The Issue The issue is whether Respondent's employment with the Pinellas County School Board should be terminated for just cause for violations of Pinellas County School Board Policies 8.04(4) and 8.25(1)(a), (d), and (x).
Findings Of Fact Based upon observation of the witnesses while testifying, their ability for accurate recall and the review of exhibits in evidence and pleadings contained in the file, the following relevant and material facts are found. Petitioner, Pinellas County School Board, is the governing board of the Pinellas County School District. In 1995, the Board adopted School Board Policy 8.25 "Discipline of Employees." Respondent, Thaddeus Starling (Starling), has been a teacher for 23 years with the last 17 of those years spent in Pinellas County as a full-time teacher. Starling has worked for the last three years as a physical education instructor at the John Hopkins Middle School, located on 16th Street in St. Petersburg, Florida. At all times relevant and material to these proceedings, Starling was employed pursuant to a professional services contract with the School Board pursuant to Section 231.36, Florida Statutes (2001). Mr. James Baldwin, a principal for over 15 years and the current principal of John Hopkins Middle School, testified that he has personally known Starling for 15 to 16 years and has been his supervisor and principal for three years. As far as he knows, Starling has never done anything wrong to suggest that he was not a good man. He is good with the students and has received good annual evaluations. There is no evidence in the record to suggest that Starling has ever been disciplined by the School Board. Starling has been with his wife 14 years and married to her for the last eight years. Their pastime over the years has been fishing in and around the St. Petersburg area. Starling and his wife regularly fish for mullet in and around the St. Petersburg area during September and October, when the mullet are running. Each day that fishing is planned, Starling calls his wife to identify the spot where they will fish, and she meets him at the identified spot with their fishing equipment. On September 5, 2001, Starling left school driving a 1983 Camaro by pulling onto 16th Street going toward 22nd Avenue. He turned left onto 22nd Avenue to Third Street where he made a left turn. Located along Third Street is one of the several fishing locations where Starling and his wife regularly fished. Third Street at 20th Avenue was under construction on September 5, 2002, and Starling had to detour off Third Street onto 20th Avenue. Starling followed 20th Avenue to the intersection of 20th Avenue and Fourth Street, which is controlled by posted stop signs facing the 20th Avenue traffic. Because it was raining hard, all the windows in his vehicle were rolled up when he stopped at the 20th Avenue and Fourth Street intersection. In response to complaints made to the St. Petersburg Police Department, a prostitution decoy detail was dispatched to the area of 20th Avenue and Fourth Street on September 5, 2001. Sergeant Quandt, the ranking officer, was in charge of the detail consisting of Detective Christina Bentham, posing as the prostitute decoy, and Detective Landrem, who was an observer or "eyeballer" responsible for looking out for the safety of the female decoy. The crime of solicitation for prostitution focuses on the conversation between the "John" (the person who initiates conversation with the decoy for the purpose of sex in exchange for something of value) and the decoy prostitute. No consummation need occur. The crime is committed by the specific "words spoken" by the accused. While on the decoy detail, Detective Bentham wore an electronic device that transmitted her voice to Detective Landrem, who was equipped with an electronic receiver. Detective Bentham was also wired with an electronic device that transmitted her voice and the voice(s) of persons speaking to her to Sergeant Quandt, who controlled the electronic receiving and recording device. The electronic communication devices enable the members of the prostitution detail to communicate among themselves. The electronic recording device is to record, as factual evidence, the solicitation for sex made by the "John" to the decoy prostitute. On September 5, 2001, Sergeant Quandt had the electronic recording device in his vehicle. He is the only member of the prostitution decoy detail with personal knowledge of when the recording device was actually operating during this decoy detail, but was not called by the Board to give testimony. After approximately four hours of waiting in the pouring-down rain at the intersection of 20th Avenue and Fourth Street, South, decoy Detective Bentham had not arrested anyone for soliciting her for prostitution. Sergeant Quandt drove up to Detective Bentham and ordered her to "get in he was calling it off." By her admission, Detective Bentham steadfastly refused to enter Sergeant Quandt's vehicle and insisted she would stay out longer. Thereafter, Sergeant Quandt drove away to another location. Detective Bentham went to stand under a tree approximately 20 yards away from the intersection. According to Starling, as he sat at the stop sign, waiting for traffic to clear for his turn onto Fourth Street, Detective Bentham came from the grass area, walked onto the sidewalk to the passenger side of his vehicle, and motioned for him to lower his passenger window. Detective Bentham yelled something to Starling that he did not understand, so he slightly rolled down the passenger window of his vehicle. According to Starling, he saw a lady out in the rain waving at his car, and he thought maybe she needed some help. Starling's testimony is plausible. According to Detective Bentham, Starling yelled something to her through his rolled-up passenger window while at the stop sign. She did not understand what he was saying, prompting her to walk approximately 20 yards in the pouring-down rain to the passenger window of his car. This testimony is not credible. Starling and Detective Bentham gave conflicting testimony about who initially said what to whom. According to Starling, Detective Bentham's first statement to him was, "What can I do for you?" and he replied, "Well, nothing, I'm headed to the wall." According to Detective Bentham, her first statement to Starling was, "What are you looking for?" and he replied, "Head." Considering the totality of circumstances, Starling's habit of fishing, the planned fishing at the specific location, calling home to his wife to meet him, and the road construction in the area causing detours resulting in Starling's arrival in the rain at the intersection of 20th Avenue and Fourth Street, Starling's testimony are credited. Detective Landrem was in a parked vehicle approximately 100 yards from Detective Bentham and had control of a radio that he testified "received" only the words spoken by Detective Bentham. According to Landrem, he could not and did not heard any incriminating statements allegedly made by Starling. It is undisputed that the decoy prostitution detail, with electronic recording equipment in their control and on their person, failed to record the alleged incriminating statements during the conversation between Detective Bentham and Starling. Sergeant Quant, ranking police officer in charge of this detail, was not called by the School Board to testify. According to Starling, when Detective Bentham began to speak with him, he said, "Wait a minute," and [I'm going] "fishing," and rolled his window up with the intent of turning right onto Fourth Street. Moments before making his right turn, Starling, looking in his side view mirror, saw Detective Bentham step off the curb onto the road and walk to a white car that was directly behind his car when he was on Twentieth Avenue. Unknown to Starling at that time, the white car was driven by a male, Mr. Perry, whom Detective Bentham arrested for solicitation for prostitution, again without recording that conversation. After Starling turned onto Forth Street East driving without stopping toward Ninetieth Avenue, Starling was followed by Sergeant Quant, but was stopped by and arrested by a uniformed St. Petersburg Police Office and charged with solicitation for prostitution. Under Section 796.07, Florida Statutes, this criminal offense is a misdemeanor. Starling obtained local counsel to represent him in the criminal proceeding. On November 20, 2001, Starling was advised by counsel that he would best be served by dropping his plea of not guilty and entering a plea of nolo contendere. Starling was advised that his fine would be the amount of his posted bond, and he would have to take a sexually transmitted disease test. Starling agreed with the understanding the agreement would be acceptable to the School Board. The County Court of Pinellas County accepted Starling's plea of nolo contendere, withheld adjudication of guilt, and placed Starling on four months' probation that he successfully completed. Starling was advised by his counsel that he did not have to report his arrest to the School Board until time for his professional service contract renewal in May of 2002. In January of 2002, after Starling and a colleague saw a newspaper article about another School Board employee who was disciplined, in part, for failing to report an arrest and a withholding of adjudication, they found a policy manual and talked to a school administrator who advised them to report any such occurrence to the Office of Professional Standards. Thereafter, Starling reported the arrest to the School Board. Starling failed to report his arrest to the Office of Professional Standards immediately after his release from jail on bond. Starling's failure to immediately report his arrest to the School Board was not an intentional violation of Policy but was, at worst, excusable neglect based upon the advice received from counsel. Starling reported his arrest by the St. Petersburg Police Department, the charge of solicitation and the disposition by the court to the Office of Professional Standards on January 9, 2002. Starling's prolonged delay in reporting his arrest to the Board is a violation of Pinellas County School Board Policies 8.04(4) and 8.25(1)(x). By letter of January 25, 2002, as amended thereafter, the Office of Professional Standards, the School Board's attorney and the Pinellas County Sheriff's Office, Superintendent J. Howard Hinesley sent the following notice of suspension and dismissal letter to Starling: January 25, 2002 Dear Mr. Starling: This is to advise you that you were suspended with pay effective January 11, 2002, until the School Board meeting on February 12, 2002. The Board will meet at 1:00 p.m. in the conference hall of the Administrative Building located at the address on this letterhead. At that meeting, I shall recommend that the Board sustain your suspension and dismiss you. If the Board enters its Final Order at that meeting, the effective date of your dismissal will be February 13, 2002. My recommendation for dismissal is based on the fact that on September 5, 2001, you were arrested by St. Petersburg Police for solicitation for prostitution. On November 15, 2001, you pled nolo contendere to the charge. Your actions are violation of School Board Polices 8.04(4) and 8.25(1)(a),(v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and constitute just cause for your dismissal pursuant to Florida Statute 231.36. You are entitled to a hearing regarding my recommendation. This hearing, if requested will be pursuant to Chapter 120, Florida Statutes. Your request for a hearing must be submitted, in writing, to Staff Attorney, Jackie Spoto Bircher, no later than 4:30 p.m. on Monday, February 11, 2002. If you do not request a hearing, this failure constitutes an admission of the allegations made in this letter. Due to the nature of the charges against you, I will recommend that you be suspended without pay effective February 13, 2002, until the conclusion of the administrative hearing process, if you request such a hearing. If you have any questions regarding these procedures, you may contact the Staff Attorney's office at 588-6221. (Emphasis added.) During the final hearing, counsel stipulated to an error in the above Notice in charging a violation of Pinellas County School Board Policy 8.25(1)(v). Counsel agreed that the charge should be violation of Pinellas County School Board Policy 8.25(1)(d). The stipulation amending the charge against Starling was accepted. Dr. Hinesley testified that on those occasions when he considers his recommendation to discipline employees, he adheres to the following process: first, when an employee is alleged to have committed a criminal act involving solicitation of prostitution he listens to his Staff's version of whether or not there is any question of guilt in terms of whether this act actually occurred; and second, if in the opinion of Staff and of the people who investigated the incident, the criminal act did occur, he was limited by Board Policy to recommending dismissal based on the penalty range contained in School Board policy 8.25(a). With regard to this case, Dr. Hinesley testified that at the time Mr. Barker presented this case to him, he did not know whether Mr. Barker's investigation consisted of cross- examination of police officers or merely reading and relying upon reports, including police reports, provided by staff; he did not talk to the police officers nor did he talk to Starling. He had no knowledge of whether Mr. Barker or his staff questioned all the parties involved for purpose of determining whether, in fact, the alleged solicitation for prostitution had occurred. Dr. Hinesley affirmed that had his staff provided him with a report that Starling had not committed the alleged criminal act of solicitation for prostitution, his recommendation to the Board would not have been dismissal. Dr. Hinesley also agreed that should the result of this administrative proceeding conclude that the alleged solicitation for prostitution had not occurred, his recommendation of discipline less than dismissal is permissible under his understanding of Board's policy 8.25(1)(a). Based upon his authority and extensive experience in the Pinellas County Education system, I accept the opinions of Dr. Hinesley and find his testimony credible and conclusive regarding application of Pinellas County School Board's discipline policy. Based on the Finding of Facts herein above, the School Board has failed to prove, by a preponderance of the evidence, that Starling solicited for prostitution decoy Detective Bentham, on September 5, 2001, as alleged in the School Board's Notice of a Recommendation of Dismissal dated January 25, 2002. Based upon the foregone Findings of Fact, Starling has rebutted the presumption of guilt based on his plea of nolo contendere for solicitation of prostitution. However, based upon the foregone Findings of Fact, the School Board has proven by a preponderance of evidence that Starling violated Subsections 8.04(4) and 8.25(1)(x) of the School Board's Policy for not timely reporting his September 5, 2001, arrest.
Findings Of Fact Findings on general matters The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer. Findings regarding the Mangonia Park incident During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other. Findings regarding the Lt. Wiesen incident On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt. Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing. Findings regarding the Chief Walker incident During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 28th day of December, 1995.
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue The issue in this case is whether the licensure application filed by Petitioner, Sun and Earth Citrus, LLC ("Sun and Earth"), for licensure as a citrus fruit dealer should be denied or approved by the Florida Citrus Commission (the "Commission").
Findings Of Fact Sun and Earth is a Florida limited liability company formed for the purpose of buying and selling citrus products. Vazquez is the sole owner of Sun and Earth and serves as its president. The company was formed in January 2012. Vazquez formed the company partly in response to a series of events concerning his brother, William. A discussion of those facts is pertinent to the underlying facts in this case: William operated businesses named Zumoval Citrus Packer and Zumoval Trucking and Cold Storage. William obtained a license to operate a packinghouse after seeing other dealers acting in a way he believed to be illegal. He renewed the license each year for two years, but when he attempted to renew the third year, his application was denied. At the Commission meeting where William's renewal application was considered, Vazquez appeared on William's behalf because William could not adequately articulate his position. The meeting did not go well for William; Vazquez had to calm William down and keep him from yelling at the commissioners during the meeting. The meeting date was January 18, 2012. After the meeting at which William's license renewal was denied, Vazquez announced to Department employees that because his brother could not be licensed, Vazquez would seek his own license. Inasmuch as Vazquez had appeared on William's behalf, and they were siblings, the Department had some concern that Vazquez's application was a subterfuge and simply an attempt to allow William to operate using Vazquez's license. On March 2, 2012, Vazquez filed an application with the Department; it was received on March 6, 2012. The application, as filed, said the proposed business would include operation of a packinghouse, being a fruit broker, operating a roadside stand, and being a wholesaler. The application contained information about Sun and Earth, as well as its owner, Vazquez. An application fee of $25.00 and a cashier's check in the amount of $1,000.00 for a bond were included with the application. Upon its initial review of the application, the Department noticed several errors and omissions. Ms. Wiggins, a license and regulation specialist for the Department, contacted Vazquez via telephone on March 6, 2012, to discuss her findings concerning the application content. She told Vazquez that a substantially larger bond was required for a license that included a packinghouse. She also noted that if the proposed roadside stand was purchasing fruit directly from a grower, then it must also have a bond. If the fruit was being purchased from a packinghouse, no bond would be required. Ms. Wiggins asked Vazquez to identify the packinghouse(s) from whom he intended to purchase fruit. The purpose of her request was to verify that fruit was being purchased from a packinghouse, rather than from a grower. Vazquez sent Ms. Wiggins an email the very next day confirming the telephone discussion. Vazquez, in response, asked that the packinghouse designation be removed from his application. He also stated that according to everything discussed during their telephone conversation, it was his contention that the application was complete. He then questioned why his brother's company--which had recently been denied renewal of its license--was pertinent to his application for a citrus dealer license. Vazquez asked when his application would be considered by the Commission. Ms. Wiggins replied to the Vazquez email via an email dated March 8, 2012. The email noted that Ms. Wiggins had removed the packinghouse request from the application. It also addressed the need for different reference letters relating to Sun and Earth. Then the email set out five enumerated issues that still needed to be addressed, to wit: An explanation as to how he operated Zumoval Citrus, LLC, without a wholesaler license from 2009 to 2011. How Zumoval Citrus, LLC, continued doing business in 2011, when it became inactive in September 2010. An explanation of his probation or parole from New York State relating to a conviction for stolen property. A list of the packinghouses from which he would be purchasing fruit. An address for the roadside stand. Ms. Wiggins also advised Vazquez in her email that the Department could not grant a conditional approval of the application in that there were "unusual or questionable circumstances" surrounding the filing of the application. That is, the relationship between Vazquez and William caused some concern for the Department. Ms. Wiggins reminded Vazquez that the $1,000.00 bond submitted with the application would not be sufficient if Sun and Earth planned to purchase fruit from growers. She then advised Vazquez that if he would submit all the missing information at least five days prior to the Commission meeting scheduled for March 21, 2012, the application would be presented for review. Vazquez responded via email dated March 13, 2012. He provided responses to the five enumerated issues set forth in Ms. Wiggins' email as follows: He explained that neither of his companies continued to do business after they were declared inactive in September 2010. He explained that he had another business entity that was operating, but neither of the questioned businesses was in operation. Included in above response. Vazquez had presented evidence of his conviction in the application; he did not believe anything further was required. He was upset that Ms. Wiggins apparently had information from his other prior transgressions (more on this below) and wanted to know what information she had seen. Vazquez refused to provide names of the packinghouses with whom he planned to do business. He stated that the inquiry was outside of Ms. Wiggins' "scope of duties," and he did not have to comply with her request. He asked that the roadside stand designation be removed from the application. Vazquez's email then became somewhat belligerent and argumentative. He concluded with a demand that his application be presented to the Commission on March 21, 2012. The reason Ms. Wiggins had asked Vazquez for a list of the packinghouses he planned to do business with was two-fold: First, Vazquez had indicated he planned to have a roadside stand. If the stand was going to get its fruit from a grower, then a larger bond would be required. If the fruit was to come from packinghouses, then there would be no bond requirement. Ms. Wiggins attempted to ascertain whether Vazquez was planning to obtain fruit from packinghouses. Second, due to Vazquez first indicating he would operate a packinghouse and then removing that designation, Ms. Wiggins wanted to make sure he was being honest and truthful in his responses. Citrus dealers by and large police themselves, so it is important that the Department know they can trust entities to which they issue licenses. By striking the roadside stand item from his application, Vazquez still did not alleviate the basis for Ms. Wiggins' questions about packinghouses. The Department decided that because of the questionable and unusual circumstances surrounding Vazquez's application, it would not issue a conditional license. Rather, it would process the application and send it on to the Commission for review and approval or denial. After further review, the Department ultimately decided that it would recommend denial of the Sun and Earth application when it was forwarded to the Commission. Vazquez was notified of the decision by way of a letter dated May 3, 2012, sent by certified mail, return receipt requested. The letter advised Vazquez that he could challenge the decision in an administrative hearing. Vazquez chose to do so, thereby staying any further action on the application until a final order could be issued in the instant proceeding. The basis of the Department's decision was that the Sun and Earth application had misrepresented Vazquez's circumstances with respect to his work history, residence, and criminal background. Further, Vazquez had been reluctant to respond to requests for information after reasonable inquiry by the Department. As to Vazquez's reported work history as set forth in the application, Vazquez had initially provided a work history summary in response to question 18. The response indicated employment from March 2007 until January 2011 with Associated Produce in Bronx, New York. In fact, Vazquez was incarcerated in New York for most of that time period. An amended response to question 18 was submitted; it did not list Associated Produce as a former employer. Vazquez explained the erroneous information thusly: The dates of employment were taken directly from his resume. His resume was attached to the application only to show his employment duties, not as evidence of the dates he actually worked. It was simply a mistake, said Vazquez, not an attempt to mislead the Department. Vazquez's testimony in this regard was self-serving and not credible. As to his history of residence in the state, the application said Vazquez had lived at the same address in Florida for the past five years. In truth, Vazquez was in prison in New York and did not move to Florida until 2009. Again, Vazquez said that was simply a mistake and was not meant to mislead the Department. Again, the testimony provided by Vazquez as to this issue was not credible. The issues concerning Vazquez's criminal history are more complex. Question 10 in the application asks for information concerning investigations, charges, arrests or convictions "in the last 10 years." Vazquez provided information concerning an arrest in October 2010 for carrying a concealed weapon. He also provided the Order acquitting him of the charge. The arrest report references probation for a conviction of possession of stolen property in New York. The Department, during its background check of Vazquez, found that he was on parole. Vazquez was asked to clarify the probation versus parole discrepancy. He explained that between the arrest and acquittal, his parole officer had submitted a violation of parole, but that was lifted after his acquittal. The Department's concern about Vazquez's relationship with his brother was founded on the fact that Vazquez represented William before the Commission just prior to the filing of the Sun and Earth application. That representation preceded Vazquez's remark to a Department employee that if his brother could not have a license, he would seek one himself. The statement put the Department on notice that the brothers may be trying to circumvent William's loss of his license. At final hearing, it was evident the brothers had no such intent. In fact, William was not cooperative with Vazquez's efforts to obtain a license that would, in effect, compete with William's business. The Department also raised a concern about the letters of reference received in support of the Sun and Earth application. Normally, the Department would forward Letter of Reference forms to businesses, and they would be returned directly to the Department. In this case, Vazquez took the letters to business owners himself. There is nothing inherently improper about doing this, but it caused some concern to the Department in a case where red flags had already been raised. Ms. Wiggins had never had an applicant refuse to answer questions during the application process. When Vazquez raised his "scope of work" objections, Ms. Wiggins was taken aback. Vazquez, an admitted novice in the citrus business, basically told the Department how to do its job. Faced with this very unique situation, Ms. Wiggins then asked her supervisor to become involved in the application review so that it would be done completely in accordance with Department rules. After the March 13, 2012, email from Vazquez, it was decided that the Department legal counsel should also be involved. The Department was justifiably concerned about the propriety of the Sun and Earth application. Citrus dealers are generally self-governing, and the Department began to have concerns that Vazquez could not be trusted. That, in and of itself, was sufficient basis for the recommendation of denial of Vazquez's application. Vazquez admitted to being less than forthright with the Department on his application. He withheld information that he believed the Department could easily obtain on its own. He refused to answer questions that he did not believe were relevant. He would not cooperate with inquiries made into issues about his past. He disagreed that his affiliation with his brother's company was relevant, so he stonewalled all inquiries about that issue. All in all, Vazquez--the applicant for a license--refused to provide information and assistance to the entity which was reviewing his application. While he may have had his personal reasons for his actions, what he did was not conducive to obtaining approval from the Department. Thus, his application was given a recommendation for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Citrus/Florida Citrus Commission, denying Sun and Earth's application. DONE AND ENTERED this 30th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2012.
Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
The Issue Whether Ms. Lindstrand violated section 1012.67, Florida Statutes (2012), or whether there is just cause to terminate Ms. Lindstrand.
Findings Of Fact The School Board is charged with the duty to operate, control and supervise all free public schools within Broward County, Florida. At all times relevant to this matter, the School Board employed Ms. Lindstrand as a math teacher at Cypress Bay High School. Ms. Lindstrand had started her employment with the School Board in 1996. In June 2011, Ms. Lindstrand was arrested for driving under the influence (DUI). She hired an attorney and contested the charge. Her trial was scheduled for February 27 and 28, 2013. Ms. Lindstrand requested and had been approved for leave from February 26 through March 1. She requested the leave for February 26 through the 28th due to the trial, and the leave on March 1st was for the intended purpose of attending her grandfather’s 90th birthday party. She never informed the school or her parents that she had a trial; rather, she requested the leave for “personal reasons.” Ms. Lindstrand did not anticipate that she would be found guilty of the DUI charge, or that she would, upon being found guilty, be sentenced immediately to a period of incarceration. She had made no plans for that possibility. On February 28th, in the evening, Ms. Lindstrand called her father, Thomas Lindstrand, notifying him that she had been through the DUI trial, had been found guilty, and had been immediately incarcerated. Mr. Lindstrand informed his wife, and told her to call the school the next morning. Ms. Lindstrand’s mother called the school the morning of March 1st, and spoke with Ms. Estripeaut, an assistant principal at Cypress Bay High School. She informed Ms. Estripeaut that Ms. Lindstrand was in jail, and would remain in jail for a period of six weeks. Because Ms. Lindstrand was responsible for teaching seven math classes, which included classes where students are required to pass end-of-year tests in order to graduate, Ms. Estripeaut was tasked with the responsibility of finding a certified substitute teacher, with a math background, who could serve for a lengthy period of time. Once a qualified substitute teacher was selected, Ms. Estripeaut and the substitute teacher met with parents and students in order to reconcile grades in the grade books. Students reported that they had turned in assignments that were missing from the grade books, and parents were concerned about the students’ preparation for the end-of-year tests. On March 5th, Mr. Lindstrand called the school and spoke with Rebecca Johnson, who works as a Leave Specialist for the School Board. Ms. Johnson sent Mr. Lindstrand a leave request form, which he properly completed and filed on March 6, 2013. On approximately March 7th, Ms. Estripeaut contacted Mr. Lorenzo Calhoun, an Employee Relations Specialist for the School Board, and informed him that Ms. Lindstrand had been absent from work for three days without approved leave. Mr. Calhoun recommended that Ms. Lindstrand’s name be sent to the School Board for termination, because being absent from work for more than three days without approved leave constitutes abandonment under School Board policy. Prior to making his recommendation to Ms. Estripeaut, Mr. Calhoun confirmed with the Leave Department that Ms. Lindstrand had not been approved for leave for the three or more days that she had already been absent from work. When he called the Leave Department, she had not been approved for any leave. On March 7, 2013, a letter from the school, signed by the principal but prepared by Ms. Estripeaut, informed Ms. Lindstrand that her name was being forwarded to the School Board with the recommendation that she be terminated. It also informed her that her name would be placed on the meeting agenda for the School Board’s meeting on March 18, 2013. The letter was sent to the following address: “1408 NE 5 Ct. #4, Fort Lauderdale, Florida, 33301.” Ms. Lindstrand had lived at this address until August of 2012, at which point she moved to a different address, but never informed the school. Although Ms. Lindstrand had asked the post office to forward her mail to her new address, she never received this letter. On March 8, 2013, an almost identical letter was sent to Ms. Lindstrand from the Staffing Department, letting her know that her name was being forwarded to the School Board for termination, and that the School Board would meet on March 18, 2013. This letter was also sent to the only address on record for Ms. Lindstrand--an address where she no longer resided. According to Ms. Lindstrand, she never received this letter either. The Chief Human Resources Officer, Gracie Diaz, supervises the staffing department, leaves department, and employee relations department. On approximately March 7th, Ms. Diaz was informed that Ms. Lindstrand was incarcerated, and that the Cypress Bay High School principal and the staffing department were moving forward with the termination process. She was also informed that Ms. Lindstrand had requested personal leave. Ms. Diaz spoke with the School Board’s general counsel, and together they reviewed the collective bargaining agreement between the Broward Teachers Union and the School Board, which contained the following provision: Length of Leave: An employee who has been employed for more than three (3) years in Broward County may be granted upon request, personal leave without pay for a period not to exceed two (2) years for reasons not provided elsewhere in this Agreement. The employee shall be returned to duty at the beginning of the next school year following the leave. Such leave shall require the approval of the Superintendent. Ms. Diaz took the leave request form, as well as the letters from the principal and the staffing department regarding the termination process to the Superintendent. Given that the collective bargaining agreement leave provision is permissive in nature, Ms. Diaz recommended to the Superintendent that he deny the leave request, because she felt it was inappropriate to grant personal leave due to incarceration. She also recommended that the School Board go forward with termination. The School Board met on March 18, 2013, and voted to terminate Ms. Lindstrand’s employment. By letter dated March 22, 2013, the Leaves Department notified Ms. Lindstrand that her request for personal leave had been denied by the Superintendent. By letter dated April 9, 2013, Ms. Lindstrand was notified that the School Board had met and had approved the recommendation for her termination. Ms. Lindstrand was released from jail on April 6, 2013. She received these final two letters at the post office, a few days after being released.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order terminating Ms. Lindstrand’s employment. DONE AND ENTERED this 17th day of October, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 17th day of October, 2013. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 Adrian Alvarez, Esquire Deborah Klauber, Esquire Haliczer, Pettis, and Schwamm, P. A. Seventh Floor One Financial Plaza 100 Southeast Third Avenue Fort Lauderdale, Florida 33394 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0442 Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0442
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT 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 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
