Findings Of Fact George Jenkins filed an application for licensure with the Department of State for a Class "A" private investigative agency license. Jenkins is qualified in every respect with the exception of his experience, which is at issue and concerning which further findings are made below. Jenkins served in the Air Police of the United States Air Force from 1953 until 1957. He performed those duties generally performed by military policemen from November 17, 1953, until February of 1957. These duties are generally patrol and guard functions as opposed to criminal investigation. Jenkins worked for Montgomery Ward in Lakeland, Florida, for 1.5 weeks; Wooco in Lakeland, Florida, for 11 weeks; and Imperial Bank in Lakeland, Florida, for 12 weeks. His duties were those of a security guard. Jenkins worked in Florida for Wheeler and Associates from June 30, 1975, until June 30, 1976, repossessing cars. He then worked for Frontier International Investigations in Florida from July 1, 1977, until December 15, 1977, repossessing automobiles. Jenkins also repossessed cars for American Bank of Lakeland from 1973 to January of 1980; Barnett Bank of Lakeland from 1975 until 1979; Mid-Florida Schools Federal Credit Union from 1975 until February of 1980; First District DOT Employees Credit Union from February, 1975, until February, 1980; and Publix Employees Credit Federal Credit Union from July, 1974, until January of 1980. All these businesses are located in Florida. Jenkins seeks to obtain the Class "A" license to continue his business repossessing cars. The record reflects that he has been self-employed and employed by other Class "A" licensees to perform the business since 1973. While Jenkins is a full-time employee of the United State Post Office, there is no question that this has been a major part-time occupation. Jenkins' service with the United State Air Force together with his approximately six months' experience as a security guard and his part-time self- employment and employment with others repossessing cars would meet the total experience requirement of three years, and clearly well over one year of that experience has been in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State grant the application of George Jenkins for licensure as a class "A" private investigative agency. DONE and ORDERED this 13th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Jonnie M. Hutchison, Esquire 145 East Haines Boulevard Post Office Box AL Lake Alfred, Florida 33850
The Issue Whether Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rules 6A-10.081(3)(a) and (e), during an altercation with a student on February 24, 2014, and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: At all times relevant to the instant case, Mr. Morris held Florida Educator Certificate 349864, covering the areas of mathematics and guidance counseling, valid through June 30, 2015. On February 24, 2014, Mr. Morris was employed as a teacher at Sandalwood High School in Jacksonville, Florida. At approximately 10:25 a.m., on February 24, 2014, Mr. Morris was about to begin a math class. At least two of the students (V.H. and D.C.) were unsatisfied with their grades in Mr. Morris’ class and were vigorously expressing their displeasure with his teaching style and with being tested on material that allegedly had not been taught in class. During this time, Mr. Morris was in the front of the classroom, and the complaining students were in the back or middle of the classroom. Mr. Morris responded by telling the complaining students to “shut up,” and his statement was primarily directed toward V.H. V.H. told Mr. Morris to “shut up,” and Mr. Morris responded by ordering V. H.to leave the classroom. When V.H. refused to leave the classroom, Mr. Morris told V.H. that he would physically remove her from the classroom if she did not comply. V.H. challenged Mr. Morris to physically remove her from the classroom. At that point in time or very soon thereafter, V.H. was seated in a chair. Mr. Morris moved behind her and pulled the chair out from under her. One of the other students in the classroom had a device capable of recording audio and video and had pointed the device in V.H.’s direction just as Mr. Morris was pulling the chair out from under her. The video and accompanying audio begin at that moment but do not record anything that transpired beforehand. The video shows V.H. falling to the floor and quickly getting to her feet. V.H. then took one or two steps toward Mr. Morris. Mr. Morris extended both of his arms and kept his hands on V.H. Due to the vantage point from which the video was shot, it is impossible to definitively ascertain V.H.’s intent when she got to her feet and took those one or two steps in Mr. Morris’ direction. However, V.H. was a few inches over five feet tall and weighed approximately 110 pounds at the time. In contrast, the video indicates that Mr. Morris was at least five feet, ten inches in height and approximately 200 pounds. Therefore, given their respective sizes, V.H. posed no threat to Mr. Morris even if her intent had been to attack him. For the next few seconds, Mr. Morris and V.H. struggled with each other. V.H. testified that Mr. Morris repeatedly slammed her against a bookshelf. But, given the vantage point from which the video was shot, it is impossible to verify that portion of V.H.’s testimony through the video. D.C. quickly rose from her chair and attempted to place herself between Mr. Morris and V.H. While doing so, D.C. implored Mr. Morris to, “get your hands off of her Mr. Morris, she’s a girl, get off of her.” Mr. Morris said something to the effect that V.H. was attacking him. At that point, Mr. Morris shoved V.H. away from him, and the ease with which he did so underscores the fact that V.H. posed no threat to him. The force of Mr. Morris’ shove drove V.H. a few feet backwards. While she stumbled, she did not lose her balance. Mr. Morris then ordered V.H. to leave the classroom and advanced toward her. At that point, D.C. put herself directly between Mr. Morris and V.H., and D.C. wisely led V.H. out of the classroom. As she was being led out of the classroom, V.H. angrily voiced her displeasure with Mr. Morris pulling the chair out from under her. Mr. Morris responded by saying, “I asked you to leave!” After V.H. left the classroom, Mr. Morris and some of the remaining students discussed the incident. Mr. Morris stated to one student that V.H. “came straight at me, and I’m supposed to let her hit me!?” One of the students reminded Mr. Morris that he pulled V.H.’s chair out from under her. The above findings regarding the incident between Mr. Morris and V.H. were drawn from the video, written statements given by several of the other students present in the class that day, and the testimonies of V.H. and D.C. The undersigned found D.C.’s testimony to be particularly credible and an accurate account of what transpired that day. V.H. testified that she sustained injuries to her back and neck during the altercation with Mr. Morris. She missed a week of school, and her family spent $3,693 treating her injuries. Even if the comments directed toward Mr. Morris at the beginning of the class were disrespectful and even if V.H. had been insubordinate, it was inexcusable for Mr. Morris to pull the chair out from under V.H. There are no circumstances under which such an act would be appropriate conduct for a teacher. Mr. Morris acted with reckless disregard for V.H.’s mental and physical health, and safety by intentionally pulling the chair out from under her. Also, that action exposed V.H. to unnecessary embarrassment or disparagement. Petitioner has proven by clear and convincing evidence that Mr. Morris violated sections 1012.795(1)(g) and (j) and rules 6A-10.081(3)(a) and (e).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission revoke Marvin Morris’ educator’s certificate; or, in the alternative, permanently bar him from applying for a new educator’s certificate. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 25th day of March, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Marvin E. Morris Apartment 238 3545-1 Saint Johns Bluff Road Jacksonville, Florida 32224 (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)
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the welding course/program offered by the college. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease in funding. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts which would be considered for planning the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the directors completed the reviews of their programs, Dean Tesinsky reported the findings to Dr. Samuels. Ultimately, such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. Concurrent with the planning performed incidental to the expected budget cuts, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but for which large numbers of students had expressed demand. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Welding program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Welding program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 22, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the welding program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 8, 11, 13 through 21 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 22, 1991; otherwise rejected as a conclusion of law, not fact. It has been concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 42. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $57,133. With the following clarifications, paragraph 10 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 12 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges served April 19, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2004). Mr. Varona was employed as a school security monitor in October 1990. In October 1996, the School Board hired Mr. Varona as a fine arts teacher, and he continued as a full- time teacher until his full-time status was terminated in June 2003, when his second non-renewable temporary teaching certificate expired. Mr. Varona was re-hired by the School Board as a temporary instructor in August 2004, and continued working for the School Board as a classroom instructor until he was suspended in March 2006. At the times material to this proceeding, Mr. Varona was a member of the United Teachers of Dade, which had entered into a Collective Bargaining Agreement ("Agreement") with the School Board, effective July 1, 2003, through June 30, 2006. Article V, Section 1 of the Agreement provides that the School Board can dismiss employees only for just cause. Article XXI, Section 1.a. of the Agreement provides that the School Board can suspend or dismiss instructional employees during the school year if the charges against him or her are based on Florida Statutes. Finally, Article XXI, Section 2 of the Agreement provides that dismissals are to be effectuated in accordance with the Florida Statutes, including Chapter 120, Florida Statutes. Prior to the expiration of his temporary teaching certificate, Mr. Varona began his efforts to qualify for a permanent Florida Educator's Certificate.2 He decided to take coursework through an entity named Moving on Toward Education and Training ("MOTET"), which was operated by Dr. William McCoggle, a teacher and coach at Palmetto Senior High School in Miami, Florida. Mr. Varona learned through colleagues who had participated in the program that Dr. McCoggle and MOTET offered courses for which teachers could obtain college credit that could be used to satisfy the requirements for certification. Mr. Varona telephoned Palmetto Senior High School and inquired about certification courses. He was directed to Dr. McCoggle, who told Mr. Varona where and at what time he needed to appear to register for courses. Mr. Varona arrived at Palmetto Senior High School at the appointed time and met with Dr. McCoggle. There were several other teachers present at the time. Mr. Varona obtained information on the classes and was told by Dr. McCoggle to come the next week and bring a document showing the courses that he needed to take, since Mr. Varona had already taken coursework at Florida International University and Miami-Dade Community College. Mr. Varona returned the following week and brought the information Dr. McCoggle had requested. He registered for three or four classes and paid Dr. McCoggle and MOTET $2,000.00 as tuition. When Mr. Varona went to Palmetto Senior High School for the third time, Dr. McCoggle gave him a sealed, white envelope and told him to take the envelope and turn it in, unopened, at the School Board's Certification Office. Mr. Varona gave the unopened envelope to Ruby Howard at the School Board's Certification Office. The envelope contained a transcript showing credit for college courses from Eastern Oklahoma State College. Mr. Varona did not attend any classes, complete any assignments, take any tests, or engage in any academic effort whatsoever to obtain the college credits reflected on the transcript from Eastern Oklahoma State College. At the times material to this proceeding, Mr. Varona had substantial family responsibilities and was in poor health, and he decided at some point that he was going to leave the teaching profession and would not pursue a permanent Florida Educator's Certificate. He was, however, at the times material to this proceeding, a classroom teacher employed by the School Board. Although he was later notified that the college credits he had submitted to the Certification Office were no good and that he would be entitled to a small refund of the money he paid for the classes, he did not pursue the matter further because of his decision to leave teaching and not pursue permanent certification. The activities of Dr. McCoggle and MOTET and the Miami-Dade County school teachers who obtained credit without attending classes or making any academic effort were the subject of a grand jury investigation and report, filed July 18, 2005, that was submitted to the Superintendent of the Miami-Dade County school system. Mr. Varona's name was included in the list of 106 teachers who had submitted transcripts showing college credit for classes they had not attended, and the School Board initiated investigations of each of these teachers. The matter was widely reported in the local newspapers. The evidence presented by the School Board is sufficient to establish that Mr. Varona committed misconduct in office and an act of immorality. Although Mr. Varona denied having knowingly submitted false college credits to the School Board's Certification Office for purposes of accumulating credits toward his professional certification, his denials are not persuasive. Under the circumstances, he should have known that the envelope contained a transcript showing college course credit and he knew he had made absolutely no academic effort to obtain those credits. Mr. Varona's testimony that he asked Dr. McCoggle on numerous occasions when the classes would be held is, likewise, unpersuasive; after a time he must have realized that there would be no classes held, and his failure to withdraw the Eastern Oklahoma State College transcript from the Certification Office supports the reasonable inference that he intended these credits to be applied toward professional certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that Nestor Varona violated Section 1012.33(1)(a) and (6)(a), Florida Statutes, by committing misconduct in office and dismissing Mr. Varona from his employment. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2007.
The Issue The issue presented for determination in these causes, pursuant to F.S. Section 120.56(1), is whether or not the "12 hour F rule," F.A.C. Rule 6J- 5.56(11)(b), and/or the "mandatory grade curve rule," F.A.C. Rule 6J-5.56(5)(c), constitute either an invalid exercise of validly delegated legislative authority, or an exercise of invalidly delegated legislative authority. The major contention of petitioner is that the respondent failed to comply with the notice requirements of F.S. Section 120.54(1)(a) when it adopted the rules in question. No other issues, including the wisdom or the applicability of such rules, are appropriate in a Section 120.56 proceeding for an administrative determination of a rule.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitions filed herein allege that petitioner was academically dismissed from the law school because of the "12 hour F rule" and that he received a failing grade in Tax 601-602 because of the "mandatory grade curve rule." After some student input, the faculty of the FSU law school adopted the "12 hour F rule" and the "mandatory grade curve rule" in 1973 and 1975 respectively, prior to the effective date of Chapter 75-191, Laws of Florida. Effective June 26, 1975, Chapter 75-191, Laws of Florida, included units of the state university system within the confines of the Administrative Procedures Act, Chapter 120 of the Florida Statutes. Pursuant thereto, the respondent, Florida State University, began the process of adopting new and repromulgating its existing rules. The Dean of the FSU Law School was instructed by respondent to submit all of the law school rules to the respondent so that they could be properly promulgated along with other FSU rules. The Dean complied with this request. On August 20, 1975, and again on August 22, 1975, legal ads were placed in the Tallahassee Democrat concerning respondent's intent to adopt proposed rules. Notices were also published, making reference to the aforesaid more complete notice, in the Miami Herald, the St. Petersburg Times and the Jacksonville Times-Union. The August 20th notice in the Tallahassee Democrat announced that a hearing would be held on September 3, 1975, and set forth for each rule the purpose and effect of the rule, a summary of the rule, general authority for the rule and the law implemented. The challenged College of Law Rules numbered, as 6J-5.56, were included in this legal ad and were in substantially the same form as that previously adopted by the law school faculty. By letter dated August 13, 1975, Mr. Mike Beaudoin, respondent's Director of Informational Services, notified respondent's three foreign branches in Florence, Italy, London, England and the Canal Zone of the proposed rules. Gail Shumann, a staff assistant to respondent's Vice President for Academic Relations, assisted in the rule promulgation process. Utilizing a list furnished her by the Coordinator of Student Organizations, Shumann sent by campus mail a "notice of intent to file rules" to all listed registered student organizations existing on January 17, 1975. Such notice was also posted in the personnel office. This notice announced that the rules would be adopted on September 10, 1975, that a copy of the notice of the proposed rules was available in the Office of Student Government, that a copy of the rules was available at the information desk in the Strozier Library and could be obtained at cost from the Division of University Relations and that a hearing on the proposed rules would be held on September 3-5, 1975. The notice was dated August 18, 1975. The list of registered student organizations furnished Ms. Shumann by the Coordinator of Student Organizations did not contain the name of the student body president and listed the former president of the student bar association. A secretary for the student body president was unable at the time of the hearing to find or to recall whether she had received copies of the notice of intent to adopt rules. She testified that she did not have the opportunity to go through all of her files and that it was possible she received such notice. The president of the student bar association, who was not on campus during the summer quarter, could not recall having seen the notice of intent, but testified that it was possible that it came through his office while he was off campus. At least fourteen days prior to the scheduled hearing, Informational Services Director Beaudoin directed a reliable employee to post the notice of intent upon respondent's fifteen official bulletin boards. On August 20, 1975, respondent's rules were filed with the Joint Administrative Procedures Committee. Public hearings were held on September 3, 4, and 5, 1975, on the FSU campus for the purpose of hearing comments concerning the proposed rules. Few persons attended these hearings. The rules were filed with the Secretary of State on September 10, 1975, and became effective on September 30, 1975.
Findings Of Fact At all times material to this proceeding Respondent, Frederick Alexander, was a student at Seminole Community College. As such, Respondent was subject to the disciplinary rules and regulations of Seminole Community College as set forth in the College's general catalog, Volume 16, April 1981. In particular, Petitioner's Rule 6HX25-4.06 provides as follows: Seminole Community College expects its students to be mature and responsible citizens at all times and places. Any student whose conduct or dress, whether on or off campus, at any time, is in violation of law, is a public nuisance, or deemed improper and detrimental to the College, may be subject to disciplinary action including probation, suspension, dismissal or denial of re-enrollment . . . . While enrolled at Seminole Community College, on or about September 25, 1981, Respondent entered Room J-110 at the College and, while in the presence of Claudette Gover, a secretarial employee of the College, exposed his genitals, and remarked to Ms. Gover, "Do you want some of this black stuff, Baby?" Ms. Gover appeared as a witness at the final hearing in this cause, and positively identified the Respondent from a photograph of the Seminole Community College basketball team. Subsequently, on or about October 26, 1981, Respondent was observed in the ladies shower room in the health building on the campus of Seminole Community College. That shower room is a non-coeducational facility, intended solely for use of female college students and faculty and staff members, and is clearly marked as such. Respondent was observed in the shower room by a female student who had just emerged from the shower and was clad only in her underclothing. Although Respondent made no overt advances to the female student, he remained in the locker room adjacent to the shower room, which also was used only by female students and faculty, until the female student dressed and left the room. Later, when questioned by college officials concerning his entry of the ladies shower room, the Respondent neither admitted nor denied his conduct. The Respondent was, however, positively identified as the individual in the shower room by the female student.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Board of Trustees of Seminole Community College dismissing Respondent as a student at the College. DONE AND ENTERED this 15th day of April, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A. Post Office Box 1330 Sanford, Florida 32771 Frederick Alexander 1619 West 16th Street Sanford, Florida 32771
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the upholstery or reupholstery (upholstery) course/program offered by the college. In the 1986 school year, the upholstery program was given a formal evaluation as it had experienced a decline in student enrollment. Goals were established to encourage student participation in the program and additional development of the program. The evaluation or program review described in paragraph 6 was performed under the guidelines addressed in Appendix K, and resulted in the program being placed on probation for one year with the following condition: that the enrollment goal of an average of 16 full-time or full-time equivalent students per term be established. The probation term ran from April 1, 1986 through, presumably, March 30, 1987. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. On March 27, 1986, the president of the college issued a letter to Respondent advising him of the probation status of the upholstery program. The letter further provided that should the program be terminated, that the instructional position held by Respondent would be terminated. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease amount. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts for the planning for the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the reviews of their programs were completed by the directors under Dean Tesinsky, she reported findings to Dr. Samuels. Such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Concurrent with the planning incidental to the budget cuts options, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but which were in great demand by large numbers of students. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify and be reassigned. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Reupholstery program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Reupholstery program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 23, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the upholstery program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 7, 12, 14 through 22 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 23, 1991; otherwise rejected as a conclusion of law. It is concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. That portion of paragraph 8 which suggests that Director Satterlee's analysis was the first time the reupholstery program was identified as weak is rejected as contrary to the weight of the evidence. This program had a history of being "unproductive" and had, in fact, been on probation in the not-too- distant past. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 41. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $62,552. Paragraph 10 is rejected to the extent that it suggests the reupholstery program had been on probation in any year other than 1986. With the following clarifications, paragraph 11 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 13 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
