Permanents were left sitting on an open shelf. Mrs. Van Wart did not routinely give out receipts and none of the money students recall paying for supplies was turned in to the Director's office. In the previous years, student monies and retail sales for patrons services and sales to students had been turned in to the office from Respondent's class. In 1983-1984, no theft of monies or supplies was reported to the Director by anyone. Only one student, Elizabeth Kelly, recalls Respondent mentioning some money was stolen but how much or from what source this money was derived was never established by any direct credible testimony. No credible testimony established any supplies were actually missing from the supply cabinet and an outside year end audit revealed no problems in Respondent's class. Petitioner established that over a period of approximately three years, Respondent fell asleep several times while under the hairdryer during class while her students practiced on her. On one other occasion, she was absent from the classroom for a short period of time on a personal errand off- campus. The maximum period of time she was gone was less than an hour and a half and during this period she was entitled to take her lunch. During this absence, a patron was permanented by a student and injured. It is contrary to Vo-Tech policy for students to use chemicals without on-site instructor supervision and Respondent did not advise Director Smith of the patron's injury. She further requested her students to say she was in the school cafeteria when it happened. Cosmetology students attending a normal day of classes on campus would be legitimately credited with seven (7) hours toward their state board requirement. Feeling trade shows were worthwhile learning experiences, Mr. Smith authorized granting students eight (8) hours for the planned activities of a field trip day. At the beginning of the 1983-1984 school year, Respondent told her entire class that no-one-would be required to attend class the day following any multi-day trade show or seminar. On Friday, February 10, 1984, Respondent told her class that they would be returning from the trade show on Monday evening, February 13; that there would be no class on Tuesday, February 14; and that everyone would still get credit for class on Tuesday. Respondent advised her class that students not attending the trade show would receive attendance credit whether or not they attended school on Monday or Tuesday. Seven students were not in school or any school approved instructional program on Monday, February These were the students not attending the trade show that day. Eighteen students were not in school or any school approved instructional program on Tuesday, February 14, 1984. This included the eleven students who had returned from the Tampa trade show with Respondent the night before. Respondent gave all the students credit for seven (7) hours on Monday and seven (7) hours on Tuesday instead of eight (8) hours for Sunday and eight (8) hours on Monday for the students attending the trade show and zero (0) hours credit for the "stay at homes" on Monday and zero (o) hours credit for all students for Tuesday. Director Smith testified he would have no problem if she had given eight (8) hours per day for the trade show activities but the attendance records did not reflect that specifically. Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had. Before and during the trade show trip, and at various times thereafter Respondent instructed the students who had been on the field trip, that if asked, they were to say they returned to the Vo-Tech Center grounds on February 14, 1984, instead of a day earlier. Respondent's immediate supervisor, David Smith, instituted an investigation of Respondent' a activities approximately February 17, 1984. Be did not immediately advise her of the serious allegations concerning allegedly missing supplies and leave requests/per diem claims. Respondent was not aided by him in correcting the latter concern. Particularly, she was prevented from correcting the leave requests/per diem claims. On March 17, 1984, Respondent submitted a letter stating she was at home on February 14, suffering from exhaustion and wished to amend her leave and per diem requests. On March 19, 1984, Respondent submitted an amended sick leave request. Director Smith refused to approve these as over thirty days from date of the sick leave and because he considered the initial requests to be fraudulent.
Recommendation Upon assessment of the facts found, and in the conclusions of law reached and in consideration of the argument of counsel, it is recommended 1. That the Bradford County School Board enter a Final Order ratifying Respondent's suspension of employment with the Bradford County School Board without pay and continuing that suspension without pay to and including the end of the 1984-1985 school year, a total of 2 school years. DONE and ORDERED this 1st day of February, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985.
Findings Of Fact The Petitioner is in the state agency charged with regulating the practice of cosmetology. As of March 19, 1990, the Respondent had completed 1,043.5 hours of instruction in cosmetology at the Daytona Beach Community College. On this date, the school certified that the Respondent was competent to sit for examination. She was scheduled to complete another 156.5 hours of instruction by April 23, 1990, and was to graduate on that date. The Respondent mailed her application for licensure by examination on March 19, 1990. The Respondent was advised by her instructor at the cosmetology school that her application to the Florida Board Cosmetology was a formal registration that would allow her to practice temporarily without a license. Based upon these representations of her instructor, she began cutting hair for salon customers on that date. The appointment calendar for Head to Toe Salon, 200 North Woodland Boulevard, Deland, Florida, clearly demonstrates that Respondent provided cosmetology services to customers of the Head to Toe Salon on the following dates in 1990: March 19, 24, and 31; April 4, 10, and 17. On April 17, 1990, a routine inspection of the Head to Toe Salon revealed that Respondent maintained a work station in the salon and had been providing unlicensed services to customers since March 19, 1990. On May 30, 1990, the Respondent was issued License CL 0180631 by the Florida Board of Cosmetology. Mitigation The Respondent did not have actual knowledge that she was violating Florida law when she practiced cosmetology without a license between March 19 and April 17, 1990. Once she was advised of the offense, the Respondent ceased the practice immediately. Prior to hearing, the Respondent purchased the salon. The expense of the purchase has placed a financial hardship upon Respondent. She does not anticipate a profit from the business for another two years. The Respondent is frustrated because she was misinformed during her schooling about when she could begin work. However, she is willing to accept responsibility for her actions. The Respondent is committed to making sure that nonlicensed activity does not occur in her salon in the future.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of having violated Section 477.029(1)(a), Florida Statutes. That a letter or reprimand be issued to the Respondent for this violation. That the administrative fine be reduced to a total fine of $100.00. This may be paid within one year of the entry of the Final Order. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4705 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #6. Accepted. See HO #2,#3,#4,#5 and #8. Copies furnished to: Laura P. Gaffney, Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Dianna K. Gentile 783 Gainsboro Street Deltona, Florida 32725 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Myrtle Aase, Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
