The Issue The issue in this case is whether the Department of Professional Regulation (Department) should grant the application of the Petitioner, Carolyn Raney McCarthy, n/k/a Carolyn Raney Stoia, for licensure as a clinical social worker by examination.
Findings Of Fact On or about October 31, 1989, the Petitioner applied to the Respondent, the Department of Professional Regulation, for licensure as a clinical social worker under the provisions of Chapter 88-392, Laws of Florida (1988), which allows a person to apply to the Department, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987. The parties agree that the Petitioner meets all the requirements for licensure by examination except that the Department disagrees with the Petitioner's allegation that she has two years of experience as a provider of behavioral therapy "under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" The Department concedes only that the Petitioner has had seven and a half months of experience as a provider of behavioral therapy under the supervision of Anne Kremer, who "meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" In addition to her experience under the supervision of Anne Kremer, the Petitioner has had at least 16 and 1/2 months of experience as a provider of behavioral therapy at Tri-County Addictions Rehabilitation Services, Inc., in Winter Haven, Florida, under the supervision of J. William Herchig. Herchig received a Master of Social Work degree from the Florida State University in June, 1979, with a major emphasis in administration. Herchig's graduate field work during the last two quarters of his degree program was at the Lakeland Outpatient Clinic of Tri-County Alcoholism Rehabilition Services, Inc., (later to become Tri-County Addictions Rehabitation Services, Inc.), where he was hired as Clinic Director in approximately August, 1978. As clinic director, approximately half of Herchig's time was spent in the direct service of patient or client health care and about half was spent on supervisory and administrative duties. Herchig was not supervised by anyone as to his provision of direct client services. But, during his first 16 weeks on the job, Herchig was supervised by Patricia Furnival, his counterpart, as Clinic Director, at the Avon Park Outpatient Clinic of Tri-County. Furnival instructed him in supervision techniques, program management, organization pattern, and the like, in the way of on-the-job training for the job of clinic director. As a result of the nature of his job opportunity as Clinic Director of the Lakeland Outpatient Clinic, Herchig declared the major emphasis of his degree program to be in the area of administration, and he participated in the degree program's seminar on administration in conjunction with his graduate field work. Herchig's vague testimony about the course work taken by him and his fellow participants in the masters degree program did not prove that all participants took identical course work (not including the field work, with accompanying seminar.) Herchig's masters degree did not have a major emphasis or specialty in direct patient or client health care services. The Petitioner also did not prove that Patricia Furnival was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," at the time she supervised Herchig's graduate field work. The Petitioner proved that both Herchig and Furnival have certificates from the Academy of Certified Social Workers (ACSW), but it was not proven that ACSW certification necessarily signifies that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work enter a final order denying the Petitioner's application for licensure by examination. RECOMMENDED this 26th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990.
The Issue Whether Respondent violated Section 112.041, Florida Statutes, by failure to select Petitioner for the position of Supervisor, Forensic Social Work Unit, South Florida State Hospital. This case arises from the filing of a complaint byPetitioner alleging that he was unlawfully discriminated againstin failing to be promoted at the South Florida State Hospital because of his national origin. Although Respondent had in existence a procedure for the handling of such complaints of discrimination, HRS regulation No. 60-1, dated December 18, 1974, it was stipulated at the hearing that both parties waived the procedural requirements of that directive and agreed that the matter would be determined solely as a result of evidence presented at the hearing herein.
Findings Of Fact Petitioner has been employed at the South Florida State Hospital (Hospital), Hollywood, Florida, since 1969. He started in the Hospital Day Care Center as a Social Worker. He was promoted in 1975 to Clinical Social Worker I and has held thatposition until the present time. He came to this country from Cuba in 1960, where he had been a practicing attorney since 1938,upon his graduation from the School of Law, University of Havana.During the nine years previous to his employment by Respondent he had been an insurance agent in New York and a teacher inMichigan. In 1975, he completed a special law program at the University of Florida. (Testimony of Gonzalez, Petitioner'sExhibit 6) The Social Services Department at the Hospital includes all social workers assigned to the various hospital services. The director of the Department since 1960 has been Mrs. Dorothy H. Alberts. Clinical Social Workers are classified in grades I, II and III. The job description of the lowest position, Clinical Social Worker I, provides that such an employee is responsible for obtaining pertinent information from patients upon admittance to the hospital and thereafter serves as a member of a psychiatric team administering treatment and therapy to patients on an individual and group basis. A team is headed by a psychiatrist and includes a clinical psychologist, therapist, psychiatric aide, and social worker. The duties of the social worker also include counseling patients on adjustment problems, pre-release activities, and working with patients' families in order that they may assist in the rehabilitation process. Minimum training and experience for this position is a baccalaureate degree and one year of social work or guidance counseling experience; however, a master's degree in a social or rehabilitative science may be substituted for the required experience. The Clinical Social Worker II performs essentially thesame services as the Clinical Social Worker I, but works with more acute cases, serves as a team leader in the rehabilitative process, and provides supervision of subordinate social workers. The Clinical Social Worker III assists in supervising the clinical social services activities of a major program, supervises subordinate social workers and assists the Social Service Director in implementing the team treatment approach in a mental hospital. Although the above delineation of duties is reflectedin hospital job descriptions, as a practical matter the Clinical Social Worker III in the Forensic Unit of the South Florida State Hospital not only performs administrative tasks, but also deals with individual patients due to shortage of personnel. In addition to a baccalaureate degree, a Clinical Social Worker II is required to have two years of social worker guidance counseling experience. A Master's Degree in a social or rehabilitative service may be substituted for one year of the required experience. The Clinical Worker III is required to have a degree and three years of such experience for which a Master's Degree in a social or rehabilitative science may be substituted for one year of the required experience. To perform effectively, a social worker must be dedicated to patient care and effectively relate to the patient.Although a knowledge of the Spanish language and culture is anasset because approximately ten percent of the patients at thehospital are Spanish-speaking or of Hispanic origin, such knowledge or background is not mandatory, particularly when occupying a supervisory position. Those social workers assigned to the Forensic Unit perform additional functions involving court liaison and therefore a legal background is helpful, but not required. (Testimony of Hahn, Hernandez, Reinoso, Alberts, Petitioner's Composite Exhibit 1) In August 1976, the incumbent Clinical Social WorkerIII in Forensic Services at the Hospital, Robert Bohler, told Mrs. Alberts that he intended to leave that position for a promotion elsewhere. At that time, there were in existence no agency rules establishing the criteria or procedures for filling such a vacancy other than in broad general terms. Prevailing practice in the district where the Hospital was located was that a vacant position be advertised in a job opportunity bulletin for a period of ten days and then filled from applications received by the promoting authority. In this case, the promoting authority was the Department Head, Alberts, who exercised complete authority in determiningwho was eligible for and should be appointed to the position. Since Bohler's position was non-competetive, there was no need for a candidate to be on a state register of eligible personnel and anyone meeting the minimum training and experience requirements set forth in current job descriptions could be considered. (Testimony of Rudominer, Copp, Nichols) Bohler had notified Alberts of his intentionto resign, effective September 3, 1976, in a memorandum, datedAugust 23, 1976. Bohler also told Dale Frick, the Clinical SocialWorker II in the Forensic Services of his plan to depart. Frickmet with Bohler and Alberts, at which time the latter told him that he would have to apply for the position and that she would consider him along with any other applicants. Frick proceeded to file his application, dated August 24, 1976 and, on August 25, Alberts sent a memo to the Hospital Personnel Officer stating that she would like to fill the vacancy by promoting Frick who was well qualified. On August 31, Bohler sent a memorandum to Albertsrecommending Frick highly for the anticipated vacancy. On orabout September 1, Job Opportunity Bulletin No. 18 of HRS District 10 was published which included the position of Clinical Social Worker III with a closing date for applications of September 14, 1976. (Testimony of Alberts, Frick, Copp, Petitioner's Exhibits2, 5, Respondent's Exhibit 1) Petitioner learned of the upcoming position vacancy in August and asked Dr. Pedro Hernandez, Clinical Director of the Forensic Services, about it. Hernandez told him that promotions were made in the Social Work Department solely by Mrs. Alberts and suggested that he see her. Petitioner thereafter had a conversation with Alberts in which he told her he would like to be considered for the position. She informed him that she did not believe he was professionally qualified for the job. Nevertheless, Petitioner filed an application on August 31, 1976. (Testimony of Hernandez, Alberts, Gonzalez, Petitioner's Exhibit 6) The Job Opportunity Bulletin listing the position was posted in several places at the hospital during the time the job was being advertised. Frick was appointed to the position on an acting basis pending selection of an applicant. At the conclusion of the advertising period, Frick's application was the only one that Alberts had received. She had solicited a former employee of Hispanic origin to apply, but that individual, Angela Lavernia, declined the invitation as she had received a prior offer in the teaching field. For some reason, Petitioner's application was not transmitted to Alberts. On September 17, Frick was appointed as the Clinical Social Worker III to replace Bohler. Alberts testified at the hearing that she had considered Frick the most logical employee to fill the vacancy from the outset, and that, therefore, her premature recommendation could be termed a "prejudgment." However, she stated that she was familiar with Petitioner's record and qualifications over past years and that she would have selected Frick even if she had had Petitioner's application before her. However, if a much more qualified individual than Frick had applied, she would have changed her mind. She based her selection of Frick not only because his was the only application received. She was of the opinion that, in comparison with Petitioner, Frick's educationaland experience qualifications were superior. Additionally, he had supervisory experience, whereas Petitioner did not. She was more interested in the type of experience an applicant possessed than the amount of such experience, together with prior performance, interest in the field, knowledge, efforts to improve oneself by taking courses and workshops. In these areas, she considered Frick to excel Petitioner. Although she obtained a list of eligible applicants in Broward County from the Department Of Administration, she was not required to use that list because the position was noncompetitive. Frick was on the list but not Gonzalez, since he had never applied for certification prior to that time. (He later did so after the appointment had been effected and received certification from the State as Clinical Social Worker II and III) (Testimony of Alberts, Copp,Gonzalez, Frick) Frick held a Master's Degree in psychology and, before his employment commenced at the South Florida State Hospital in March, 1976, he had been successively a special psychiatric attendant in an Indiana hospital for six months in 1973, a "house parent" with the Youth Service Bureau of Porter County, Indiana, and a director of a residential treatment center for almost a year. His duties had involved counseling and supervision of delinquent and emotionally disturbed adolescents. He served as a vocational rehabilitation counselor in Fort Lauderdale from July, 1974, to March 1976, with duties involving counseling, placement, and coordination of vocational services for psychiatrically handicapped persons, including group counseling for emotionally disturbed adolescents at South Florida State Hospital. In March 1976, he was appointed as a Clinical Social Worker II in the Forensic Service at the Hospital. Bohler's most recent performance evaluations resulted in an outstanding rating for Frick and an above satisfactory rating for Petitioner. Both employees are considered competent and equally capable of performing the duties of a Clinical Social Worker III by the Forensic Clinical Director and several of the psychiatrists. ( Testimony of Frick, Hahn, Hernandez, Reinoso, Copp, Petitioner's Exhibit 5) Petitioner testified that he has been the subject of discrimination by Alberts ever since he was first employed atthe Hospital. He claims that his only promotion from Social Worker to Clinical Social Worker I in 1975 did not come about until the Hospital personnel director personally interceded with Alberts. He is further of the belief that although Alberts has not made any derogatory ethnic remarks, she has shown her prejudice by failing to promote persons of Spanish origin in her department. He further believes that she downgrades his degree from the University of Havana and considers it of no value. However, written statements of two employees at the hospital, and a former employee, all of Hispanic origin, state that Alberts had never shown any discrimination toward them or anyone else due to ethnic background. Alberts denied any discrimination on her part toward Petitioner or any other employee. (Testimony of Alberts, Gonzales, Respondent's Exhibits 2-4) Although Petitioner submitted a further applicationfor Frick's former position as Clinical Social Worker II in October, 1976, that position was "frozen" and never filled after being advertised as a vacancy. (Testimony of Alberts, Gonzalez)
Recommendation That Petitioner's complaint be dismissed. DONE and ENTERED this 30th day of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Doug Whitney, Esquire 1350 Orange Avenue Winter Park, Florida 32789 Roger Besu, Esquire Roberts Building, Suite 900 28 Flagler Street Miami, Florida 33130
Findings Of Fact Until on or about December 22, 1978, respondent held petitioner James Alan O'Neal in custody at its Alyce D. McPherson School in Ocala. No question as to the validity of petitioner's initial commitment to respondent's custody arises in these proceedings. On or about December 22, 1977, respondent released petitioner to the Social Economic Services Group Home in Gainesville, Alachua County, on conditions set forth in a furlough agreement, which petitioner signed and which was received in evidence as petitioner's exhibit No. 8. The fourth numbered condition in the furlough agreement is that petitioner "[n]ot change or leave residence . . . or . . . county of residence without the consent of the counselor." Marty Richardson works for respondent as an intake counselor at the juvenile detention center in Daytona Beach. He first met petitioner at quarter of six one morning on or about March 19, 1978, shortly after petitioner had been arrested for breaking and entering. After Mr. Richardson gave petitioner Miranda warning, he heard petitioner admit that he had broken into a house in Volusia County and stolen drugs from the house. Frank Lynch, employed by respondent as a probation aftercare counselor in Gainesville, testified without contradiction that no counselor gave his consent for petitioner to leave Alachua County.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's revocation of petitioner's furlough be upheld. DONE and ENTERED this 14th day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph E. Hodges, Esquire 3rd Floor, Oak Park Executive Square 2002 N. W. 13th Street Gainesville, Florida 32601 James O'Neal Alyce D. McPherson School Post Office Box 1359 111 S. E. 25th Avenue Ocala, Florida 32670
Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI). License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment to AA. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center. DONE AND ENTERED this 4th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 R. Eric Rubio, Esquire 2407 East Bloomingdale Avenue Valrico, Florida 33594-6404 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner is entitled to a consumer’s certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a Florida not-for-profit corporation. At all material times, Petitioner has qualified as a Section 501(c)(3) organization under the Internal Revenue Code. Since March 1992, Petitioner has also held the sales and use tax exemption that it seeks in this case. Pursuant to a change in law requiring all exempt organizations to reapply, Petitioner submitted an Application for Consumer’s Certificate of Exemption dated February 1, 1997. By stipulation, the parties agree that, for the purpose of this case, the sole legal basis for the application is Section 212.08(7)(o), Florida Statutes, and, if Petitioner fails to prevail in this case, it may immediately file an application seeking the same exemption under another statute, such as Section 212.08(7)(n). Petitioner was incorporated in 1989. It was first incorporated in 1975, but its corporate status lapsed. Petitioner has been in operation for 40 years. In broadest terms, Petitioner’s purpose is to assist social-studies education in Florida. Petitioner’s major activities involve training teachers of social studies. The most important annual activity of Petitioner is to sponsor a statewide conference that gives social-studies teachers a chance to receive inservice training. This inservice training satisfies, in whole or in part, each teacher’s requirement to obtain inservice training credits in order to maintain her teaching certificate. Petitioner conducts the conference in October during inservice days on which public-school teachers statewide are generally relieved from classroom duties. Between 600 and 1200 teachers participate in this annual conference. The conference runs two days, but Petitioner offers preconference institutes for a day or two prior to the start of the conference. These institutes, which are held at the same location as the conference, provide social-studies teachers with more specialized training in social studies. Petitioner also assists four regional affiliates in conducting inservice training to social-studies teachers. These affiliates are the Southwest Florida Coalition for the Social Studies, Big Bend Council for the Social Studies, Central Florida Coalition for the Social Studies, and Northeast Florida Council for the Social Studies. Petitioner works with various organizations, including the Florida Department of Education, ensuring that these organizations are aware of the interests of social- studies teachers and that the teachers are aware of the activities of these organizations. Petitioner quarterly publishes Trends in Social Studies, which provides useful, current information to social- studies teachers. Petitioner sells advertising space in the journal, mostly to educational publishers. Petitioner provides free space to the Florida Department of Education, state universities, state community colleges, the Holocaust Center, and African-American educational centers. Partly through the use of an endowment fund, Petitioner also provides additional funding for the development of social-studies teachers and the promotion of social-studies education. Petitioner provides awards, including small monetary sums, for exceptional social-studies teachers in Florida, and recognizes, at the annual conference, the outstanding social-studies teacher from each of Florida’s 67 districts. Petitioner’s major sources of income are membership fees and conference registration fees. Individual teachers pay membership fees. Conference registration fees are paid by checks from individual attendees, school districts, archdioceses, and the State of Florida. Educational vendors pay Petitioner fees for the privilege of showing their products and services at the conference. Vendors’ fees typically make up the margin by which Petitioner’s revenues exceed expenses for the conference. Petitioner does not have any paid employees. Dr. Theron Trimble, who started teaching social studies in Florida in 1966, is the executive director of Petitioner and has been associated with Petitioner for 30 years. Dr. Trimble’s full-time employment is in the Collier County School District, where he is director of Fulltime Equivalents and Resource Allocations. All persons working for Petitioner are, like Dr. Trimble, volunteers with full-time educational employment throughout Florida. Petitioner pays small sums to instructors or presenters at the annual conference and pre- conference institutes, but these payments are strictly for their services in conducting their seminars. Petitioner intends to continue helping social- studies teachers meet students’ changing needs in social- studies education. For example, Petitioner recently sponsored an inservice program designed to help teachers incorporate computers in social-studies education. At a time of reduced state involvement, Petitioner has tried to fill the gaps in funding and curriculum control. Petitioner’s funding efforts are directed toward schools and teachers, rather than school districts. Three years ago, Petitioner started an endowment fund to establish a long-term mini-grant program for social- studies teachers. According to the Webster’s New Collegiate Dictionary, the first definition of “office” is “a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose: a position of authority to exercise a public function and to receive whatever emoluments may belong to it <hold public ~> [and] a position of responsibility or some degree of executive authority.” The fourth definition is “something that one ought to do or must do: an assigned or assumed duty, task, or role [and] the proper or customary action of something: FUNCTION.” The fifth definition includes: “a place in which the functions (as consulting, record keeping, clerical work) of a public officer are performed [and] the directing headquarters of an enterprise or organization.” The last definition is “a major administrative unit in some governments <British Foreign Office [and] a subdivision of some government departments <Patent Offices>.” According to the American Heritage Dictionary of the English Language, the second and third definitions of “office” are “[a] duty or function assigned to or assumed by someone: “the maternal office was supplied by my aunt (Gibbon) [and] “[a] position of authority, duty, or trust given to a person, as in a government, corporation, or other organization: the office of vice president.” However, the fourth definition is: “[a]ny of the branches of the Federal government of the United States ranking just below the departments [and a] major executive division of the British national government, often headed by a cabinet minister.” And the fifth and seventh definitions are “[a] public position: seek office" [and] [o]ften plural[; a]n Act performed for another, usually beneficial: a favor: 'The projected duel . . . was halted by the offices of friends on both sides.' (Katherine Anne Porter).” Webster’s second and third definitions of “administration” are “performance of executive duties: MANAGEMENT [and] the execution of public affairs as distinguished from policymaking.” The fourth definition includes “a governmental agency or board.” American Heritage’s first definition of “administration” is “[t]he management of affairs.” However, the second definition is “[t]he activity of a sovereign state in the exercise of its powers or duties.” The fourth definition is “[t]he management of any institution, public or private.”
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order granting Petitioner’s application for a consumer’s certificate of exemption from sales and use tax. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998. COPIES FURNISHED: Dr. Theron Trimble 3710 Estey Avenue Naples, Florida 34104 Kevin J. O’Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact The Hearing Officer's Finding of Fact in paragraph 5 of the Recommended Order that the Respondent made certain notification to the Florida Board of Medicine is rejected as not being supported by competent substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board impose a probation of five years upon the Respondent during which it can require him to do any of the things required in the agreement between the Respondent and the Georgia Board except those things which have already been performed and which are not recurring requirements. DONE and ENTERED this 19th day of April, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995.
