The Issue The issue in this case is whether Petitioner is entitled to retake the written portion of the examination for state certification as a firefighter (the "firefighter examination").
Findings Of Fact Respondent’s Bureau of Fire Standards and Training (the "Bureau") is located in Ocala, Florida. The Bureau is responsible for certifying firefighters throughout the state. The Bureau is the only entity authorized to schedule and administer the examination for state certification as a firefighter. A person who wishes to become a firefighter must apply to take the examination for state certification. If the application is approved, the person must first complete a minimum standards course certified by the Bureau and given throughout the state prior to each testing period. The minimum standards course consists of approximately 360 hours. Students attend class four days a week Monday through Friday from 6:00 p.m. until 10:00 p.m.; and from 8:00 a.m. until 5:00 p.m. on Sunday. Petitioner satisfactorily completed the minimum standards course conducted from October 26, 1998, through April 2, 1999, at the Mid Florida Tech training center in Orlando, Florida. Upon completion of the course, Petitioner qualified to take the examination given on April 14 and 15, 1999. The examination for state certification as a firefighter consists of two parts. One part is a practical examination, consisting of a physical test, and the second part is a written examination. Candidates must wear their work uniforms for the practical examination and their dress uniforms for the written examination. A person must score 70 percent or greater on each part of the examination to be certified as a firefighter. Petitioner scored 80 percent on the practical examination given on April 15, 1999. However, Petitioner scored only 65 percent on the written examination given on April 14, 1999. A candidate who does not achieve a passing score on either part of the examination is entitled, by rule, to one retest of that part within six months of the original test. If the candidate does not achieve a passing score on the retest, the candidate must submit a new application for certification and re- take the minimum standards course. By letter dated April 23, 1999, the Bureau notified Petitioner that he had not achieved a passing score on the written examination given on April 14, 1999. By letter dated April 26, 1999, the Bureau notified Petitioner that the Bureau had scheduled Petitioner for a retest on May 12, 1999. On May 12, 1999, Petitioner achieved a score of 68 percent on the written portion of the examination. By letter dated May 24, 1999, Respondent notified Petitioner that he did not achieve a passing score on the written examination and denied Petitioner’s application for certification as a firefighter. Petitioner timely requested an administrative hearing. Petitioner does not challenge a question or score used in either written examination given on April 14 or May 12, 1999. Petitioner challenges the procedure used by the Bureau to determine the sequence of the two-part examination given on April 14 and 15, 1999. During the minimum standards course, students generally are told to be prepared for either examination in any sequence. However, Fire Chief Mullins, Petitioner’s course instructor, specifically told Petitioner and his fellow students that the practical examination would be given on April 14, 1999, and that the written examination would be given on April 15, 1999. The written examination in fact was given on April 14, 1999, and the practical examination was given on April 15, 1999. Respondent did not inform Petitioner and his fellow students that the written examination would be given on April 14, 1999, until the morning of the test. Chief Mullins is the agent of Respondent. The Bureau inspects, approves, and certifies each training center, its course curriculum, and its course instructors. Bureau rules and policies are binding on training centers and on training center personnel, including course instructors. The Bureau can decertify training centers and personnel if either violates agency policy. Course instructors have only that authority granted to them by the Bureau and are responsible to the Bureau. The testimony of Respondent’s witness claimed that Chief Mullins did not have actual authority to represent to his students the sequence in which the two-part examination would be given. Assuming arguendo that the testimony is supported by applicable law, the testimony is not dispositive. Chief Mullins had the apparent authority to make each representation to Petitioner and his fellow students, and the students reasonably relied on that representation. Petitioner relied on the representation by Respondent’s agent to Petitioner’s detriment. The detriment to Petitioner consisted of three parts. First, Petitioner was lulled into inaction and lost his opportunity for final preparation before the written examination. Second, the lost opportunity shocked and unnerved Petitioner during the test. Finally, Petitioner was denied an opportunity to take the written examination a second time without being misled by Respondent’s agent. The first part of the detriment to Petitioner occurred on April 13, 1999. In reliance upon Respondent’s misleading representation, Petitioner deferred his final preparation for the written examination until after the practical test which Petitioner believed in good faith would be given on April 14, 1999. Petitioner’s scheduled final preparation for the written examination included a study group that had been prearranged between Petitioner and some of his fellow students to be conducted after the practical examination was completed. When Respondent scheduled the written examination on April 14, 1999, rather than April 15, 1999, Petitioner lost the opportunity Petitioner had scheduled for final study and preparation during the remainder of the day and night following the practical examination. The second part of the detriment to Petitioner occurred to Petitioner’s state of mind during the written examination given on April 14, 1999. Petitioner was shocked and unnerved by the lost opportunity for final preparation before the written examination. The last part of the detriment to Petitioner occurred when Respondent counted the retest on May 12, 1999, as the second test rather than the first test. The test given on May 12, 1999, was the first test not flawed by misleading representations from Respondent’s agent which lulled Respondent into inaction before the written examination. The retest on May 12, 1999, cured the first and second part of the detriment to Petitioner by allowing Petitioner time for final preparation before the written examination. However, the retest did not cure the third part of the detriment to Petitioner. By counting the test given on May 12 as the second test, Respondent did not cure the procedural defect in counting a flawed test as Petitioner’s first test. The detriment to Petitioner is that he would be required to re-apply for certification and take the 360-hour minimum standards course again before he could take a second written examination not flawed by misleading representations that lulled Petitioner into inaction before the written examination. When Petitioner was given the opportunity for final preparation before the written examination on May 12, 1999, his score improved three percentage points from 65 percent to 68 percent. If Petitioner is given a second opportunity for final preparation before the test, he may, or may not, achieve the additional two percentage points needed to score 70 percent on the written examination. Petitioner is entitled, by rule, to a second opportunity to take the written test without being lulled into inaction before the test by misleading representations from Respondent. Respondent argues that tests are frequently rescheduled for weather or other acts of God. However, an act of God was not the reason Respondent rescheduled the sequence of the two-part examination on April 14 and 15, 1999. Respondent scheduled the sequence of the two-part examination at issue in this case for administrative convenience. The Bureau determines the number of days required to give the examination offered to graduates of each training center at the beginning of each training course when the training center sends the Bureau a course roster. The Bureau gives the examination for certification as a firefighter in one day if there are less than 15 applicants enrolled in a training course and in two days if there are 15 to 30 applicants enrolled. If there are more than 30 applicants enrolled, the Bureau gives the examination over three days, adding an additional day for each increment of 15 applicants. The Bureau does not determine the sequence in which the two parts of the examination will be given until the end of the training course, approximately one week before the first test date, and does not inform the test center until that time. The course instructor, therefore, could not have known what the sequence of testing was going to be on April 14 and 15, 1999, when he misled Petitioner and his fellow students into believing the written examination would be given on April 15, 1999. It is equally correct, however, that neither Petitioner nor his fellow students could have known, or should have known, that the course instructor was unaware of the sequence of testing when the course instructor repeatedly misled Petitioner and his fellow students during the training course. The course instructor misrepresented the sequence of testing throughout the course beginning sometime in February 1999 and thereafter until the course was concluded on April 2, 1999. Several times during March 1999, the course instructor represented to Petitioner and his fellow students that the written examination would be given on April 15, 1999. Respondent has no policy that establishes standards for determining the sequence of the two-part examination. Examiners who administer the tests travel from Ocala to each test site. Approximately one week before leaving for the test site, examiners inform someone at the training center of the testing sequence. Respondent failed to explicate any standards for determining the sequence of testing except acts of God, which are irrelevant to the facts in this case; the general principle that firefighters must be prepared for any eventuality, which Respondent failed to explain in the record; and the unbridled discretion of the examiner. Respondent did not explicate why the examiner for the examination given on April 14 and 15, 1999, decided to give the written examination on the earlier date or why the course instructor did not correct his prior misleading representations during the week before the examination. Respondent’s witness testified that Petitioner and his fellow students had no right to know the sequence of testing. While Petitioner and his fellow students may not have had a right to know the sequence of testing, their course instructor volunteered that information and carried out that voluntary agency action in a misleading manner that lulled Petitioner into inaction. Respondent may not have been required to provide notice of the sequence of testing to Petitioner and his fellow students. Once Respondent voluntarily undertook to provide notice of the sequence of testing, Respondent was required to carry out its voluntary action in a fair and adequate manner. The notice voluntarily given by Respondent’s agent was neither fair nor adequate but was misleading, arbitrary, and capricious. The course instructor had no way of knowing the sequence of testing before the telephone call from the test examiner, and the test examiner had no standards to limit his discretion to determine the sequence of testing. Respondent asserts that the changed testing sequence, if any, did not cause extreme hardship to Petitioner. In support of its assertion, Respondent submitted evidence that other students overcame any hardship and passed the written test. Respondent misses the point. If some students were not harmed by Respondent’s misleading notice, the absence of harm does not eliminate the error in the agency notice to those students. It merely means that the error in the notice to those students was harmless error. The lack of harm to those students does not eliminate the prejudice to a student who was harmed by the error in notice. If an agency voluntarily undertakes action and does so in a faulty and misleading manner, the agency properly should suffer the consequences of such action rather than the person who is prejudiced by such action. The harm caused by faulty and misleading notice to a particular student is not measured by the prejudice, or lack of prejudice, to other students. Such harm is personal and is properly measured by the facts and circumstances unique to the individual student and his or her state of mind.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's challenge to the written examination given on April 14, 1999, and granting Petitioner’s request to retake the written examination given on May 12, 1999. DONE AND ENTERED this 6th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1999. COPIES FURNISHED: Honorable Bill Nelson, State Treasurer And Insurance Commissioner The Capitol, Plaza Level II Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Division of Legal Services Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Jonathan C. Anthony 215 Bella Coola Drive Indian Harbor Beach, Florida 32937
Findings Of Fact At all times relevant hereto David L. Jordan was certified in firearms instruction (Stipulation by the parties). On July 20, 1990, while conducting a firearms training class for probation and parole officer candidates, Respondent, while demonstrating use of a shotgun, pointed a shotgun at a female student at close range and pulled the trigger. Respondent was attempting to demonstrate the intimidating nature of a shotgun to the students. Prior to pointing the shotgun at the student, Respondent had checked the magazine and chamber of the gun to insure the gun was unloaded and showed this check to most of the students in the class. He then, with his back to the female student, operated the slide on the pump shotgun by pulling the rack back and then forward, turned toward the student with the shotgun muzzle within a foot of the student's face and pulled the trigger. This incident was extremely disturbing to the student at whom the gun had been pointed and to most of the rest of the class as well. During the morning session of the firearms training class, the senior instructor in the class, Sergeant Oates, had pointed a revolver at members of the class, and both Respondent and Oates had allowed students to point revolvers at other students to practice squeezing the trigger while dry firing. It is a cardinal safety rule when handling firearms to never point a firearm at another person unless compatible with the right to use deadly force. (Exhibits 1 and 2) The Florida Firearms Training Manual (Exhibit 1) expresses the rule as "Never point a firearm at anyone unless compatible with deadly force departmental policy and Chapter 776, Florida Statutes." It is gross negligence for an instructor in firearms training to point a weapon at another person or allow students to point firearms at other persons. The training of the class which Respondent was instructing on July 20, 1990, was conducted with functional weapons.
Recommendation It is recommended that the certification of David L. Jordan as a firearms instructor be revoked. This recommendation is in accordance with Rule 11B- 20.0012(1), Florida Administrative Code. RECOMMENDED this 20th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. COPIES FURNISHED: Michael R. Ramage, Esquire Post Office Box 1489 Tallahassee, FL 32302 David L. Jordan 6213 Watermark Drive Apartment 206 Riverview, FL 33659 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether or not on March 16, 1977, the Respondent, Verna A. Robinson, entered the home of Edward Johnson at 1100 Little River Drive, Miami, Florida, and fired several shots at Edward Johnson, who suffered gun shot wounds in the wrist, upper arm and hip. Whether or not this alleged conduct described is in violation of Section 231.28, and 231.09, Florida Statutes; together with Rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code, in that it is conduct that is grossly immoral and a poor example for students. Further, whether or not such alleged conduct raises serious questions as to the Respondent's emotional preparedness to properly deal with the normal stresses which arise in classroom teaching.
Findings Of Fact This cause comes on for consideration based upon the Petition for the revocation of teachers certificate filed by the Petitioner, Professional Practices Council, on July 29, 1977. This is an action against Verna A. Robinson, the Respondent, which attempts to suspend or revoke her Teaching Certificate no. 176010, Graduate, Rank II, which is valid through June 30, 1979, and covers the areas of Elementary Education and Junior College. The facts in this case show that the Respondent was acquainted with one Edward Johnson, to the extent that they had been intimate over a period of seven years. By March 16, 1977, the relationship between Mrs. Robinson and Mr. Johnson had diminished to some degree. On that date, in the late afternoon, a telephone conversation was held between the Respondent and Johnson. The discussion concerned getting together to attend a movie. Johnson declined to go with Robinson and this was the cause of some consternation on the part of the Respondent. The depth of that consternation was demonstrated when the Respondent went to the home of Johnson, later that afternoon and carried a pistol with her. When she arrived at the Johnson home she was admitted by Mr. Johnson's son and there ensued a short conversation. It should be indicated that the Johnson and Robinson families were social friends, and Mrs. Johnson was a teacher in the same school where the Respondent was employed. When Mrs. Robinson entered the home the son indicated that his father was changing clothes, to which Mrs. Robinson replied, "he doesn't need any clothes". She then approached Johnson, who was in the bedroom area of his home and stated to him "I'll teach you to fuck with me". She then fired several shots, five or six in number, at Johnson, striking him with three of the bullets in the area of his wrist, shoulder and hip. The wounds were not fatal. The Respondent then turned around and left the house and was followed by the Johnson's teenaged son who threw an object through her windshield as she was departing the scene of the confrontation. During the course of this exchange at the Johnson home, the Johnsons to include the victim, Edward Johnson, his wife and son, did not find the Respondent to be overly excited. The Respondent then went to the home of a fellow teacher one Linda Panapas. When she arrived, Mrs. Panapas described the Respondent as being agitated, disoriented, illogical and incoherent. She said the Respondent stormed about the house speaking in incompleted sentences and Mrs. Panapas found it very difficult to understand what had transpired. She did however discern that something had happened involving a shooting. The Respondent did not indicate who had been shot. Something in the conversation lead Mrs. Panapas to call the Johnson home where she was told that there had been a shooting. One other factor in the shooting which was described by the Respondent, was the fact that she had thrown the gun away afterwards. Early the next morning the respondent voluntarily surrendered herself to the Dade County Public Safety Department. She spoke with a police officer of that organization whose name is John Little. At that time the Respondent was given an opportunity to make a statement. After being advised of her constitutional rights she indicated that she remembered throwing out a gun while driving on Interstate 95 near Northwest 103 Street in Dade County, Florida. At the time of this interview, there was no sign of lack of control of her faculties, that could be detected by the officer. The principal of the elementary school where the Respondent was working at the time of the shooting was contacted on the day after the incident. The school is the Norwood Elementary School, in Dade County, Florida. The principal in that school is Betty Angell. Ms. Angell stated that at the time of the incident she was unaware of the involvement between the Respondent and Johnson. When Robinson contacted the principal she stated that she would be taking some days off, but did not indicate for what reason. Later, on the Sunday following the shooting, Robinson spoke to Ms. Angell at Ms. Angell's residence. Mrs. Robinson explained to Ms. Angell that Robinson and Johnson had, "got to liking each other too much and she had more than she could take." The Respondent was interested in knowing what would happen to her career in view of the incident. It was explained to Mrs. Robinson, by Ms. Angell, that she might be recommended for suspension or placed in some other school. Mrs. Robinson was not opposed to being placed in another school. During the conversation at the Angell home, the Respondent remained calm and appeared to be sorry for what had happened. The Respondent has not returned to the school where she teaches. According to Ms. Angell, prior to this event, the Respondent had been a teacher of high caliber, even though she recalled a few deficiencies in Mrs. Robinson's teaching effectiveness. Ms. Angell now holds the opinion that Mrs. Robinson's effectiveness as a teacher has been impaired because she has demonstrated an inability to manage conflict and in the mind of Ms. Angell this would translate itself into an ineffectiveness in dealing with the conflicts between the various students in Mrs. Robinson's class. Ms. Angell holds this view, notwithstanding the fact that the children and other people within the community and school are unaware of the incident itself. Moreover, Ms. Angell indicated that steps had been taken to keep the incident from becoming a matter of common knowledge within the community and within the Norwood Elementary School. She has made these efforts because she feels that if the incident became a matter of community knowledge it would create problems on the issue of the effectiveness of Mrs. Robinson. The Respondent was charged with the shooting of Edward Johnson under the terms of Chapters 782.04(1) and 777.04(1), Florida Statutes. She was tried for those offenses of attempted murder in the first degree, and possession and display of a firearm. The outcome of that trial was a finding that the Respondent was not guilty because she was insane at the time of the commission of the offenses. This decision was reached in view of the opinion of several experts in the field of psychiatry and psychology. The same experts testified in the course of the hearing at bar. The experts testified about their observations of Mrs. Robinson shortly after the shooting and immediately prior to the hearing before the undersigned. The observations of the experts could be summarized; however, they are sufficiently critical to warrant examination separately. One of the specialists who saw the Respondent at the request of the Circuit Court, was Jeffrey J. Elenewski. Mr. Elenewski has a doctorate in clinical psychology. Elenewski saw the Respondent in May, 1977. From his observation he concluded that the Respondent was suffering an acute disassociative reaction at the time of the shooting incident involving Mr. Johnson. This reaction rendered the Respondent out of contact with reality. Elenewski arrived at this opinion after doing psychological testing on the Respondent and through clinical observation of the Respondent. Beginning on June 7, 1977, the Respondent was treated by Dr. Elenewski through individual psychotherapy. He saw her weekly for approximately one hour through the end of September, 1977. She has called and discussed her situation with Dr. Elenewski subsequent to September, 1977, as occasion demanded. On January 30, 1978, Dr. Elenewski saw the Respondent for purposes of examining her mental state in the context of the present time. Again he conducted clinical interviews and gave her a battery of tests. The clinical interview took approximately one hour and the testing a period of two to three hours. His overall opinion of the Respondent based upon his January 30, 1978 observations and prior history, was to the effect that she has made an adequate psychological adjustment after the incident. At the January 30, 1978 session he found her to be relatively free of anxiety, to be energetic and innovative and someone who is extremely conscientious and dedicated to her profession. Dr. Elenewski currently believes the Respondent does not present a danger to herself or to other people, and would not pose any specific danger to children of the age group which she teaches. Moreover, Dr. Elenewski feels that the Respondent possesses attributes that make her an excellent role model for children. In his view, the Respondent has strong self-confidence and through the recent past has developed a high tolerance for frustration. Dr. Elenewski believes that the shooting incident was an isolated incident and is extremely incapsulated and he does not feel that those stresses and pressures which lead to the incident would exist in the future. Because the incident itself was one that the Respondent was not conscious of, it was therefore an act without premeditation, according to Elenewski. The Respondent was also seen by Dr. Syvil Marquit. Dr. Marquit is a clinical psychologist who had examined Mrs. Robinson at the request of Mrs. Robinson's defense attorney. He saw her for a period of six or seven hours in the latter part of April, 1977, this interview sequence followed some initial testing in the beginning of April, 1977. His conclusions about the Respondent were that at the time of the offense, that she did not know right from wrong and was suffering from a frenzied disoriented state, to the extent that another personality emerged. By April, 1977, Dr. Marquit felt that the Respondent was no longer a danger to herself or to others but still might become a danger if not treated. Dr. Marquit saw Mrs. Robinson again of February 3, 1978. At that time the interview phase and psychological testing that was done took place over a period of two hours. He found Mrs. Robinson to be much improved and not as depressed as of the time of the interview in April, 1977. Based upon the February, 1978 observation, Dr. Marquit feels that the Respondent could handle herself well in a classroom setting in times of stress. In summary, Dr. Marquit felt that the Respondent was unaware of the events that took place during the course of the incident, but has sufficiently recovered to be able to continue in her role as a teacher. At the time of the criminal offense, the Circuit Court also ordered the Respondent to be examined by Dr. Arthur D. Stillman. Dr. Stillman is a psychiatrist. Dr. Stillman saw the Respondent in April, 1977. His initial observations of the Respondent was to the effect that she was serious minded and cooperative in a studied way. She was able to respond to the questions readily and had no fragmentation of thinking, looseness, or dysphoria or euphoria. She denied any delusions or hallucinations. Her memory, to his observation, was generally good except for the events in which she was found to be amnesiac. Those events pertained Lo the incident in question. At best she had vage screen memories of those parts of the incident. From his observations and the testing that was done, Dr. Stillman concluded that the Respondent showed evidence of a psychotic episode. He felt that she needed therapy for her condition, and that she presented potential for acting out. Specifically concerning the events that occurred in the shooting, Dr. Stillman felt that she was suffering from a temporary, transitory episode and was insane at the time of the commission of the offense. Dr. Stillman saw Mrs. Robinson again in February, 1978, in his mind there had been some improvement and although the Respondent was not totally aware of her situation in terms of an emotional perception of the incident, she was improving. In Dr. Stillman's opinion, the patient would benefit from further attention in the area of the difficulty involved in the shooting incident. Dr. Stillman felt like Mrs. Robinson had not achieved enough insight about the why of the events of the shooting incident. The type of treatment that she needs is not a structured treatment plan. However, in his view, the chances of such an event reoccurring are remote. He did not find her to be a danger to herself or others or in particular, children. In Dr. Stillman's mind the Respondent is a good role model because she is stable after having suffered through a rather traumatic experience, and additionally because she got sick and recovered. The incident in itself in Dr. Stillman's opinion is an isolated event, and new he feels that she is sufficiently recovered to deal with stress. In Dr. Stillman's analysis, the sickness caused her to commit the act, not a lack of morality. Finally, Dr. Stillman feels that Mrs. Robinson would be more effective in helping children deal with their problems of stress, because of the experience she has suffered through. One of the other witnesses that testified in the course of the hearing was Samuel Hudson Latimore. Mr. Latimore is the Detention Superintendent of the Dade Detention Facility. This facility deals with juvenile delinquents, and has as one of its functions the education of these children. Beginning in August, 1977, the Respondent volunteered to work in this facility. This voluntary service was not a condition imposed by any court. According to Latimore, the Respondent works at the facility twice a week, two or three hours a day and teaches 10 through 18 year old boys and girls. In his mind, the Respondent has demonstrated herself to be competent and effective in dealing with this type of young person. Latimore stated that she teaches survival skills, and aspects of getting jobs and helped to develop programs for these young people. In Latimore's opinion, Mrs. Robinson would be capable of working with any children in an education setting. He feels that she is very qualified to fulfill this function and believes this even after being made aware of the shooting incident. Mrs. Robinson's husband, her minister and fellow employees at the school where she taught, also gave testimony. Those individuals stated that she has done well in the school setting in the past and has attempted to face up to the problem that lead to the incident with Mr. Johnson. Mr. Robinson, her husband, has stood by his wife during the pendency of the present charges and the criminal prosecution that was brought against her. His testimony demonstrated that he intends to continue living with his wife and to assist her in whatever fashion necessary to deal with the remnants of the problem which she has had. The Petitioner has charged the Respondent with a number of violations. Specifically, a violation of Sections 231.28(1) and 231.09, Florida Statutes; together with Rules 6A-4.37, 6B-1, and 6B-5, Florida Administrative Code. The facts when considered in light of the language of those provisions of the Florida Statutes, and the Florida Administrative Code, demonstrate to the Petitioner that the Respondent is guilty of conduct which is grossly immoral and a poor example for students. The Petitioner further feels that those facts show that the Respondent is guilty of conduct which raises serious questions as to whether or not Verna A. Robinson is emotionally prepared to properly deal with the normal stresses which arise in classroom teaching. In examining the basis of the charges, the provisions of Section 231.28(1), read as follows: 231.28(1) Suspension or revocation of certificates.-- The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6) to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6) or to revoke permanently the teaching certificate of any person, provided: It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach, or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed. An examination of the testimony offered in the course of the hearing, with due regard to the fact that the testimony of the experts in the fields of psychiatry and psychology is unrefuted, leads to the conclusion that the Respondent is not guilty of immorality or conviction of any crime involving moral turpitude, as alleged. At the time the offense was committed, the Respondent was found to be insane by the jury, and therefore was not convicted of any crime involving moral turpitude. The same opinion which was expressed by the experts, to the effect that the Respondent did not appreciate the nature of her act, leads to the conclusion that she was not capable of committing an immoral act, because such acts of immorality presuppose intent and knowledge. The Respondent being insane at the time of the commission of the act was incapable of such intent and knowledge. Section 231.28, Florida Statutes, also deals with discipline for lack of effectiveness. The incident is not a matter of general knowledge, consequently her effectiveness cannot be said to be reduced because of the knowledge of the community or members of the school. The fact of the potential knowledge of such an incident is not a matter that may be considered at this juncture, if ever. Finally, the testimony of the experts strongly demonstrates that the Respondent has not had her effectiveness as a teacher reduced because of the incident. An examination of the provisions of Section 231.09, Florida Statutes, leads to the conclusion that none of the provisions found in the charges have been violated by the act which the Respondent committed, for the reasons discussed in examining Section 231.28(1), Florida Statutes, to include the fact that the pupils in her school are unaware of the events for which Mrs. Robinson has been charged. Therefore, it can not be said that what she did is a poor example for pupils in their deportment and morals and in the future the accurate impression which has been offered by the psychiatrist and psychologist shows that she will be an example for people in their deportment and morals. The provision concerning deportment and morals comes directly from the Section 231.09(2), Florida Statutes. It should also be stated that that particular provision has been held unconstitutional in the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals). However, on petition for rehearing and petition for rehearing en banc, which is reported at 553 F.2d 1008, the U.S. Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced. That rehearing has been held but no decision has been rendered. Consequently, the remarks about the provisions, Section 231.09(2), Florida Statutes, have been offered with the caution that the section may be ultimately held unconstitutional. In the charging document, the Petitioner makes further reference to certain rules of the Florida Administrative Code. The first reference is to Rule 6A-4.37, Florida Administrative Coda. That provision pertains to the procedures to be utilized in cases of this sort, and does not set forth substantive requirements, which if violated would constitute grounds for disciplinary action. Again, Rule 6B-1, Florida Administrative Code, sets forth the Code of Ethics of the education profession in the State of Florida; however, it does not delineate substantive requirements which would be cause for consideration under the factual allegations in these charges. Rule 6B-5.07, Florida Administrative Cede, reads as follows: Management Techniques. In exercising management techniques, the competent educator shall: Resolve discipline problems in accordance with law, state board regulations, school board policy, administrative regulations and accepted school policies, Maintain consistency in the application of policy and practice, Use management techniques which are appropriate to the particular setting such as group work, seat work, lecture, discussion, individual projects and others, and Develop and maintain standards of conduct. These provisions should be read in conjunction with the provisions of 6B-5.10 and 5.11, Florida Administrative Code, which state: 6B-5.10 Human and Interpersonal Relationships. Competent educators are held to possess effective human and interpersonal relations skills and therefore: Shall encourage others to hold and express differing opinions or ideas, Shall not knowingly misinterpret the statements of others, Shall not show disrespect for or lack of acceptance of others, Shall provide leadership and direction for others by appropriate example, Shall offer constructive criticism when necessary, Shall comply with reasonable requests and orders given by and with proper authority, Shall not assign unreasonable tasks, and Shall demonstrate self-confidence and self-sufficiency in exercising authority. 6B-5.11 Personal Requirements. In assessing the mental or physical health of educators, no decision adverse to the educator shall be made except on the advice or testimony of personnel competent to make such judgment by reason of training, licensure and experience. However, certain behaviors are held to be probable cause to examine, and each competent educator within the scope of delegated authority shall: Be able to engage in physical activity appropriate to the designated task except for temporary disability, Be able to communicate so effectively as to accomplish the designated task, Appropriately control his emotions, and Possess and demonstrate sufficient intellectual ability to perform designated tasks. When these requirements are examined in view of the facts that were offered in the course of the hearing, it is clear that the Respondent is able to resolve those problems of discipline in a proper manner and to deal with the interpersonal relationships between the students, to include students who are having conflict. Moreover, it is clear that the Respondent would be able to control her emotions in the classroom setting and is emotionally prepared to deal with the normal stresses in classroom teaching. In conclusion, the facts do not warrant the revocation of Verne Armstrong Robinson's teachers certificate.
Recommendation It is recommended that the action for the revocation of the Respondent's teachers certificate be dismissed. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida Elizabeth J. du Fresne, P.A. Suite 1782, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Michael S. Hacker, Esquire Hacker, Phelps & Matters Suite 1400 - Ainsley Building 14 Northeast First Avenue Miami, Florida 33132
The Issue The issues to be determined are whether Respondent reported for duty while under the influence of alcohol in violation of section 1012.795(1)(j), Florida Statutes (2016), and Florida Administrative Code Rule 6A-10.081(2)(a)1.1/, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Jones held Florida Educator's Certificate No. 866702, covering the area of Music, which was valid through June 30, 2018. At all times pertinent to the Administrative Complaint, Ms. Jones was employed as a music teacher at Village Green in the St. Lucie County School District. On May 8, 2017, Ms. Cynthia Garcia reported to work at Village Green around 7:30 a.m. The desk where visitors and staff members sign in is adjacent to the front office where Ms. Garcia works. Sometime between 7:30 a.m. and 7:50 a.m., Ms. Jones signed in at the desk and crossed the front office. Ms. Jones said hello to Ms. Garcia and apologized for the way that she looked. Ms. Jones had on no makeup and her hair or wig was unkempt. Ms. Garcia asked Ms. Jones if she was okay because she was acting a little giddy and didn’t seem to be herself. Ms. McQueen was in the hallway at Village Green going to her classroom when Ms. Jones called out to her. Ms. McQueen went over to her to see what she wanted. Ms. Jones was laughing and told Ms. McQueen that the students would not recognize her because she wasn’t wearing any makeup. Ms. McQueen smelled alcohol and noticed that Ms. Jones’ was inappropriately dressed and that her hair was untidy. Ms. McQueen testified that Ms. Jones was slurring her words, but she was able to understand what Ms. Jones was saying. Ms. McQueen testified that Ms. Jones did not have any coordination problems or trouble walking. Ms. McQueen told Ms. Jones to go to her office to straighten herself up. Ms. McQueen testified, “And my reason for doing that, because I wanted to get her away from the students, so that I could go to the office to get help, to tell administration.” Ms. McQueen testified that while she was talking with Ms. Jones, a few students began waiting outside of the music room where they were to rehearse for a musical production. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen told Ms. Brown that she thought Ms. Jones was drunk, or had been drinking. Ms. Brown asked Ms. McQueen to take over her responsibility to stay with the children who were having breakfast so that Ms. Brown could go see Ms. Jones in the music room. Ms. Brown testified that when she spoke to Ms. Jones: [Y]ou could smell the alcohol, and her eyes was swollen and the whites was red. And the students kept trying to come through the back part of the –- it’s like the stage, because they was practicing. They practice in the morning for a play. And I wanted to try to keep the students from seeing her, so I like get in front of her. * * * Because I didn’t want them to see how she looked. Because her hair was kind of wild and her top was up, you can kind of see her stomach. I didn’t want the students to see Ms. Jones like that. Ms. Brown told Ms. Jones she needed to get herself together, and Ms. Jones responded that she would leave the school. Ms. Brown asked Ms. Jones if she wanted her to get someone to help, was told no, and she then told Ms. Jones that she would tell the school administration that they would need to get a substitute teacher for the day. This credible, eyewitness testimony of Ms. Jones’ colleagues that she smelled of alcohol, had swollen and bloodshot eyes, exhibited slurred speech, and was acting in an unusual, “giddy” manner is sufficient evidence to reasonably infer that Ms. Jones was under the influence of alcohol when she reported to the school for duty on the morning of May 8, 2017. Ms. McQueen and Ms. Brown left campus, with Principal Barrett-Baxter’s permission, to make sure that Ms. Jones had arrived at her home. When they arrived, they saw her rental car parked there. Later the same morning, Ms. Jones returned to Village Green. She went to the office area to talk to Principal Barrett- Baxter. It was not clearly shown that Ms. Jones intended to return to duty or be in contact with students when she returned. Principal Barrett-Baxter said that she could smell alcohol from across the desk, and confirmed the others’ earlier observations that Ms. Jones’ appearance was unacceptable. Ms. Garcia also credibly testified that the smell of alcohol was so strong that it lingered in the room after she left. Based on her observations and reports, Principal Barrett-Baxter directed Ms. Jones to have a reasonable suspicion drug test conducted. Officer Ken Rodriguez, who transported Ms. Jones for the testing, also testified that he smelled alcohol, that Ms. Jones was a “little foggy,” and that she appeared to be under the influence of alcohol. Two breathalyzer tests were conducted at Absolute Testing, indicating that Ms. Jones had blood alcohol level readings of .186 and .191. The events after Ms. Jones returned to Village Green were of little value in considering the charge in the Administrative Complaint because of the interplay of two circumstances: 1) Ms. Jones spent time at home alone after her initial presentation at Village Green and before the time the alcohol test was conducted; and 2) it was not clearly shown that Ms. Jones was reporting for duty to teach students when she returned to the school. There was no evidence of any prior discipline involving the Florida Educator Certificate of Ms. Jones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Renya Jones in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1.; renewing her teaching certificate and placing her on probation for a period of three years; requiring her to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Commission; and requiring her to pay administrative fees and costs. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of November, 2018.
Findings Of Fact The Department of State hereby adopts and incorporates herein by reference- the Findings of Fact in the Recommended Order.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order imposing a fine of $1,000. DONE and RECOMMENDED this 31st day of August, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6780 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected. The evidence fails to establish that the certificate was signed by Moore, who did not testify at the hearing. Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing. (This ruling is related to the second proposed finding identified as "4".) Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing. Respondent The Respondent filed a letter containing unnumbered paragraphs which is treated herein as a proposed recommended order. The paragraph beginning "I TAKE EXCEPTION" is regarded as paragraph #1. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1, 2. Rejected. The proposed finding is applicable to the weight of the testimony which clearly established that the witness received an inadequate level of instruction. 3. Rejected. The Respondent stipulated to the fact that Dale and Moore were in the same class. The stipulation was placed on the record. The Petitioner released Moore from testifying based on the stipulation. 4, 6-12. Rejected, irrelevant. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 DV's Security Guard School Stephen Paul DeVillo 10871 Ruden Road Fort Myers, Florida 33917-5513
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Sergio Ramon Garcia (Garcia) was licensed by the State of Florida as a life and variable annuity contracts agent, life agent, life and health agent, general lines agent, health insurance agent, and legal expense insurance agent, having been issued license number 266253905. On the evening of July 20, 1991, while leaving his insurance office in Dade County, Florida, Mr. Garcia was the victim of a violent crime. Two individuals with firearms attempted to rob Mr. Garcia. He was shot five times. As a result of his injuries, Mr. Garcia was in surgery for several hours, in intensive care for two weeks, and in the hospital for approximately two months. He was paralyzed from the waist down. Mr. Garcia received rehabilitation for a considerable amount of time. At first, there was no expectation that he was going to walk again. Mr. Garcia was confined to a wheelchair. Through physical therapy, he progressed from the wheelchair to a walker, to crutches, and to a cane. Now, Mr. Garcia is able to walk without any assistance. During his rehabilitation period, Mr. Garcia used a bicycle for therapy that he had purchased for his personal pleasure years before the shooting. His physical therapist had recommended using the bicycle to exercise his legs. Mr. Garcia rode the bicycle every morning and every evening. He became very sentimental toward the bicycle and referred to the bicycle as his “friend.” The bicycle had distinct features. It was specially modified to accommodate his therapy needs (a specially wide seat for his hip problems) and was white, including the handle bars. Mr. Garcia has undergone 12 operations and more are expected. He has screws in his hips, and the screws will have to be replaced through surgery. Mr. Garcia experiences pain daily and continues to take medication for pain. Furthermore, Mr. Garcia continues to attend physical therapy. After the shooting, Mr. Garcia’s then business partner purchased a handgun, a .22 caliber Derringer, and gave it to Mr. Garcia for protection. The handgun was a small weapon which would fit within the palm of Mr. Garcia's hand. Mr. Garcia obtained a license to carry a concealed weapon. Subsequently, Mr. Garcia and his wife decided to move to Broward County, Florida. Mr. Garcia did not receive the renewal for his concealed weapons license when they moved; notwithstanding, approximately three weeks prior to the incident, Mr. Garcia renewed his concealed weapons license. It is inferred and a finding is made that, at the time of the incident, Mr. Garcia had renewed his concealed weapons license, and the license was valid.2 In January 1996, Mr. Garcia’s bicycle was stolen. The theft was reported to the proper law enforcement agency which requested the bicycle's serial number; however, the Garcias were unable to provide the serial number to the law enforcement agency. On a cold morning on or about February 21, 1996, after driving his children to school, Mr. Garcia observed a male riding, what Mr. Garcia determined to be, his bicycle. He drove alongside the male and tried to get the male to stop, but to no avail. Finally, Mr. Garcia pulled his vehicle in front of the male and stopped, forcing the male to stop. The male got off the bicycle and reached into his jacket. Mr. Garcia had his handgun in the pocket of his pants. He believed that his concealed weapons license was valid.3 Believing that the male was reaching for a handgun, Mr. Garcia became fearful for his life. Mr. Garcia reached into his pocket and pulled out his own handgun. However, the handgun, having a hair-trigger, accidentally discharged while he was pulling it from his pocket. Mr. Garcia did not point the handgun at the male. The projectile from the handgun hit the ground. The male got back on the bicycle and rode away. Not being able to run after the male because of his physical condition, Mr. Garcia returned to his vehicle, placed the handgun under the seat of his vehicle, and drove after the male. Mr. Garcia saw the male talking with a traffic assistance officer and stopped. Mr. Garcia approached them, explained that the bicycle belonged to him and demanded the bicycle from the male. Mr. Garcia put the bicycle in his car and took the bicycle home. An investigation by the local law enforcement agency ensued. As part of the investigation, Mr. Garcia was requested to provide the serial number for the bicycle. He was unable to provide a serial number and had no documents showing a serial number. However, Mr. Garcia did provide photographs of his bicycle and a receipt, identifying the same type of bicycle. On or about February 21, 1996, an information was filed against Mr. Garcia in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case No. 96-5453CF. Mr. Garcia was charged with one count of aggravated assault with a firearm, which is a felony, and one count of carrying a concealed weapon, which is also a felony. On or about March 25, 1996, Mr. Garcia was arrested and charged with aggravated assault and carrying a concealed weapon. Mr. Garcia obtained counsel who strongly advised him to plead nolo contendere to the charges. His counsel advised him that, even though the prosecution’s case was very weak, a jury was unpredictable,4 and, therefore, an acquittal could not be guaranteed. Further, Mr. Garcia’s counsel advised him that, if he was convicted, he could be sentenced to a mandatory three-year prison sentence. In return for the plea of nolo contendere, the State Attorney's office waived the primary offense which carried a mandatory minimum three-year sentence. Mr. Garcia’s wife agreed with his counsel and recommended and encouraged her husband to plead nolo contendere to the charges. She did not want to face the possibility of her husband being convicted of the charges and going to prison. On or about July 22, 1996, Mr. Garcia entered a plea of nolo contendere to both felonies. The Circuit Judge withheld adjudication and sentenced Mr. Garcia to one year of community service and one year of probation for both felonies. Taking the initiative, Mr. Garcia voluntarily notified the Department of Insurance (Department) of the criminal charges against him, the nolo contendere plea, and the sentence imposed. At the hearing, neither the male who was riding the bicycle nor any alleged eye-witnesses testified. A finding is made that Mr. Garcia was in fear for his life and was defending himself when he pulled his handgun from the pocket of his pants. Since the incident on February 21, 1996, the bicycle has remained in Mr. Garcia’s possession. No claim for the bicycle has been made by the male who was riding it that day. It is inferred and a finding is made that Mr. Garcia is the owner of the bicycle. Mr. Garcia and his wife are partners in the insurance business. Mrs. Garcia is a licensed insurance agent by the Department. They have over 5,000 clients. Mr. Garcia and his wife employ over 30 people. Their workforce includes individuals who are in work release programs, and the Garcias attempt to assist them in getting their lives back together. The Vice President of the Dade County Board of Specialty Agencies testified as a character witness for Mr. Garcia. In the Vice President’s opinion, Mr. Garcia is, among other things, a very dedicated, conscientious, and responsible person. Mr. Garcia has been licensed since 1985. The Department has taken no prior disciplinary action against Mr. Garcia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer issue a final order suspending the license of Sergio Ramon Garcia for one month. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997.
The Issue An administrative complaint dated July 20, 1995 alleges that Michael E. Maddox violated various provisions of Chapter 943, Florida Statutes, and rules of the Criminal Justice Standards and Training Commission, by knowingly submitting a false instructor certification application and by corruptly using or attempting to use his official position to obtain certification as a firearms instructor when he had not met the minimum requirements. The issues for disposition in this proceeding are whether Michael E. Maddox committed those violations, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Michael Maddox (Maddox), was certified by the Criminal Justice Standards and Training Commission (CJSTC) on December 16, 1977 and was issued certificate number 110006. For approximately the last six years Maddox has been employed by Brevard Community College as Director of Criminal Justice. In that position, also referred to as training center director, Maddox is responsible for the police academy, corrections academy, probations academy and the academic degree program. He is required to ensure that the academies meet standards of the CJSTC. Andrew “Andy” Seminick has worked for the City of Melbourne police department as range master for nineteen and a half years. He is also employed by Brevard Community College as a firearms instructor and is certified as an instructor by the CJSTC. His employment at the community college is under the supervision of Maddox. Sometime around October 1993, Maddox approached Andy Seminick about putting together a firearms instructor training course for folks who could not attend at the regular time and wanted to attend nights, weekends or as independent study. Maddox intended to take the course himself and told Seminick of his intention. Seminick discussed the proposed class with two other firearms instructors, Chris LaMontagne and Eric Kennard, and they agreed that the hands-on requirements at the range made it impossible to just let people come on their own time. The course was set up to be conducted on November 8, 20 and 27, December 4 and 11, and a make-up class on December 18, 1993. With the exception of November 8, these dates all fell on a Saturday. The November 8th session was the only formal classroom session; the other classes were conducted at the firing range, with some indoor discussion, but mostly field work at the range in Cocoa, about twenty miles from the police academy. Approximately twelve law enforcement officers from various agencies signed up for the course, including Michael Maddox. Maddox attended one class, the first, on November 8, 1993, but did not attend any other classes. He took the pre-test on the first day, but did not take the written test or on-the- range proficiency test at the end of the course. Andy Seminick turned in completion certificates for the other enrollees in the course, but not for Maddox, as, in his opinion, Maddox did not satisfy the CJSTC-mandated requirements of the course, which included forty-four hours of course time, the preparation of a lesson plan and a proficiency evaluation. Sometime between January and March 1994 Maddox approached Andy Seminick and asked about making up time he missed in the firearms class. Seminick agreed to work with him, but Maddox never followed up to complete the time with Seminick. As Director of Criminal Justice Michael Maddox signed certificates of training for successful participants. After the firearms instructor course described above, he signed certificates of training for the participants, including himself. These certificates state that the named individual “...has successfully completed a program of study in Firearms Instructor- 44 hours” (Petitioner’s exhibit G). The certificates are signed by Maddox, with a stamped signature by the president of Brevard Community College, Maxwell King, and a type-written date “December 11, 1993”. Michael Maddox submitted an instructor certification application to the CJSTC on March 1, 1994. The one-page form application indicates that he was applying for certification in two additional subjects: human diversity and firearms. On this form he signed both as the applicant and as the recommending training center director. His signature as training center director appears below this statement: Having reviewed this applicant’s credentials and abilities as required by Rule 11 B-20, F.A.C., I recommend certification or certification renewal of this applicant. (Petitioner’s exhibit F) Burton Tew, field specialist-research and training specialist for the CJSTC, approved Maddox’ application on March 10, 1994, based on the training center director’s signature and the certificates of training that he found in Maddox’ file, including the certificate described above for the firearms instructor course. Prior to June 21, 1994, but after he approved Maddox’ firearms instructor certification, Burton Tew received a complaint that Maddox had not completed the course. He then conducted an investigation which led to the administrative complaint that is the subject of this proceeding. Maddox admits that he attended only one day of class for the course. He contends that when he signed the application recommending his own certification he was fully aware of his own qualifications, including that he had actually taught firearms before in 1977, when he worked for a different agency in Stuart, Florida. He reviewed the contents of Andy Seminick’s course and was sure that he knew the course very well without having to attend the classes. Moreover, since he had also reviewed the written exam, he did not feel he should also take that exam as a student. Maddox also argued that, as training center director, he had the authority to excuse absences from class and to approve make-up work. For himself, he did both. According to a desk calendar, firing range calendar and vehicle mileage log, Maddox was at the firing range on several occasions between August 1993 and March 1994. He does not contend that he actually received instruction from the course instructors on those dates and it is obvious that he had purposes, other than his own course instruction, when he attended the range, since the course at issue did not commence until November 1993. Maddox concedes that not only did he attend only one class session and did not take the exam, there also were no lesson plans drawn up by him and no proficiency evaluation of him in his file for the course. No one disputes Maddox’ competency in shooting firearms. He may even be competent to teach others. He did not, however, satisfy the requirements of the CJSTC-approved firearms instructor course, and his explanation of why he met the requirements is disingenuous. When he signed his own certificate and his own application in his capacity as training director he willfully used his official position to obtain a benefit to which he was not entitled.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Criminal Justice Standards and Training Commission enter its Final Order finding that Michael E. Maddox failed to maintain good moral character and failed to qualify for certification as a firearms instructor, and imposing the following penalties: revocation of his firearms instruction certification; and suspension of his law enforcement certification for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1996. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Vincent G. Torpy, Jr., Esquire Suite 505 930 South Harbor City Boulevard Melbourne, Florida 32901 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida Michael Ramage General Counsel 32302-1489 Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
