Findings Of Fact At all times relevant hereto, Respondent, Thomas Miller Collins, held teaching certificate number 489045 covering the area of substitute teaching. The certificate is valid through June 30, 1985. On July 2, 1982 Petitioner, Department of Education, Education Practices Commission, filed an Administrative Complaint alleging generally that on three occasions between November 1974 and November 1981 Respondent had pled guilty to various criminal charges which constituted conduct sufficient to warrant disciplinary action against his teacher's certificate. Respondent's request for an administrative hearing precipitated the instant proceeding. On or about November 20, 1974, Respondent was arrested for possessing in excess of five grams of cannabis. After pleading guilty to this offense on March 3, 1975, the Circuit Court in and for Broward County withheld adjudication and placed Respondent on probation for a period of eighteen months. On or about October 4, 1975, Respondent was arrested in Broward County for (a) possession of cocaine and (b) delivery of cocaine. As a result of a plea of guilty to delivery of cocaine on January 19, 1976, he was adjudged guilty and sentenced to state prison for a term of two years. The remaining charge was dropped. Respondent's civil rights were later restored on April 28, 1978 by the Office of Executive Clemency. On or about November 22, 1981, Respondent was arrested for (a) possession of a controlled substance, (b) possession of a drug without a prescription, and (c) for driving while intoxicated. He later pled nolo contendere to driving while under the influence and received six months reporting probation, a suspension of his driver's license for 90 days, a $236 fine, and a requirement that he attend and complete a DWI course. The other two charges were dismissed. On September 22, 1980 Respondent filed an application for employment as a part-time (substitute) teacher with the School Board of Broward County. Question ten of the application asks the following: Have you ever been convicted of a felony or a first degree misdemeanor? If a yes answer was given the applicant was then requested to state the charge, where convicted, and date of conviction. Respondent answered the question in the affirmative and then stated "will explain upon request." A copy of his fingerprints was also submitted with the application. After receiving the application, the School Board of Broward County conducted an investigation of Respondent. It required that Collins fill out an "arrest record information sheet" explaining the details of his arrest. Collins did so and stated only that he had been arrested by the Fort Lauderdale Police Department in 1974 for possession of cocaine and was found guilty. Since his arrest in 1974 was for possession of cannabis vis a vis cocaine, it is unclear whether he was referring to his 1975 arrest when he was arrested and convicted of delivery of a controlled substance (cocaine). However, based upon this explanation, and an interview with the Board's Division of Internal Affairs, he was authorized to be employed as a substitute teacher. After receiving a complaint from an undisclosed parent, the principal of Crystal Lake Middle School in Broward County, where Respondent occasionally taught, contacted the Division of Internal Affairs regarding Collins. It then ran a fingerprint check on Respondent with the Federal Bureau of Investigation which confirmed the arrests and convictions in 1974 and 1975. Thereafter, on November 5, 1981 the Board's associate superintendent wrote Respondent to advise him that his name was being removed from the substitute teacher list, and that he could not accept any further assignments within the County. Despite this letter, Collins was again employed as a substitute teacher. On January 14, 1982 the Board's director of personnel wrote Collins and stated that he was no longer authorized to substitute in the Broward County school system. On December 8, 1980 Respondent filed an application with the Teacher Certificate Section of the Department of Education in Tallahassee, Florida. In response to question 5, which asks whether the applicant has .... ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation...", and if applicable to state where the arrest occurred, the date, the nature of charges, and disposition, Collins answered "yes" and indicated he had been arrested in Fort Lauderdale in 1974 and 1975 for possession of marijuana and cocaine and was found guilty of both charges. He also noted that his civil rights had been restored. On March 26, 1981, the Department's Professional Practices Services consultant wrote Collins requesting "more details regarding (his) arrest in order to complete the processing of (the) application." It asked that he be more specific concerning the date of arrest, date of adjudication, the court address where final disposition was rendered, and the nature of the charges. Before Respondent replied to this request a certificate was issued by the State at a later date. Petitioner contends it had no choice except to issue a certificate since the ninety-day statutory time period for issuing or denying a certificate had expired. It conceded it erred in not processing the application in a more timely manner so that a reasoned decision could be made within the statutory time constraints. There was no testimony to demonstrate whether Respondent's conduct "seriously reduced his effectiveness as a teacher." His principal at Crystal Lake Middle School characterized his work as "satisfactory", and stated that no complaints had been made regarding his school work performance from any other teacher or member of the administrative staff. Respondent did not testify in this proceeding. However, he did introduce letters from his pastor and a former employer which were treated as hearsay.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be given a public reprimand for violating Subsection 238.28(1) for having in his possession two marijuana cigarettes and one diazepam tablet; all other charges against Respondent should be DISMISSED. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
The Issue Does Petitioner, Lee County School Board (Board or District), have just cause to terminate the employment of Respondent, Stacey Landau, from her position as a school teacher for submitting fraudulent medical documentation in support of applications for accommodations and benefits under the Americans With Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?
Findings Of Fact The Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the school district. The District has employed Ms. Landau since January 19, 1998. Most recently, she was assigned to work as a teacher of students with disabilities at Patriot Elementary School. Ms. Landau is an instructional employee and is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). The District employs her pursuant to a professional services contract. Ms. Landau holds a Florida educator's certificate. She is certified in elementary education, English for speakers of other languages, and exceptional student education. Ms. Landau's performance assessments have always been satisfactory or better. The District has not previously disciplined her. Ms. Landau submitted documents to the District in 2012 and 2013 to support her requests for accommodations under ADA and FMLA. The documents included three dated July 25, 2012; August 16, 2012; and June 24, 2013. During a July 24, 2013, meeting of the District ADA Committee to review Ms. Landau's most recent request, members of the committee developed concerns about the authenticity of the June 24, 2013, document. It was one of three documents submitted by Ms. Landau that bore the signature of James Weiner, M.D. The other two were dated July 25, 2012, and August 16, 2012, also purportedly signed by Dr. Weiner. Ranice Monroe, the District's director of Professional Standards and Equity, contacted Dr. Weiner's office to determine the authenticity of the signature. After Dr. Weiner's staff advised Ms. Monroe that neither the doctor nor his staff had completed or signed the form, the District had Dr. Weiner review the other two forms to determine their authenticity. Dr. Weiner is a physician who works for the Sypret Institutes, a neurosurgical practice. He also worked, during the relevant period, for Southwest Florida Neurosurgical and Rehabilitation Associates. Dr. Weiner practices anesthesia, pain management, and rehabilitative medicine. He treated Ms. Landau for several years. During all time periods relevant to this proceeding, Ms. Landau was Dr. Weiner's patient. Ms. Landau was also the patient of an ophthalmologist, Dr. Elmquist, who was treating her for her deteriorating eyesight. Information provided by his office is not relevant to the issues in this proceeding. Throughout his career, Dr. Weiner has consistently followed the same practice when completing forms, such as forms for workers' compensation patients, medical certifications for benefits, and medical certifications for accommodations. He personally completes the forms by hand, usually during the evening at home. He never signs the forms in blank. Ordinarily, Dr. Weiner's staff does not complete these types of forms for him. Dr. Weiner's office does not have and has never had a typewriter. The forms that he completes for patients are never completed by typewriter or other mechanical printing device. Dr. Weiner keeps copies of forms that he completes in his patients' files, whether he provides them to the patient, an employer, or an insurance carrier. July 25, 2012, Form Ms. Landau submitted a form titled, Medical Certification of ADA Qualifying Impairment dated July 25, 2012, in support of her request for accommodations due to a disability. The form has four sections seeking identified information and provides room for physician-identifying information and the physician's signature. "Cervical spasmodic torticollis" is handwritten in the section asking for the "[n]ature and severity of the employee's impairment." "Chronic" is handwritten in the section seeking "[p]ermanent or long term impact." The handwriting for the responses in those two sections is the handwriting of Dr. Weiner. He completed those sections of the form. Dr. Weiner also completed the section of the form providing the name and contact information for the attending physician, which is also in his handwriting. The patient name on the form is in handwriting that Dr. Weiner says is not his. Handwriting that Dr. Weiner says is not his provides the response called for by a section stating: "Major life activities substantially limited by impairment " The response states that, among other things, Ms. Landau has a limited ability to engage in daily activities with her son, grocery shop, carry heavy objects, lift items out of the car, and walk. The following section seeks "[w]ork related restrictions that necessitate a reasonable accommodation for this employee." The response, in handwriting that Dr. Weiner says is not his, states: some physical restraint, deflecting aggressive attacks, [illegible] emotional stress that see daily and extend throughout the long [illegible]. Moving furniture to put classroom back together [illegible] has [illegible]. Dr. Weiner theorized that someone modified a form that he had completed changing the responses in the two sections quoted above. The physical evidence is not consistent with the theory. The form has lines on which to provide the responses. The lines on all sections in question are complete. There is nothing indicating that text on them was erased or pasted over. The writing is on the lines with the loops of letters such as "ys" and "fs" crossing below the lines in a natural manner. There is also plausible testimony from Ms. Landau's mother, also a patient of Dr. Weiner, that on occasion, his staff has completed parts of forms that he signs. Consideration of the persuasive and credible evidence does not result in the conclusion that it is more probable than not that Ms. Landau caused sections of the July 25, 2012, form to be altered after Dr. Weiner completed it. It is probable, accepting Dr. Weiner's testimony that he never signs blank forms, that in this instance, his staff assisted him in completing the form. Comparing the copy of the July 25, 2012, Medical Certification form that Ms. Landau provided the school with the copy of the form, if any, in Dr. Weiner's records, would have demonstrated whether the form that Ms. Landau provided to the school was one that Dr. Weiner had prepared. The record does not contain evidence of a file copy. August 16, 2012, Form The responses on the Medical Certification form dated August 16, 2012, that Ms. Landau provided the District are typed or otherwise mechanically printed. Only the signatures of Dr. Weiner are in script. The responses are typed or printed on pieces of paper that have been obviously pasted or taped over the lines on the form where responses are to be written. This includes the section for the address of the provider. The response to the "[n]ature and severity of the employee's impairment" section is markedly different from that of the form dated July 25, 2012, less than a month earlier. The printed response states: "Positive cervical nodes with intra-abdominal metastases and tumor invasion." The difference between the July 25 and August 16, 2012, response to the "[p]ermanent or long term impact" section is also marked. The printed response states: "Ms. Landau will require routine blood tests and pet scans to monitor for possible future growth. Ms. Landau requires monitoring and assistance with food consumption and nutrition." The responses to the other two sections calling for narrative responses are also very different from the responses in the July 25, 2012, form. These differences, the credible and persuasive testimony of Dr. Weiner that he has never used printed responses on these sorts of forms, and the fact that the responses are plainly added to the form over the lines provided, make it more probable than not that Ms. Landau altered the form intending to deceive the Board. June 24, 2013, Form This form is an acknowledged forgery. Britton Thorne, an unemployed family friend of Ms. Landau forged the responses on the four-page form and Dr. Weiner's signature on it. Because he was unemployed and Ms. Landau needed assistance due to her vision impairment, Mr. Thorne was living with her, helping with household chores, providing transportation, and attending doctor appointments with her. Mr. Thorne testified that he grew frustrated with his inability to have the form completed by Dr. Elmquist and was unwilling to leave the form at the doctor's office for completion. Consequently, he completed the form. He signed Dr. Weiner's name because he had a prescription from Dr. Weiner available with a signature to copy. Mr. Thorne then sealed the forged form in an envelope. He drove Ms. Landau to the District office to deliver the envelope with the forged form. Mr. Thorne did not tell Ms. Landau what he had done until Dr. Weiner's office advised Ms. Landau that he was discharging her because he had learned of the forgery from the District. Mr. Thorne's demeanor while testifying and his acknowledged concern about possible criminal prosecution for his actions made his testimony credible and persuasive. There is no credible, persuasive evidence that Ms. Landau knew of Mr. Thorne's forgery at the time she submitted the form to the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding just cause to terminate the employment of Stacey Landau and dismissing her from her position as a teacher with the Lee County School District. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2014.
The Issue Whether Petitioner demonstrated entitlement to issuance of a Florida Educator?s Certificate.
Findings Of Fact Respondent, as Commissioner of the Florida Department of Education, is charged with the duty to issue Florida Educator's Certificates to persons seeking authorization to become school teachers in the state of Florida. Petitioner is a second-grade teacher. She is in her third year of teaching. Pending action on her application for an Educator's Certificate, Petitioner has taught under the authority of temporary Statements of Eligibility. She currently teaches at George W. Monroe Elementary School in Quincy, Florida. On or about April 17, 2012, Petitioner submitted an on- line application for a Florida Educator's Certificate in Elementary Education. The application included a field with the heading “CRIMINAL OFFENSE RECORD(S)(Report any record other than sealed or expunged in this section). In her application, Petitioner disclosed the following criminal offenses, their dates, and their dispositions: Affray - June 2002 - Probation Conspiracy to Possess Marijuana - August 2006 - Guilty/Adjudicated Petty Theft - April 2000 - Pretrial Diversion Disorderly Conduct - February 2001 - Probation DWLS - February 2001 - Probation In conjunction with her application, Petitioner submitted information to substantiate those offenses that she could remember, as well as a set of fingerprints. Included in Petitioner?s submittals to Respondent was a copy of the Judgment in a Criminal Case, United States of America v. Torreya Haynes, Case No. 4:06cr10-03(S), from the United States District Court for the Northern District of Florida, dated August 3, 2006. Petitioner stipulated that she is the person identified in the Judgment as Torreya Haynes. The acts upon which the Judgment was based concluded on August 15, 2005. The Judgment established that Petitioner pled guilty to the offense of Conspiracy to Distribute Marijuana, and was sentenced to a three-year term of probation and payment of a special monetary assessment of one-hundred dollars. The parties stipulated to the following facts regarding Petitioner?s criminal record: On or about March 5, 2000, the Applicant was arrested and charged with Petit Theft in Leon County, Florida. The Applicant entered into a pre-trial diversion program and a “No Information” was filed on the charge. On or about July 20, 2000, the Applicant was arrested and charged with Affray in Leon County. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about August 20, 2001, the Applicant was arrested and charged with Disorderly Conduct/Affray in Leon County, Florida. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about June 9, 2004, the Applicant was arrested and charged with Battery in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about August 4, 2004, the Applicant was arrested and charged with Possession of Marijuana in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about February 2, 2005, the Applicant was arrested in Miami-Dade County, Florida, and charged with Possession of Cannabis. The Applicant entered into a pre- trial diversion program called “Court Options” and the charge was nolle prossed. In addition to the foregoing, Petitioner testified that she did not list a 2001 arrest for passing a worthless bank check, to which she pled no contest and received probation. Petitioner did not list the offenses in sub-paragraphs 7.b. through 7.f. and in paragraph 8. in the application. On September 19, 2012, Respondent served Petitioner with a 10-count Notice of Reasons advising her that her application for a Florida Educator's Certificate was denied. Petitioner timely filed an Election of Rights that requested a formal hearing. Petitioner will be unable to continue to teach students in Florida without a valid Educator?s Certificate. Thus, Petitioner is substantially affected by the intended decision to deny her certification, and has standing to contest the intended action. From her March 5, 2000 arrest for Petit Theft, which occurred when she was 19 years of age, until the August 15, 2005, date of the conclusion of the offense of conspiracy to distribute marijuana, which occurred when she had just turned 25 years of age, Petitioner was arrested and entered into some form of official disposition of the offenses on, at best count, twelve occasions. Despite the relatively light nature of the dispositions, generally consisting of pretrial diversion or probation, the charges were serious, including multiple drug charges, battery, and affray. “Chaotic” would be an apt description of those years of Petitioner?s life. In her application for an Educator?s Certificate, Petitioner answered truthfully that she had criminal offenses in her background, and listed what she remembered. Petitioner testified that she completed the application from memory and thought she had answered the questions posed, but did not try to recover paperwork or records from the clerk of court. Petitioner understood that her fingerprints submitted with her application would provide the Department with access to her complete criminal record, and expected that the background check would disclose her record in the application process. A review of the application form shows there to be five spaces for information to be entered. There was no evidence that additional spaces were provided. It is not known how offenses were to be listed if they numbered more than five. Petitioner listed her federal conviction as “conspiracy to possess marijuana,” and indicated that she was adjudicated guilty. Petitioner testified that she had originally been charged with conspiracy to both possess and distribute marijuana. She was convicted of conspiracy to distribute marijuana, but confused the charges when filling out the application. Petitioner provided Respondent with a copy of the conviction, which plainly identified the offense for which she was convicted. There was no effort to conceal or falsify the nature of the conviction. Rather, the error was just that, an error. In the more than eight years that have passed since the conclusion of the last acts that constituted the conspiracy to distribute marijuana, Petitioner appears to have turned a corner. Petitioner?s actions since 2005 show a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. She married, and has a child with a second on the way. She is active with her school, her family, and her church. She went back to school and earned a Master?s Degree in Public Administration. She has taught for more than two years without incident or complaint. Petitioner expressed a sincere interest and concern for the children under her tutelage. Petitioner?s testimony that “I?ve grown up. I?m not the same person that I was before,” was convincing, and leads to the conclusion that she has substantially rehabilitated herself. Based on Petitioner?s demeanor and sincerity at the hearing, the undersigned finds her testimony to be credible and worthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Torreya Landrea Davis?s application for an Educator?s Certificate, subject to such reasonable conditions as will allow the Commission to monitor and ensure Ms. Davis?s continued attention to and compliance with the standards necessary for maintaining the Educator?s Certificate in good standing. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S GARY EARLY 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 13th day of December, 2013.
The Issue Whether the Education Practices Commission should revoke or suspend Respondent's teaching certificate, or impose any other penalty provided by law, for the reasons cited in the Administrative Complaint filed July 12, 1994.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 182469, covering the areas of business education and vocational education. It is valid through June 30, 1997. Respondent filed an application for the renewal of her certificate. Respondent was formerly employed by the Brevard County School District. She retired from her employment with the school district in March 1994. In the case of United States of America v. Marguerite Y. Smith, Case Number 93-185-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: Marguerite Y. Smith knowingly and intentionally executed and attempted to execute the scheme and artifice to defraud and to obtain money and funds by means of false pretenses and representations, in that Marguerite Y. Smith, forged the signature of Jerry Bellomy on Check Nos. 001081 and 001071, presented those checks to Southeast Bank, N.A. for payment, and then used the proceeds of those checks for her own purposes. All in violation of Title 18, United States Code, Section 1344. In the case of United States of America v. Marguerite Y. Smith, Case No. 93-198-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: On or about September 13, 1993, in Brevard County, Florida, in the Middle District of Florida, Marguerite A. Smith, the defendant herein, in a matter within the jurisdiction of the National Aeronautics and Space Administration of the United States, knowingly and willfully made a false, fictitious and fraudulent material statement and representation, in that the defendant certified that she had not, within a three year period preceding September 13, 1993, been convicted of commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract, or with commission of theft, or with making false statements, whereas, as Marguerite A. Smith then and there well knew, on September 20, 1991, in the case of United States v. Marguerite A. Smith, Case No. 910166-CR-Orl- 19, Marguerite A. Smith was convicted of a violation of Title 18, United States Code, Section 665(A) theft from employment and training funds, arising from the submission of a false claim to obtain funds administered by a federal agency pursuant to the Job Training Partnership Act. All in violation of Title 18, United States Code, Section 1001. Respondent plead not guilty to the charges and following a trial by jury was found guilty of both charges. On April 20, 1994, Respondent was adjudicated guilty of Bank Fraud and making a False Statement to an Agency of the United States. She was sentenced to be imprisoned for a term of fifteen months, followed by supervised release for a term of three years during which Respondent must pay $22,953.28 in restitution. Respondent was arrested on the above charges at Rockledge High School, where she was employed, during a school day on November 15, 1993. Two FBI agents went to the principal's office and told the principal that they came there to arrest Respondent. The principal went to Respondent's classroom and asked her to come with him to his office, whereupon she was arrested and taken to detention by the FBI agents. The principal was contacted by the local radio station and one of the major news networks sent a television crew to the school for an on-campus interview. There was television and radio coverage of the fact that Respondent was arrested. There was widespread knowledge of her arrest among the students at the school, their parents and the community at large. Respondent's arrest and conviction was the subject of newspaper articles in Florida Today on January 5, 1994, and The Orlando Sentinel on November 16, 1993. Respondent is not eligible for rehire by the Brevard County School District because she had been found guilty of a felony and that Respondent's effectiveness as a teacher has been damaged. In a prior case, an Administrative Complaint was filed against Respondent on May 12, 1993, alleging that Respondent submitted a fraudulent claim to receive federal funds and that she pled guilty to the charge of Obtaining Federal Funds by Fraud, Betty Castor v. Marguerite Smith, Case No. 93-067-RT, EPC Index No. 93-197-FOI. As a result of that administrative proceeding, Respondent was disciplined by the Education Practices Commission (EPC) in a Final Order issued on December 24, 1993. Respondent was placed on four years probation and was issued a letter of reprimand by the EPC.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding Marguerite Smith guilty of violating the provisions of Sections 231.28(1)(c)(e)(f) and (2), Florida Statutes. It is further RECOMMENDED that a Final Order be issued revoking Respondent's teaching certificate for a period of seven years. DONE AND ENTERED this 26th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997. COPIES FURNISHED: Barbara J. Staros, Esquire Post Office Box 3444 Tallahassee, Florida 32315 Lorene C. Powell, Esquire Chief Trial Counsel FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Kathleen Richards, Executive Director Professional Practices Services 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 351 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner is entitled to an athletic coaching certificate, or whether he should be denied a certificate based on the allegations in the Notice of Reasons.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: DOE is charged with the duty to issue Florida Educator’s Certificates to qualified persons seeking authorization to become schoolteachers and/or coaches in the State of Florida. Petitioner is an African-American male, whose date of birth is August 7, 1975. On or about July 14, 2010, Petitioner completed and signed a DOE application (Application) for a coaching certificate. Petitioner does not currently hold a certificate of eligibility or temporary Educator’s Certificate. On or about July 26, 2010, DOE’s Bureau of Educator Certification received Petitioner’s Application. On March 26, 2013, DOE advised Petitioner that his application was denied for the reasons set forth in a three-part Notice of Reasons. The Notice of Reasons alleged, as the basis for denying the Petitioner’s Application, that: On or about February 21, 2001, in Volusia County, Florida, Applicant sold 7 grams of cocaine in exchange for approximately $175.00. On or about April 3, 2001, Applicant was arrested and charged with Unlawful Sale of a Controlled Substance. On or about August 7, 2001, the charge was nolle prossed. On or about October 18, 2004, in Volusia County, Florida, Applicant pointed a handgun at an unknown male that was in a vehicle parked outside of a residence. Applicant fired two rounds into the vehicle. One of the bullets went through the living room window of a nearby residence. Applicant was subsequently arrested and charged with Shooting into a Building. On or about September 27, 2005, Applicant pled Nolo Contendere and adjudication was withheld. On or about May 5, 2006, in Clayton County, Georgia, Applicant struck a female, who was under the age of eighteen years, with a leather belt.[1/] The Notice of Reasons concluded that Petitioner had therefore violated section 1012.56(2)(e), Florida Statutes,2/ by failing to maintain good moral character (Count 1); section 1012.56(12)(a), by committing acts for which revocation would be authorized by the Education Practices Commission (Count 2); and section 1012.795(1)(d), by being guilty of gross immorality or an act involving moral turpitude (Count 3). Petitioner will be unable to pursue a career coaching or teaching students in Florida without educator certification. Petitioner is substantially affected by the intended decision to deny his certification. Reason No. 1: Alleged Sale of Cocaine On or about April 3, 2001, Petitioner was arrested and charged with the Unlawful Sale of a Controlled Substance, specifically, seven grams of cocaine. On or about August 7, 2001, the charge was nolle prossed.3/ At the time of Petitioner’s arrest, William Heiser was a drug agent with the Volusia County Sheriff’s Department, and was assigned to the Volusia Bureau of Investigation. On that day the Volusia Bureau of Investigation, including Agent Heiser, conducted an undercover operation. Agent Heiser was deposed prior to the final hearing in this matter, and his deposition was received in evidence in lieu of his live testimony. At his deposition, Agent Heiser identified the charging affidavit as a copy of the police report that he prepared and signed. The charging affidavit, prepared and signed on April 3, 2001, states that that there is probable cause to believe the defendant [Roger Washington]: On the 21st day of Feb, 2001, at approximately 1630 p.m. at Mason & Derbyshire Road within Volusia County, violated the law and did then and there: Sold 7 grams of suspected cocaine to C.I. #0015 in exchange for $175.00 in Volusia County Sheriff’s Office Pre-Recorded Monies. CI #0015 and the vehicle the CI was operating was searched for weapons, monies and drugs finding none. [The CI was kept under constant surveillance and He/She traveled to the above location.] The CI was kept under constant surveillance as He/She traveled to the above location. The C.I. was observed meeting the subject Roger Washington and was given a plastic baggie that contained approx 7 grams of an off white powder substance in exchange for the $175.00 of pre-recorded monies. The C.I. was kept under constant surveillance as He/She traveled to a predetermined meeting location where He/She handed over to Inv. Heiser the plastic bag containing the suspected cocaine. The C.I. and the vehicle the C.I. was operating was again searched for monies, weapons and drugs finding none. The off-white substance was tested by Inv. Heiser using a Nark #13 Test Kit which resulted in a presumptive reaction for the presence of Cocaine. It was placed into evidence at VCSO. At his deposition, Agent Heiser was unable to recall any of the particulars of the actual arrest of Petitioner for the incident described in the charging affidavit. He did not remember if he or another law enforcement officer arrested Petitioner. Agent Heiser testified that Confidential Informant #0015 (CI) had herself committed crimes, and participated in the undercover operation in hopes of getting out of her own legal problems. He admitted that from his position of a couple of car lengths from CI that he did not observe her entire body, and could not see inside CI’s vehicle while it traveled a “good mile” from the location of CI’s alleged interaction with Petitioner. Agent Heiser also testified that he did not personally search CI’s person nor did he witness the actual search or any strip search of CI as she was female and he is male. He testified that the off-white powder substance that he field-tested was not provided directly from the Petitioner to him, but rather through the CI who carried it approximately a mile from the buy location. Agent Heiser explained that the reason for strip- searching CIs is that “obviously, you can hide things in the cavity or you can hide things in spots that you wouldn’t normally get if you just did a pat down.” He further admitted that CI had the opportunity to hide cocaine and the money on her person underneath her clothes, for example in her bra. No evidence was presented in this record that CI was subjected to a strip-search in connection with the buy of February 21, 2001. Agent Heiser further testified that the off-white powder substance was field-tested by him and not laboratory tested, and that he could not be certain that the substance tested was actually cocaine. He further testified that he had no evidence that the field test was completely reliable. He further conceded that there is no such thing as a field test that is 100 percent reliable and that a laboratory test is more reliable. He admitted that he does not remember any details regarding any laboratory reports verifying or not verifying the substance was cocaine. No evidence was submitted that any laboratory test was ever conducted on the substance. Similarly, there was no evidence submitted that the $175.00 in pre-recorded monies provided to the CI was ever recovered or found upon Petitioner. Further, insomuch as Agent Heiser was at least two car lengths away when observing the alleged interaction between Petitioner and the CI, it was highly improbable that he was actually able to know for certain that the monies that allegedly were given by the CI to Petitioner were indeed the same pre-recorded monies mentioned in the charging affidavit. Vision at that distance would not be good enough to make that determination. Petitioner testified that he was arrested by Agent Heiser and another officer at his business, a car wash. At the time of the arrest, Agent Heiser initially approached a customer, Mike, and asked Mike if he was Roger Washington. Thus, Agent Heiser was not able to independently identify Roger Washington at the time of the arrest. Instead, Petitioner had to self-identify himself to Agent Heiser. There is no evidence in this record as to the date Petitioner was arrested in connection with the cocaine sale charge. However, the Charging Affidavit was signed by Agent Heiser on April 3, 2001, more than a month after the alleged drug buy took place. Agent Heiser testified that frequently the Volusia Bureau of Investigation conducted a “bunch” of buys prior to making any arrests. Given this testimony, it is reasonable to infer that Petitioner was not arrested until sometime after the preparation of the Charging Affidavit in April 2001. The delay in the arrest of Petitioner in connection with the cocaine buy, coupled with Agent Heiser’s inability to independently identify Petitioner at the time of his arrest, raises reasonable doubt as to whether the person who interacted with the CI was actually Petitioner. At hearing, Petitioner denied ever selling cocaine to anyone. Based upon the credible testimony of Petitioner and the lack of persuasive evidence that the Petitioner in fact sold cocaine, it has not been established that Petitioner engaged in the sale of cocaine. Rather, the competent substantial evidence of record only establishes that Petitioner was arrested and charged with the sale of cocaine, and that the charge was later nolle prossed. Reason No. 2: Shooting Into Building On June 30, 2005, Petitioner was charged by Information with shooting into a building (through a car window) in Volusia County, a second-degree felony. The shooting at issue occurred on October 18, 2004, some eight months earlier. On September 27, 2005, the Petitioner entered a plea of nolo contendere (no contest) to the charge and adjudication of guilt was withheld. Petitioner was placed on probation for three years, ordered to make restitution to the victim, and to pay court costs. At hearing, Petitioner testified that he was not even in the State of Florida on or about October 18, 2004, but rather was living in Atlanta at the time. He testified that he did not shoot into a building (or a parked car), nor did he shoot at anybody. Petitioner’s demeanor and body language while testifying in this regard were composed, did not appear rehearsed, and are found to be credible. Other than the court records reflecting the charge, and Petitioner’s plea of no contest, no other evidence was offered to rebut this testimony. At hearing, the undersigned queried Petitioner as to why he would have pled no contest to a crime he did not commit: The Court: Mr. Washington, why did you plead no contest to a charge that you did not commit? The Witness: Because they was offering me 15 years. The Court: I don’t understand that. What do you mean? The Witness: They was offering me 15 years in prison. The Court: If you didn’t plead guilty or not – I’m sorry – no contest? The Witness: Yes. The Court: What was the evidence that they had against you that formed the basis for your arrest on that charge? The Witness: I think they said someone said that it was me. The Court: So in exchange for your no contest charge (verbatim), were not adjudicated guilty and that was the deal; is that right? The Witness: Correct. Under the circumstances, Petitioner’s explanation for pleading no contest to a crime he did not commit is plausible. Based upon the record before the undersigned, there is insufficient competent evidence to conclude that Petitioner did in fact commit the crime of shooting into a building. Petitioner’s Character Petitioner is employed as a behavior specialist with Behavior Change Artists, an agency the Volusia County School System contracts with to provide behavior therapy to its students. In this capacity Petitioner works directly with children. Previously, Petitioner worked for three years as a substitute teacher at Holly Hill Middle School. Although the record does not reflect exactly when he worked in this capacity, the record does show that it was after 2006 and prior to 2012. In order to work with children as a behavior specialist and substitute teacher, Petitioner was required to undergo two Level II background screenings by the Florida Department of Law Enforcement. As a part of the background screenings he provided information related to his arrests, charges, and dispositions of the charges. As a result of those background screenings he was allowed to work in these occupations and was not disqualified from working with children or vulnerable adults. Upon applying for the positions of substitute teacher and behavior specialist, Petitioner disclosed the arrests, charges and dispositions of the incidents listed in Notice of Reasons No. 1 and No. 2 to those who hired him. Diane Mathis was an office specialist at Holly Hill Middle School, whose responsibilities included coordinating substitute teachers during the period 2006 through 2011. At hearing Ms. Mathis authenticated a letter of recommendation that she authored in early 2013 with the understanding that it would be submitted in conjunction with Petitioner’s Application. The letter states: May 13, 2013 To whom it may concern: I’ve had the pleasure of working with Roger Washington at Holly Hill Middle School in Volusia County for approximately 3 years. I was the Substitute Teacher Coordinator from 2006-2011. He was GREAT with the students and in the classroom. They loved him. The Faculty and Staff enjoyed having him on Campus as he helped out in other areas as needed. The Teachers at Holly Hill Middle School would recommend Roger to cover their class if they were absent. He was in high demand. He is dependable and showed professionalism each and every time he was on our Campus. Sincerely, Diane Mathis, Office Specialist Volusia County Schools [phone number redacted] Ms. Mathis testified that during her time working with Petitioner she did not see anything that would concern her with respect to the Petitioner being granted a Florida Educator’s Certificate. On cross-examination Ms. Mathis conceded that she was not aware of the arrests, charges and dispositions of Petitioner’s arrests and that her recommendation was limited to her own experience and knowledge interacting with Petitioner in his position as a substitute teacher. Kenya Ford is a program specialist with the Volusia County School System. Ms. Ford’s responsibilities included interacting with the Petitioner in his position as behavior specialist. At hearing, Ms. Ford authenticated a letter of recommendation she had written on Petitioner’s behalf. The letter states: To Whom It May Concern: With great pleasure, I forward this letter of recommendation on behalf of Mr. Roger Washington. I have known Mr. Washington for the past thirteen years (13), in a personal and professional manner. He has demonstrated to be ambitious, dependable, determined and hardworking young man. Knowing him personally, he has proven to be a reliable and wonderful individual. While working alongside Mr. Washington as a behavior specialist and team parent with youth sports, I found Mr. Washington to have good work ethics and a pleasant personality as a professional, team player, and leader. As a mentor and professional, Roger Washington has shown himself to be a creditable individual that I would put my trust in and builds great moral among his colleagues. Roger is very active with implementing, organizing, and supervising afterschool sports programs over several years; while being a mentor for students and guide for parents. Mr. Washington is a tenacious and straightforward individual who is determined to accomplish his goals that he has set forth for the students he mentors [sic] and nurtures, [sic] along with parents and himself. Without question Mr. Washington has been one of the most spirited individuals [sic] and professionals [sic] I have encountered while working with him as the School District Program Specialist, that work closely with the behavior specialist over the past few years of my tenure. He has taken the challenge of being a leader within the field of education, while still conquering his own challenges of continuing education. Mr. Washington would be a great asset to any organization. Considering Mr. Washington’s commitment to hard work and dedication of excellence, I strongly recommend him for an assignment into your prestigious establishment. Sincerely Yours, Kenya Ford, Behavior Initiative Program Sc-EBD Program Specialist Volusia County Schools Ms. Ford testified that she witnessed nothing in her interactions with the Petitioner that would concern her should Petitioner receive a Florida Educator’s Certificate. Rather, Petitioner was one of the better behavior specialists providing services for Volusia County Schools. She testified that she wrote the above letter based upon her on experience with the Petitioner, including the work he did at Volusia County Schools and through non-school activities in the community, including the Pop-Warner football youth program. Ms. Ford further testified that she has personally known the Petitioner for 13 years and has never known him to be a user or purveyor of illegal drugs, nor has she known him to have a temper or anger management issue of any kind. In the more than nine years that have passed since the last alleged criminal act (shooting into a building), the record establishes that Petitioner has maintained a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. He is active in his school as a behavior specialist and serves with youth sports. During his most recent employment as a substitute teacher, and then as a behavior specialist, he has performed his duties admirably, and without incident. By all accounts he is a motivated and hard-working individual, and has excellent rapport with children. In its Proposed Recommended Order, Respondent points to several other instances in which Petitioner has been arrested. While these instances were not included in the Notice of Reasons, Respondent argues they are pertinent to the determination of whether Petitioner is of good moral character. Specifically, Respondent cites a 1996 arrest for disorderly conduct and a 1997 arrest for battery. It is noted that Petitioner pled not guilty to both of those charges. The battery charge was nolle prossed, while adjudication was withheld on the disorderly conduct charge. Petitioner was 21 and 22 years old, respectively, at the time of these arrests, which occurred some 17 or 18 years ago. Given the remoteness in time, age of Petitioner, and disposition, these arrests are not indicative of Petitioner’s character today. The greater weight of the evidence in this record does not support a finding that Petitioner committed the criminal acts set forth in Reasons No. 1 and No. 2. However, even had the record supported a finding that Petitioner committed those criminal acts, the record also established that in at least the past nine years Petitioner has comported himself in a responsible and professional manner. If Petitioner ever was a miscreant, he is now fully rehabilitated. Petitioner has had no further interaction with the criminal justice system since 2005, and if indeed he did commit the criminal acts accused of, they were isolated incidents, and not indicative of poor moral character. Even if Petitioner did commit the criminal acts referenced in Reasons No. 1 and No. 2, the record established that he is of good moral character today. A couple of isolated events that may have occurred nine or more years ago are not determinative of his character today.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order approving Petitioner's application for a Florida Educator's Certificate. DONE AND ENTERED this 14th day of February, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 14th day of February, 2014.
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Amended Notice of Reasons.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is presently 25 years of age. His date of birth is July 29, 1974. Petitioner had a troubled youth; however, since the August 6, 1994, incident (described below) that is the focus of the instant case, he has matured and gained a reputation of being a responsible adult member of his community. On Saturday, August 6, 1994, shortly after his twentieth birthday, at approximately 5:55 p.m., Petitioner was driving north on Andrews Avenue in downtown Fort Lauderdale. He had just finished running errands for his father in the downtown area and was on his way home. 5/ There were no passengers in his vehicle. As Petitioner approached the intersection of North Andrews Avenue and Second Street, there was a woman standing on the sidewalk on the northeast corner of the intersection, facing south, who attracted his attention. Unbeknownst to Petitioner, the woman, Joyce Fleming was a police officer employed by the Fort Lauderdale Police Department. Officer Fleming was participating in an undercover operation designed to "combat street level prostitution activity." Her role in the operation was to pose as a street prostitute. When Petitioner stopped for a red light at the intersection of North Andrews Avenue and Second Street, he made eye contact with Officer Fleming, who waved at him and pointed him toward a nearby parking garage, which was underneath an office building. Petitioner pulled into the parking garage and parked his car, head first, facing a concrete wall and beside concrete pilings. Officer Fleming, who was wearing a wire, then walked up to the driver's side of Petitioner's vehicle and started talking to Petitioner. The conversation she had with Petitioner was tape recorded 6/ and monitored by backup officers (who were in the vicinity). Officer Fleming began her conversation with Petitioner by complaining that a certain police officer, who, she told Petitioner, had been across the street from where she had been standing on North Andrews Avenue, was always "bothering" her. It was because of this police officer, she explained to Petitioner, that she had not "want[ed] to get in over there." After being told about the police officer, Petitioner asked Officer Fleming, "Why don't I meet you somewhere else?" To allay Petitioner's concerns, Officer Fleming told him that the police officer was no longer across the street and that therefore she could "get in" his vehicle. Petitioner, however, indicated to Officer Fleming that he was still "nervous about it," to which Officer Fleming replied, "If you're nervous, you can go on." Petitioner, though, did not "go on." He chose to stay. 7/ Officer Fleming then asked Petitioner what he "want[ed] to do." Petitioner answered, "I don't know, what do you want?" Officer Fleming's response was, "Well, I don't care; just tell me what you want to do and I'll tell you how much." Petitioner told Officer Fleming (whom he believed to be a prostitute) that he was interested in a "blow job." 8/ He and Officer Fleming then haggled over the price. Petitioner ultimately agreed to pay Officer Fleming $10.00, 9/ after which the following exchange took place between Petitioner and Officer Fleming: Officer Fleming: Okay. We can do that then. Petitioner: Why don't I meet you somewhere else? Officer Fleming: You don't want to do it here? Petitioner: Well, I don't want a cop pulling up. It was at this point in time that back up officers arrived on the scene and arrested Petitioner for "soliciting for prostitution" in violation of Fort Lauderdale Municipal Ordinance 16-1. At no time did Petitioner actually pay Officer Fleming any money; nor was there ever any physical contact, sexual or otherwise, between Petitioner and Officer Fleming. (Petitioner remained in his vehicle, while Officer Fleming stood alongside the vehicle on the driver's side, throughout their conversation in the parking garage.) The charge that Petitioner had violated Fort Lauderdale Municipal Ordinance 16-1 10/ by agreeing to pay Officer Fleming for oral sex was filed in Broward County Court, and it was docketed as Case No. 94-15421MO10A. On March 23, 1995, Petitioner filed a Sworn Motion to Dismiss in Case No. 94-15421MO10A. Appended to the motion was a copy of a transcript that had been prepared of the tape recording of the conversation Petitioner had had with Officer Fleming immediately prior to his arrest. The transcript, however, did not accurately and completely reflect the contents of the tape recording. It omitted Petitioner's affirmative response when he was asked by Officer Fleming, during price negotiations, whether he would be agreeable to paying $10.00 for her services. 11/ Pursuant to an agreement with the Municipal Prosecutor, Petitioner entered a Pre-Trial Intervention Program on or about July 5, 1995. Petitioner successfully completed the Pre-Trial Intervention Program. Consequently, on October 23, 1995, prior to any ruling having been made on Petitioner's Sworn Motion to Dismiss, the Municipal Prosecutor issued a Nolle Prosequi in Case No. 94-15421MO10A announcing that the "City of Fort Lauderdale decline[d] prosecution on all municipal violations against [Petitioner] arising out of [his] arrest on [August 6, 1994]." Petitioner graduated from the University of South Florida in December of 1997 with a B.A. degree in English. On or about February 17, 1998, Petitioner submitted to the Department of Education (Department) an Application for Florida Educator's Certificate seeking an "initial two-year nonrenewable temporary" teaching certificate. On the application, he acknowledged his August 6, 1994, arrest. From August of 1998 to January of 1999, Petitioner was employed as a tenth-grade English teacher at MacArthur High School in Hollywood, Florida (which, at the time, had an enrollment of 2,200 students). The principal of the school was (and still is) Beverly James. In Ms. James' opinion, Petitioner did a "very good job" while at the school, and she "would not hesitate" to rehire him if he received his teaching certification. In addition to his classroom responsibilities at MacArthur High School, Petitioner also served as the assistant coach of the school's wrestling team. The head coach of the team was Michael Zarra. In Mr. Zarra's opinion, Petitioner did a "good job coaching," and he would not "have any hesitation to have [Petitioner] back as an assistant wrestling coach." As evidenced by his job performance at MacArthur High School, by engaging in the conduct for which he was arrested on August 6, 1994, Petitioner has not impaired his ability to be an effective teacher. The incident, which took place when Petitioner was a 20-year old college student, four years before he began teaching at the school, was not widely publicized and it has not adversely affected his reputation in the community. By letter dated December 28, 1998, Petitioner was notified that his Application for Florida Educator's Certificate was being denied for the reasons set forth in the Notice of Reasons that accompanied the letter. Shortly thereafter, Ms. James terminated Petitioner's employment at MacArthur High School. She did so only because she was told she had to inasmuch as Petitioner "would not be certified." On or about March 17, 1999, Petitioner was provided with an Amended Notice of Reasons reflecting that the denial of his application was based solely upon the August 6, 1994, incident involving Officer Fleming. Petitioner subsequently sought to reopen Broward County Court Case No. 94-15421MO10A. His efforts were successful. On June 23, 1999, Broward County Court Judge Joel T. Lazarus issued a Final Order of Dismissal in the case, which provided as follows: CAME ON TO BE HEARD on June 21, 1999 Defendant's Motion to Vacate and Set Aside Disposition and Defendant's Sworn Motion to Dismiss and the Court having heard the arguments of counsel and being further advised, it is hereby ORDERED AND ADJUDGED that Defendant's Motion to Vacate and Set Aside Disposition be and the same is hereby GRANTED. IT IS FURTHER ORDERED AND ADJUDGED that, as to Defendant's Sworn Motion to Dismiss and the Court's consideration of the matters before it, this Court makes a determination that no material issue of fact that sustains the criminal charges against this Defendant exist[s] and that the Defendant is entitled to dismissal as a matter or law. IT IS FURTHER ORDERED AND ADJUDGED that Defendant's Sworn Motion to Dismiss be and same is hereby GRANTED and the Defendant is herewith discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order reversing the Department of Education's preliminary denial of Petitioner's Application for Florida Educator's Certificate and directing the Department to issue, unconditionally, the "initial two-year nonrenewable temporary" teaching certificate sought by Petitioner. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 13th day of April, 2000.
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Anita Ruth Green, is now and has been since November 17, 1986, a licensed real estate salesperson in the State of Florida, having been issued license number 0484830. On or about October 7, 1994, respondent signed and submitted to the Department an application (“renewal notice”) to renew her real estate license. Such application contained the following affirmation: AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227, Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that those statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. Respondent’s application was approved and her license was renewed for the October 1, 1994, to September 30, 1996, licensure period. At the time respondent submitted her application, she knew that successful completion of 14 hours of continuing education for real estate salespersons was a requirement for license renewal. Respondent was likewise aware of her responsibility to retain proof of her compliance with the continuing education requirements for at least 2 years following the end of the renewal period for which the education was claimed. By letter of June 6, 1995, the Department advised respondent that her license number had been selected to audit for compliance with continuing education requirements at the time of her most recent license renewal, and requested that she furnish proof of compliance within 21 days. Such proof was not forthcoming, and by letter of July 24, 1995, the Department reminded respondent of such failing and accorded her 10 days to submit evidence of the satisfactory completion of 14 hours of continuing education necessary to support the renewal of her license for the October 1, 1994, to September 30, 1996, licensure period. To date, no documentation has been submitted to substantiate respondent’s compliance with such requirement. At hearing, respondent acknowledged the lack of any documentation to support her affirmation of having met the continuing education requirement for license renewal; however, she averred she did successfully complete 14 hours of continuing education through a correspondence course in or about September 1994, but apparently inadvertently disposed of her certificate of completion when disposing of unneeded paperwork in preparation for a move. She could not, however, recall the name of the real estate school, the course she completed, the date of completion (although she did observe it was “probably” within 30 days of the renewal date) or her score (although she did observe it was “not less than 79 percent”). Moreover, although ostensibly paying for such course by check, respondent failed to produce any such documentation at hearing. In explanation for such failing, respondent stated she did not retain checks or other banking documents “that far back,” and decided not to secure a copy from her bank because it was “too expensive.” The actual cost or expense for that service was not, however, articulated at hearing. Having considered the proof, it must be concluded that respondent’s contention, absent any corroborative support, that she successfully completed the continuing education requirement before renewal is not compelling. In so concluding, it is observed that when the Department first requested documentation from respondent only nine months had elapsed since she ostensibly took the course. Certainly, respondent, who was articulate and displayed above-average intelligence at hearing, would have recalled at that time, had she taken a course, the name of the real estate school, the course she completed, or her score. Moreover, after such nominal lapse of time, it is most unlikely she would have disposed of not only her checks for the relevant time period, but also other banking documents, including her check registry. In sum, respondent’s failure to produce a certificate of completion or other credible proof of having satisfied the continuing education requirement compels the conclusion that she did not satisfy her continuing education requirement prior to renewal and that her affirmation of compliance was false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of having violated Section 475.25(l)(m), Florida Statutes, and revoking respondent’s license, subject to the opportunity to reapply for licensure five years after the date of filing of the final order in this case. DONE AND ENTERED this 6th day of January, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ms. Anita Ruth Green Pace 321 Sandtree Drive Palm Beach Gardens, Florida 33410 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
