Findings Of Fact The parties have resolved the factual issues through a stipulation. A copy of the stipulation is appended to this Final Order, and constitutes findings of fact for the purposes of this proceeding. In summary, the facts are that the Respondent refers requests for formal administrative hearings that are submitted to it to the Division of Administrative Hearings. Formal hearings are conducted by the Division of Administrative Hearings, culminating in entry of recommended orders directed to the Secretary of the Department. The Department records the hearings on tape recording equipment. Tapes of the hearings are routinely made available to the parties. The Department has a policy of rejecting any exceptions to the findings of fact set out in a recommended order unless the objecting party submits a complete transcript of the hearing at that party's expense. The Respondent's practice is to allow parties to utilize tapes of the final hearing so that the party can prepare a transcript from the tapes. The Department accepts any notarized transcript prepared from the tapes as a transcript of the hearing.
Findings Of Fact At all times relevant hereto, petitioner, Lennie Russell, was a student in the public School system of Dade County, Florida. He is now fifteen years old and is classified as an emotionally handicapped student with a learning disability. At the time of final hearing, he was in Youth Hall, a detention center, where he had been for the last three or four months. Just prior to that, he was assigned to Jann Mann Opportunity School-North, a school having an educational alternative program designed to meet the needs of students who are disruptive, disinterested or unsuccessful in a normal school environment. The latter school is under the jurisdiction of intervenor, School Board of Dade County (SBDC). He has been in the SBDC school system since kindergarten. Pursuant to law, the SBDC maintains two types of teacher files: personnel and investigative. By local school board rule the SBDC has defined the' contents of a personnel file as follows: All records, information, data or material maintained by the School Board, in any form or retrieval system, with respect to any employee or former employee, which is uniquely applicable to the employee, whether maintained or stored in one or more locations. An investigative file contains: investigated cases of alleged employee misconduct and/or violation of School Board regulations, state and federal statutes. The completed investigative file indicates the investigative findings and disposition actions relating to the allegation(s). It includes statements by investigating officer or school official, person(s) filing complaint, victim(s) and witnesses, if any. For retention purposes, school personnel records are considered to be a "record series" containing personnel files in general. They are retained by the SBDC for the career of the teacher plus fifty years. Investigative files are a "subseries" of personnel files but are not included in the general personnel records. While the personnel file contains the disposition of every complaint, founded or otherwise, lodged against a teacher, the file does not contain the investigative materials themselves, since they are included only in the investigative files. Both sets of files are public records, and open for inspection by members of the public, including petitioner. 3/ On March 21, 1984 the SBDC adopted Rule 6Gx13-4-1.03 entitled "Procedures Personnel Files." As is relevant to this controversy, the rule contains a provision governing the minimum period of time that personnel investigative files must be retained. This time period was arrived at after lengthy negotiations between the SBDC and intervenor, United Teachers of Dade (UTD). UTD is the collective bargaining unit for teachers in the Dade County public school system. According to the rule: Investigative reports will be retained in the Division of Personnel Control. Reports of allegations which, are unfounded, exonerated, or not sustained, will be retained for five years provided there are no litigations pending and an infraction-free period of five (5) years precedes each purge, except for those investigative reports that concern sexual abuse of a child or other forms of child abuse. Investigative material relating to records of sustained formal discipline will be retained for ten years from the date of disposition provided an infraction-free period of ten years precedes each purge of formal discipline, except for those investigative reports that concern sexual abuse of a child or other forms of child abuse, and provided there are no litigations pending. Authorization for disposal of records will be enacted in accordance with Florida Statutes and the State Division of Archives, History and Records Management, and School Board Rule 6Gx13-3D-1.08. Put another way, this meant that unfounded complaints (except those relating to child abuse) would be retained in a teacher's investigative file for five years while substantiated complaints would be retained for ten years. Neither could be purged after those time periods unless there were no other substantiated complaints lodged against the teacher during the five and ten year periods preceding the purge. If there were, the complaints would continue to be retained until the requisite infraction free period was attained. By law, respondent, Department of State, Division of Library and Information Services (Division), is charged with the responsibility of reviewing and approving requests for record retention schedules submitted by various agencies. To this end, SBDC forwarded to the Division on March 30, 1984 a request for approval of the schedule pertaining to investigative files. After reviewing the request, and receiving input from all parties, including petitioner (who suggested no specific retention period), the Division issued proposed agency action on June 18, 1984 approving the following recommended retention period: Sustained formal discipline (less than dismissal) - ten (10) years from date of disposition provided an infraction free period of ten (10) years precedes each purge of formal discipline, and providing there are no litigations pending. Unfounded, exonerated, not sustained - Five (5) years providing there are no litigations pending and an infraction free period of five (5) years each purge. The above action was formalized by agency letter dated June 25, 1984 which advised SBDC that Records Retention Schedule Number 146 had been approved. Because petitioner contended such approval affected his substantial interests, he filed a request for hearing which prompted this proceeding. In approving a schedule, the Division often looks to other previously established schedules as precedent. It is also obliged to review a record in light of any "legal, fiscal, administrative and archival value" it might have. These terms are not defined by statute or rule. However, through testimony it was established that the legal value of a record is taken into account by reviewing any applicable statutes or rules that might require a record to be retained for a certain time period. In this case, there were no legal requirements which imposed retention periods beyond the five and ten year periods authorized by the schedule. The Division also considered the records' potential use in litigation, and consulted with in-house counsel, the Attorney General and the Auditor General as to any legal significance the records might have. The results of these inquiries did not suggest a different retention period than was proposed by SBDC. Since the records were not required to track financial transactions, they had no fiscal significance Similarly, they had no value in documenting the history of the state and thus were of no historical consequence. The final factor for consideration was the administrative value of the records. This factor concerns the value the records have for current agency in-house use. The Division felt the records' administrative value was for a lesser time period than five and ten years because such retention periods were in excess of those used by law enforcement agencies and the Department of Health and Rehabilitative Services for similar records. In addition, the records duplicate in part the records of the Department of Education. 4/ Nonetheless, the Division noted that SBDC and UTD had agreed through collective bargaining that longer retention periods were appropriate, and accordingly approved the schedule. Such time periods were not shown to be arbitrary or unreasonable, or that they were inconsistent with relevant statutory criteria. Petitioner did not propose that the records be retained for any Specified period, but simply criticized the Division's action. Through his mother, Lennie complained that Some of his teachers in prior years were "not qualified" because they could not control their respective classrooms. Her primary complaint is that certain teachers are not "trained" to handle emotionally handicapped children, and that she may wish to see the records of certain teachers at a future time to make decisions concerning her child's placement. However, she has never asked to see any teacher's investigative file, has not requested a placement hearing, and has no definite plans to do so. Further, the material contained in an investigative file does not relate to exceptional child placement. Indeed, Lennie's principal concern, as clarified through testimony at final hearing, relates to teacher performance matters, a subject wholly different from complaints concerning misconduct. Even so, if performance related complaints are substantiated, they are retained in the teacher assessment files for fifty years, and are open to petitioner's scrutiny. Therefore, the proposed retention periods for investigative files should have no bearing on Lennie's placement, or deprive him of access to material that would be used in a placement hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered approving the School Board of Dade County's records retention schedule number 146. DONE AND ORDERED this 1st day of July, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1987.
The Issue The issue here presented concerns the challenge by the Petitioner, State of Florida, Department of Professional Regulation, to the Respondent, State of Florida, Department of Professional Regulation, Board of Real Estate's video tape course rule, i.e., Rule 21V-3.08(5), Florida Administrative Code, in that portion which states: "A licensed instructor must he in attendance to conduct each quiz and review session." The stated authority for this rules challenge is in accordance with Section 120.54, Florida Statutes, and Section 455.211, Florida Statutes. In particular, the Petitioner has alleged that: The proposed rule goes beyond the statutory authority of the Board of Real Estate. The proposed rule has not been accompanied by adequate economic impact statements as required by Subsection 120.54(2), Florida Statutes. The proposed rule does not protect the public from any significant and discernible harm or damages. The proposed rule unreasonably restricts competition or the availability of professional services in the state. The proposed rule unnecessarily increases the cost of professional services by the corresponding or equivalent public benefit.
Findings Of Fact On June 26, 1980, the Respondent filed a Notice of Rule Adoption of Rule 21V-3.08, Florida Administrative Code. The general text of that rule may be found in the Petitioner's Exhibit No. 1 admitted into evidence. Within that rule is found Subsection 21V-3.08(5), which establishes the requirement that a licensed instructor must conduct the quiz and review sessions of the video tape course envisioned by the subject rule. 1/ The quiz and review sessions are held in the fourth, eighth, twelfth and sixteenth sessions, with each session being constituted of a three-hour program for a total of twelve hours of live instructor time. Rule 21V-3.08, Florida Administrative Code, was published in the Florida Administrative Weekly on July 3, 1980, in the form shown through Petitioner's Exhibit No. 1. The rule in question had been the subject of discussion in the Respondent's monthly meeting in June, 1980, preliminary to its adoption. Again, in the meeting of July 28, 1980, the rule was discussed and offered for public comment by those parties interested in stating their positions in support of or opposition to the rule. Petitioners Exhibit No. 4 admitted into evidence is a transcript of that meeting. In the course of the July 28, 1980, meeting, David W. Dalton, President of the Bert Rogers School of Real Estate, Inc., an organization that would be substantially affected by the proposed rule, was allowed to state his opposition to the passage of that portion of the rule mandating twelve hours of live instructor time. In essence, Dalton, in behalf of his corporation, was opposed to any mandatory requirement of more than three hours of live instructor time based upon the belief that Chapter 80-51, Section 1, Laws of Florida (1980) which created Subsection 475.451(7) Florida Statutes, did not allow for the requirement of more than three hours of live instructor time in a video tape real estate course. In the July, 1980, meeting the Petitioner through its legal staff was also allowed to make known its opposition to the establishment of the requirement far live instructors in excess of three hours. This opposition was made known prior to the time that the final decision was reached to implement the rule's provision in question. One of the Respondent's board members also made known her opposition to passage of the rule, that being Virginia Bishop, who stated that she was in accord with the principle of having more than three hours of live instruction but was required to act in deference to the wishes of the Florida House of Representatives, member, Carl Ogden, Vice Chairman, Regulatory Reform Committee, who expressed his opinion that the legislation, Chapter 80-51, Section 1, Laws of Florida (1980), instituting Subsection 475.451(7), Florida Statutes, would not allow for more than three hours of live instruction to be mandated by the Board of Real Estate. Notwithstanding Mrs. Bishop's vote against the passage, the decision of the others members of the Board of Real Estate deliberating this matter, was to go forward with Rule 21V-3.08, Florida Administrative Code, leaving intact the twelve-hour requirement for live instruction. Rule 21V-3.08, Florida Administrative Code, as it appears in Petitioner's Exhibit No. 1 was filed with the Secretary of State Office, State of Florida, on August 4, 1980. On that same date, the Petitioner petitioned the Division of Administrative Hearings for a rules challenge hearing in accordance with the provision Section 120.54, Florida Statutes, and the further authority found in Section 455.211, Florida Statutes. Rule 21V-3.08, Florida Administrative Code, became effective on August 24, 1980. The rule as adopted had an economic impact statement and the statement addressed the concerns of Section 455.211, Florida Statutes, and the language of the economic impact statement may be found in Petitioner's Exhibit No. 1. The economic impact statement was prepared by the staff of the Respondent and the Board of Real Estate relied on the staff's information in adopting the rule in question, and the overall Chapter 21V-3, Florida Administrative Code. In addition to the comments found in the economic statement appended to the rule, testimony was elicited from certain witnesses presented by the Petitioner in the course of the hearing in its effort to attack the adequacy of the economic impact statement. The Commissioners who testified in behalf of the Petitioner, namely, Arthur M. Hamel and Virginia Bishop, did not have an in-depth knowledge of the steps which the staff undertook in preparing the economic impact statement. Hamel did indicate that from his knowledge of the situation, that if there were any increase in cost to the course participants due to the utilization of a live instructor as opposed to a video tape monitor, that he felt this would be money well spent, intimating that there would be some higher quality presentation through live instruction. Hamel also expressed concern that some of the schools that were offering real estate courses were turning out students who might not have sufficient expertise to act as a real estate professional; instead, they might be perceived as people who were able to answer examination questions only. Hamel had a concern about how this affected the public. Mrs. Bishop testified that she felt that a live instructor should be utilized in teaching participants in the courses. Carlos Brian Stafford testified in the hearing. Mr. Stafford is the Executive Director of the Board of Real Estate. Although Mr. Stafford was privy to the opinions expressed by Representative Ogden on the propriety of enacting a rule which would require more than three hours of live instructor participation in the real estate courses, and, made known Mr. Ogden's opinion to the Board of Real Estate prior to the adoption of the rule in question, he was nonetheless persuaded as Executive Director that the limitation of the number of live instructor hours would enure to the detriment of the applicants for registration. Taking the course using video tape as a primary emphasis as compared to live instruction might be cheaper in initial costs, but was outweighed in the mind of Stafford because he felt that the higher number of individuals taking a real estate salesman examination would fail, thereby requiring them to purchase and participate in a two or three day review course in addition to the general course of video instruction in order to pass the examination. The two courses in turn would cost more than a general course with greater emphasis on live instruction. In response to the Petitioner's inquiry, Stafford said that no statistical study was done to determine economic impact because there was "nothing to base the study on". The witness indicated that the decision to employ twelve hours of live instruction came about through staff discussion within the Board of Real Estate. Charles H. Hoeck, real estate education coordinator for the Petitioner, testified as witness for the Petitioner. Mr. Hoeck was the individual most responsible for the preparation of Rule 21V-3.08, Florida Administrative Code. Hoeck acknowledges that no specific comment was offered on the question of the economic impact of Rule 21V-3.08, Florida Administrative Code; however, he goes on to say that a wide range of information was reviewed on the cost and methods of preparation of video tapes. This information revealed that the cost of professionally developing a 48-hour block of technical material could run as much as $150,000.00 as contrasted with a less sophisticated operation which might cost $5,000.00. Where the actual cost for the creation of the program might be established eventually could not be determined according to Hoeck, because the type course contemplated by the rule had not been prepared before the rule adoption. As a consequence, the cost figures were not available to make the determination. Nonetheless, Hoeck concedes that twelve hours of live instruction in the video tape course will cost more than three hours of live instruction on a unit basis. This cost could be passed on to the student in the proprietary school course; not necessarily so in the community college type course. According to Hoeck, whatever the method of instruction, the Board of Real Estate would prescribe the course content, to include 16 three-hour sessions. Hoeck examined other instructional experiences prior to the draft of the economic impact statement related to the overall Chapter 21V-3, Florida Administrative Code, an attempt to ascertain effectiveness of live presentations as contrasted with video tape presentations. This effort was not successful in the sense that the programs reviewed at the University of Florida and University of Central Florida indicated that a video tape technique was used by way of supplement or augmentation to the live instruction as opposed to an alternative method of instruction. Other material which Hoeck was familiar with and looked to in making the decisions related to the rule in question convinced Hoeck that video tape was less effective than live instruction. This is particularly true of persons who have less education and are older students. In this respect, 55 percent of the applicants have a high school education or less, and approximately 45 percent of those persons are over forty years old, and the latter group typically has not been involved in the educational process for a number of years. To Hoeck those persons with the limited educational background have more difficulty with video tape instruction than they do with live instruction which allows you question and answer periods. The above referenced percentages are as applied to 50,000 persons who took the salesman's license examination in 1979 of the 75,000 people who took the introductory course in that same year. As the petitioner's witness, Hoeck also discussed briefly the experience that the State of Georgia had with the utilization of video tapes in lieu of the traditional live instruction. Georgia found that the percentage of those passing the real estate examination went down significantly when video tapes were used. (This information about the experience in Georgia was not personally verified by Hoeck.) If the Georgia experience were indicative of what would occur in Florida, the applicant for registration would be required to stand examination again and this would cost more money for registration and examination and it would be expected, in Hoeck's opinion, that the applicant for re-examination would take the review course in addition to the general video tape course, which would again cost more money. The same David W. Dalton who had testified in the public hearing prior to the adoption of the rule gave testimony in the course of the hearing in the rules challenge matter. In Dalton's opinion, the video tape instruction would not achieve the same level of quality of instruction as a live instructor of the highest caliber, but it would be considerably better than what Mr. Dalton considered to be the lowest quality of live instruction, that low range being typical of the market place. Dalton stated that video tape instruction can be offered at substantial savings because of the ability to use unskilled individuals to run the video equipment as opposed to paying live instructors. Although this cost savings could be made available to the course participant, Dalton stated that the savings would be at the option of tee cool, in that the school might elect to take the savings tit the cost of the preparation of the course in the way of additional profits. Again, Dalton expressed his opinion that the enabling legislation as found in Chapter 80-51, Section 1, Laws of Florida (1980) creating Subsection 475.451(7), Florida Statutes, restricted the Board of Real Estate to a three-hour mandatory requirement for live instruction, with additional hours of live instruction being at the option of the real estate school.
The Issue The issue is whether Petitioner had just cause to discipline Respondent by suspending his employment without pay as a tenured professor for six months, by prohibiting him from engaging in any activities with outside businesses, and by withdrawing existing outside activities exemptions or approvals.
Findings Of Fact Respondent is a Board Certified medical doctor. Respondent specializes in neurology and clinical neurophysiology. He has special expertise in epilepsy and clinical neurophysiology. Respondent has performed research in the area of epilepsy. At all times material to this case, UFBOT employed Respondent. Respondent also worked for the Malcolm Randall Veterans Administration (VA). Respondent had a laboratory at the McKnight Brain Institute on the University of Florida campus. He was a tenured professor on the faculty of the Biomedical Engineering Department. He also held joint appointments as Professor of Neurology and Professor of Psychiatry, as well as an affiliate appointment as Professor of Neuroscience. Respondent was a member of the University of Florida's Graduate Faculty. An Institutional Review Board (IRB) is an internal review board that has the obligation to provide oversight for all research activities involving human subjects. IRB-01 is one of four review boards affiliated with the University of Florida. IRB-01 is responsible for oversight of research at the Health Science Center. IRBs are charged with the responsibility of complying with federal regulation for the protection of human subjects found in 45 C.F.R. Part 46, Protection of Human Subjects. This regulation is known as the "Common Rule." Beginning in 1993, Respondent was the principal investigator (PI) on a research protocol entitled "Dynamical Studies in Temporal Lobe Epilepsy," hereinafter referred to as Protocol 447-1993. IRB-01 approved Protocol 447-1993. Pursuant to Protocol 447-1993, data in the form of video-taped EEGs and clinical records were collected from 18 patients with intractable epilepsy. Some of the data was called "scalp" data, because it was collected via electrodes attached to the patients' scalps. The rest of the data was called "depth" data, because it was collected during surgical procedures. The informed consents in Protocol 447-1993 informed the subjects that researchers would be reviewing their medical records to gather information about their epilepsy. According to the informed consents, researchers would analyze brain wave recordings that were performed on the patients as part of the diagnostic evaluation, store the recordings on a computer, and analyze the recordings with new mathematical techniques. The informed consents also advised the subjects that their personal information would not appear in print or be presented in a manner that could identify them. The informed consents for subjects enrolled in Protocol 447-1993 provided that the University of Florida and the VA Medical Center would protect the confidentiality of the subjects' records to the extent provided by law. Subjects were also informed that the National Institutes of Health (NIH) as the Study Sponsor, the Food and Drug Administration (FDA), and IRB-01 had the right to review the records. Protocol 447-1993 continued with IRB-01 approval for several years. The protocol expired in May 2002. It is not permissible for a researcher to use data from an expired protocol in a later protocol without additional approval from the IRB. In 2001, Respondent applied for and received approval from IRB-01 for a research protocol entitled "Bioengineering Research Partnership," identified as Protocol 430-2001 (BRP Protocol). Respondent was the PI for the new protocol. The proposal for the protocol described the research procedures as a plan to develop and test automated computer-based algorithms for analyzing the spatiotemporal dynamical properties of multi- channel EEG recordings to determine the probability of an epileptic seizure. The computer algorithms were to be tested and evaluated on three (3) data sets. The first dataset was comprised of a group of long-term EEG recordings that were obtained for clinical purposes in patients with medically intractable epilepsy. By memorandum dated September 18, 2001, Respondent informed the IRB-01 Vice Chairman that the study under which the EEGs were collected for the BRP Protocol was another IRB-01 approved protocol, identified as Protocol 22-2000. Protocol 22- 2000 did not include data from Protocol 447-1993. Respondent did not reference data from Protocol 447-1993 in his September 18, 2001, memorandum. Further, there is nothing in the BRP Protocol that informs the IRB-01 that data from Protocol 447-1993 would be included in the new research project. If there is a change in a protocol, no matter how slight, the change must be approved by the IRB. If Respondent wished to include data from Protocol 447-1993 in the BRP Protocol, he needed to make a request to include that specific data. The IRB never gave Respondent approval to use the data from Protocol 447-1993 in the BRP Protocol. The IRB approved the BRP Protocol as an exempt Category IV study pursuant to the Common Rule. An exempt Category IV study is "[r]esearch involving the collection or study of existing data, documents, records, pathological or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects." See 45 C.F.R. § 46.101(b)(4). NIH grants funded the BRP Protocol and Protocol 447- 1993. In 2003, the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) were implemented at the University of Florida. In order to enforce those provisions, the University of Florida created the Privacy Office at the Health Science Center. Respondent and all of his staff were required to take privacy training provided by the Privacy Office. According to HIPAA, protected health information (PHI) about a patient may be used or disclosed to others only in certain circumstances or under certain conditions. Information about a patient can be de-identified under two alternative procedures set forth at 45 C.F.R. Section 164.514(b). The first procedure requires that a qualified person applying accepted statistical and scientific principals determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information. The qualified person must document the methods and results of the analysis that justify such a determination. The second procedure is the removal of all identifiers set forth in 45 C.F.R. Section 164.514(b)(2)(i) from a given patient data set. The identifiers include any unique identifying number, characteristic, or code. Additionally, the covered entity may not have actual knowledge that the remaining information can be used alone or in combination with other information to identify the patient. If a data set is properly de-identified, it is not PHI and is not governed by HIPAA. Furthermore, it does not fall within the definition of human subject research under the Common Rule. Properly de-identified data does not require subject consent or IRB approval for disclosure. Pursuant to the policies and procedures of the IRB-01, only the IRB can make the determination that the research does not include human subjects. BioNeuronics (formerly Neurobionics) is a start-up medical technology company that Respondent and others formed for the purpose of translating an invention developed by Respondent and his colleagues at the University of Florida and Arizona State University into medical devices for the treatment of patients with epilepsy. The University of Florida Research Foundation (UFRF) and Arizona State University owned the patent. BioNeuronics entered into a licensing agreement with the two institutions, permitting the company to develop the patented technology. The University of Florida's Office of Technology Licensing (OTL) was established to work with inventors to facilitate the transfer of technologies created at the university to the commercial sector for public benefit. It is not uncommon for both inventors and the UFRF to be given stock in start-up companies. The OTL encourages inventors to maintain an advisory relationship with the licensee. Pursuant to the licensing agreement, the UFRF was to provide "test data" to BioNeuronics. The licensing agreement does not identify the test data to be provided. The licensing agreement did not contain any provision that test data from Protocol 447-1993 was to be provided to BioNeuronics. At all times material to this case, Respondent owned stock in BioNeuronics, as does the UFRF. Respondent was paid $2000 per month as a consultant for the company. The University of Florida approved the terms of Respondent's participation in BioNeuronics. The UFBOT employs Michael Mahoney as the IRB-01 Coordinator. He is responsible for management of the IRB-01 office. He sits as an alternate member of the IRB-01 Board. The IRB-01 Executive Committee is composed of the Chairman, the Vice-Chairman, the QA Coordinator, the Assistant Director for IRBs, and Mr. Mahoney. Mr. Mahoney's duties involve more than just office management. He also acts as a resource for investigators and research team members on general regulatory information. He provides guidance with IRB-01 forms and assistance with the preparation of submissions for IRB review. In January 2006, Respondent sent an e-mail to Mr. Mahoney, informing him that Respondent had been acquiring and storing long-term EEG and video records of patients with medically intractable seizures. Respondent's e-mail stated that there was an international effort to establish a shared database so that researchers in participating institutions could share datasets. Respondent requested information as to the requirements to share this data with persons outside the university. On February 1, 2006, Mr. Mahoney responded to Respondent, informing him that he needed IRB approval before doing anything new with the data, including releasing it to others. Mr. Mahoney concluded his message by stating that Respondent would have to submit something to the IRB before using or sharing old datasets for different research purposes. At all times material here, Deng Shan Shiau, Ph.D., held a faculty position as a Research Assistant Professor of Biomedical Engineering. Dr. Shiau was in charge of Respondent's laboratory. Dr. Shiau and another research assistant, Dr. Iasemidis, supervised the work of graduate engineering students who recorded, stored, and analyzed data in Respondent's laboratory. Drs. Iasemidis and Shiau brought technical experience and engineering expertise to Respondent's research projects. Daniel J. DiLorenzo, M.D., Ph.D., M.B.A, is an official with BioNeuronics. On February 8, 2006, Respondent forwarded to Dr. DiLorenzo a copy of Respondent's January 2006 e-mail and Mr. Mahoney's February 1, 2006, response. In his transmittal, Respondent stated that he would ask a new assistant, Jessica Martin, to work with Dr. Shiau to obtain copies of consents signed by patients in the depth electrode database to see if the consents would allow the sharing of the de-identified data. Respondent stated that if the consents were inadequate, he would request permission from IRB. Respondent contends that his January e-mail to Mr. Mahoney and Mr. Mahoney's response was not intended to refer to the release of data to BioNeuronics. Instead, he claims that he was inquiring about the release of data to an international symposium of scientists. Respondent's February 8, 2006, e-mail to Dr. DiLorenzo is persuasive evidence to the contrary. On March 7, 2006, Jessica Stevens, an employee in Respondent's laboratory also wrote an e-mail to Mr. Mahoney. Ms. Stevens wanted to know what needed to be done to hand over pre-existing data to others. Ms Stevens wrote a subsequent e-mail to Mr. Mahoney, clarifying that the data Respondent would be handing over was gathered from 1994 to 1997, and that the data would be furnished to BioNeuronics. Mr. Mahoney responded to Ms. Stevens the next day. Mr. Mahoney stated that Ms. Stevens' question was fairly similar to the one he had previously answered directly to Respondent. Mr. Mahoney informed Ms. Stevens that releasing data originally obtained for research purposes is a tricky proposition at best. Mr. Mahoney wanted to know whether the subjects originally consented to share their data, regardless of whether it was de-identified. Mr. Mahoney questioned whether Respondent wanted to release identifiable data and whether Respondent had any conflict of interest issues with the receiving entity. Mr. Mahoney informed Ms. Stevens that her e-mail did not give him enough details to assist her, and that she might want to meet with him to ensure that nothing inappropriate occurred. Ms. Stevens read Mr. Mahoney's response to Respondent, who responded, "Don't listen to him." Respondent told Ms. Stevens that Mr. Mahoney did not know what he was talking about. Mr. Mahoney's advice to Respondent about the release of old data to persons outside the University of Florida was not an official directive of the IRB. However, if Respondent did not believe Mr. Mahoney was qualified to give advice regarding the release of data, there would have been no reason for Respondent to contact Mr. Mahoney in the first place. On March 8, 2006, Dr. DiLorenzo sent an e-mail to Respondent. The message thanked Respondent for agreeing to transfer de-identified continuous EEG data to BioNeuronics. Dr. DiLorenzo stated that all were in agreement that de- identified data would not require IRB approval. Dr. DiLorenzo also related that Dr. Shiau mentioned that he could provide copies of Epilepsy Monitoring Unit (EMU) reports and a spreadsheet with the timing of seizure events for each patient. Respondent did not respond to this message from Dr. DiLorenzo. Respondent subsequently asked Dr. Shiau to put data from Protocol 447-1993 on an external hard drive to send to BioNeuronics. Dr. Shiau sent the external hard drive to BioNeuronics on or about March 14, 2006. On March 16, 2006, Respondent sent an e-mail to Dr. DiLorenzo, asking whether he had any questions about the data format, location of seizures, seizure types, et cetera. Respondent admits that Dr. DiLorenzo would not have been able to determine the seizure type with just the EEG data. Respondent's testimony that he did not intend to send BioNeuronics the patients' clinical records or Excel spreadsheets is not persuasive. The patient information from Protocol 447-1993 consisted of the following computer files: (a) an EEG file with an associated "tag" file; (b) and EMU report consisting of a clinical encounter record, saved in .pdf format; and (c)an Excel spreadsheet with the timing of seizure events for each patient. Respondent knew or should have known that BioNeuronics needed this information to test its algorithm and that the company could not succeed using just the EEG files. Each patient from Protocol 447-1993 was identified by a research subject number such as P171 or P267. Dr. Shiau kept a list of the codes with the associated patient name in a locked file cabinet to which only he had access. Each of the computer files on a given patient included the research subject number as part of the file name. For example, one of the EEG files for P171 was named P17101.eeg. The associated tag file for that EEG file was named P17101.tag. The EMU clinical record for that patient was named P171.pdf. The corresponding Excel spreadsheet was named P171.xls. Respondent originally recorded the Protocol 447-1993 data on VHS tapes. In a second study, the pre-recorded data was transferred from VHS to a digitized form using a proprietary Nicolet Biomedical software program utilized to read the EEGs. The tag files were also generated by the Nicolet reader. The contents of the tag file did not appear on the computer screen when viewing the EEG files, but they could be opened using a word processing program such as WordPad. Neither Respondent nor Dr. Shiau was aware that six of the tag files had patient last names imbedded within the binary codes. The data sent to BioNeuronics was gathered prior to the implementation of HIPAA. At some point in time, an effort had been made to de-identify the clinical records by removing the patients' names, birthdates, and other personal information on the top half of the first page. There is no evidence that anyone specifically checked the data to determine if the records were de-identified pursuant to the new HIPAA standards. Therefore, Respondent's testimony that he did not seek IRB approval prior to sending the data to BioNeuronics because he had a reasonable belief that the data from Protocol 447-1993 was de-identified and related to the BRP Protocol is not credible. On March 18, 2006, an anonymous letter was sent to various entities, including the Office of Civil Rights, the Department of Veteran Affairs, the FDA, the Florida Board of Medicine, the Office of the Attorney General of Florida, the Office for Human Research Protections, the College of Medicine of the University of Florida, the Office of Research Affairs of the University of Florida School [sic] of Medicine, and the NIH. The letter alleged that Respondent had committed an intentional and willful HIPPA [sic] research protocol violation. The letter alleged that the violation involved the release of PHI to BioNeuronics on external hard drives. On March 21, 2006, Linda Dance, an assistant in Respondent's laboratory, wrote a letter to Susan Blair, the Privacy Officer for the University of Florida. In the letter, Ms. Dance reported what she believed was a HIPPA [sic] violation. Ms. Dance identified the violation as the release of patient data to BioNeuronics, a company in which Respondent owned stock and from which he received monthly consulting fees. The Office of Human Research Protections (OHRP) is a federal agency of the United States Department of Health and Human Services. The OHRP wrote to the University of Florida and the VA based on the anonymous letter. The OHRP requested both institutions to investigate the alleged non-compliance, and forward to OHRP a written report. The OHRP also required the university and the VA to provide a description of any corrective actions taken to prevent noncompliance in the future. Ms. Blair undertook an investigation of the matter, interviewing all of the persons involved. She also contacted BioNeuronics to inform the company of a potential disclosure of PHI. The University of Florida Police Department was also involved in the investigation. BioNeuronics immediately returned the external hard drive. The company's president, John Harris, attested that BioNeuronics had erased any data from the hard drive that had been put onto their computer systems. He also attested that to his knowledge, no one at the company had viewed any PHI. The Security Office of the Health Science Center received the hard drive. The office then made a forensic copy of the drive, which contained 18 patient files, including EEG files, tag files, clinical records, and Excel spreadsheets. The Privacy Office made hard copies of the computer files to determine whether they contained any PHI. An employee of Shands Hospitals, who was not connected with the Privacy Office, but who had full access to confidential hospital patient records, was able to identify all 18 patients within a very short time. For at least one of the patients, the clinical record reflects that it is a record of Shands Hospital at the University of Florida. It also contains a room number, a date of service, the name and signature of the doctor, the medications prescribed, the types of procedures involved, and a diagnosis and detailed description of the patient's seizure activity. In the body of the narrative, the clinical record contains the last name of the patient. Access to patient records at Shands Hospitals and Clinics is restricted to persons having a verified and legitimate need to know. Unauthorized access for the purpose of identifying a patient is a violation of law. However, it makes no difference whether an average citizen has access to the information necessary to re-identify a patient. Rather, if identification is possible, the information is PHI. Respondent and Dr. Shiau were placed on administrative leave as of March 31, 2006, pending the outcome of the investigation. Ms. Blair concluded her investigation and issued a report dated April 30, 2006. William Ditto, Ph.D., the Chairman of the Department of Biomedical Engineering, in consultation with the Dean of the College of Engineering and the Provost of the University of Florida, determined that in lieu of dismissal, Respondent would be suspended without pay for six months, commencing August 16, 2006, through February 7, 2007. Dr. Shiau was given a written reprimand. Dr. Ditto sent Respondent a letter dated August 2, 2006. The letter advised Respondent of the six-month suspension. The letter also noted that Respondent was prohibited from engaging in any outside activities with businesses outside the university. The letter stated that Respondent's current outside activities, exemptions, or approvals were withdrawn, including those with BioNeuronics, Inc. and Optima Neuroscience, Inc. The revocation of Respondent's waiver to participate in outside activities would have required him to abandon investors who licensed his technology at Optima Neuroscience and give up hope of ever seeing his work come to fruition. Therefore, Respondent did not divest himself of his interest in BioNeuronics or Optima Neuroscience. Respondent did discontinue all outside activities with those companies during this period and his stock in Optima Neuroscience was held in escrow. Respondent appealed the disciplinary action. The UFBOT referred the appeal to the Division of Administrative Hearings. UFBOT denied Respondent's request to be reinstated to his position with the university during the appeal in accordance with Florida Administrative Code Rule 6C1-7.048(2)(c). UFBOT stopped paying Respondent at the end of the spring semester 2006. Ordinarily, UFBOT would have paid him during the summer from funds generated by this grants. Due to his involuntary administrative leave, Respondent could not do any work under his grant during the summer because the UFBOT refused to continue Respondent in pay status pending his appeal. Prior to the end of his disciplinary suspension, the university relinquished Respondent's major funding source, the On Line, Real Time Seizure Prediction Grant, worth 2.4 million dollars to the NHI. Since research was the primary basis of Respondent's employment, Respondent assumed there was no job for him to return to after his defacto suspension was over. On February 16, 2007, Respondent voluntarily resigned from his tenured professorship at the University of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enters a final order finding just cause to discipline Respondent, who is entitled to back pay from August 16, 2006, to February 16, 2007. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 4809 Southwest 91st Terrace Gainesville, Florida 32608 Susan M. Seigle, Esquire Dell Graham, P.A. Post Office Box 850 Gainesville, Florida 32602 B. Dianne Farb, Esquire Assistant General Counsel University of Florida Post Office Box 100215 Gainesville, Florida 32610-0215 Deborah K. Kearney, Esquire General Counsel Department of Education Turlington Building, Suite 1214 325 West Gaines Street Tallahassee, Florida 32399-0400 Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in these cases is whether, as the district school board alleges, a teacher and a paraprofessional physically abused, mistreated, or otherwise behaved inappropriately towards one of their special-needs students.
Findings Of Fact The Miami-Dade County School Board ("School Board" or the "district"), Petitioner in these cases, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to these cases, Respondent Kamla C. Bhagwandin ("Dr. B.") was employed as an exceptional student education ("ESE") teacher in the Miami-Dade County public schools, a position which she had held for approximately 17 years. Dr. B. has earned a bachelor's degree in special education, a master's degree in English as a second language ("ESOL"), and a doctoral degree in educational leadership and organization. When the 2017-2018 school year started, Dr. B. was a special education teacher at South Dade Middle School ("SDMS"), where she taught a self-contained class containing 19 ESE students. At the beginning of the 2017-2018 school year, Respondent Darlene Taylor ("Taylor"), a paraprofessional, was assigned to Dr. B.'s classroom. Because Dr. B. had a relatively large class with nearly three times the number of students in other ESE classes at SDMS, substitute teachers were routinely assigned Dr. B.'s classroom to provide assistance. Thus, three adults typically were present in Dr. B.'s classroom during school hours. Tony Bermudez ("Bermudez") was one of the substitute teachers assigned to work in Dr. B.'s classroom during the 2017- 2018 school year. He was assigned to Dr. B.'s classroom about five times, his last day with her being August 31, 2017. That is the date of the event at issue, to which Bermudez, who has accused Dr. B. and Taylor of child abuse, is the district's only witness. Before turning to the disputed event, which occurred at the start of the school day, it will be useful to look at what happened immediately before and after the incident in question. At SDMS that year, the first bell summoning the students to class rang at 8:30 a.m., and the last bell at 8:35 a.m. Dr. B.'s regular practice was to escort her students from the cafeteria to the classroom between 8:30 a.m. and 8:35 a.m. It is undisputed that this is what she did on August 31, 2017, and that, by 8:35 a.m., Dr. B. and her students, including a 12-year-old autistic student named D., were in the classroom. Therefore, if anything unusual happened to D. that morning, as alleged, it happened no earlier than 8:30 a.m., and most likely after 8:35 a.m. It is undisputed that, on the morning of August 31, 2017, Bermudez informed Dr. B. (untruthfully) that he needed to go to the bathroom because his stomach was upset. He then left the classroom and proceeded directly to the office of Elizabeth Rodriguez, who he mistakenly thought was an assistant principal, but who was actually the school's test chairperson and ESOL chairperson. Ms. Rodriguez testified credibly at hearing that she had just returned to her office, to which she usually repaired after the last bell rang at 8:35 a.m., when Bermudez arrived. Bermudez came to her, she explained, "in the morning right after we had let the students into the classrooms." Later that same day, after Bermudez had accused Dr. B. and Taylor of wrongdoing, Ms. Rodriguez wrote and signed a statement describing her encounter with Bermudez. This contemporaneous statement is consistent with her final hearing testimony, but since it was written before any dispute about the time of Bermudez's visit had arisen, Ms. Rodriguez's initial account is particularly probative on that point. When the matter was fresh in her mind and she had no reason to hedge on the time, Ms. Rodriguez recorded the following: At approximately 8:30 a.m., Mr. Bermudez asked to speak to me in my office. (He was under the impression I was one of the Assistant Principals). He stated he wanted to inform the [person who assigns substitute teachers that] he no longer wanted to be assigned to the [special education] unit because of the aggressiveness. I asked him if the students were aggressive and he stated, "No, it's the adults". He elaborated by stating he had witnessed some things that were very upsetting and he had discussed it with his wife, who is also a teacher at another school and she advised him to speak to the principal. I assured him I would speak to the principal and to the ESE Program Specialist . . . on his behalf. I advised him to go back to the classroom and we would address his concern. By the time of the hearing, Ms. Rodriguez must have known that her contemporaneously recorded recollection of Bermudez's having approached her at "approximately 8:30 a.m." was not helpful to her employer's case against Dr. B. and Taylor because it leaves little or no time for anything untoward to have occurred in Dr. B.'s classroom that morning. Under questioning by the district's counsel, Ms. Rodriguez did her best to stretch the "approximately 8:30 a.m." time frame as wide as it would go, first to 8:40 a.m., and finally to "possibly" 9:00 a.m. Given her unqualified testimony about encountering Bermudez right after the students had gone to class (between 8:30 and 8:35 a.m.), however, and the contemporaneous statement that he had shown up in her office at "approximately 8:30 a.m.," the undersigned finds that Bermudez met with Ms. Rodriguez no later than 8:40 a.m. on August 31, 2017. This means that if Dr. B. and Taylor abused D., as Bermudez claims, then they did so in a hurry, for the students were not let into Dr. B.'s classroom until around 8:35 a.m., and Bermudez needed a minute or two to get from the classroom to Ms. Rodriguez's office. Ms. Rodriguez brought Bermudez to the principal, John Galardi, according to the latter, whose testimony on this point is credible, albeit inconsistent with Ms. Rodriguez's written statement. After Bermudez told Mr. Galardi that he had witnessed Dr. B. and Taylor abuse a student, Mr. Galardi called the school police department, which dispatched officers and detectives. Meantime, Mr. Galardi asked Bermudez to write a statement describing the incident he claimed to have observed. Bermudez wrote a statement, the first of several he would draft that day. When the detectives arrived, they asked Mr. Galardi if there were any surveillance videos that might have captured the incident. Mr. Galardi directed a custodian to retrieve the video from the closed-circuit TV camera in the hallway near Dr. B.'s classroom. The custodian brought out a video, which the detectives watched with Mr. Galardi. One of the detectives made a video recording on his cellphone of the monitor to which the surveillance video was being transmitted. This cellphone video, which runs about 67 seconds, is the footage that the district offered into evidence at hearing. The actual surveillance video was not offered. No information concerning its whereabouts was provided. Neither the custodian nor the detective testified at hearing about the circumstances surrounding the making of the cellphone video.1/ Putting aside the obvious chain of custody issues with the video, the quality of the derivative image is very poor. (Imagine using your cellphone to film the movie you're watching on TV, and then viewing the movie on your phone, and you'll get the picture.) Crucially, the detective cropped the image so as to eliminate the date and time stamp that, according to Mr. Galardi, the original surveillance video displayed. The thing that jumps out at the fact-finder when he watches this dubious video is that it not only fails to corroborate Bermudez's initial written statement, it actually contradicts him (if we assume, as the district contends, that the video depicts some portion of the event he claims to have witnessed). Although the record is silent as to when Bermudez first saw the video, there is little doubt (and the undersigned finds) that he had not viewed the recording before writing his initial statement. As the video begins, two figures (identified as Dr. B. and D.) emerge into the hallway, having exited the classroom, whose door——in a recessed entryway——is out of view. There is no indication of distress or discomfort in either individual's movements or posture, nothing consistent with a commotion or struggle. Although the video does not have an audio track, D.'s body language gives no suggestion that she is screaming or crying; rather, she appears to be composed, compliant, and unharmed. The pair does not remain outside the door to the classroom. Their faces are not visible. Dr. B. and D. immediately turn away from the camera, and walk calmly but purposefully down the hallway, towards glass doors at the far end. The two are walking side by side, and their body language suggests that Dr. B. is escorting D. The teacher might have her hand on the student's back, but that is not clear. What is clear is that Dr. B. is not pushing, pulling, or forcing D. to move. Before reaching the glass doors, Dr. B. and D. turn left, and it looks like they are about to enter a classroom. At this point, they are far from the camera, and the image quality is so poor that it is not possible to make out in detail what happens next. We can see, however, that Dr. B. and D. do not go into a classroom. Instead, they back up and return to the hallway, where they face each other for a few moments. There seems to have been a disturbance of some sort——perhaps D. has become uncooperative. Due to the graininess of the image and the distance of the subjects from the camera, the figures on the screen are practically silhouettes; they have their arms outstretched towards one another and might be holding hands. The image resembles that of a parent in a grocery store explaining to her pleading child that she cannot have a bag of cookies. There is nothing happening on screen that looks like physical abuse or violence of any kind. While this is going on, a third person appears, entering the hallway through the glass doors that are behind Dr. B. and D. in relation to the video surveillance camera. This person has been identified as Taylor. The arrival of Taylor prompts D. to hurry back to Dr. B.'s classroom, nearly breaking into a run. Dr. B. and Taylor follow, but at a normal walking speed. D. beats them to the classroom, obviously, and dashes into the recessed entryway, which takes her out of our view for more than ten seconds, as Dr. B. and Taylor make their way to the room. When the adults turn to enter the classroom, we lose sight of them as well, but for a split second we can tell that all three individuals are in the recessed entryway, probably because the door is locked. Suddenly, D. walks backwards into the hallway, as if to leave, and one of the adults (it is impossible to see which, as they are both off camera) promptly reaches out and takes hold of D. around the shoulder area. The district argues that the video shows Dr. B. grabbing D. by the head and jerking the student into the room. The undersigned rejects the district's interpretation of the blurry image because (a) the teacher appears more likely to have found purchase for her grip in D.'s collar and (b) D.'s head does not react as though she were being pulled by, e.g., the hair. The district further argues that, on the film, D. can be seen bending sharply at the waist, forming a 90-degree angle with her upper and lower body, proving that she was jerked with considerable force. Again, however, the undersigned rejects the district's interpretation of the ambiguous image. It must be stressed that this happens very fast and the video quality is very poor. As a result, people will see what they want to see. No doubt, therefore, some who see the video will agree with the district that someone yanked D. by the head. But the image does not persuade the undersigned that such is more likely than not what happened. Furthermore, Bermudez's hearing testimony, which for the first time included the detail that D. was bent over at a 90-degree angle, is unreliable, and not only because (as will be seen) Bermudez could not keep his story straight. It is highly unlikely that Bermudez could have seen this particular transaction, because he was in the classroom when it occurred, while D. and the adults were outside, in the entryway and hallway; indeed, the classroom door (although unseen in the video) was probably still closed. The undersigned infers that one (but not the only) reason Bermudez has given so many different versions of the disputed event is that he has been trying to tailor his testimony to the video. At any rate, based on the video, which is low-quality evidence, to be sure, but is at least more credible than Bermudez, the undersigned finds it to be as likely as not that D. instinctively bent forward under her own power, as opposed to someone else's forceful tug, because doing so probably would have improved her ability to resist, if she were inclined to struggle. Bending quickly towards the teacher would keep D.'s weight in front of her and her body lower to the ground, likely improving her balance, and also might loosen the teacher's grip. The main point, however, is that the video, with all of its limitations, is nowhere close to the knockout punch the district thinks it is. What it shows, at the end, is a teacher making a reasonable effort to stop a student from escaping, which could lead to a dangerous situation. This is what teachers are supposed to do. The district argues that this brief contact with D. constituted a manual physical restraint, which Dr. B. failed to report in accordance with district policy and state law. This argument is rejected. If the term "manual physical restraint" were interpreted so liberally as to include such incidental contact as this, which (for all that can be seen in the video) was reasonably intended to prevent a student from bolting, and which restricted the student's movement for about a second, the reporting burden would be unjustifiably heavy, and (worse) would create a perverse disincentive to reasonable protective intervention. Having reviewed what happened before and after the incident in question, and having looked at the video, the time has come to focus on Bermudez's many accounts of what he claims to have seen. As mentioned, Bermudez prepared three written statements on August 31, 2017. The first, though dated, does not reflect the time that it was drafted. Presumably, however, this initial statement was written in the morning, only a short time after the events described therein. The second states that it was signed by Bermudez at 12:50 p.m., less than four hours later. The third statement is typewritten and (as relevant to this case) is substantially similar to the second statement. On December 27, 2017, nearly four months after the disputed incident, Bermudez gave a deposition in the criminal case that the state brought against Dr. B. and Taylor. He also testified at their trial, but the transcript was unavailable for use in the instant hearing.2/ Finally, Bermudez testified at the final hearing of this matter. The following table summarizes the material portions of Bermudez's ever-changing testimony: Fist Written Statement 08/31/17 Second and Third Written Statements 08/31/17 Deposition 12/27/17 Final Hearing Testimony 02/19/18 No mention of D. screaming for 20-30 minutes about headphones. No mention of D. screaming for 20-30 minutes about headphones. For about a minute after the students entered the classroom, from the cafeteria, nothing unusual happened; it was a regular day. Then Dr. B. saw D. with headphones, walked up to D., and yanked the headphones away, which made D. act up and scream, for 20 to 30 minutes. "It had to be more than twenty, thirty minutes, around that time frame." T.B. had just gotten to the classroom. Dr. B. and Taylor were coming back from the cafeteria with the students. D. was complaining, and screaming intensely, "Headphones, headphones," over and over, for 20 to 30 minutes. D. was sitting down and never stood up. [Later, T.B. changes this to "she was maybe, like——kinda like in between, like between sitting and standing, kinda like."] Taylor wasn't in the classroom. Dr. B. and Taylor grabbed D. by the neck and threw her into a closed door with extreme force. No mention of D. being dragged out of the classroom. No mention of Dr. B. dragging D. by the ear. "This [is what] occurred today at approximately 9 a.m."] D. refused to sit down, so Dr. B. pulled D. by the hair and slammed her into the door. Dr. B. dragged D. out of the classroom. No mention of Dr. B. dragging D. by the ear. Taylor left with one of the kids. She returned with the child at the time Dr. B. picked up D. by the shirt. Taylor slammed or "bumped" the other child she was with (not D.) against the door. Dr. B. pulled D. by the shirt and slammed her face against the door. Then she dragged D. by the ear out the door. Taylor, who had reentered the classroom, remained inside, just sitting in her chair, waiting for Dr. B. to return. After 20-30 minutes, Dr. B. approached D. and told her to get up. Dr. B. grabbed D. by the sleeve and hair, pulled her out of the chair, and dragged her towards the door. Dr. B. slammed D.'s face against the door. Then, Dr. B. grabbed D. by her ear, and pulled D. outside by the ear. No mention of Dr. B., Taylor, or D. being out of the classroom. Dr. B. closed the classroom door, and T.B. couldn't see them, but he could hear D. screaming and crying outside. T.B. could hear D. screaming from the other side of the door. Dr. B. and D. were out of the classroom, in hallway, and T.B. couldn't see them, but he could hear D. screaming, for a few minutes. [Later, T.B. defines a "few minutes" as meaning "two to seven minutes."] Dr. B. and Taylor dragged D. by the hair and threw her into a desk with great force. After a couple of minutes, Dr. B. opened the door, dragged D. into the classroom by her hair, and threw her onto the desk in a rough, abusive way. Taylor was in the room with T.B., texting on her phone. When Dr. B. reentered with D., after being out of the class for a minute or two, Dr. B. had D. by the back of D.'s shirt, not pulling but holding onto her. Dr. B. guided D. to her chair, and D. sat down. After a few minutes, they reentered the room. Dr. B. had D. by the hair, and D. was bent at the waist at a 90 degree angle. Taylor came in behind them. Dr. B. pulled D towards the chair. Then Dr. B. threw or slammed D. into her chair, and D. was crying. Taylor hit D. on the back of the head, hard. Taylor walked into the classroom and hit D. in the back of the head, in a rough and very violent manner. No mention of this in the deposition. T.B. testifies at hearing that he couldn't remember it then. While D. was at her desk, Taylor walked behind D., told her to shut up, and smacked her in the back of the head. The material discrepancies are plain to see. The undersigned will discuss a few. Starting with the first statement, notice that Bermudez's original account is very straightforward and has just three salient details: (i) Dr. B. and Taylor threw D. into the door; (ii) together, they threw D. into her desk; and (iii) Taylor, by herself, hit D. in the head. Notice, as well, that this statement, prepared right after the event supposedly occurred, places Dr. B. and Taylor together in the room for the entire relevant time, and they never leave the classroom with D. The video shows something else completely. Contrary to Bermudez's statement, Taylor was not, and could not possibly have been, present in the classroom before Dr. B. and D. emerged into the hallway, as shown at the beginning of the short clip. We know for certain that Taylor was not there because she shows up later in the video, entering through a door at the other end of the hallway. Yet, in his most contemporaneous statement, Bermudez gets this critical detail badly, undeniably wrong, saying that Taylor was not only there, but was an active participant to boot. Conversely, the only scene in the video that could possibly raise an eyebrow——when someone grabs D.'s collar to prevent her from escaping——is not mentioned in Bermudez's first statement. Given the striking irreconcilability of Bermudez's first statement and the video, the undersigned wonders how anyone looking at the video on the morning of August 31, 2017, could not have questioned Bermudez's veracity or inquired further as to whether the custodian had retrieved the correct video footage. By 12:50 p.m., however, Bermudez had begun to back and fill. The undersigned suspects that before writing the second statement, Bermudez had watched the video, or been told of its contents. Yet, the changes to his story are so ham-fisted, how could no one have noticed? In the revised statement, without explanation, Taylor is not present when Dr. B., alone, flings D. into the door and, later, onto her desk. Now, conveniently, Bermudez tells us that Dr. B. dragged D. out of the classroom, and that they were gone for a couple of minutes (approximately the length of the video clip). Taylor appears in time to hit D. on the back of the head, but she must return to the classroom to do so, as the video requires. Bermudez's story became richer with (inconsistent) details during the December 27, 2017, deposition, while omitting key elements of his original version(s). At hearing, forced to acknowledge the inconsistencies, Bermudez made excuses: he was nervous, was on vacation, wasn't prepared, and didn't have an attorney. These are not persuasive. Think about it. Bermudez was the only witness in a criminal trial that might have put two people behind bars, and he was too nervous and unprepared to testify truthfully? At the final hearing, Bermudez struggled to harmonize all of his prior statements, but the result was a hot mess. The undersigned finds him, ultimately, to be an unreliable and incredible witness, and his testimony is rejected as unbelievable. This leaves the district with the video, which, for reasons already discussed, fails to prove the charges against Dr. B. and Taylor. Moreover, Dr. B. testified that the video actually depicts events of the preceding day, which she described at hearing. The undersigned is inclined to believe her.3/ The fault for the video's ambiguity with regard to the date and time of its making belongs solely to the district. It was the district's unilateral choice to rely on a low-quality, derivative "home movie" in lieu of the original surveillance video——a shabby copy that just happens to omit the date/time stamp, which, incidentally, would likely belie Bermudez's most recent testimony (assuming the video was truly made on the morning of August 31, 2017). This is because there was not enough time after 8:30 a.m. for the so-called "headphones incident" (see the table above) to occur and allow for Bermudez to make it to Ms. Rodriguez's office by 8:40 a.m. It is not necessary to make exculpatory findings of fact based on Dr. B.'s testimony because neither she nor Taylor was obligated to prove her innocence. Determinations of Ultimate Fact The district has failed to prove its allegations against Dr. B. by a preponderance of the evidence. The district has failed to prove its allegations against Taylor by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order exonerating Darlene G. Taylor and Kamla C. Bhagwandin of all charges brought against them in this proceeding, reinstating them to their pre-dismissal positions, and awarding them back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of June, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2018.
The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
The Issue The issues are whether Respondent practiced beyond the scope of her nail specialist license by performing waxing treatments on a customer in violation of Subsections 455.227(1)(o) and 477.029(1)(i), Florida Statutes (2007),1 and, if so, what penalty should be imposed.
Findings Of Fact Several material facts are undisputed. Petitioner is the state agency responsible for licensing and regulating the practice of cosmetology in Florida. At all times material to this proceeding, Respondent was licensed in the state as a nail specialist pursuant to license number FV 9527661. Respondent's license does not authorize her to perform hair removal wax treatments. The disputed material facts are whether Respondent performed hair removal wax treatments on Ms. Priya Bhuta on February 21, 2008, and collected $24.00 for the service. For the reasons stated hereinafter, clear and convincing evidence does not show that Respondent committed the disputed material facts. Ms. Bhuta did not testify at the final hearing. Petitioner did not submit her deposition testimony for admission into evidence. Petitioner seeks to prove the disputed material facts with the statements of two investigators concerning alleged statements of Respondent. One investigator did not testify at the hearing (hereinafter, the investigator-in-absentia). The other investigator testified at the hearing (hereinafter, the investigator-witness). The investigator-witness testified that the investigator-in-absentia told the investigator-witness in a private conversation between the two investigators that Respondent made the alleged statements to the investigator-in- absentia. For reasons discussed in the Conclusions of Law, the ALJ does not find the testimony of the investigator-witness pertaining to any alleged statements by Respondent to be admissible. If the alleged statements were found to be admissible, the statements are not credible or persuasive and do not form an adequate basis for a finding of fact. Respondent testified at the hearing, and the fact- finder finds Respondent's testimony to be credible and persuasive. Respondent did not perform wax treatments on Ms. Bhuta, and Respondent did not make the alleged statements attributed to her in the hearsay testimony of the investigator- witness. The alleged offense occurred on February 21, 2008, according to paragraph number 4 in the Administrative Complaint. The investigator-in-absentia conducted the field interview of Respondent, in which the alleged statements occurred, on the morning of February 21, 2008, prior to the opening of business and prior the time of day when the alleged violation occurred.2 It is not plausible to the trier of fact that Respondent made the alleged statements to the investigator-in-absentia pertaining to a violation in futuro. The trier of fact resolves the evidential conflict in favor of Respondent for reasons described more fully in the Conclusions of Law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Cosmetology, enter a final order finding Respondent not guilty of the violations charged in the Administrative Complaint. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 17th day of June, 2010.
The Issue The issues in this proceeding are whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j), Florida Statutes and Florida Administrative Code Rule 6A-10.081(2)(c)1. and 8., alleged in the Administrative Complaint and, if so, what is the appropriate sanction for those violations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent, Ivonne Ortiz, holds Florida Educator’s Certificate 1258585, covering the areas of Pre-kindergarten/Primary Education, which is valid through June 30, 2022. At the time of the allegations in the Administrative Complaint, Ms. Ortiz was employed as a third-grade teacher by KIPP, a charter school organization in Duval County. She was assigned to KIPP Voice, one of three academies operated by KIPP. Ms. Ortiz was employed at KIPP Voice from July 18, 2016, through November 8, 2018. When a KIPP employee is injured on the job, the employee must notify his or her manager and complete an Employee Accident Report form. The form is an official KIPP document used to assist management and their insurance carrier in determining eligibility for workers’ compensation benefits. On October 24, 2018, Ms. Ortiz reported to Assistant School Leader Brittany Brooks that she was injured when a student “rammed” into her, and that she needed to see a doctor. Ms. Brooks asked Ms. Ortiz to complete an Employee Accident Report detailing the incident. The report would be forwarded to KIPP’s Human Resources Department (“HR”) for further consideration. In the Employee Accident Report that she completed on October 24, 2018, Ms. Ortiz wrote that “[Student M.S.] was throwing a tantrum. He ran down the stairs and rammed into me to push me out of his way. He then took a snack from the bin and slammed it on the floor. I am in intense pain right now.” Ms. Ortiz told Ms. Brooks that she was in a lot of pain due to the interaction with the student and needed to see a doctor. After her discussion with Ms. Brooks, Ms. Ortiz left school for the day. After receiving the written report from, and discussing the incident with Ms. Ortiz, Ms. Brooks informed Dean of School Operations Jessica Brown about the incident as reported by Ms. Ortiz. Ms. Brooks advised Ms. Brown that the student would have to be suspended for injuring a teacher. Ms. Brown informed Ms. Brooks that she was a witness to the incident and that it did not happen as Ms. Ortiz reported. On October 25, 2018, Ms. Brown submitted a written statement about the incident. In her statement, Ms. Brown wrote that Ms. Ortiz came down the stairs carrying a large black crate. M.S. came down the stairs behind her. M.S. was visibly upset. Ms. Brown took M.S. aside and learned that he was upset because Ms. Ortiz would not unlock the classroom to let him retrieve his backpack and homework. M.S. had been in in-school suspension all day and wanted to get his things so his mother would not be upset with him. Ms. Brown took M.S. upstairs to get his backpack. Ms. Brown wrote, “I was shocked when Brooks came to me because Ortiz never made contact with the student [M.S.]. [M.S.] never hit her and never touch her [sic] he was just upset that Ortiz would not allow him to get his backpack so that he could do his homework.” Due to the discrepancy in the accounts of Ms. Ortiz and Ms. Brown, Ms. Brooks asked Campus Manager Leighton Roye to pull video footage of the incident from the school surveillance camera. Due to the technical limitations of the school’s surveillance system, Mr. Roye was forced to record the footage with his cell phone and forward that recording to Ms. Brooks. The silent video footage was entered into evidence in two parts. The first part was an eight second clip that shows Ms. Ortiz carrying a wheeled crate down the stairs near the building entrance. At the bottom of the stairs, she stopped and sat the crate on the ground. A table faced the stairs. On the table was a crate containing snacks. As students passed between the stairs and the table on their way out of the building, they could pick up a snack. Ms. Brown stood at the table. She was directly facing the stairs. Two other teachers, Hannah Hughes and Madelaine Riley, were at, or near, the table but neither had the unobstructed, direct view of the stairs that Ms. Brown had. The video shows that as Ms. Ortiz was placing her crate on the ground, M.S. came down the stairs behind her. As M.S. passed, Ms. Ortiz appeared to recoil slightly with her right arm, but it is unclear whether this movement was in response to a touch from M.S. or simply an adjustment of her arm after releasing the weight of the crate. The angle of the video is to the side of the participants, making it impossible for the viewer to state definitely whether or not M.S. made contact with Ms. Ortiz. It is possible to state that any contact was minimal, no more than a brushing as M.S. went past. Ms. Brown, who was directly facing Ms. Ortiz and M.S., credibly testified that M.S. did not touch Ms. Ortiz. The second part of the video was 81 seconds long. It began a second or two before the end of the first video and showed what occurred in the subsequent minute or so. M.S. picked up a snack and started to go outside. He dropped a portion of the snack, apparently without realizing it. An adult stepped in to pick up the dropped snack as M.S. proceeded to the door. M.S. stopped at the door and walked back into the building to an area out of camera range. Ms. Brown followed him. As this was happening, Ms. Ortiz remained standing at the bottom of the stairs with her crate at her feet. She turned her head to see where Ms. Brown was going. A few seconds after Ms. Brown passed out of camera range, Ms. Ortiz began to roll her crate toward the building entrance, then stopped and turned around to hug another woman who walked into camera range. After the hug, Ms. Ortiz rolled her crate out of the building. Roughly 45 seconds later, Ms. Brown and M.S. walked back into the frame. Ms. Brown had her arm around the child’s shoulder as they walked back up the stairs. The second video ended as they walked up and out of the frame. Mr. Roye testified that he first recorded the eight second segment and sent that to Ms. Brooks. After viewing the video, Ms. Brooks asked Mr. Roye to go back and retrieve more footage to ensure that nothing was missed.1 Mr. Roye was uncertain whether he provided the 81-second video to Ms. Brooks later the same day, but was certain that he provided it no later than the next day. Ms. Brown’s testimony was consistent with the videos. She was looking directly at both Ms. Ortiz and M.S. as they were coming down the stairs. Ms. Brown testified that M.S. did not touch Ms. Ortiz in any way when he came down the stairs. M.S. “absolutely” never touched Ms. Ortiz. He never came within six inches of her. Ms. Brown noted Ms. Ortiz’s recoiling gesture as M.S. passed. Ms. Brown believed that Ms. Ortiz gestured because she was “aggravated with him.” Ms. Ortiz alleged that M.S. reached the bottom of the stairs, turned to face her, and kicked the crate at her feet. Ms. Brown testified that this did not happen. Ms. Brown was positive about it because “I was standing right there.” The videos do not show M.S. turning back to face Ms. Ortiz at the bottom of the stairs. The other adult witnesses to the incident, Ms. Hughes and Ms. Riley, provided written statements. Neither of these individuals was called as a witness at the hearing. Their hearsay written statements were not offered into evidence. 1 The record is unclear whether Ms. Brooks directly asked Mr. Roye for the videos or whether Ms. Brown acted as an intermediary. The difference is irrelevant because the record is clear that Ms. Brooks was the initiator of the request. Ms. Ortiz testified that the incident occurred as follows: MS came down the stairs. I went to the bottom of the stairs. I never said that he pushed me. I never said that he hit me. He came down. He was very close to me. It was very quick. He came -- he took a snack, threw it on the floor. He stood in front of me. I felt the kick. It was like a ram kick. And that's how I explained it. No one ever asked me to explain what a ram kick was. But that's what I felt. He went and got a second snack and then went through the blue curtains where they receive -- the packages that come in are received. I gasped for air. I felt a little dizzy. I felt my body leaning towards the left. I was trying as best I could to deal with the pain because there were still students there and, as a teacher you don't want the students to see you weak. But I never said that he hit me. I felt a ram kick as if to push me. * * * He turned and stood directly in front of me, kicked the crate that hit my foot, that sent the shock pain up my leg to my thigh, my waist. Caused me to feel dizzy. It caused me to feel I was losing my balance and feel my body shifting to the left side. Ms. Ortiz conceded that the video did not corroborate her testimony that M.S. kicked her or the crate in front of her. She contended that the video only shows “clips,” not the sequence of events as they actually occurred. Ms. Brown testified that the videos showed the sequence of events exactly as they occurred. Mr. Roye testified that he had no ability to edit or alter the surveillance footage. After repeated viewings of the videos, the undersigned accepts the testimony of Ms. Brown and Mr. Roye on this point. While the videos do not include time stamps that would definitively establish their continuity, there is nothing about them that causes suspicion of alteration or editing. Ms. Ortiz’s testimony is not credible. M.S. did not kick her crate. On the video, Ms. Ortiz gives no outward indication that she is in pain. She hugs the other woman and appears to easily roll her crate out the building’s entrance. As noted above, Ms. Ortiz stated in her Employee Accident Report that “[M.S.] ran down the stairs and rammed into me to push me out of his way.” Based on all the evidence presented, it is found that Ms. Ortiz made a false statement on the Employee Accident Report. Dr. Melissa Peoples-Fullmore is the Chief of Schools at KIPP, functioning essentially as an assistant superintendent. After reviewing the videos, Dr. Peoples-Fullmore and Ms. Brianna Odom, KIPP’s HR Associate, notified the worker’s compensation carrier that they did not think Ms. Ortiz’s accident claim was legitimate. In consultation with KIPP attorneys and the workers’ compensation carrier’s attorney, Dr. Peoples-Fullmore made the decision to deny Ms. Ortiz’s claim. Dr. Peoples-Fullmore also made the decision to terminate Ms. Ortiz’s employment because of the false statements in the Employee Accident Report. Dr. Peoples-Fullmore testified that while the false report was significant, it was not the most important factor in her termination decision. Dr. Peoples-Fullmore was more concerned that Ms. Ortiz was willing to allow her false report to cause M.S. to be wrongfully disciplined by the school. “Lying on a child” was the worst ethical infraction committed by Ms. Ortiz and a firing offense in the opinion of Dr. Peoples-Fullmore. On November 7, 2018, Ms. Odom communicated with her HR superior regarding Ms. Ortiz’s continued employment. On the same day, a Notice of Denial was issued on Ms. Ortiz’s workers’ compensation claim. On November 8, 2018, Ms. Ortiz’s employment with KIPP was terminated. At the hearing, Petitioner presented documentary evidence and testimony regarding past workers’ compensation claims filed by Ms. Ortiz. There was no assertion that any of Ms. Ortiz’s prior claims were false or fraudulent. Mere evidence of past claims has no bearing on whether Ms. Ortiz’s claim in this case was credible and has played no part in the findings of this Recommended Order. Petitioner has demonstrated, by clear and convincing evidence, that Ms. Ortiz gave a false statement to her superiors, accusing a student of actions that could have had serious detrimental consequences for the student and resulting in the filing of a false workers’ compensation claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Education Practices Commission enter a final order finding that: Respondent violated the statutes and rules listed above; Respondent’s educator’s certificate be suspended for a period of two years from the date of the final order; Respondent be placed on probation for a period of two years after her suspension, with conditions to be determined by the Education Practices Commission; and prior to the reinstatement of her educator’s certificate, Respondent be required to take a college level course in professional ethics for educators. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of January, 2021. COPIES FURNISHED: Steve Rossi, Esquire Law Offices of Steve Rossi Suite 2 533 Northeast 3rd Avenue Fort Lauderdale, Florida 33301 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
