The Issue Whether Respondent is guilty of an unlawful employment practice by failure to promote Petitioner on February 9, 2005, due to discrimination against his handicap.
Findings Of Fact On March 11, 2005, Petitioner filed a Charge of Discrimination dated March 1, 2005, with FCHR. This Charge alleged only disability discrimination through Respondent's failure to promote Petitioner on or about February 9, 2005. It makes no mention of any discriminatory acts or omissions by Respondent Employer preceding interviews on January 26, 2005. After an August 22, 2005, Determination: No Cause by FCHR, Petitioner timely filed a Petition for Relief on September 16, 2005. In addition to alleging discrimination due to a failure to promote on February 9, 2005, the Petition for Relief alleged for the first time that: Petitioner requires a 19-inch monitor to perform his duties. Despite repeatedly requesting such a monitor, the Petitioner did not timely receive a monitor. In fact, it was not until the Petitioner filed a previous Complaint with the FCHR that he received the appropriate monitor. This was years after his initial request. The parties orally stipulated that Petitioner is "legally blind," and that Petitioner was a qualified candidate for the promotion interviewed for on January 26, 2005, which position was awarded to a non-disabled person on February 9, 2005. Petitioner's condition constitutes a "handicap" as contemplated by Chapter 760, Florida Statutes. Petitioner has been employed for 21 years by Respondent, Department of Children and Family Services (DCF). At all times material, his worksite has been the North Florida Evaluation and Treatment Center (NFETC) in Gainesville, Florida. This facility houses accused persons who are incompetent to proceed to a criminal trial and those found not guilty in a court of law by reason of insanity. At the time of his application for the promotion at issue, Petitioner was a "T.R. Senior Supervisor I." He has been at that grade level for 19 years, and by all accounts is rated an excellent, long-term employee. His position involves supervision of five officers and twenty inmates. Petitioner's handicap makes it difficult for him to read and difficult for him to use a computer. To fulfill all the requirements of his current position and the promotional position at issue, he requires software for his computer which is called "Zoom Tech." Without this accommodation, he cannot read necessary information on a computer screen. Petitioner became aware and informed of the Zoom Tech software, which requires a 19-inch monitor, through the Division of Blind Services (DBS), in December 1998. Petitioner repeatedly requested that Respondent Employer provide him with the Zoom Tech software and a 19-inch monitor. Respondent never provided the Zoom Tech software as an accommodation for Petitioner's handicap, so DBS provided Zoom Tech software to Petitioner both at home and at DCF in late 1998 or January 1999. However, Respondent Employer refused to load the software onto Petitioner's computer at work. In April of 1999, Madeline Davidson of DBS met with Petitioner and Respondent's representatives regarding having the Zoom Tech software loaded onto Petitioner's computer at work. One of Respondent's technicians informed Petitioner and Ms. Davidson that the Zoom Tech software could not be loaded onto Petitioner's work computer until June of 1999. Ms. Davidson offered to have a DBS software technician install the Zoom Tech software on the work computer. Respondent maintained that only its own technicians were permitted to work on its computers. Respondent did not install the Zoom Tech software on Petitioner's computer at work until August 1999, a delay of eight months. Prior to receiving the Zoom Tech software in August 1999, Petitioner was unable to use his DCF computer, was not able to complete work on a timely basis, and had to rely on other supervisors and subordinate staff members to assist him in keeping up-to-date on issues that needed his attention. With the Zoom Tech software, he is able to fully perform all aspects of his job description. Petitioner's request for installation of the Zoom Tech software provided by DBS was a request for a reasonable accommodation of his visual handicap. Respondent's delay of eight months in installing it was unreasonable. Petitioner testified that he could not use the Zoom Tech software on his 17-inch monitor and that Respondent did not provide him with a 19-inch monitor at work until 2005, after Petitioner had filed a charge of discrimination prior to the current charge of discrimination at issue in this cause. However, because Petitioner has an excellent work history predating 2005; because Petitioner interviewed for the promotion at issue in the instant cause on January 26, 2005; because the cause at issue herein (promotion) arose when someone else was promoted in place of Petitioner on February 9, 2005; because the current charge of discrimination underlying the instant cause was filed March 11, 2005; and because of the chronology related by Petitioner of promotional interviews in 2003 and 2004 (see Finding of Fact 20); and because of Petitioner's description of problems with his 19-inch monitor (see Findings of Fact 16-19), it appears that Petitioner was probably mistaken about the year he received the 19-inch monitor from Respondent, and it further appears that he first received a 19-inch monitor from Respondent sometime prior to 2005. Also, because Petitioner testified that after he filed a prior charge of discrimination, his computer failed completely and Ron Leslie, NFETC'S new assistant administrator, got him a new computer and the 19-inch monitor, it is not clear whether Respondent provided the 19-inch monitor as part of a settlement of the prior charge of discrimination or for another reason. Therefore, although Petitioner requested the 19-inch monitor as a reasonable accommodation of Petitioner's handicap and Respondent unreasonably delayed providing the reasonable accommodation, it appears Petitioner was provided with the requested accommodation before the current promotion issue arose, and that DCF’s failure to timely provide the 19-inch monitor was at least included within a prior charge of discrimination. Petitioner also testified that after receiving the 19- inch monitor, Respondent periodically got computer upgrades or other changes which interfered with the Zoom Tech software on Petitioner's DCF computer. During these periods, Petitioner experienced delays in having the Zoom Tech software re- installed. This testimony simultaneously suggests that Petitioner had a 19-inch monitor for some period of time before 2005, instead of not getting one until 2005, and that during the intermittent periods of time after 1999 when Petitioner did not have the necessary software, he was intermittently unable to use his work computer or perform some functions of his job. On one such occasion, Petitioner had to go to a supervisor above his direct supervisor in the normal chain of command because both his computer and its Zoom Tech software had been removed from his desk while he had been on vacation. At that point, Petitioner's immediate supervisor had not solved Petitioner's computer problems for 18 days. Within one work-day of his report to the senior supervisor, the senior supervisor, Denny Guest, had Petitioner's software, computer, and monitor squared-away. Again, there is no clear time line of when this event occurred, but it surely occurred before the promotion interviews January 26, 2005, and the evidence as a whole shows that Petitioner had a suitable monitor before 2005. It also shows that on that particular occasion, which Petitioner felt was particularly egregious, Petitioner was without reasonable accommodation for his handicap for only 21 days. During those times when Petitioner did not have access to the necessary software, he was unable to perform certain work. In addition, other NFETC employees were able to use their computers at those times that Petitioner was not able to use his. Petitioner believed this situation hindered his ability to be promoted. In 2003 and 2004, Petitioner interviewed for several promotions. He was not selected for any of them. Thereafter, Petitioner scheduled a meeting with Ron Leslie to determine what Petitioner could do to enhance his chances of getting a promotion in the future. Madeline Davidson attended the meeting at Petitioner's request. During that meeting, Mr. Leslie suggested that Petitioner work more with the computer and join groups and committees to work out problems as other staff members did. Mr. Leslie told Petitioner and Ms. Davidson that if Petitioner were promoted, he would be required to make presentations, and as a result of Petitioner's handicap, Mr. Leslie questioned whether Petitioner could do that. Petitioner and Ms. Davidson informed Mr. Leslie that his perception was incorrect and that Petitioner was, in fact, capable of making such presentations using boards and his new visual aids. In response to this meeting, Petitioner joined the EEOC Committee and attended its day-time meetings, even though he was on the night shift. In January of 2005, Petitioner applied for a Supervisor II position. Specifically, he applied for the Building 10 Night Shift Building Manager position, classified as "Unit T/R Senior Supervisor II – F/C - SES." NFETC management appointed a three-person selection committee to interview qualified candidates for the promotional slot. John Almeida, Ronald Chisolm, and George McClain served on the selection committee. Petitioner was one of seven qualified candidates interviewed by the selection committee. The interview included written and oral questions.2/ Prior to the interviews, Ronald Chisolm was told by Ron Leslie that Petitioner's eyesight "might be an issue;" that Mr. Leslie wanted to be fair; and that Mr. Leslie did not want any complaints about unfairness. After a lot of discussion of how it was to be accomplished, Petitioner was offered the use of his own computer and special monitor to read the written part of the interview and to type his responses. However, Petitioner elected to have the selection committee read him the questions and transcribe his answers. Mr. Chisolm had concerns that the oral reading and transcription of oral answers method, which Petitioner had selected, might give Petitioner a greater chance of success than the other candidates, because Mr. Chisolm perceived the situation as giving Petitioner two "verbal" (oral) tests instead of one oral and one written test like all the other candidates. At the suggestion of the Employer’s Human Resources Office, Mr. Chisolm drafted a statement for Petitioner to sign, acknowledging that the foregoing procedure was Petitioner's choice. In fact, the typed statement Petitioner signed, and which was witnessed by the three interviewers, only acknowledges that the questions were read to him at the specific date and time named. Petitioner testified that the interview team had told him that he could not take the written questions out of the interview room and that Zoom Tech could not be placed on the computer in the testing area; this may have been a misunderstanding on Petitioner's part. Mr. Almeida testified credibly that he could put any font or the Zoom Tech software on any computer. Mr. Almeida and Mr. Chisolm both testified credibly that such an offer had been made to Petitioner and that Petitioner's choice of transcription had been of Petitioner’s free choice, signified by his signing the described statement. The undersigned did not get the sense that Petitioner was coerced or that he involuntarily agreed to have the written questions read to him or transcribed for him. Respondent entered into evidence the entire selection package comprised of eight exhibits detailing the scoring of each individual candidate, as well as the final calculations of the composite of all the interview scores. The numeric results of the interviews were compiled by the three-member selection committee and forwarded to a three member management team in NFETC's Operations Department for a final decision on whom to promote. The highest candidate score was that of Watson Louidor at 50.50. Petitioner scored second at 46.10. The other five candidates scored in a lower range between 44.96 and 29.45. The verbal (oral) part was worth 25 percent of the score. The written part was 50 percent of the score. Time and attendance counted for 15 percent of the score. Prior disciplinary actions were 10 percent of the score. Petitioner and the highest scoring candidate had very close scores, but it was the disparity in the written portion of the interview which the sighted higher scoring candidate wrote for himself and which Petitioner had written for him by Mr. Almeida which was most significant: PETITIONER LOUIDOR Verbal (25%) 7.165 6.750 Written (50%) 35.330 40.000 Time and Attendance (15%) 2.250 2.250 Disciplinary (10%) Action 1.300 1.500 46.100 50.500 However, Petitioner has not claimed that he had too little time to correctly answer or too little time to complete the written interview, and Petitioner has not suggested that his oral answers on the written questions were not correctly transcribed for him. The three-member Operations Department management team selected the top-scoring candidate, Mr. Louidor, for the promotion. Mr. Louidor had worked at NFETC less time than Petitioner. Petitioner felt he, not Mr. Louidor, was the most qualified candidate, due to Petitioner’s much longer experience working at NFETC and because of post-interview conversations Petitioner had with Mr. Almeida and Jennifer Granto. For these reasons, Petitioner believed he had been discriminated against because of his handicap. Petitioner testified that after his interview, Mr. Almeida, the member of the interview team who had transcribed his oral answers, told Petitioner that he had been the highest scorer on the interview portion and that Petitioner would get the promotion. Petitioner further testified that Ms. Granto, a member of the three-member management team which made the final promotion decision, had led Petitioner to believe that although he was not the highest scorer, as the second highest scorer, Petitioner would get the promotion if the highest scorer did not accept the promotion, which was likely. Ms. Granto and Mr. Almeida acknowledged that they had each had a conversation about the interviews with Petitioner, but each stated that Petitioner had misunderstood their encouragement for his good score and good interview, as a promise of the promotion. Mr. Almeida testified credibly that when he discussed the interview process with Petitioner, it was in general terms only; he never referred to the scoring process and final scores of the candidates; and he was certain that he had never told Petitioner that Petitioner was the top-scoring candidate. Ms. Granto testified that Petitioner was considered to be a good employee and had clearly made progress in his presentation of himself in interviews for promotions. Petitioner and Ms. Granto both testified that she had encouraged Petitioner in the past to show more initiative and that in response to suggestions by Ms. Granto and others, Petitioner had elected to join the EEOC Committee. (See Findings of Fact 21- 22). Ms. Granto also testified that she and the other two management team members had felt that Petitioner's EEOC Committee membership was a step in the right direction towards a promotion for him. Ms. Granto further testified that the management team's final selection for promotion had been based on the candidates' respective interview scores, plus the management team's personal knowledge of the top-scoring candidate, Mr. Louidor. In some prior situations, management had promoted a lower-scoring candidate over a higher-scoring candidate, but in this instance, they viewed the top-scoring candidate, Mr. Louidor, as being energetic, positive, possessing initiative, and having new ideas that he had been regularly bringing to the attention of his supervisors for the last year, so that selecting him for the promotion was an easy choice. Regarding Petitioner, Ms. Granto testified that she and the other management team members felt that Petitioner performed his job well but he had not presented as positive an interview as did the top-scoring candidate, and they felt that the top-scoring candidate would bring more energy to the promotional position. They felt Petitioner's weak spot was his lack of initiative above and beyond his basic job description.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charge of Discrimination and Petition for Relief be dismissed. DONE AND ENTERED this 18th day of May, 2006, in Tallahassee, Leon County, Florida. S 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 18th day of May, 2006.
The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
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 committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995. On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school. Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE." At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland. During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows: Q. Okay. And what was your major course of study while you were attending the University of Maryland? A. Civil engineering. Q. And did you obtain a degree? A. No, I did not. Q. What years did you attend the University of Maryland? A. I attended the University of Maryland between 1976 and 1979. Q. All right. Whay did you leave school without a degree; was there any particular reason why? A. No particular reason. * * * Q. Okay. What year did you leave the University of Maryland? A. In 1979. * * * Q. Okay. How many credit hours did you accumulate prior to leaving college? A. I don't recall what the final number really was. Q. How many was [sic] required for graduation? A. Because I never graduated, I don't really recall what was required. * * * Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year? A. It was in my sophomore year. Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as follows: While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control. When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach. My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree. In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it. Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional information please do not hesitate to contact me, directly.4 Item 4 of the application form required that the Respondent provide the following: Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map. Item 5 of the application form required that the Respondent provide a sworn affidavit including the following: The name and address of the applicant. Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards. Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards. A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping. In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as: Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.]; Florida Board of Regents [FL Inter. Univ., University Park Campus]; Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model]; Florida Board of Regents [FL. Inter. Univ., North Miami Campus]; City of Coral Gables, FL. Public Works Dept. [City-Wide GIS]; Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project]. With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6 At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above. The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006.
The Issue Whether the Respondent is guilty of an unlawful employment practice against Petitioner on the basis of handicap.
Findings Of Fact On July 17, 2003, Petitioner filed with the Commission a Charge of Discrimination, in which she complained only that Respondent University of Florida (Respondent or UF) discriminated multiple times by not hiring her on the basis of handicap (dyslexia). The last date of this alleged failure to hire was stated in the Charge as June 8, 2003. The Charge had been typed and signed on July 17, 2003. The Charge contained no allegation that Respondent had terminated Petitioner due to discrimination. On October 27, 2003, the Commission entered its "Determination: No Cause." By its "Notice of Determination: No Cause" of the same date, the Commission notified Petitioner that she had 35 days in which to file her Petition for Relief. The thirty-fifth day after the Determination: No Cause fell on Monday, December 1, 2003. According to the Commission's date stamp, Petitioner filed her Petition with the Commission on December 3, 2003. Petitioner became employed by CCR-Head Start in September 2003. On her job application to CCR-Head Start, she did not list Respondent as a prior employer. The late Petition for Relief alleged, for the first time, that UF had jeopardized Petitioner's education and career opportunities in her job with CCR-Head Start, by character defamation against her and/or due to information that UF had not disclosed. Petitioner explained at hearing that this new allegation was intended to allege that UF had not provided course grades, CLAST results, and other general testing scores, and that UF had not provided a grade point average to Petitioner upon her request. (See Findings of Fact 21, and 23-25.) Again, the Petition contained no allegation that Respondent had terminated Petitioner due to handicap or for any other discriminatory reason. 1/ The late Petition for Relief further newly alleged that Petitioner's current employer, CCR-Head Start, had denied her a high-back chair, computer, desk, and business cards and was seeking ways to terminate her. This allegation against her current employer is totally extra-jurisdictional to these proceedings against Respondent UF. At hearing, Petitioner extended her allegations to include that UF has prevented her being hired for numerous advertised positions inside and outside UF, spread over three counties from 1999 to the date of hearing. At hearing, Petitioner also presented her view that in 1998-1999, while she was employed in UF's Horticultural Services Department, she was "persecuted" or "harassed" by her supervisor, Carolyn Reynolds, and other UF employees, due to cognitive comprehension problems, which she has self-diagnosed by unilateral computer research as "dyslexia." However, in addition to never having told anyone at UF that she is dyslexic, Petitioner testified that she also has never been professionally diagnosed as dyslexic.2/ Petitioner graduated from high school prior to her employment with Respondent and began taking some college courses at Santa Fe Community College. When Petitioner was first hired by Respondent in 1996, she scored 57 on a typing test, well above the passing score of 35. On May 2, 2003, Petitioner achieved an AA degree from Central Florida Community College. Petitioner achieved this degree after she ceased to be employed by Respondent in 1999. Petitioner was first employed with Respondent UF from 1997 to 1998 as a clerk in a medical area. In July 1997, she received a raise in salary. The single performance evaluation in evidence, which occurred during this period of time, shows improvement and rated her as satisfactory. In 1998-1999, Petitioner was employed by Respondent UF in the Horticultural Sciences Department. She held a secretarial position involving preparing, typing, and processing travel request and reimbursement forms, handling room and vehicle reservations, and typing correspondence for several professors. Ms. Reynolds was Petitioner's immediate supervisor. Despite graduating from high school and eventually junior college, Petitioner claims to have had "cognitive comprehension problems," especially with sequencing tasks and with mathematics, throughout her whole life. Petitioner also claims that while employed in UF’s Horticultural Services Department, these problems required her to repeatedly ask her supervisor to repeat all instructions and to write out some instructions so that she could refer to them. She also claims she had to ask co-employees to interpret or rewrite her supervisor's instructions and to interpret and/or rewrite the written material her professors gave her to type. (See also Finding of Fact 18.) Petitioner never told anyone associated with UF in 1998-1999 that she was dyslexic or that she had "cognitive comprehension problems," and she had no reason to believe that anyone else told UF personnel that she was dyslexic.3/ Petitioner perceived her requests for help in the Horticultural Services Department as alerting UF personnel to her "condition." She perceived their compliance with her requests as persecution and/or harassment. Yet, all the specific instances Petitioner described were of Ms. Reynolds and co-workers complying with her requests to repeat oral and written instructions. The co-workers who testified described Petitioner's requests as normal, or at least commonplace, because they understood that no one learns how to do everything at once and everyone sometimes needs help.4/ Petitioner demonstrated no disability in general life activities, such as walking, talking, or seeing. At most, she testified to having difficulty with mathematics and limited or categorical employment activities involving sequencing tasks. Petitioner assumed that her professors, supervisor, and co-workers in the Horticultural Services Department knew that she was dyslexic because the supervisor and co-workers had worked with her and accommodated her requests for help; because the professors let Ms. Reynolds evaluate her; and because of part of a conversation she overheard. (See Findings of Fact 14 and 17-18). Petitioner came upon Ms. Reynolds and a co-employee, Tami Spurling, talking. When Petitioner entered the room, Ms. Reynolds was saying to Ms. Spurling, "Do I have to write everything down for you? Are you ADHA too?" Then Ms. Reynolds and Ms. Spurling stopped talking. Petitioner never confronted either woman about what Ms. Reynolds had meant. Rather, she unilaterally inferred that the women stopped talking because they were talking about her. Petitioner also unilaterally inferred from Ms. Reynolds' comment about ADHA that both women knew or perceived Petitioner as dyslexic, or that Petitioner had some other type of learning disability, or that Petitioner had cognitive comprehension problems, whatever those might be. Petitioner's interpretation of this conversation is speculative and not a reasonable interpretation of the event.5/ Petitioner believes that her professors in the Horticultural Services Department in 1998-1999 discriminated against her on the basis of handicap because they did not give her typing assignments as they did other secretaries and because they allowed Ms. Reynolds to evaluate Petitioner’s job performance instead of evaluating her themselves. At hearing, Petitioner claimed for the first time that she was retaliated against because Ms. Reynolds forced her to resign in May 1999, (see Finding of Fact 19), because of her February 9, 1999, memo to Ms. Reynolds complaining that the professors were not giving her major typing assignments. Petitioner’s memo was admitted in evidence. However, Petitioner presented no evidence that any other secretary got more or better typing assignments than she did; that anyone else in her position was evaluated by the professors instead of by Ms. Reynolds; that the professors ever knew about her memo to Ms. Reynolds; or that Ms. Reynolds ever gave Petitioner a bad or unfair evaluation. Petitioner testified that sometime in 1999, she became depressed from a combination of the work place "harassment," as she perceived it; the loss of her stepfather; and the loss of her pastor. Apparently, she was absent from work for awhile after February 1999. She testified that when she returned to work, she presented Ms. Reynolds with a doctor's excuse for home rest for two weeks, and Ms. Reynolds then berated her for an hour and a half and gave her an ultimatum to quit or be fired. Petitioner stated first that she resigned because of this alleged "ultimatum" and then testified that she resigned because she was depressed and confused from the medicine she was taking. However, Petitioner's doctor's note was not offered in evidence, and her self-serving testimony was not corroborated. Petitioner's May 27, 1999, resignation letter to Ms. Reynolds states that Petitioner's last day would be June 8, 1999, and gives no reason for quitting. It does not bespeak of coercion. Petitioner further testified that Ms. Reynolds prepared a letter for the UF Personnel Office to get permission to rehire Petitioner in less than 100 days, contrary to a UF rule. Petitioner put in evidence a memo from a different supervisor, Lynn Jernigan, showing that UF employed Petitioner on OPS at UF's Department of Physical Therapy until August 5, 1999, and at that time, Petitioner refused Ms. Jernigan’s request to keep Petitioner’s name in the job hiring pool (P-13). Petitioner additionally put in evidence an exhibit that included a letter by Petitioner claiming to have been hired for a full-time job in UF's Physical Therapy Department.6/ Considering all of the foregoing, the undersigned is not persuaded that Petitioner was involuntarily terminated by Ms. Reynolds, effective either May 27, 1999, or June 8, 1999. At most, the evidence shows that after those dates, Petitioner was in an OPS position in a different department of UF, which position was not funded after August 5, 1999. Petitioner did not present credible evidence to show that Ms. Reynolds or any UF employees "blackballed" her from being rehired by UF or by any other employer in three Florida counties between June 8, 1999 (her last day in UF's Horticultural Services Department), and the date of hearing. She was also vague about what position, if any, with UF she was turned down for on the only date (June 8, 2003) listed in her Charge of Discrimination. (Cf.--Finding of Fact 21 and its Endnotes, discussing other dates and allegations.) Petitioner is credible that she was not hired in numerous positions from August 1999 (when she left Ms. Jernigan's department) until she was hired in September 2003, by CCR-Head Start. However, she did not affirmatively demonstrate that Ms. Reynolds of the UF Horticulture Services Department had hiring authority in any of the other UF departments Petitioner applied-to during this period of time. Petitioner conceded that Ms. Reynolds did not have hiring or firing authority in Ms. Jernigan's department, where Petitioner worked in August 1999. Petitioner did not know who made any of the hiring decisions rejecting her after she left Ms. Jernigan's department in 1999. Petitioner did not know who applied for any of the job openings within UF or with outside employers or who made the interview or hiring decisions for any of the jobs for which she applied. She did not present threshold evidence that she was minimally eligible for any of the jobs for which she applied or any evidence that the persons hired were less qualified than herself or were equally qualified but without a handicap. The possibility that a genuinely handicapped person was hired for each of these positions was not eliminated. The possibility that the jobs she applied for were not awarded to more qualified applicants was not eliminated. Finally, Petitioner did not demonstrate a nexus between any hiring decision of UF or any hiring decision of any other employer in the three-county area and her alleged handicap, and she showed no nexus between other potential UF supervisors or outside employers and her prior relationship with UF or Ms. Reynolds. Petitioner's mere speculations are not probative of discrimination. For purposes of the present case, Petitioner filed a Charge of Discrimination with the Commission on July 17, 2003, alleging that she was last not hired for a job on June 8, 2003. (See Findings of Facts 1-4 and 6, and n. 1.) However, about June 24-25, 2003, Petitioner also signed a "Workforce Innovation Complaint" form of the Commission, alleging against UF "constant surveillance"; on-the-job harassment; not being hired; and sabotage of her home computer line. This form represented that UF's discrimination against her was "June 1999" and the latest discrimination was "estimated at June 24, 2003." When or if her lawyers on that case ever actually filed the Workforce Innovation Complaint with the Commission is not clear.7/ However, the same lawyers seem to have helped Petitioner get her UF employment records. (See Finding of Fact 25.) From the chronology, it is clear that neither Petitioner's separation from UF in 1999 nor any failure to hire her on June 8, 2003, could possibly have been the result of retaliation for her filing either the June 24, 2003, Workforce Innovation Complaint or the July 17, 2003, Charge of Discrimination.8/ Neither is there any credible evidence that Petitioner was not hired at any time thereafter as a result of filing either the Complaint or the Charge. Petitioner testified, again without corroboration, that she had discussed her problems concerning Ms. Reynolds with someone in the UF Personnel Office in 1999, had been persuaded that further action was not necessary, and had elected not to pursue her allegations of discrimination at that time. Given all the evidence, this statement is less than credible, but assuming, arguendo, that the conversation occurred, it would be unreasonable and illogical to suppose UF would interfere with Petitioner’s subsequent attempts at employment for four years in retaliation for her not filing a charge of discrimination in 1999. With regard to Petitioner's late claim that UF withheld papers from her, there is no evidence in this record that Respondent withheld any employment records that impeded Petitioner being hired by anyone, including but not limited to CCR-Head Start. UF employees would have to have been clairvoyant to even guess that Petitioner was applying to CCR- Head Start. (See Finding of Fact 5.) Apparently, in 2002, Petitioner wanted some results of a CLAST test taken at her community college, but graded by UF. Exhibits in evidence show that UF permitted her to challenge these scores in April and August 2002, but the score was not changed. However, Petitioner put on no evidence that any portions of these standardized tests may legally be released to any test-taker. She did not demonstrate any reason that UF would have her college grades, test scores, or grade point average from other institutions. Petitioner testified that sometime in 2002, at the request of her lawyers for the Workforce Innovation Complaint, (see Finding of Fact 21), UF provided her with papers that purported to be her UF employment records but an UF employee removed some papers from the pile before handing the rest to her. Petitioner admitted that she did not know the UF employee and did not know what was in the pile of papers removed. Her only reason for believing UF misused her at that time was her unilateral belief that someone would not remove papers from a pile assembled for her lawyers unless they were hiding something from her. This is not a reasonable interpretation of the event described.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 15th day of June, 2004.
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 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
