The Issue Whether Lawrence Phelps' Pari-Mutuel Wagering Occupational License should be disciplined?
Findings Of Fact On May 19, 1986, Lawrence Phelps executed and filed an application with the Division for a Pari-Mutuel Wagering Occupational License. The Division approved Mr. Phelps' application for license and issued license number 0053382 on May 28, 1987. Mr. Phelps was requested to inform the Division in question number four of the application whether, among other things, he had "ever been convicted of . . . Bookmaking?" Mr. Phelps answered this question by placing an "X" next to the response "No." On November 16, 1978, Mr. Phelps was adjudicated quality by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree" a violation of Section 225.15 of the New York State Penal Code. Mr. Phelps was fined five hundred dollars. On March 6, 1979, Mr. Phelps was convicted by the City of Hudson, New York, City Court, of "gambling second degree" a violation of Section 225.05 of the New York State Penal Code, and "possession of gambling records second degree." Mr. Phelps was fined $250.00 and $150.00, respectively, for these offenses. On March 26, 1980, Mr. Phelps was adjudicated guilty by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree." Mr. Phelps was again fined five hundred dollars. Mr. Phelps did not inform the Division of his three convictions in New York of possession of gambling records in the second degree or his conviction of gambling in the second degree. Mr. Phelps' convictions involving gambling all relate to a "policy (numbers) operation." Mr. Phelps believed that he properly answered the question concerning whether he had been convicted of the offense "bookmaking" when he completed his May 19, 1986, application for a Pari-Mutuel Wagering Occupational license. Mr. Phelps believed that "bookmaking" pertains to a particular type of gambling which he has not been convicted of engaging in. Mr. Phelps moved to Florida from New York and began employment with a greyhound dog race track located in Jacksonville, Florida. Mr. Phelps has been licensed by the Division since 1981. Mr. Phelps has been barred from employment at the track for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that Mr. Phelps has been convicted of an offense connected to wagering in violation of Rule 7E- 2.005(6), Florida Administrative Code. It is further RECOMMENDED that the Department suspend Mr. Phelps' Pari-Mutuel Wagering Occupational license, number 0053382, for a period of twelve (12) months from the date that Mr. Phelps was first barred from race tracks in Florida. DONE and ENTERED this 11th day of July, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1297 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 3. 3 6. The fact that Mr. Phelps did not apply for a hearing on readmittance is not relevant to this proceeding. 4 4. 5 5. 6 Except for the fact that Mr. Phelps associated with a man by the name of Nicky Laperia, these prosed findings of fact are not supported by the weight of the evidence and are based upon hearsay. 7 Irrelevant. 8 5. 9 Irrelevant and argument. COPIES FURNISHED: Thomas A. Klein Deputy General Counsel Department of Business Regulation The Johns Building 125 South Bronough Street Tallahassee, Florida 32399-1000 Lawrence Phelps 6024 Highway 17 South Green Cove Springs, Florida 32043 Billy Vessel, Director Department of Business Regulation Pari-Mutuel Wagering Rhode Building 401 Northwest 2nd Avenue Suite N - 1026 Miami, Florida 33128-1705 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues in this case are whether Respondent, Daniel Presmy, committed the violations alleged in a five-count Administrative Complaint issued by Petitioner, Dr. Eric J. Smith, as Commissioner of Education, on March 30, 2009, and, if so, what disciplinary action should be taken against his Florida educator’s certificate.
Findings Of Fact The following findings of fact were alleged in the Administrative Complaint and stipulated to by the parties: The Respondent holds Florida Educator’s Certificate 850876, covering the area of Elementary Education, which was valid through June 30, 2008. At all times pertinent hereto, the Respondent was employed as a Third Grade Teacher at Roosevelt elementary School in the Palm Beach County School District. On or about December 11, 2006, Respondent struck D.H., a twelve-year-old male student, against the will of D.H. On or about July 30, 2007, Respondent pled and the court adjudicated him guilty of one count of Battery in violation of Florida Statutes Section 784.03. Conviction of Battery in violation of Florida Statutes Section 784.03 when the victim is a minor now disqualifies an individual from holding an Educator’s Certificate under Section 1012.315 of the Florida Statutes. The following findings of fact were made in the School Board Decision: Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third- grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave. [Endnote omitted]. The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings. Although included as a Conclusion of Law in the School Board Decision, the following fact was also found in the School Board Decision: “There is no evidence that Presmy's physical contact with the student in any way impaired his effectiveness in the school system.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission: Finding that Daniel Presmy violated Sections 1012.795(1)(e) and (i), Florida Statutes (2007), and Section 1012.795(1)(n), Florida Statutes (2008-2009), as alleged in Counts 1, 3/5, and 4 of the Administrative Complaint, as amended; Dismissing Count 2 of the Administrative Complaint, as amended; and Permanently revoking Mr. Presmy’s educator’s certificate. DONE AND ENTERED this 19th of May, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 19th day of May, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
