The Issue Whether or not Respondent properly awarded Image Resources, Inc., the bid for computer graphics equipment as set forth in bid No. 9-428-D.
Findings Of Fact On February 20, 1989, Petitioner's district manager, James W. Mercer, met with USF agents Frank Ribaudo and Renee Clements, for the purpose of discussing the needs of the Learning Resource Center's proposed new graphics work station. On March 6, 1989, Mercer delivered to Ribaudo the Petitioner's hard copy proposal for the graphics work station which was considered by Respondent in preparing its RFP. In May 1989, the University of South Florida (USF) issued a RFP for a computer graphics system for the Learning Resource Center of the Health Sciences Center of the University, proposal No. 9-428-D. On May 26, 1989, Petitioner received a copy of USF's RFP which included, among other things, Appendix A, a verbatim copy of the hard copy proposal as prepared and submitted by Petitioner in early March, 1989. Included with the RFP was also an Appendix B which was prepared by another offerer. Appendix B had the appearance of a "shopping list" for various computer equipment for USF's graphics work station. Petitioner, based on what it construed as an inconsistency between Appendix A and B, called Tom DeBella for clarification and was told that the proposal should be prepared according to the specifications called for in Appendix A which took precedence over Appendix B to the extent there were any inconsistencies between the two appendices. The effect of Petitioner's conversation with DeBella removed all inconsistencies between the appendices. Petitioner delivered its RFP to the purchasing agent at USF on June 9, 1989, in a timely fashion. On June 10, 1989, an addendum no. 1, extending the date to respond to the RFP until June 16, 1989, was prepared by Respondent and delivered to the various offerers. Petitioner notified Respondent on June 16, 1989, that its RFP, as originally submitted on June 9, 1989, should be considered as its final offering. Respondent received proposals from three offerers, Rainbow Graphics Technology, Inc., Image Resources, Inc., and Blumberg Communications, Inc. On June 16, 1989, the bids were tabulated and the documentation of the three offerers were presented to a committee for evaluation. The committee met and on July 5, 1989, drafted a memo which was delivered to the purchasing department stating its recommendation to accept the system offered by Intervenor, Image Resources, Inc. The three offerers submitted responses to the RFP as follows: Image Resources, Inc., submitted a timely response for the sum of $79,860.00; Blumberg Communications, Inc., submitted a timely response for the sum of $94,075.00 and; Rainbow Graphics Technology, Inc., timely submitted its response for the sum of $97,484. In preparing the RFP, Frank Ribaudo attended various seminars where computer graphics equipment was displayed, worked with various vendors and utilized the knowledge gained from the liaison with the vendors, the seminars and his contact person at USF's medical center, Dr. Kaufman. Prior to submitting their proposals, the three vendors responding to the RFP were invited to the University to review the facility and the university's layout to determine exactly what specific graphic system would be needed to best satisfy USF's requirements. Of the three vendors responding to the RFP, Petitioner submitted the highest response. Intervenor, Image Resources, Inc., was the lowest offerer of the three vendors responding to the RFP. All of the responses were evaluated by the Learning Resources Center HFC Committee in accordance with the procedures of Chapter 287.062(1), Florida Statutes. USF, following review by its evaluation committee, accepted the response submitted by Intervenor as the lowest responsive offer. The RFP called for an integrated system capable of industrial quality 3/4" video output. Specifications in the RFP also called for optical storage as being critical to management of TARGA files. The specifications required that hard disk performance of 13 MS and optical storage were critical to the management of TARGA files. Petitioner submitted a proposal providing a hard disk system with a speed of 1 MS which exceeds the specifications called for in the RFP. Petitioner also included a Shinko ChC-345 printer which is not postscript compatible and does not have an internal controller with a microcompressor and 8 MB RAM as specified in Appendix A. Intervenor's proposed printer is postscript compatible with the software package included in its proposal. Specifications in the RFP require a video adapter capable of 32-BIT color or PAL and Intervenor's proposal is capable of handling 32-BIT color. Intervenor is an authorized dealer to handle the Matrix instruments film recorder and has offered to serve and maintain the equipment it proposed for one year, a substantially longer period than the 90 day warranty offered by the manufacturer, Matrix.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, the University of South Florida Purchasing Department, enter a final order upholding the award of the bid proposal for the computer graphics system to Image Resources, Inc., and deny Petitioner's request to resubmit this proposal as an Invitation to Bid under Chapter 287.12(8), Florida Statutes (1988 Supp.). 1/ DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989.
The Issue Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
Findings Of Fact Ethics Complaint 14-233 On December 4, 2014, the Commission received a complaint against Hadeed filed by Weeks which alleged that Hadeed violated Florida’s election laws, the Sunshine Law, and the Code of Ethics. Specific allegations in the complaint referenced a “whispered” conversation between Albert Hadeed (“Hadeed”), the County Attorney, and alternate Canvassing Board member and County Commissioner Ericksen, Jr. (“Erickson”), outside of a Canvassing Board meeting. The complaint alleged: The actions and behaviors of some county commissioners and their staff demonstrate some may have used their position for their personal gain and for the personal gain of their co-commissioners and employers. Such activities as described herein could allow voters to also believe some persons who are privy to information, change the outcome of elections when information is prematurely revealed, and that attorney Hadeed is the canvassing board attorney because he allows the laws to be bent or broken. As Supervisor of Elections I oppose and have objected to the county attorney being the canvassing board attorney. The public should be able to trust those who are responsible for canvassing our elections and at no time should how a voter voted be released, and never should election results be release [sic] prior to 7 p.m. election night. Because attorney Hadeed and county commissioners remained hushed on behavior that has been identified, it is unknown what else may have transpired that has been kept hushed, and if such occurrences will happen again knowing they will be kept hidden and unaddressed. It is also unknown how many other people attorney Hadeed and county commissioners have told about such incidents which may give the public opinion that the Supervisor of Elections condones this type of activity, and that such activity is common. It is believed candidates may receive voter's support if it is expected that when they serve on the canvassing board they will continue such practices to allow elections to be manipulated and give some candidates an advantage. The complaint also alleged that: On October 17th, 2014, I requested that alternate canvassing board member Charles Ericksen Jr step down as an alternate canvassing board member because it became known he contributed $50 to the re-election campaign of county commissioner Frank Meeker. Ericksen refused to do so at that time, but did resign on October 20th, 2014 at a Board of County Commission meeting. It was at that time alternate canvassing board member Barbara Revels was chosen to replace Ericksen. Though commissioner Revels has been under an ethics investigation for the past several months, it did not make her ineligible to serve as an alternate canvassing board member. Attorney Hadeed was responsible for representing the canvassing board and the board of county commission [sic] and failed to provide advice indicating what should be done to prevent the appearance of impropriety when serving as a canvassing board member, and what would disqualify one from being eligible to serve on the canvassing board. He therefore knowingly and willingly allowed Ericksen to remain as an alternate canvassing board member without providing any guidance to prevent the appearance of impropriety or possible violation of Florida election code. The complaint also alleged: Attorney Hadeed also failed to guide commissioner Ericksen and encourage him to step down from the canvassing board on October 17, 2014 due to his involvement in fellow Commissioner Frank Meeker's re- election campaign. Attorney Hadeed also failed to seek and disclose to the canvassing board the degree of commissioner Ericksen's involvement in fellow commissioner/candidate Frank Meeker's campaign before or after the issues was {sic] raised before the board. Attorney Hadeed had a responsibility to ethically and legally guide the canvassing board and county commissioners to prevent one from violating the Florida election code. Attorney Hadeed did nothing to prevent or stop commissioner Ericksen's involvement on the canvassing board after it was learned of his involvement in candidate Meeker's campaign. Therefore he failed those he was representing, and did not protect the integrity of the electoral process. The complaint further alleged that: The board of county commissioners is the employer of county attorney Hadeed. It is believed to be a conflict of interest for attorney Hadeed to represent both the board of county commissioner [sic] and the canvassing board. By representing both of these boards, attorney Hadeed may provide advice and guidance to his employers who are responsible for canvassing elections, and additional employers are on the ballot. The composition of the canvassing board/alternate normally consists of at least two of the county attorney's employers (county commissioners). It may have been in attorney Hadeed's best interest for commissioner Ericksen to remain as a canvassing board alternate when it was believed he was ineligible. The complaint further alleged that: County commissioner/canvassing board member George Hanns was also asked to step down from the canvassing board on November 3, 2014 because he too was involved in a fellow commissioner Frank Meeker's re-election campaign and he too refused. Attorney Hadeed did nothing again to protect the integrity of the electoral process and ensure election code was not violated. He was made aware, if he didn't already know, that an advertisement was released by fellow county commissioner Frank Meeker stating he was endorsed by county commissioner/canvassing board member George Hanns. George Hanns stated it was not an endorsement because he didn't put it in writing. Attorney Hadeed again failed to encourage commissioner Hanns to voluntarily step down from his position on the canvassing board after the endorsement was exposed and made public on November 3, 2014. Again, attorney Hadeed failed to properly represent the canvassing board. On November 4, 2014 Commissioner George Hanns was again asked to stop [sic] down from the canvassing board for the same reason, and he again refused. Attorney Hadeed still did not encourage the commissioner to voluntarily step down, and he did not provide anything on the matter to support why he should not be required to step down. Attorney Roberta Walton produced an opinion on the matter to support why he should step down. It was at that time when attorney Hadeed attempted to discredit attorney Walton's findings, but again produced nothing to prove otherwise. The county judge (canvassing board chair) reviewed the opinion attorney Walton provided and it was then when she supported the motion made by the supervisor of elections to remove commissioner George Hanns from the county canvassing board. Again, attorney Hadeed made no attempt to uphold the law, and again failed to properly represent the canvassing board and county commissioners as he failed to provide proper guidance. Guidance that would have spared tension on the canvassing board, prevented embarrassment to a county commissioner and preserved the integrity of the electoral process. The complaint also alleged: Per Florida Statute 102.141(6) the resignation of canvassing board member Charles Ericksen Jr was reflected in the Conduct of Election Report that is filed with the Florida Division of Elections following the certification of the election, as was the removal of the Chairman of the Board of County Commissioners, George Hanns. Commissioner/alternate canvassing board member Barbara Revels (Charles Ericksen's replacement) refused to sign the required Conduct of Election Report because it reflected the fact that 1 county commissioner was removed from the Canvassing Board. In fact, commissioner Revels wrote on the report "Refused to sign: Barbara Revels". Commissioner Revels stated she did not feel it was necessary that such information be reflected on the report; Supervisor Weeks disagreed as she found the matter to be material to the conduct of election. Two of the three canvassing board members (the Supervisor of Elections and County Judge) signed the report willingly. County/canvassing board attorney Hadeed failed to advise canvassing board member/ county commissioner Barbara Revels on completing the required report by placing her signature in the required area. Attorney Hadeed also failed to say whether the report would be considered incomplete due to the absence of a canvassing board members signature, and if the report lacking a signature would put the canvassing board at risk of being in violation of Florida election code. Because attorney Hadeed failed to properly guide the canvassing board members with prior issues, as well as with the issues of commissioner Revels resistance, it appeared he and county commissioners are in collusion. He never seems to address or provide guidance in areas as have been referenced, but quite often weighs in on influencing canvassing board members decisions and inserts his comments and opinions. Again, attorney Hadeed did not properly represent the canvassing board. Attorney Hadeed should have ensured and encouraged that the requirements of the canvassing board were being met. However, he spoke up on another matter regarding a voter's registration complaint and weighed in on that matter being noted on the conduct of election report. Perhaps attorney Hadeed spoke up at this time because Dennis and Janet McDonald whom the complaint was filed on are quite vocal and critical of attorney Hadeed, and his job performance. Finally, the complaint alleged: Attorney Hadeed demonstrated the same poor judgment in 2010 when he violated the Sunshine Law by being a conduit between some canvassing board members. He was successful in creating the same type of hostile environment at that time as he did in 2014 when he made great efforts to change meeting minutes from the August 6, 2010 canvassing board meeting by verbally communicating with canvassing board members, and then distributed e-mails to carry out his plan. Those meeting minutes reflected when he incorrectly advised the canvassing board as to whom the chair of the canvassing board shall by Florida Statue [sic] be when an alternate for the canvassing board chair is required to serve. Attorney Hadeed wanted the language that existed in the first paragraph of the meeting minutes to be replaced with new language; which would then remove language that reflected the incorrect advice he gave the board. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that [Hadeed] engaged in a "whispering" exchange at a canvassing board meeting or otherwise was involved in discussions which may not have been in compliance with the Sunshine Law, that he allowed an ineligible person to remain on the canvassing board or did not provide proper advice or legal service regarding the person's being on the canvassing board, that he failed to report a crime, that he was involved in other or related conduct, and that this may have been for the purpose of benefiting himself, particular candidates, or others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hadeed] has violated section 112.313(6) as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Flagler County Canvassing Board for the 2014 Election was made up of Judge Melissa Moore-Stens, County Commission Chairman George Hanns (Commissioner Hanns), and then-Supervisor of Elections Kimberle Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Weeks alleged that Hadeed used his position as the Canvassing Board Attorney to manipulate the process to benefit Commissioner Meeker's candidacy by failing to advise Commissioner Ericksen to resign from the Canvassing Board. Weeks alleged that Hadeed failed to advise Commissioner Hanns to resign from the Canvassing Board after a political advertisement was distributed which contained an endorsement of Commissioner Meeker by Commissioner Hanns. Minutes from the October 17, 2014 Canvassing Board meeting confirm that Weeks mentioned that Commissioner Ericksen made a contribution to Commissioner Meeker's campaign and that the Department of State, Division of Elections, had advised her that the contribution was not considered to be "active participation" in a campaign. The minutes also confirm that Commissioner Ericksen was not present at the meeting. Hadeed learned from Commissioner Ericksen on the morning of October 20, 2014, prior to a scheduled County Commission meeting, that Commissioner Ericksen attended a fundraiser for Commissioner Meeker. It was at that time that Hadeed advised Commissioner Ericksen to resign as a member of the Canvassing Board. Commissioner Ericksen confirmed that he met with Hadeed on the morning of October 20, 2014, before the County Commission meeting, and that Hadeed advised him that his attendance at Commissioner Meeker's fundraiser would disqualify him from serving on the Canvassing Board. Commissioner Ericksen stated that during this consultation Hadeed advised him to resign from the Canvassing Board. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to another candidate with opposition in the election (Meeker) and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. Weeks further alleged that Hadeed failed to provide proper legal advice when he failed to advise County Commission Chairman Hanns to resign his position on the Canvassing Board after a political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns. Weeks advised that she asked Commissioner Hanns to step down from the Canvassing Board at its November 3, 2014 meeting because of the endorsement, and that he refused to do so. Weeks stated that Hadeed was present and did not provide advice regarding the situation. Hadeed related that he did not advise Commissioner Hanns to resign from the Canvassing Board because Commissioner Hanns stated that he did not endorse Commissioner Meeker's campaign. Commissioner Hanns stated that a campaign mailer was mistakenly sent to voters by Commissioner Meeker's campaign, including an endorsement attributed to Commissioner Hanns. Commissioner Meeker's campaign, Hadeed said, distributed another mailer correcting the error and notifying each of the recipients of the original mailer that Commissioner Hanns had not endorsed Commissioner Meeker's campaign. Hadeed stated that he discussed the issue at the November 4, 2014 Canvassing Board meeting and that the Division of Elections’ interpretation of the statutes involving disqualification of Canvassing Board members requires intentional, rather than perceived, action. However, Hadeed said, Weeks made a motion to remove Commissioner Hanns from the Canvassing Board, and that motion was seconded by County Judge Melissa Moore-Stens (the third member of the Canvassing Board). Minutes from the November 4, 2014 Canvassing Board meeting confirm that Commissioner Hanns stated that he did not give permission for his photo or endorsement to be used in the advertisement by Commissioner Meeker's campaign and that he did not endorse Commissioner Meeker. The minutes also confirm that Weeks made a motion to remove Commissioner Hanns from the Canvassing Board and that Judge Moore-Stens seconded that motion. The vote on the motion was two to one with Commissioner Hanns voting against it. Commissioner Hanns stated that he contacted Hadeed at the time of the mistaken endorsement, who advised him that he had done nothing wrong and was not required to resign. During the November 4, 2014 Canvassing Board meeting both Hadeed and Roberta Walton, the attorney hired by Weeks to represent her office, agreed Commissioner Hanns was not required to resign. Their opinions were informed, in part, by written opinions from the Division of Elections. Commissioner Hanns provided an October 26, 2015 Division of Elections opinion which directly addressed Weeks' desire for Commissioner Hanns to resign. The opinion stands for the proposition that mistakenly being a part of an endorsement in a political advertisement is not considered “active participation” which would require replacement of the canvassing board member. When asked about her allegation that Hadeed was involved in other or related conduct, apparently for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was “no probable cause” to believe that Hadeed violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, allowing an ineligible person to remain on the Canvassing Board by not providing proper legal services to the Canvassing Board, or by being involved in other or related conduct for the benefit of himself, particular candidates, or others. On April 20, 2016, the Commission issued its Public Report dismissing Weeks’ complaint for lack of probable cause. Weeks’ Knowledge of the Falsity of Her Sworn Allegations Weeks filed a sworn complaint against Hadeed. When signing the complaint, Weeks executed an oath that “the facts set forth in the complaint were true and correct ” Weeks served as a member of the Canvassing Board during the 2014 Election Cycle. Weeks was present at both the September 12, 2014 and the October 17, 2014 meetings of the Flagler County Canvassing Board. The Flagler County Canvassing Board makes the minutes of its meetings available to the public. Weeks had access to the minutes of the Flagler County Canvassing Board of which she was a member. Prior to filing her complaint against Hadeed, Weeks had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the Flagler County Commission is archived for public viewing on the Flagler County website. Minutes of all Flagler County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Weeks is familiar with the process of obtaining minutes of County Commission meetings by request as evidenced by her public record requests made during the pendency of this proceeding before the Division. The minutes of the September 15, 2014 meeting of the Flagler County Commission reflect the County Commission discussed whether the Canvassing Board could select its own attorney, and, ultimately, suggested the Canvassing Board affirm selection of its attorney by vote at a future meeting.9/ Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the Flagler County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. Contrary to Weeks’ allegation that Commissioner Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting, the official minutes of that meeting indicate that Commissioner Ericksen did not attend that meeting. Weeks’ allegations that Hadeed had a conflict of interest in serving as both the County Attorney and the Canvassing Board attorney were false, and were known by Weeks to be false, or were made with reckless disregard of whether they were false. Contrary to Weeks’ allegations that Hadeed failed to give proper legal advice when he failed to advise Commissioner Hanns to resign his position on the Canvassing Board after the political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns, the record revealed that Hadeed’s advice was correct and proper, notwithstanding the Canvassing Board’s ultra vires action in removing Commissioner Hanns from the Canvassing Board. When this issue was discussed at the November 4, 2014 meeting of the Canvassing Board, Roberta Walton, the attorney hired by Weeks to represent her office, agreed with the advice given by Hadeed that Commissioner Hanns was not required to resign. When asked by the Commission’s investigator whether Hadeed was involved in other or related conduct, for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. The allegations in Weeks’ complaint against Hadeed, which the Commission found material to investigate, were known by Weeks to be false or were filed by Weeks with reckless disregard for whether they were true or false. Malicious Intent to Injure Reputation Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that Weeks worked in concert with other individuals to maliciously injure the reputation of Hadeed by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies.10/ This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. Dennis McDonald ran against and lost to Commissioner Frank Meeker in 2012 and 2014. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. Weeks was not a member of the Triple Rs; however, Dennis McDonald, the de facto spokesperson of the Triple Rs, frequently visited Weeks’ office, particularly in the period between the 2014 primary and general election. Weeks’ interaction with McDonald and other Triple Rs during this timeframe was so pervasive that Weeks’ husband expressed concern to McLaughlin about McDonald’s influence over Weeks. Weeks filed six complaints against various Flagler County officials, many of the same officials about whom the Triple Rs also filed complaints. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hadeed, all members of the 2014 County Commission, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hadeed violated Florida’s ethics laws and the Sunshine Law, Weeks’ complaint alleged that Hadeed conspired to cover up felonious conduct by a member of the County Commission and that Hadeed violated Florida’s elections laws, specifically chapter 106, Florida Statutes, in several respects. Weeks also filed a complaint against Hadeed with The Florida Bar. That complaint tracked Ethics Complaint 14-233 in many respects and included allegations that Hadeed violated Florida’s ethics laws and the Sunshine Law, improperly altered public records, and conspired to cover up a felony. The allegations that Hadeed participated in discussions that violated the Sunshine Law, acted to allow an illegible person to serve on the Canvassing Board, altered the minutes of the Canvassing Board, gave improper legal advice, and engaged in other conduct to benefit particular candidates in the 2014 Election, were crucial to the ethics complaint which Weeks filed against Hadeed. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and ordered that it be investigated. Had Hadeed been found to have violated Florida law, it would have damaged his reputation in the community and would have jeopardized his ability to practice law. The evidence also shows a concerted effort by Weeks and the Triple Rs to continue filing new complaints after dismissal orders in order to keep Flagler County officials under constant investigation by various agencies, which kept them under a cloud of suspicion with the public. The totality of these findings, including the number of complaints, the false complaints to The Florida Bar and the Elections Commission, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 14-233 was filed with a “malicious intent” to injure the reputation of Hadeed and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Weeks’ complaint was filed with knowledge that, or with reckless disregard for whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that Weeks showed “reckless disregard” for whether her sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the professional and political damage the complaint would cause Hadeed, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hadeed. Attorney’s Fees and Costs Upon receipt and review of the complaints filed against Hadeed and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at the rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding is $350 per hour. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hour records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 115.69 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These records of the Messer Caparello law firm indicate that an additional 28.80 hours were spent in seeking costs and fees for that defense at the formal hearing and in preparing the Proposed Recommended Order. The total hours spent by the Messer Caparello law firm in defense of the Complaint against Petitioner, and in seeking costs and fees for that defense, is 144.49. The total hours spent on this case by the Messer Caparello law firm is reasonable. Costs of $1,785.03 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $1,012.44 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Hadeed has not sought fees for his time as the County Attorney in the defense of this complaint against him. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 30.85 hours for paralegal time were spent in assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 17.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office before May 15, 2017, are reasonable. After May 15, 2017, no additional costs were charged by the Flagler County Attorney’s Office. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hadeed has established that he incurred: (i) costs in the amount of $2,797.47 and attorneys’ fees in the amount of $50,571.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) costs in the amount of $168.93 and $7,144.50 for paralegal services incurred by the Flagler County Attorney’s Office in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hadeed’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-233 in the total amount of $60,682.40. DONE AND ENTERED this 31st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 31st day of August, 2017.
The Issue The issue in this case is whether Petitioners qualify for an exemption from paying sales tax on the lease of real property under sections 212.0602 and 212.08(7), Florida Statutes (2013),1/ from July 1, 2010, through April 30, 2013.
Findings Of Fact The Department is the Florida agency charged with administering the state’s tax laws under chapter 212, Florida Statutes. See § 212.18(2), Fla. Stat. The Department’s responsibilities specifically include the imposition and collection of Florida’s sales tax pursuant to chapter 212. Petitioners are private colleges that provide post- secondary education in design and technology. From July 2010 through April 2013, Petitioners specialized in courses and degrees in areas including audio and video production and recording, digital media production, fashion design, film, graphic design, and photography. Petitioners offered both Bachelor’s and Associate’s degrees. Petitioners were accredited by the Accrediting Council for Independent Colleges and Schools. Between July 2010 and April 2013, Petitioners enrolled over 500 students a year at each campus. Petitioners were licensed by the Florida Department of Education as educational entities under chapter 1005, Florida Statutes.5/ Petitioner International Academy of Design was located in Orlando, Florida. Petitioner International Academy of Merchandising and Design was located in Tampa, Florida. Petitioners leased their campus properties in both Orlando and Tampa. The lease payments Petitioners paid to their respective landlords included sales tax. Through this administrative action, Petitioners seek a refund from the Department of the sales tax they paid between July 1, 2010, and April 30, 2013, on the property they leased. Petitioners assert that they qualified for a tax exemption. Petitioners contend that section 212.0602 entitled them to an exemption because they were primarily engaged in teaching activities or services described in section 212.031(1)(a)9., i.e., “qualified production services.” In addition, Petitioners claim they were exempt under section 212.08(7)(o) because they were “state tax-supported schools.” Petitioners each submitted an “Application for Refund – Sales and Use Tax” to the Department on or around July 25, 2013. Petitioners sought a combined tax refund in the amount of $914,097.13. Of this amount, Petitioner International School of Design applied for a refund of $159,785.20. Petitioner International School of Merchandising and Design applied for a refund of $754,311.93.6/ On May 13, 2016, the Department issued an Internal Technical Advisement (“ITA”) stating that Petitioners were not qualified for the exemptions provided in either section 212.0602 or section 212.08(7)(o). As articulated in the ITA, the Department agreed that Petitioners conducted classes at fixed locations in Florida, were licensed under chapter 1005, and enrolled at least 500 students at each institution. However, the Department determined that Petitioners had not demonstrated that they were “primarily engaged” in teaching students to perform the activities or services described in section 212.031(1)(a)9. As such, the Department deemed Petitioners not eligible for a refund of sales tax. On May 31, 2016, the Department issued a Notice of Intent to Make Refund Claim Changes notifying Petitioners that the Department intended to deny Petitioners’ refund requests. Thereafter, on July 1, 2016, the Department issued each Petitioner a Notice of Proposed Refund Denial for the Refund Claim. On August 29, 2016, Petitioners filed an informal protest with the Department challenging the proposed refund denials. On February 3, 2017, the Department issued a Notice of Decision of Refund Denial officially denying both Petitioners’ requests for refunds of sales tax. The Department concluded that Petitioners do not qualify for a sales tax exemption under either section 212.0602 or section 212.08(7)(o). Bob Swain is the current President of Petitioner International Academy of Merchandising and Design (Tampa).7/ He has served in this capacity since January 2014. At the final hearing, Mr. Swain described Petitioners’ student body as “creative students.” Mr. Swain testified that the academic programs Petitioners taught between 2010 and 2013 were fashioned to provide students with hands-on development and training necessary for work in creative services and vocations. Petitioners presented students a traditional educational roadmap to help develop their individual artistic talents. Mr. Swain explained that the courses and degrees his school offered were not focused on a particular industry (such as film production). Instead, his school endeavored to foster creativity and teach to the “craft.” With this objective, Petitioners equipped students with skill sets they might use should they choose to pursue a career in motion picture production or a similar entertainment medium. Mr. Swain explained that the courses Petitioners taught, including subjects such as animation, audio and video production, photography, film, and graphic design, could all be performed in connection with motion picture production services. Mr. Swain expressed that approximately two- thirds of Petitioners’ students received training in film-related skills. Mr. Swain relayed that Petitioners’ campuses included lecture rooms, design studios, drafting labs, film production studios, a green room for animation, photography studios, recording studies, sewing and pattern drafting labs, and computer labs. Petitioners use these facilities to instruct students on design, programming, sound and video editing, word processing, and database management. Course Descriptions: From July 2010 through April 2013, Petitioner International Academy of Design (Orlando) offered degree programs in: Advertising Design (marketing), Digital Media Production (also referred to as Interactive Media), Fashion Design and Merchandising, Graphic Design, Game Design and Production, Information Technology, Interior Design, Internet Marketing, Retail Merchandise Management, and Web Design and Development. Over that same period of time, Petitioner International Academy of Merchandising and Design (Tampa) offered degrees in: Advertising Design (marketing), Animation, Audio Production, Building Information Modeling, Digital Media Production, Digital Photography, Fashion Design, Fashion Merchandising, Game Design and Production, Graphic Design (Visual Communication), Interior Design, Photography, and Post Production. The coursework required to earn those degrees was described as follows: Advertising Design (Marketing): Petitioners’ Advertising Design degrees and curricula provided students with training to design, create and implement graphic, typographic, photographic, and audio/video elements in the concepts of marketing, business, and advertising. The primary coursework included Advertising Concepts, Elements of Visual Advertising, Principles of Marketing, Photography for Advertising, Audio/Video for Advertising, Art Direction Project, Advertising Design Capstone, Design Fundamentals, Introduction to Drawing, Digital Illustration, Typography, Digital Imaging, Storyboarding, Creativity in Design, Graphic Design, Advertising Design Internship or Capstone, and Advertising Design Portfolio. Animation: The Animation degree curriculum offered students training necessary to create 2D animation, 3D animation, character development, game art, and special effects animation to enter the field of computer animation. The primary coursework included: Animation Fundamentals, 2D Animation, 3D Animation, Animation Physics, Studio Techniques, Advanced Modeling, Production Studio, Animation Capstone, Digital Imaging, Drawing Techniques, Texture and Lighting, Animation Internship or Capstone, and Animation Portfolio. Audio Production: The Audio Production degree offered students training in recording and mixing and mastering for audio, film, and video productions. The primary coursework included: Digital Audio Specifications, Digital Audio Workstations, Introduction to Audio Production, Audio Recording Techniques, Studio Design and Maintenance, Music Design and Synthesis, Recording on Location, Mixing and Mastering, Surround Sound Techniques, Studio Concentration, Music Composition and Songwriting, Digital Composition, Foley for Film and Television, Session Recording and Mastering, and Audio Production Internship or Capstone. Digital Media Production: The Digital Media Production degree offered students training in the production of multimedia presentations through web design, print media, 3D modeling animation, digital audio, and video production. The primary required coursework included: Design Fundamentals, Web Design, Drawing, Digital Illustration, Typography, Digital Imaging, Visual Composition, Interactive Media, Audio Production, Screenwriting, Video Production, Digital Imaging, Interactive Design, Video Editing, Motion Graphics, Media Production, Media Distribution, Internship or Capstone, and Digital Media Production Portfolio. Digital Photography: The Digital Photography degree offered students training in photographic skills and production of photographs for use in digital format. The primary required coursework included: Photography Foundation, Lighting Basics, Photoshop, Photojournalism, Portrait Photography, Digital Pre- Press for Photographers, Still Life and Product Photography, Digital Presentation Techniques, and Photography Portfolio Presentation. Fashion Design and Fashion Merchandising: The Fashion Design and the Fashion Merchandising degrees provided students with training to design, prepare, and manage original materials and wardrobe, as well as the ability to market and promote their products. The primary coursework included: Visual Merchandising, Electronic Marketing, Introduction to Fashion, Fashion Sketching, Clothing Construction, Computer Graphics for Fashion Design, Pattern Drafting, Draping, Fashion Design, Apparel Production, Pattern Techniques, Textile Design, and Fashion Internship or Capstone. Game Design and Production: The Game Production degree provided students with training in the creation, development, and production of interactive 2D and 3D computer games. The primary coursework included: Digital Imaging, Drawing Techniques, Principles of Design, Modeling, Game Play Scripting, Texture and Lighting, Storyboard and Storytelling, Web Game Development, Sound Design, Level Design, Game Production, Internship or Capstone, and Game Portfolio. Graphic Design (Visual Communication): The Graphic Design degree provided students with training to create and produce editorial, digital, and web designs. The primary coursework included: Design Fundamentals, Web Design, Introduction to Drawing, Digital Illustration, Typography, Digital Imaging, Visual Composition, Interactive Media, Design Process, Graphic Design, Advertising Design, Print Production Internship or Capstone, and Graphic Design Portfolio. Interior Design: The Interior Design degree offered training in enhancing the function, quality, and safety of interior spaces. The primary required coursework included: Drafting, Sketching and Rendering, Textiles, Interior Design Issues and Programming, Resources and Materials, Digital Media for Interior Design, Computer Aided Design, Spatial Environments, Interior Design, Lighting Design for Interiors, Interior Design Project, and Interior Design Portfolio. Professional Photography: The Professional Photography degree offered students training in photographic skills through technical competency in lighting, image capture and manipulation, and media production. The primary required coursework included: Design Fundamentals, Image Software, Foundations of Photography, Integrated Media, Color Management, Environmental Lighting, Portraiture, Location Lighting, People Photography, Studio Lighting, Video, Commercial Photography, Visual Journalism, Web Design for Photographers, and Professional Photography Portfolio. Web Design and Development: The Web Design and Development degree offered students training in the development and programming of graphics, interactivity, and text for use on the web. The primary required coursework included: Media Design Concepts, Web Design Fundamentals, Programming for the Internet, Usability and Interface Design, Multimedia Design, Advanced Scripting Techniques, Content Management Systems, Website Advertising and Design, Interactive Mobile Application, Project Management, Designing for Server-Side Technology, Advanced Server-Side Technology, Database, Programming, Web Commercialization, Web Administration, Internship or Capstone, and Web Design Project. As the last course for their degrees, as well as a graduation requirement, students were required to develop and complete a “Portfolio.” For their Portfolio, students produced and created a collection of work applying the skills taught in their degree programs. For example, Mr. Swain explained that the Animation degree required students to develop an animation program. Similarly, the Game Production degree required students to create a computer game or software design. At the end of their final semester, students presented their Portfolios to Petitioners’ faculty and staff, as well as potential employers to demonstrate their capabilities. Petitioners’ Enrollment Statistics International Academy of Design (Orlando): From July 2010 through April 2013, approximately 95 percent of the students enrolled at the International Academy of Design studied degrees in: Advertising Design (marketing), Digital Media Production, Fashion Design, Game Design and Production, Graphic Design, Interior Design, and Web Design and Development, specifically: 2010 School Year: Total enrollment of 1,710 students. Of these students, 634 were enrolled in Fashion Design and Merchandising; 304 in Game Design; 225 in Digital Media Production; 262 in Interior Design; 99 in Advertising Design (marketing); and 185 in Graphic Design (Visual Communication). 2011 School Year: Total enrollment of 1,328 students. Of these students, 522 were enrolled in Fashion Design and Merchandising; 226 in Game Design; 169 in Digital Media Production; 170 in Interior Design; 62 in Advertising Design (marketing); and 179 in Graphic Design (Visual Communication). 2012 School Year: Total enrollment of 980 students. Of these students, 365 were enrolled in Fashion Design and Merchandising; 139 in Game Design; 94 in Digital Media Production; 75 in Interior Design; 25 in Advertising Design (marketing); 203 in Graphic Design (Visual Communication); and nine in Web Design and Development. 2013 School Year: Total enrollment of 626 students. Of these students, nine were enrolled in Animation; 239 in Fashion Design and Merchandising; 79 in Game Design; 64 in Digital Media Production; 20 in Interior Design; ten in Advertising Design (marketing); 129 in Graphic Design (Visual Communication); and seven in Web Design and Development. International Academy of Merchandising and Design (Tampa): From July 2010 through April 2013, approximately 90 percent of the students enrolled at Petitioner International Academy of Merchandising and Design studied degrees in: Advertising Design (marketing), Animation, Audio Production, Building Information Modeling, Digital Media Production, Digital Photography, Fashion Design, Fashion Merchandising, Game Design and Production, Graphic Design (Visual Communication), Interior Design, Photography, and Post Production, specifically: 2010 School Year: Total enrollment of 2,565 students. Of these students, 35 were enrolled in Advertising Design; 216 in Animation; 597 in Audio Production; 25 in Digital Media Production; 535 in Fashion Design; 52 in Game Design; 302 in Interior Design; 313 in Photography; and 250 in Graphic Design (Visual Communication). 2011 School Year: Total enrollment of 1,742 students. Of these students, 26 were enrolled in Advertising Design; 112 in Animation; 472 in Audio Production; 11 in Digital Media Production; 287 in Fashion Design; 52 in Game Design; 180 in Interior Design;196 in Photography; 60 in Video Production, and 200 in Graphic Design (Visual Communication). 2012 School Year: Total enrollment of 1,265 students. Of these students, 15 were enrolled in Advertising Design; 54 in Animation; 329 in Audio Production; five in Digital Media Production; 209 in Fashion Design; 34 in Game Design; 136 in Interior Design; 181 in Photography; 26 in Video Production, and 184 in Graphic Design (Visual Communication). 2013 School Year: Total enrollment of 819 students. Of these students, four were enrolled in Advertising Design; 30 in Animation; 244 in Audio Production; two in Digital Media Production; 139 in Fashion Design; 21 in Game Design; 103 in Interior Design; 86 in Photography; nine in Video Production, and 124 in Graphic Design (Visual Communication). Petitioners also applied to the Department for a refund of sales tax under section 212.08(7)(o). Section 212.08(7)(o), directs that “leases to state tax-supported schools, colleges, or universities” are specifically exempt from the tax imposed under chapter 212. Petitioners assert that between July 1, 2010, and April 30, 2013, they participated in several financial aid programs which they administered for the benefit of their students. Two of these programs included the Florida Bright Futures Program (“Bright Futures”) and the federal Workforce Investment Act. Bright Futures is a financial aid program awarded to students who meet specific academic requirements upon high school graduation and continue to maintain specific grades and earned hours while in college. Mr. Swain testified that Bright Futures paid tuition directly to Petitioners on behalf of the qualifying students. The Workforce Investment Act was a federal program administered by the Florida Department of Economic Opportunity and managed by local workforce investment boards. (See Workforce Investment Act of 1998, P.L. 105-220, 20 U.S.C. § 9201, which was repealed in 2014.) Because they received scholarship money from these financial aid programs, Petitioners claim that they were “state tax-supported schools.” Between July 1, 2010, and April 30, 2013, Petitioner International Academy of Design (Orlando) received approximately $95,000 in scholarship funds from Bright Futures. Petitioner International Academy of Merchandising and Design (Tampa) received approximately $177,000 over the same period. Petitioners did not present evidence of any funds they received from the Workforce Investment Act between July 2010 and April 2013. Chris Whittier, a Tax Specialist for the Department, was assigned to review Petitioners’ refund applications. Mr. Whittier subsequently issued the Department’s Notice of Decision of Refund Denial, dated February 3, 2017. At the final hearing, Mr. Whittier explained that in considering Petitioners’ refund requests, the Department reviewed Petitioners’ respective course catalogues, curricula, and academic objectives.8/ Regarding Petitioners’ request for a tax exemption under section 212.0602, Mr. Whittier conveyed that Petitioners offered multiple degree programs in a broad range of industries. The Department acknowledged that these degrees could prove useful for students who desired careers in movie production. However, the Department ascertained that the job skills Petitioners taught could be applied to a number of activities or businesses, not just “qualified production services.” Therefore, the Department determined that Petitioners were not “primarily engaged” in teaching students skills or trades “performed directly in connection with the production of a qualified motion picture” as delineated in section 212.031(1)(a)9. Mr. Whittier further expressed that to qualify for an exemption under section 212.0602, Petitioners must show that the job training they provided was directly connected to the actual production of a “qualified motion picture.” In other words, for Petitioners to establish that they taught the “activities or services described in s. 212.031(1)(a)9.,” Petitioners’ students must receive substantive instruction on a bonafide motion picture production. Mr. Whittier remarked that Petitioners never submitted an example of any motion picture that either they or their students developed or produced. Further, Petitioners did not provide evidence that any of their former students have found employment in the motion picture industry. Consequently, Petitioners did not establish that they qualified for the tax exemption authorized under section 212.0602, and are not entitled to a refund of the sales tax they paid on the property they leased. Regarding Petitioners’ request for a tax exemption under section 212.08(7)(o) as “state tax-supported schools,” the Department argues that Petitioners did not meet the minimum requirements for the exemption. Initially, the Department asserts that simply receiving money through Bright Futures or the Workforce Investment Act is not enough to characterize a private college as a “state tax-supported school.” Funds from these scholarship programs are awarded to students to assist with their college tuition. The Florida Legislature did not appropriate tax money to “support” Petitioners. In addition, the funds from Bright Futures and the Workforce Investment Act are not “state tax” funds. Bright Futures is funded by proceeds from the Florida-run lottery program. The Workforce Investment Act is a federal program. Further, by its terms, exemptions under section 212.08(7)(o) do not inure to any transaction that is otherwise taxable under chapter 212, unless the entity “has obtained a sales tax exemption certificate from the department or the entity obtains or provides other documentation as required by the department.” Petitioners have never applied for, nor have they been provided, a sales tax exemption certificate from the Department. Therefore, Petitioners are not eligible for the exemption in section 212.08(7)(o). Based on the evidence and testimony presented during the final hearing, Petitioners proved, by a preponderance of the evidence, that they qualify for an exemption under section 212.0602. Accordingly, the Department should take the necessary steps to refund the amount of sales tax Petitioners paid on the lease of real property from July 1, 2010, through April 30, 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order refunding Petitioner International School of Design (Orlando) $159,785.20 and refunding Petitioner International School of Merchandising and Design (Tampa) $754,311.93. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of September, 2017.
The Issue The issue for determination is whether Respondent terminated Petitioner's employment on the basis of Petitioner's age and sex.
Findings Of Fact Petitioner is Lutye T. Willis. She is white and over 40 years of age. She was employed by Respondent from July 21, 1987, until December 30, 1988. Respondent in this matter is Crystal Brands, Inc., successor-in- interest to Hunter Haig, Inc., a subsidiary of Palm Beach Incorporated. Respondent operated a number of retail clothing outlets throughout the country at all times pertinent to these proceedings. Respondent opened a new Evan Picone Factory Outlet store in the vicinity of Lake City, Florida, in July of 1988. In conjunction with opening the new store, Herman Davis, Jack Williams and Steve Anderson, representatives of Respondent and acting as a group, conducted interviews of applicants for the position of store manager. Petitioner was hired as the manager of the new store, effective July 21, 1988. Petitioner had approximately four years of experience in retail sales, although she had little experience in management or supervision. She was hired in the store manager position at a salary rate of $8.71 per hour for a 40 hour week. Four days later, following conduct of other interviews with prospective applicants, a process in which Petitioner participated along with Davis, Williams and Anderson, an assistant manager for the new store was hired. Williams suggested that Petitioner might want to hire a male to assist in the sale of menswear. Petitioner was happy with the choice of Trevor Hickman for the position. She knew the 22 year old white male and, many years earlier, had been his cub scout teacher. Her testimony to the effect that she was forced to hire a male assistant manageris not credited. In the first few days following their hiring, Hickman and Petitioner were trained jointly by Jack Williams in the store's operations. Williams was not confident that Petitioner possessed adequate abilities and skills with regard to bookkeeping and cash register operation when he left the store three weeks later. He apprised home office personnel that Petitioner might require further assistance in these areas of the store's operation. Subsequent to Williams' departure from the store, Petitioner received additional training and assistance from Tabitha Smith, the female manager of another store owned by Respondent. Smith, manager of Respondent's store located in the neighboring vicinity of Valdosta, Georgia, was also consulted about once a week by Trevor Hickman, regarding reports and other store operations, during the period of Petitioner's employment. While good with customers, Petitioner was not so adept at the administrative tasks of management. She generally delegated the preparation of reports to Hickman, although the reports were the responsibility of the manager and were normally signed by her. However, monthly balance reports, required to be completed by the manager, were not assigned to, or prepared by, Hickman. Those reports were delinquent at the time of Petitioner's termination and were subsequently completed by Hickman. In October of 1988, Dan Hardin became the regional manager for Respondent. His regional supervisory role made him the immediate supervisor of Petitioner. He conducted a review ofthe store managed by Petitioner on October 31 and November 1, 1988. Hardin was disappointed with Petitioner's performance with regard to preparation of monthly balance reports and maintenance of the store's bank deposit log. Petitioner received a "poor" rating from Hardin with regard to these tasks in the review. Hardin explained to Petitioner the importance of telephoning the home office on a daily basis with information concerning the amount of funds deposited by her in the bank each day. In her role as the store manager, Petitioner established the work schedules for herself and Hickman. Sometime in late 1988, she arranged the schedules so that Hickman worked five days in a row from December 22 through December 28, in order that Petitioner might travel to Boston, Massachusetts to spend the Christmas holidays. Hickman was scheduled by Petitioner to be off several days around New Years' weekend and the week before Christmas. Petitioner asked Hickman to cover for her in the event that anyone from the corporate offices inquired about her during her absence. Under the arrangement, Hickman was to telephone Petitioner in Boston, Massachusetts, regarding inquiries from the corporate office. However, Hickman was not to tell superiors that Petitioner was in Boston. Hickman was discomfited by Petitioner's arrangements. He knew that Petitioner's plans were contrary tocompany policy and he feared he might be fired if he were viewed as collaborating with Petitioner's scheme. Under Respondent's vacation policy, no employees were permitted a vacation until they completed at least six months of employment. In addition, company policy required approval of managerial vacation by the employee's immediate supervisor and the corporate president, John Lane. Petitioner had not complied with either provision of this policy regarding her planned absence. Hardin normally communicated by telephone on a weekly basis with the store managed by Petitioner. Hardin spoke with Hickman by telephone in the early part of December and learned of the arrangement between Hickman and Petitioner to take time off during the holiday period. Hardin subsequently telephoned the store again and spoke with Petitioner. He asked Petitioner to perform certain tasks during the time period that he now knew she planned to be absent from the store. At that point in the conversation, Petitioner informed Hardin of her intention to go to Boston during the December 22-28 time period. Hardin attempted to dissuade Petitioner from carrying out her plans, pointing out the company vacation policy to Petitioner and the need for John Lane's approval of Petitioner's proposed absence. Hardin further told Petitioner that he could not personally approve Petitioner's request as her supervisor, that he did not believe John Lane would approve such an absence, that shecould not be away from the store that long, and that the period for the proposed absence was one of the busiest times of the year for retail merchandising. Petitioner told Hardin that she still intended to follow through with her holiday travel plans. Following the telephone conversation with Petitioner, Hardin informed Jim Shanis, Respondent's director of stores, of Petitioner's action. Subsequently, after telephoning the store during the period of December 22-28, 1988, and verifying that Petitioner was absent from the store, Hardin decided to terminate Petitioner's employment. Hardin's discharge of Petitioner took place on Friday, December 30, 1988. At that time, he informed Petitioner that her discharge was the result of the unauthorized vacation and her unsatisfactory performance. Hardin's discharge of Petitioner was consistent with Respondent's disciplinary policy which provided for immediate discharge for deliberate disregard of company policy or insubordination. Respondent does not have a work practice prohibiting employment of females in managerial positions. Further, the proof establishes that Respondent had all female management teams at ten of it's 39 stores during the period of Petitioner's employment, as well as individuals in some managerial positions who were over 40 years of age. After terminating Petitioner's employment, Hardin called Hickman to the store and promoted him to the store managerposition with a salary rate of $8.17 per hour, an amount less than that paid to Petitioner. On or about January 20, 1989, Petitioner wrote a letter to the company president, John Lane, complaining that she had not received severance pay. Petitioner did not include within her complaint any allegation that her termination resulted from discrimination on the basis of age or sex.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990 APPENDIX The following constitutes my rulings with regard to proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-3. Rejected, conclusions of law unsupported by weight of the evidence. Adopted by reference. Rejected, not supported by weight of the evidence. First part of this proposed finding is rejected as unnecessary with regard to Petitioner's background. Remainder rejected as unsupported by the weight of the evidence. Rejected, unsupported by the evidence. Rejected, unnecessary. 9.-15. Rejected, not supported by weight of the evidence. Rejected, relevancy. Rejected, not supported by weight of the evidence. Rejected, although a male assistant was suggested to Petitioner because of fitting of male apparel, the weight of the evidence does not support that Petitioner was forced to hire Hickman or that she opposed his hiring. Rejected, hearsay. While Petitioner was granted leave to file the deposition of Herman Davis as a posthearing exhibit, no authority was provided to quote documents not in evidence as a basis for a finding of fact. 20.-21. Rejected, not supported by the evidence. 22. Adopted by reference. 23.-25. Rejected, not supported by weight of the evidence. 26. Rejected as argumentative. Although Hardin remained in the hearing room as Respondent's agency representative, Petitioner was not unfairly prejudiced as a result. Respondent's Proposed Findings 1.-5. Adopted in substance. 6.-10. Adopted by reference. 11.-21. Adopted in substance. 22.-24. Adopted by reference. 25.-41. Adopted in substance. 42. Adopted by reference. 43.-44. Adopted in substance. 45.-49. Rejected, unnecessary to result. COPIES FURNISHED: Dana Baird, Esq. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Lutye Willis P.O. Box 646 Brownsville, Vermont 05037 Edwin J. Turanchik, Esq. 501 East Kennedy Boulevard Suite 1206 Tampa, Florida 33602 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue May Petitioner, Polk County School Board (Board), terminate the employment of Respondent, Stephen Brown, as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Dennis F. Dunn, dated January 24, 2013, asserting that Mr. Brown engaged in serious misconduct, providing just cause to terminate his employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Board employed Mr. Brown as a classroom teacher through a Professional Services Contract. By letter dated January 24, 2013, Assistant Superintendent Dennis Dunn advised Mr. Brown that Polk County School Superintendent John Stewart intended to recommend his termination to the Board for improper use of the "Board issued laptop computer due to pornography and sexually inappropriate images" found on the computer. Mr. Brown has been a teacher for 18 years. Ten of those years, including 2012, Mr. Brown taught at the Board's Inwood Elementary School (Inwood). This was not the first time the school took action against Mr. Brown. On March 31, 2011, Inwood Principal Amy Heiser-Meyers gave Mr. Brown a letter confirming a verbal warning that she gave him during a conference that day. The letter stated: When redirecting or addressing a student's behavior, refrain from getting into their face and also refrain from making inappropriate comments and actions that are disparaging and harmful to the student's mental health. As the authority figure in the classroom, it is not appropriate to use your body and physical proximity to intimidate the student. Your actions towards the student violated the Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida: State Board of Education Rule 6B-1.006 FAC (a)(e)[sic]. The letter also advised that the conference was a first step of the progressive discipline outlined in the Teacher Collective Bargaining Agreement and cautioned that further discipline, up to and including termination, might be imposed for additional "unacceptable behaviors." On April 23, 2012, Principal Heiser-Meyers delivered Mr. Brown a letter confirming a discussion during a conference that day. This letter was "not to be construed as disciplinary in nature, but rather as a letter of concern." It addressed the importance of meeting deadlines and processing paperwork, specifically not having student award certificates ready in time for a scheduled lunch awards presentation. In a June 6, 2012, letter, Ms. Heiser-Meyers confirmed a verbal warning that Mr. Brown violated "The Principles of Professional Conduct of the Education Profession in Florida [sic] (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. AND (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement." Principal Heiser-Meyers' letter stated that she conducted the conference "pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement" and that it was the first step of progressive discipline outlined in that section. It also cautioned that continued "unacceptable behaviors" could result in disciplinary action up to and including termination. On June 4, 2012, and on August 31, 2012, Mr. Brown signed the Board's Employee Equipment Use Contract for a laptop computer assigned to him. The contract included these conditions: I AGREE TO RETURN THE ABOVE EQUIPMENT IN THE SAME CONDITION IT WAS IN UPON CHECKOUT AND AGREE TO PAY FOR REPLACEMENT DUE TO LOSS OR DAMAGE BEYOND REPAIR THAT MAY OCCUR WHILE IT IS ASSIGNED TO ME. REPLACEMENT COST IS CONSIDERED THE COST TO PURCHASE NEW EQUIPMENT. I AGREE TO USE THE EQUIPMENT FOR SCHOOL BOARD PURPOSES ONLY, AND UNDERSTAND THAT I WILL BE RESPONSIBLE FOR INJURY OR DAMAGES CAUSED BY ANY INAPPROPRIATE OR UNAUTHORIZED USE OF THIS EQUIPMENT. I WILL NOT BE HELD RESPONSIBLE FOR ANY REPAIRS RESULTING FROM NORMAL AND ORDINARY USE OF SUCH EQUIPMENT. Mr. Brown took his school-issued laptop computer home around November 30, 2012. He used it to search for information about cash advance loans he could obtain to repair his automobile. While Mr. Brown was searching for loan information, a red screen displaying the title "FBI Federal Bureau of Investigation" appeared. The screen advised that the computer had been locked and stated that Mr. Brown was subject to several federal criminal charges, including possession of child pornography and gambling, unless he paid $200.00 within 48 hours to a designated account. Mr. Brown shut down his computer. He tried restarting and shutting down the computer a few times to see if the message would go away and the computer would operate. Mr. Brown then called the FBI office to report the incident. The individual to whom Mr. Brown spoke told Mr. Brown that he was describing a frequently reported virus and that he would need professional help removing it. Mr. Brown took the laptop to the office supply store, Staples, the following day to obtain its virus removal service. He paid for the service and purchased an extended warranty for $199.00. Mr. Brown took the computer to Staples, instead of to the school's information technology office, because he thought that, since the virus appeared while he was using the computer for personal purposes, the terms of equipment-use contract made him responsible for repairs. Mr. Brown did not report the problem to the school's technology office. Staples was unable to service the computer for three days. When Staples did service the computer, it removed the virus. But the Staples technicians could not repair damage to the hard drive and replaced it. The technicians also re- configured the laptop's original hard drive as an external hard drive with Mr. Brown's documents and other files on it. While Mr. Brown's laptop awaited service at Staples, he tried to use the school computer of his colleague, Penny Humphrey. Ms. Humphrey reported his efforts to the school's computer network manager, Marilyn Layton. Ms. Layton reported the issue to the principal, who advised school board investigator Barry Marbutt that he was concerned Mr. Brown might have inappropriate material on his laptop. Mr. Marbutt interviewed Mr. Brown, who told him of the FBI virus and the repairs by Staples. Mr. Marbutt took Mr. Brown's laptop. Mr. Marbutt later learned from a Staples representative about the old hard drive being reconfigured as an external drive. He then obtained the external drive from Mr. Brown. Sid Lee, senior manager of the Board's electronic equipment repair and support department, examined Mr. Brown's laptop and software to determine if the computer held any inappropriate material. Mr. Lee did not conduct any tests or analyses to determine if Mr. Brown's report of a virus was accurate. The computer and associated external hard drive contained over 200 pornographic images, admitted as Exhibit 6. They were located at the address “D/Documents and Settings\stephen.brown\Local Settings/Temporary Internet Files\content.IE5," which is also referred to as the browser cache. The parties stipulate that the images are pornographic. Many of the images depict sexual violence. Many depict scenes with several participants, bound females, or hooded or masked participants. None of the images, or the identifiable sources for them, match data sets of known or suspected child pornography, including the DHS-ICE Child Exploitation Hash set and data sets obtained from the FBI, state, and local law enforcement agencies. All of the images are generated by small files. The size of the files is consistent with the images being either "popup" or "thumbnail" images. A "pop-up" is a pop-up window on a computer screen.1/ A "thumbnail" is "a miniature computer graphic sometimes hyperlinked to a full-size version" of an image.2/ The files occur in a few clusters in the Internet browser cache of the laptop. On July 19, 2012, approximately 113 of the pornographic images were among 171 images downloaded into the laptop's browser cache between 1:54:06 p.m. and 1:57:11 p.m., a period of three minutes and five seconds. This means that they downloaded extremely quickly. For instance, Exhibit 6 shows that at 1:56:23 p.m., four images downloaded. At 1:56:24 p.m., six images downloaded. The average download rate for the time period was 1.08 seconds per image. This rate is not consistent with a person manually browsing the Internet. Seven of the images are plainly advertisements for pornographic websites or DVDs. Twenty have watermarks on them depicting several different website addresses. During the July 19, 2012, time period, when the files were downloaded, there were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites. During the July 19, 2012, time period one or more pop-ups attempted unsuccessfully to download malicious software. The analysis of the computer, however, showed frequent log-ins to Facebook at other times and days. The typical pattern of computer users is to perform more than one function or go to more than one website when logging on to the internet. On August 20, 2013, a single pornographic video was downloaded. There were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites at the same time. On November 29, 2012, 225 image files were downloaded between 3:59:44 p.m. and 4:12:26 p.m., a period of 12 minutes and 42 seconds. This indicates that the images downloaded quickly, at an average rate of one image per 3.4 seconds. This rate is not consistent with a person manually browsing the internet. At least 101 of the images were pornographic. As with the July 19, 2012, time period, there were no contemporaneous log-ins to other websites at the same time. The images included 12 advertisements for penis enlargement techniques or substances and 14 advertisements for services facilitating sexual encounters with local females. There were also images with website address watermarks; but the watermarks are not legible. Staples technicians determined the laptop was infected with the malware virus, “Reveton," also known as the "FBI virus." The virus has the ability to start a computer, access the Internet, visit websites, and download images without the computer owner's knowledge or participation. Using these abilities, the virus's masters can and do remotely operate enterprises that include "click jacking" and "ransoms." In "click jacking," the virus causes the host computer to activate, log on to the Internet and quickly visit websites to click on advertisements, including pop-ups. This generates revenue for the site hosting the advertisement or pop-up, since compensation is by "click." In "ransoms" the virus locks up the computer and displays a message like the one Mr. Brown's laptop received demanding payment and threatening law enforcement action, unless the computer operator sends a payment in a manner and to a recipient described in the "ransom note." Several indicators make it as likely as not that the pornographic images found in the laptop's cache were downloaded as the result of the FBI virus, rather than any action by Mr. Brown. Those indicators are: (a) there were no contemporaneous log-ons to any other websites; (b) the rapid speed at which the images downloaded; c) the fact that all of the images were small "thumbnail" or "popup" sized files; (d) there was no evidence of full-sized image files; and (e) Mr. Brown in his testimony and during the investigation has consistently denied using the computer to access pornographic images. In addition, the fact that Mr. Brown contacted the FBI indicates lack of apprehension about the consequences of contacting law enforcement authorities. Mr. Brown's decision to seek assistance from Staples was reasonable in light of the District's strict equipment use policies and the fact that the problem occurred when Mr. Brown was using the computer for personal reasons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, rescind the termination of Respondent, Stephen Brown, and award him back pay and full benefits for the period during which he was suspended, which began January 20, 2013, when Mr. Brown requested a hearing. DONE AND ENTERED this 21st day of August, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 21st day of August, 2013.
The Issue The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the state agency charged with regulating the practice of optometry pursuant to chapters 455, 463, and 20, Florida Statutes. The Respondent is licensed to practice optometry in the state of Florida, having been issued license number OP-0001674. Respondent shares office space with Robert's Optical Center at 23 East Prospect Road in Fort Lauderdale. On or about January 8, 1986, Respondent performed an examination of visual analysis upon DPR's investigator Allison Lichtenstein. Lichtenstein used the alias, Allison Smith. During the course of the examination of Allison Lichtenstein Respondent failed to perform visual field testing. In addition to Respondent's failure to conduct a visual field test of Lichtenstein, Respondent also failed to perform the following minimum procedures: Pupillary examination, biomicroscopy and extra-ocular muscle balance assessment. At Lichtenstein's request, Respondent did not perform tonometry. After the Respondent's examination of Lichtenstein, she paid the examination fee to Robert Mann, an optician with Robert's Optical Center, Inc. Mann provided Lichtenstein with a copy of her prescription written on the Respondent's prescription form. (Petitioner's Exhibit 3). Mann is not a salaried employee of Respondent. Prior to Respondent's examination of Lichtenstein, Respondent was aware that Mann was writing prescriptions on his prescription pad. Despite this knowledge, Respondent allowed Mann to continue this practice and Respondent continues to allow Mann to collect fees and dispense receipts on his behalf. On or about January 8, 1986, Respondent performed an examination for visual analysis upon Petitioner's investigator, Mary Pfab. Pfab used the alias, Mary Parker. Dr. Mary Pfab is licensed to practice optometry in Florida, Tennessee, Virginia and North Carolina. She is currently engaged in the practice of optometry in Virginia. Pfab is familiar with the minimum procedures for vision analysis as required by rule 21Q-3.007, Florida Administrative Code. She was tendered and accepted as an expert witness in the practice of optometry. At the time of the examination, Pfab was wearing rigid contact lenses. Pfab told Respondent that she was then 28 years old and was taking the medication Ibruprofen. During Respondent's examination of Pfab, the following minimum procedures for vision analysis were not performed: pupillary examination and visual field testing. At Pfab's request, tonometry was not performed on her by Respondent. At the conclusion of Respondent's examination of Pfab, Pfab paid Robert Mann the examination fee. Respondent gave Pfab a copy of her prescription and Mann provided Pfab with a receipt on Respondent's prescription pad. Mann wrote Pfab's prescription on his pad. (Petitioner's Exhibit 2b). On or about April 2, 1986, Petitioner's investigator, Allison Lichtenstein revisited Respondent's office and conducted an investigation. She found that Respondent did not have a tangent screen, which is necessary to perform visual field testing. Corrective action has subsequently been taken by Respondent, and Respondent has now purchased a tangent screen. Respondent now includes visual field testing in routine eye examinations. Dr. David Chambers, a Florida licensed optometrist who has been engaged in the practice of Optometry in Florida since 1974, was accepted as an expert witness in the practice of optometry in Florida. Chambers testified as to the consequences which could result to a patient when an optometrist fails to perform the various required minimum procedures. A pupillary examination detects neurological problems produced by tumors, aneurysms or other diseases, particularly neurosyphilis. An optometrist who does not perform the pupillary examination could miss these problems and patients accordingly will not be referred to a neurologist as they should be. Visual field testing indicates the integrity of the eye's retina and detects a large family of diseases including glaucoma, pigmentation degeneration, diabetes and cataracts. Failure to performs visual field testing could result in the optometrist's missing these types of diseases which affect the visual system and the controlling nerve systems. Visual field testing and tonometry are two of the three procedures which detect glaucoma. The importance of performing visual field testing is increased when tonometry is not performed at the patient's request. Biomicroscopy detects lid and corneal diseases including allergic conjunctivitis, bacterial conjunctivitis, herpes, chlazions and aureola. These lid and corneal diseases could not be detected, diagnosed and/or referred for treatment by an optometrist who fails to perform biomicroscopy. The extraocular muscle balance assessment determines how well the two eyes work together. By failing to perform the extraocular muscle balance assessment, an optometrist could fail to diagnose a phoria or tropia problem. A phoria problem is a tendency for the eye to turn and a tropia problem is an actual turning of the eye. Failure to detect and treat these problems could result in the patient having headaches, seeing double, or using only one eye. John C. Danner is a real estate appraiser engaged in appraising commercial real estate property since 1975. Danner was received as an expert appraiser in commercial real estate. He is familiar with market rental values of commercial property in the Fort Lauderdale/Broward County area. Surveys conducted by Danner to determine the market rent for space near the Respondent's office reveal that the market rent for similar space is between $90 to $100 per month. Additionally, it would cost an optometrist between $300 to $400 per month to lease the type of equipment which has been provided by Robert's Optical to Respondent. Robert's Optical provides Respondent with both his office space and equipment for $50 per month. By the inducement of paying only nominal rent for office space and equipment, Respondent has engaged in the practice of optometry with Robert's Optical Center, Inc. Respondent does not maintain full and total responsibility and control of all files and records relating to patients. Rather, an optician with Robert's Optical Center provides patients with prescriptions written on the Respondent's prescription forms, and Respondent's patients pay their examination fees to an optician affiliated with Robert's Optical. Respondent charged Lichtenstein $25 for an "eye exam" (Petitioner's Exhibit 3) and charged Pfab $35 for a "contact lens exam" (Petitioner's Exhibit 2b). These examinations were not complete in that a number of the required minimum procedures were omitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent's license to practice optometry be suspended for three (3) months, and upon the conclusion of the suspension Respondent be placed on probation for a period of twelve (12) months under such terms and conditions as required by the Board of Optometry. An administrative fine be imposed upon Respondent in the amount of twenty-five hundred dollars ($2,500) payable to Petitioner within thirty (30) days after the entry of the Petitioner's Final Order. DONE and ORDERED this 4th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987. COPIES FURNISHED: Robert Newell, Jr., Esquire Phillip B. Miller, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Edward Paul Kreiling, Esquire Parkway Professional Building 6151 Miramar Parkway Miramar Florida 33023 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent’s request for an administrative hearing was timely filed or whether equitable tolling applies in this matter.
Findings Of Fact Thumbelina Learning Center Corp. (“TLCC”) has been serving the Miami-Dade County community for over 25 years and has assisted thousands of children attending their daycare facilities. DCF sends all mail to each TLCC daycare to its address of record provided on TLCC’s licensing documentation, 163 Northwest 2nd Avenue, Miami, Florida 33169, “headquarters.” On January 9, 2020, Alexis Stevens (“Stevens”), DCF family services counselor, performed an on-site inspection at Thumbelina. During the inspection, Stevens informed the then director, Ms. Lopez, that Thumbelina was being cited with violations. Afterwards, Thumbelina was provided a copy of the inspection. From the inspection, DCF cited Thumbelina for violating Standard #47- 03: Enforcement - Child Abuse/Neglect Not Reported, a Class I violation. During March 2020, Alexis Tejeda (“Tejeda”), Thumbelina’s owner, decided to temporarily close all the childcare centers due to COVID-19 pandemic regulations to protect the children and employees. On March 20, 2020, Thumbelina notified DCF by email that it was temporarily closing on March 23, 2020, until further notice. Thumbelina did not provide childcare while it was closed. Although headquarters was also closed, some Thumbelina employees worked from home conducting the business of Thumbelina during the closure. Mario Iribarne (“Iribarne”), Thumbelina’s accountant, worked remotely from home paying Thumbelina’s bills, responding to emails daily, and processing the online payroll. DCF issued Thumbelina an Administrative Complaint dated April 1, 2020. The Administrative Complaint charged Thumbelina with the violations from the on-site inspection of January 9, 2020. The Administrative Complaint included instructions to contest the alleged violations and stated: “YOUR REQUEST FOR AN ADMINISTRATIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT BY 5:00, P.M., NO LATER THAN 21 CALENDAR DAYS AFTER YOU RECEIVED THE DEPARTMENT’S ADMINISTRATIVE COMPLAINT.” DCF mailed the Administrative Complaint to Thumbelina’s headquarters by United States Postal Service (“USPS”) with a certified mail return receipt requested green card. The USPS tracking number attached to the Administrative Complaint is “91 7199 9991 7038 1268 4610.” In the beginning of April 2020, Iribarne went to Thumbelina’s headquarters to check the mail. On April 13, 2020, Stevens emailed Migdalia Echevarria (“Echevarria”), Thumbelina’s head director, inquiring whether Thumbelina was open or closed. The following day, Echevarria responded by email that Thumbelina was closed, and she was not aware of the reopening date. On April 23, 2020, Iribarne went to headquarters and retrieved Thumbelina’s mail from the mailbox located outside the building. Included in the mail from the mailbox was a DCF certified letter. The return receipt requested green card had already been removed from the DCF envelop when Iribarne took the letter out of the mailbox. That same day, Iribarne placed the DCF letter on Echevarria’s desk at headquarters. Iribarne also called Echevarria to notify her about the DCF letter. During the call, Iribarne asked her to come into the office the following day. On April 24, 2020, Echevarria went to headquarters and opened the DCF letter. After she read the Administrative Complaint, Echevarria was “very nervous” because she believed the 21-day deadline for filing a response had passed. Echevarria and Tejeda immediately called Naomie Morency (“Morency”), DCF family services counselor supervisor, the same day and informed Morency that they had just received the Administrative Complaint and that they wanted to appeal and respond to the Administrative Complaint. Morency informed Echevarria and Tejeda to follow the instructions on the Administrative Complaint and begin the process. Morency followed up the telephone meeting by emailing Echevarria and Tejeda. The email stated: Thumbelina Learning Center V located at 8380 NW 22nd Ave, Miami FL 33147-4102 received an Administrative Complaint dated April 1, 2020. However, the facility has been closed since 3/23/2020 and is still closed until further notice. The provider wish[es] to appeal $100 fine and the 21 day to appeal has now passed. However, the facility is currently closed until further notice due to Public Health Emergency. Per phone conversation, I informed the Provider to begin the appeal process as stated on the letter and the appeal will be revisited when Public Health Emergency is lifted. After the telephone meeting with DCF, Tejeda started looking for a lawyer to represent Thumbelina regarding the Administrative Complaint. He interviewed three lawyers and retained the current firm. On May 1, 2020, Thumbelina notified DCF by email that the daycare would reopen by May 4, 2020. On May 13, 2020, Thumbelina served DCF with its Motion Requesting the Court to Accept Respondent’s Response and Request for Hearing as Timely Filed, Response to Administrative Complaint Filed by the Florida Department of Children and Families, and Request for Administrative Hearing. On May 29, 2020, DCF issued an Order to Show Cause directing Thumbelina to show cause why the request for hearing should not be dismissed as untimely and whether there was any basis for equitable tolling of the 21-day filing deadline. On or about June 23, 2020, Thumbelina filed Respondent’s Response to Order to Show Cause. On or about July 14, 2020, DCF filed a Notice requesting an administrative hearing at DOAH regarding the timeliness of Respondent’s request. Hearing At hearing, Morency testified that Thumbelina received the Administrative Complaint on April 9, 2020, at 4:11 p.m., because the USPS delivery receipt1 emailed to DCF’s counsel had the same tracking number, “9171 9999 9170 3812 6846 10,” as the Administrative Complaint. She explained the delivery receipt “shows that a delivery was made and the date the delivery was made and where the package was placed.” She also testified that the proof of delivery form indicates that the Administrative Complaint was delivered to either the front desk, reception area, or the mail room. Morency credibly admitted that the delivery receipt does not indicate that Thumbelina received the document. She further explained that her testimony regarding Thumbelina receiving the Administrative Complaint was only based on the delivery receipt exhibit that she was referencing. 1 Pet’r’s Ex. B. Iribarne knowledgeably testified to the mail process for Thumbelina. He admitted that he was the only one who obtained mail from the mailbox; that he went at the beginning of April 2020; and next went on April 23, 2020, when he retrieved the DCF letter out of the mailbox. Iribarne further testified credibly that the DCF letter could not have been delivered to the headquarters front desk or reception area because both were located inside the headquarters that was closed. He also explained that Thumbelina did not have a mail room for delivery, only the mailbox outside the building. Tejada testified that he never signed for the DCF certified letter. He also explained that he thought after the call with Morency that he would be able to pursue an appeal. He started working on the process right away by seeking legal representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's request for a formal hearing is timely under rule 28-106.111(2). DONE AND ENTERED this 27th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JUNE C. MCKINNEY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2021. Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Aaron Feuer, Esquire Department of Children and Families 401 Northwest 2nd Avenue, Suite N1014 Miami, Florida 33128-1740 Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Lucia C. Pineiro, Esquire Lucia C. Pineiro & Associates, P.A. 717 Ponce de Leon Boulevard, Suite 309 Coral Gables, Florida 33134 Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Respondent school teacher is charged by an Amended Administrative Complaint with using a computer assigned to him by the Flagler County School District to access inappropriate Internet sites during the school day. Penalties are sought with regard to the statutory and rule violations charged in the respective six counts, as more specifically set out in the Conclusions of Law.
Findings Of Fact Respondent holds Florida Educator's Certificate 612806, covering the areas of Biology, General Science, and Middle Grades. His license is valid through June 30, 2003. Respondent has a Master of Arts Degree in Secondary Education. At all times material, Respondent taught science classes at the Flagler Palm Coast High School (FPCHS). As of the 1999-2000 School Year, he had taught in the same school and had been an effective, professional educator of the Flagler County School District for more than 12 years. He had received favorable performance evaluations during each of the immediately preceding five years. At all times material, Respondent was employed as a science teacher at FPCHS. Respondent has never, before this case, been subjected to any licensure sanctions. On or about November 24, 1999, Student A.S. received a disciplinary referral from Respondent. Neal McCoppin, FPCHS's Assistant Principal in charge of discipline, noticed that A.S. had received four disciplinary referrals from Respondent over a short period of time and that A.S. had not had any significant disciplinary problems earlier in the year. McCoppin's review of A.S.'s academic record revealed that the disciplinary referrals were a new trend. Upon inquiry from McCoppin, Student A.S. provided information which prompted McCoppin to request that FPCHS's technology coordinator, Barbara Towle, review Respondent's Internet usage. Towle's initial review revealed that Respondent's school-issued computer was being used during classroom time to access inappropriate materials.1/ McCoppin and Towle reported their findings to FPCHS's Principal, Lawrence Hunsinger. Principal Hunsinger told Towle to lock Respondent out of the computer network. Towle did so that day, November 24, 1999. November 24, 1999, was the Wednesday before the Thanksgiving school holiday from November 25, 1999, through November 28, 1999. After returning from the Thanksgiving break on Monday, November 29, 1999, Principal Hunsinger went to Respondent's classroom and asked Respondent to come to his office. In his office, Hunsinger told Respondent that a review of Respondent's Internet usage had turned up access to inappropriate sexually explicit website material. Respondent's only oral response was "could I be fired for this?" On or about November 30, 1999, Hunsinger requested a more thorough investigation by Louise Hurd, the technology coordinator for the Flagler County School District. Hurd was hired by the school district in 1998 to set up its computer network and has been its technology coordinator ever since. She has worked in the field of computers since 1984, as both an instructor and a network administrator. She is certified in Novell, Windows NT, Microsoft Windows, and Exchange 2000, and was accepted, without objection, as an expert in information technology and computer networks. All FPCHS's teachers received computers by the Fall of 1999. According to Hurd's recollection, Respondent's school computer workstation was installed on one of two possible Saturdays in September 1999. Thereafter, it was available in his office. It was capable of interfacing with the school district's whole administration/teacher network and connected to the Internet. It was not capable of being accessed by the student network also established by the district. (See Findings of Fact 65-66.) Respondent's office was located within his classroom. He did not share his office, his classroom, or his computer with any other teacher. He did not travel from classroom to classroom to teach his assigned classes. Respondent's office, where his computer was kept, was walled-off from his classroom. Its door opened into the classroom. It had no windows, so with the door closed, anyone inside could not see out and those outside could not see in. The door usually remained open, but the computer screen faced away from the classroom and could not be seen from the classroom. The office was located behind a long lab table at the front of the classroom, and the long lab table was behind the podium from which Respondent lectured. According to Respondent, he usually sat at the long lab table, stood at the podium, or circulated through the classroom during class time. Students were permitted to enter his office during class time to retrieve lab supplies and books stored on its shelves, unless he were lecturing. There is no competent evidence that any student saw Respondent's computer screen during the time period material to the pending charges. Respondent testified that during all of the time the computer was in his office, he did not lock his office or his classroom, even when he left at the end of a school day or over the weekends. However, he stated that he turned off his computer at the end of each school day, between 2:15 and 2:30 p.m., when he left the campus. Respondent's classroom was Room 107 on the ground floor of Building 220. The classroom had three doors: one to the hall, one to another classroom, and one to the outside. It was the closest first floor room to the teachers' parking lot. This parking lot was used by teachers during the school day but could be used by construction personnel as spaces became available after 2:15 p.m. weekdays. During the whole of the time Respondent had the computer in his office, there was on-going construction involving 26 different subcontractors, who were doing new construction and renovating two buildings. The majority of the classroom renovation work was being completed after school hours, between 3:00 p.m. and 11:00 p.m. Some construction workers began to arrive between 2:30 p.m. and 3:00 p.m. Some of the subcontractors were issued keys to the buildings being renovated, one of which was Respondent's building. Respondent testified, without corroboration, that construction workers sometimes worked in his classroom and office during school days, but he admitted he had never seen a construction worker at his computer. The school custodial crew worked weekdays, 3:00 p.m. to 11:00 p.m. They had keys and assigned work areas throughout the campus, including Respondent's building. The Adult Education Coordinator also had a key to Respondent's building, so that eight to twelve classes of adult education students, each with an adult education teacher, had access to Respondent's building after 4:00 p.m., Mondays through Thursdays. Therefore, Respondent's classroom and office were vulnerable to entry by construction crews, custodians, regular teachers, regular students, adult education teachers, and adult education students, but so was every other classroom in his building. Respondent had no Internet experience before the school district provided him a computer in September 1999. The school district gave him no computer-related training. Respondent's username for the school district network was "McVeighV". Respondent was required to choose his own password the first time he logged on to the school district network. The passwords chosen by teachers were confidential. Hurd did not keep a list and had no way of knowing a teacher's password. If a teacher forgot his or her password, Hurd or one of the school technology coordinators could reset the teacher's computer back to a generic password, and the teacher could then choose another password the next time he or she logged onto the network. All network users were instructed to keep their passwords secret, not to write them down, and not to use a word that was easy to guess, such as their own names or the name of a family member. Hurd threatened users that their machines would be disabled if their password was found posted at their computers. Nonetheless, during a portion of October, and for all of November 1999, Respondent's computer password was his first name, "Vince." When Hurd was asked to investigate Respondent's Internet usage on November 30, 1999, she, in turn, asked the FPCHS technology coordinator to run a report of Internet usage under Respondent's username, "McVeighV", from November 1, 1999 through November 24, 1999, the date Respondent was locked out of the system. The technology coordinator provided Hurd with a spreadsheet entitled "Proxy Server Access Report for McVeighV for 11/1/99 to 11/24/99," hereafter referred to as "the proxy server report." The proxy server report identifies all Internet site addresses, also known as HTML addresses, accessed via the school district network, by network user "McVeighV" and the time and date the site was accessed. (P-3) Each computer on the school district network has a unique local IP address. The proxy server report also identifies each computer address from which "McVeighV" signed in between November 1, 1999, and November 24, 1999, by listing the local IP address number for each entry during that period of time. Hurd and another technology coordinator individually verified that the computer in Respondent's office was assigned local IP address 10.1.2.182. Although local IP addresses can change due to the addition to a network of a new computer workstation, the local IP address for the computer in Respondent's office had not changed between November 1, 1999, and November 30, 1999, because there were no new computers added to the school district network during that time period. Local IP address number 10.1.2.182, Respondent's computer workstation address, is the only local IP address on the proxy server report. This indicates that user "McVeighV" only logged onto the school district network through the computer in Respondent's office. If Respondent or anyone else had logged onto the school network as "McVeighV" from any other computer during the time period examined, a different IP address would have been identified on the proxy server report. Hurd went through all of the HTML addresses on the proxy server report, line by line, and personally accessed any Internet address that appeared to have an inappropriate title. Among these addresses were such suggestive address titles as "sextracker.com," "tour.teeniesex.com," "sexswap.com," "slut- valley.porncity.net," "xxxteenzone.com," "teenteenteen.com" and "pornography4all.com." While other inappropriate addresses on the proxy server report were more subtle and many were innocent, any rational reader could assume that the foregoing sites, and other sites on the proxy server report with similar addresses, would be purveyors or exhibitors of pornography or graphic sexual images. This Finding of Fact explicitly rejects the suggestion of Respondent's expert that sexually explicit addresses may change to an innocent theme and therefore the addresses on the proxy server report may not reflect those sites' content at the time they were viewed. Hurd found that 918 of the approximately 4075 HTML addresses on the proxy server report for "McVeighV" were addresses of Internet sites that were "inappropriate." Some of the sites were repeated more than once. The word "inappropriate" is used herein to indicate sites that contained depictions and/or photographs of nude men or women in sexually suggestive or explicit poses. Some such sites suggested some of the women were minors. At least one site was a live camera feed. Approximately 20 of the 918 sites involved gambling. Hurd printed out selected screens from some of these sites, copies of which were admitted in evidence as Petitioner's Exhibit 6. Hurd also ran a network search of the to determine whether other teachers or administrators had accessed Internet sites with sexually suggestive HTML addresses that included the words "sex," "porn," "sex tracker," and "XXX." She found ten users who had an HTML address history with those search terms. Of those ten users, she found that one of the users had accessed a total of six sites, and the other nine users had hits of four or fewer sexually suggestive addresses. Hurd opined that "Everybody's going to try [to access such sites]." However, in comparison, Respondent's password's and workstation's usage of more than 900 inappropriate hits was enormous. The total usage of the Internet reflected by the proxy server report amounted to much of the whole school network's Internet use for the review period. During the month of November 1999, the school district's Cyber Patrol feature, which was intended to block the majority of sexually explicit sites, had worked some of the time and had not worked some of the time. Hurd also ran a "cookie report" from Respondent's profile. A "cookie" is an HTML text file that is sent back from a website and stored on the receiver's computer. Hurd's cookie report contains several files with sexually suggestive titles, such as "counter.sextracker," "sexhound[1]," and "xxxcounter[3]." Her cookie report, run December 1, 1999, began September 13, 1999 and ended November 5, 1999. (P-2) Respondent was shown the proxy server report on December 1, 1999. He wrote a December 2, 1999, letter, claiming, in part, I did not knowingly enter these [pornographic Internet] sites as demonstrated by the time spent at them. The time spans range from less than one second to seven seconds at any one site as shown on the proxy sheet. As these sites came up on the screen I immediately attempted to exit. I never paid any money to enter these sites and browse. There is no evidence whatsoever that Respondent ever paid any money to browse inappropriate Internet sites. Respondent submitted a letter of resignation on December 14, 1999, effective January 12, 2000. At hearing, Respondent denied ever intentionally accessing inappropriate sites, but admitted that if he had intentionally done so, that would constitute immoral behavior. There is no evidence that the circumstances of Respondent's resignation were printed in the newspaper or otherwise became known to students or parents. At hearing, Respondent claimed that during Period Two, his 1999 planning period, he usually worked at the lab table and that he rarely went into his office during class time. He testified that he rarely used the computer except in spare moments during class or between classes to check e-mail or Internet sites, such as MSN, for news, weather, or stock activity, and that he usually did this checking by way of a "refresh" button. Respondent's testimony suggested the theory that someone got his password and accessed unwholesome sites from his computer because some accesses occurred after the end of the school day or on weekends, when Respondent claimed not to have been in school. The proxy server report does not report any activity for "McVeighV" or Respondent's workstation on weekends in November 1999 or after 4:18 p.m. on weekdays in November 1999. The proxy server report does show that many inappropriate addresses were accessed at 2:15 p.m. or later on school days. However, it also shows that there usually was frequent and intermittent computer use throughout entire school days; that inappropriate addresses were accessed in each class period or breaks between classes on one or more days; and that many inappropriate addresses were accessed during Respondent's planning period, Period Two. The proxy server report shows activity on Respondent's computer for large portions of class periods and breaks between classes during November 1999. Based on the addresses recovered in the proxy server report, some of this activity during the school day was relatively innocent non-school activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It is not credible or worthy of belief that some unseen stranger entered Respondent's office, through his classroom, while he was in the classroom teaching or working at the lab table, and that stranger then spent variable amounts of time, ranging from a few minutes to more than an hour, accessing non-education-related sites, interspersed with accessing the administrator/teacher network, and then somehow exited the office and classroom without being seen. Students making quick trips into the office to retrieve lab and art supplies during classes would not account for this pattern of use. Construction workers who never sat at the computer during the school day would not account for this pattern of use. Petitioner correctly points out that during November 1999, considerable computer activity also occurred after the end of his last class at 2:15 p.m. However, much of this activity began within two to eight minutes of 2:15 p.m., possibly before one could physically exit the classroom, and ended within an hour. Where it was essentially continuous, it never lasted beyond 4:18 p.m. Even with an early dismissal on November 17, 1999, the after-2:15 p.m. pattern did not materially change. Based on the addresses recovered in the proxy server report, some of this activity was innocent non- educational activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It strains credulity to believe that someone entered Respondent's classroom and office within minutes of the end of class, while Respondent possibly was still in the classroom, and certainly while other teachers were still in the building, and spent up to an hour and a half on Respondent's computer, accessing non-work-related sites, occasionally interspersed with accessing the administrator/teacher network. Respondent's testimony also suggested the theory that cookies or pop-up ads controlled his machine so that whenever he pressed "refresh", his machine was invaded by successive unwholesome pop-up ads and this is why successive sites were accessed in very short periods of time during the school day. This theory assumes that because many accesses were of extremely short duration (less than a second or for a few seconds each), the proxy server report only recorded pop-ups or "page-jacking," which Petitioner testified he deleted as rapidly as he became aware of them. "Page-jacking" is a computer phenomenon which occurs commonly with sexually explicit websites, whereby access to one such site, intended or not, triggers a series of pop-up screens, usually of a similar nature, which can be difficult or impossible to escape without turning off the computer. Respondent testified that on three occasions inappropriate website materials appeared on his computer screen; that he never intentionally acted to cause such materials to appear; and that in each instance of inadvertent access, he promptly made efforts to remove the offensive material, ultimately turning off the computer to end each of these episodes. Respondent further testified that one icon (or thumbnail), "Orgy Boys," just appeared on his computer screen one day, and that for several days, he could not remove it; he denied that he ever entered the "Orgy Boys" site; and that from a dozen to fifteen objectionable sites appeared on his computer screen during the month of October, but that no objectionable site had ever appeared on his screen during the month of November. He indicated he personally deleted the "Orgy Boys" icon in late October, after trial and error. He attempted to explain his failure to mention the "Orgy Boys" site in his December 2, 1999, letter as being because he did not think it significant. Hurd's cookie report, ending November 5, 1999, shows some weekend activity on Saturdays September 18, 1999, October 2, 1999, and October 16, 1999. Some of its addresses/cookies appear to be inappropriate. It does not show a cookie for "Orgy Boys." Respondent's witness, Stuart Vernon, accepted as an expert in Internet network security, network administration, and Internet programming, suggested that Hurd's cookie report was inconclusive and did not rule out the theory that cookies had accessed the inappropriate sites on the proxy server report which spanned November 1, 1999, through November 24, 1999, because the cookie server report ended November 5, 1999. Mr. Vernon felt it would have been better to continue running the cookie report after Respondent was locked out of the system, to see if the illicit hits under "McVeighV" continued in Respondent's absence. However, this criticism is not valid in light of Hurd's explanation that because cookies were filling up the school computers' hard drives, the school district disabled cookies and temporary Internet files from all its network's profiles in late October 1999. That explanation would seem to at least eliminate the possibility that Respondent's computer started out as a victim of sexually salacious cookies on November 5, 1999, and further suggests that cookies could not have caused the multiple inappropriate accesses from Respondent's machine from November 5, 1999 through November 24, 1999. However, I have carefully considered the testimony of both Hurd and Vernon and analyzed the proxy server report of 4075+/- entries against that testimony. As a result, I accept that in November of 1999, some of the repeated addresses with an "ad" or "doubleclick" prefix were, indeed, pop-up ads, and that a rapid series (within one minute) of addresses with a "www." prefix may have constituted an overlay of several ads. However, this is not persuasive that every such series of addresses or that every inappropriate address on the proxy server report was an ad, constituted "page-jacking," arose from an unintentional initial access, or arose without Respondent being present in his office. Admittedly, Hurd found examples of page-jacking on the proxy server report. However, this does not necessarily demonstrate that Respondent unintentionally accessed the inappropriate Internet sites. Legitimate websites, such as MSN, will not "page-jack" the user to a pornographic Internet site. Both Vernon and Hurd concur that if one inadvertently reaches an undesired site by a typographical or other error, turning off the computer will usually eliminate the problem. According to Vernon, incessant page-jacking could continue all day and night, but Respondent testified that he turned his machine off when he left his classroom at the end of the day and it still might have an inappropriate site when he first turned it on the next morning. The proxy server report identifies after-school use. It does not identify any Internet activity in the evenings or on weekends in November. The proxy server report does not show unacceptable sites appearing with the first use each morning. The proxy server report also shows repeated instances of the user logging off and then back onto the network and then accessing a sexually explicit address. It is noted, in this regard, that according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 23, 1999, from 9:02 a.m. until at least 12:49:04 p.m., with possibly two one hour breaks, depending upon whether these pauses in activity show inactivity or merely show the computer staying at a single site for a long period of time. The proxy server report for that day also shows that surfing was continuous from 2:22 p.m. to 4:18 p.m., although Respondent claimed to have left his office by 2:15 p.m.2/ Many of the HTML addresses for those periods of time match the addresses given above in Finding of Fact 34. Also according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 24, 1999, the day that Respondent sent A.S. to McCoppin's office and before Respondent was locked out of the computer system. This period of surfing was from 9:52 a.m. to 11:43 a.m. Some of these addresses are merely questionable. The foregoing shows frequent, and often lengthy, periods of computer use during class time. The proxy server report demonstrates that Respondent's screen did exhibit inappropriate sites in the month of November 1999. Respondent's suggestion that cookies or page-jacking could have been invisible on his screen was rebutted by Hurd's credible testimony that any open webpage or cookie would show up somewhere on the screen or on the row of icons below the main screen at any time the computer was operating, regardless of whether something else (like Respondent's legitimate work or another ad or pop-up) occupied the main screen. Respondent also testified that in late October 1999, he reported to Assistant Principal Lynn Hartley and School Technology Advisor Barbara Towle the problems he had allegedly encountered earlier that month with unwanted site access, particularly with the "Orgy Boys" icon, and that neither administrator expressed significant concern or took any affirmative steps to remove the information or determine its source. Respondent's testimony on this score was not corroborated by Hartley, who testified, nor by Towle, who did not testify. Hartley's recollection of their conversation was that Respondent had only complained when, on Hunsinger's orders, he had been locked out of the network system in late November 1999. At that time, Hartley did refer Respondent to Towle. Hartley had no recollection of Respondent or any other teacher ever complaining about pornographic sites invading their computers or monitor screens. No school district witness had ever had a problem with unwanted inappropriate sites invading his or her computer and none had received a complaint concerning pornographic sites from any teacher or administrator, including Respondent and others who had accessed inappropriate sites. (See Finding of Fact 36.) Vernon, Respondent's expert, contended that several things could have happened to make Respondent look guilty of accessing inappropriate sites on his school-provided computer: that cookies could have taken over his machine and driven it to those websites; that a virus sent via e-mail or a "bot" infected Respondent's computer so that it looked as though he were deliberately viewing inappropriate sites, when in fact his viewing them had been inadvertent; that his computer workstation was accessed by someone who entered his office and somehow figured out his password; that he was "spoofed," that is, someone on another computer in the network made it look as if the inappropriate activity were coming from Respondent's workstation instead of from the spoofer's workstation; or that Respondent's computer was "page-jacked." However, Respondent offered no affirmative proof that any of these conjectured scenarios had occurred, except to testify that he had sometimes seen contractors in his room or office before 2:15 p.m. (See Finding of Fact 20.) According to Vernon, the proxy server report and other evidence is insufficient to determine whether Respondent was the person intentionally accessing sexually explicit Internet sites. In his view, it would have been better for Hurd to have continued to run the proxy server report after Respondent resigned, to see if the inappropriate Internet activity continued from his computer. The undersigned concurs that such a method would have been better, but not using that method does not render non-probative the method Hurd used. Neither does a MAC search seem necessary, although one might have been helpful. Also, according to Vernon, the only surefire way to determine if Respondent were intentionally accessing sexually explicit Internet sites, without scanning for a remote virus ahead of time, would be to see his computer monitor screen at the precise moment that Respondent accessed an inappropriate site. Vernon's desire for absolute certainty is commendable, but even he concedes that the conjectures of Finding of Fact 60 would not be the most likely causes of the Internet activity verified by the proxy server report. Hurd's explanation is credible that the proxy server report results which point to Respondent cannot be explained away by a computer virus or other "hacking" activity such as a remote device or IP spoofing. At some point in 1999, hacking was discovered to have breached the student network to the extent that some students downloaded a list of student names, but no similar breach of the teacher/administrator network ever occurred. Likewise, this hacking incident involved downloading only, with no ability to install, or successful installation of, a program. Also, sometime during 1999, the Red Code virus affected all the school district computers, but that was a world-wide virus and is immaterial for purposes of this case. Hurd personally scanned Respondent's computer and all network servers for any virus. A remote device virus would require the installation of a program on the school district network. However, at the material time, only local network administrators could install programs on the network, and the school district network had anti-virus software. It is not worthy of belief that Respondent's machine would be the only school computer the existing anti-virus software did not protect against a "porno virus," or that a computer hacker downloaded or purchased software directed only to Respondent's machine among all the others. Likewise, other remote access conjectures do not exculpate Respondent. As described in Findings of Fact 31-33, all the "McVeighV" accesses came from Respondent's IP address in his office, not from any other IP address/workstation. Even if Respondent's testimony at hearing as to how others might have guessed his password could exonerate him from after-school use, that factor is not material because it requires further belief in the absurd scenario that sometimes, while Respondent was actually speaking from the podium or working at the lab table in front of his office door, someone entered his office and surfed the Internet for extended periods of time. An e-mail can contain a link (e-mail address in blue) to a pornographic website. However, typically, that link will require that the user click on the link, which will contain the name of the Internet address to be accessed. This would require affirmative action. However, Respondent denied that he had ever received an e-mail which took him directly or indirectly to a pornographic website. Therefore, the issue of an e-mail link to a pornographic site is irrelevant. Even accepting Respondent's testimony that he had opened e-mail attachments and that attachments can contain a virus, Hurd searched Respondent's computer's hard drive and still found no virus to account for the inappropriate addresses. Giving Respondent the benefit of the doubt, it simply is not logical or reasonable that he would be the innocent victim of 900+ inadvertent or malevolently aimed pornographic sites during a 24-day period. It also is not credible that he alone should have had a problem of this magnitude in comparison to all other users on the system. Therefore, despite Respondent's denial, it has been proven that Respondent was the user who accessed all of the inappropriate material, some inadvertently and some deliberately, and who logged the excessive time on the computer during class time, even though some of that excessive class time was not devoted to inappropriate material. Teachers at FPCHS are expected to remain in the classroom at all times that students are present, to supervise and instruct. Failure to remain in the classroom has liability implications for the school district if a student should be injured. Also, when the teacher is absent from the classroom for extended periods of time, it is clear that he is not providing education to his or her students. It is not a reasonable hypothesis that Respondent's frequent address accesses in the month of November 1999 could possibly be sufficiently job-related so as to render the excessive class time he devoted to his computer valuable to his students' education. The excessive time he spent on the computer during classes detracted from time he should have devoted to lecturing or lab work with his students. His absence from the classroom to this degree could have created liability problems for the school district if a student had been injured, but apparently no student was injured. There was a potential for harm to students if any students had seen inappropriate materials on Respondent's computer screen. However, there is no clear and convincing evidence that any student ever observed any inappropriate website materials. In his deposition (P-12) Respondent testified that he had been successfully employed as a science teacher at a private Catholic School in another county from the effective date of his public school resignation, January 12, 2000, until late 2001, but that he had been "let go" due to calls to that school's principal by the Flagler County School District about this case. Respondent has been married for 25 years and has two sons who live at home with him and his wife. He is active in his church's Knights of Columbus. He is currently active in the local Chamber of Commerce as the owner of his own successful pool service business.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order which: Dismisses Counts I, II, IV, and V of the Amended Administrative Complaint; Finds Respondent guilty of Counts III and VI of the Amended Administrative Complaint; and Suspends Respondent's license for three years, subject to re-application thereafter. DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2003.
