The Issue An administrative complaint dated January 5, 1998, charges that Respondent violated rules governing the practice of massage by failing to have a current establishment license and failing to have a fire extinquisher on the premises maintained in good working condition. The issues for resolution are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Keith Richard Goldsmith, is now and has been at all relevant times a massage therapist licensed by the State of Florida with license no. 0011202. In 1996, Respondent's massage establishment, Bio-Spirit Bodywork Therapy, was licensed and located at 1089 Choke Cherry Road in Winter Springs, Seminole County, Florida. The property was sold and Respondent had to relocate in a move which he describes as "chaotic." At some point during or after the move Respondent sent his facility transfer fee to the Board of Massage. He apparently sent a letter, but not the proper application form. On July 31, 1997, after obtaining Respondent's phone number from telephone information and calling to get an appointment, investigators Dawn Witte and J. C. Russell conducted an inspection of Respondent's facility now located at 265 Stoner Road in Winter Springs, Florida. The inspection determined that all requirements were met, except for the following: No current establishment license; No establishment license displayed; and No fire extinquisher maintained on the premises. At the time of the inspection Respondent had not obtained the license for the new facility and did not display the license for the prior facility. His fire extinquisher was still packed away somewhere. In a follow-up visit from the inspectors, Respondent declined the option to accept a disciplinary citation and $250 fine for the violations. Respondent subsequently formally applied for, and was granted a temporary establishment license for the Stoner Road facility.
Recommendation Based on the foregoing it is hereby recommended that the Board of Massage Therapy enter its final order finding that Respondent committed two violations of Section 480.046(1)(k), Florida Statutes, and assessing a fine of $350. DONE AND ENTERED this 20th day of July, 1998, in Tallahassee. Leon County, Florida. MARY CLARK 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 20th day of July, 1998. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith Richard Goldsmith 265 Stoner Road Winter Springs, Florida 32708 Joe Baker, Executive Director Board of Massage Therapy Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-4092
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO 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 11th day of April 1996.
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Goodman holds Florida teaching certificate number 295031, post-graduate rank III, valid through June 30, 1983 covering the areas of physical education and junior college. At all times pertinent hereto, Goodman was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Goodman was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Goodman prepared a student attendance register for the summer school of 1978 physical education class beginning June 16, 1978, and ending July 28, 1979. That register reflects 28 enrolled students in the course. Goodman also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 29, 1978, and shows 28 students enrolled in physical education. The second is dated July 10, 1978, and reflects 27 full-time students enrolled in physical education. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Goodman. Jacquelyn Merritt enrolled in the summer school physical education course but never attended. Nonetheless, the attendance register shows Ms. Merritt as having attended 28 days. Ms. Merritt was awarded the grade of "B" for the course. Lorretta Roundtree neither enrolled nor attended physical education class. Nonetheless, the attendance register reflects 30 days attendance and Ms. Roundtree received a grade of "A" for the physical education course. Patricia Willis never attended the physical education class although she did enroll. The student attendance register reflects that Ms. Willis attended 30 days and received a grade of "B" for the physical education course. Cimmie McBride attended the physical education class for about a week. However, the class attendance register reflects 30 days attendance for Ms. McBride and she ultimately received a grade of "A" for the physical education course. Shelia Jackson attended one day of physical education during the summer school session but the student attendance register reflects 28 days attendance. Ms. Jackson received a grade of "B" for the physical education course. Carla Todd did not enroll in nor attend the summer school physical education class but the student attendance register shows Carla Todd being present for 30 days. Ms. Todd received a grade of "A" for the physical education class. Raymond Riley did not attend the summer school but the student attendance register reflects 28 days attendance and Mr. Riley received a grade of "B" for the physical education course. Steve Simon never attended summer school but the student attendance register reflects 29 days attendance and Mr. Simon received a grade of "B" for the physical education course. Deidra Sampson enrolled in the physical education course for the summer school session and attended three or four days. However the student attendance register reflects 30 days attendance and Ms. Sampson was awarded a grade of "A" for the physical education course. Claudia Tyson never enrolled in nor attended physical education during the summer school session hut the student attendance register reflects 28 days of attendance and Ms. Tyson received a grade of "B" for the physical education course. Martin Vaughn attended one day of physical education during the summer school session but the student attendance register reflects 30 days of attendance. Mr. Vaughn received a grade of "B" for the physical education class. Sharon Williams enrolled in the physical education course but never attended any classes. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Williams received a grade of "A" for the physical education course. Hellen Pinkney enrolled in the physical education course for the summer school session but never attended. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Pinkney received a grade of "A" for the physical education class. Willie Ward attended the physical education class during summer school for approximately one week. The student attendance register reflects 29 days attendance and Mr. Ward received a grade of "B" for the physical education class. It was Goodman's responsibility to prepare the student attendance registers and grade reporting forms for her class. The evidence establishes that Goodman's signature appears on those forms which reflect inaccurate attendance data and the award of undeserved grades. Goodman signed her name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the physical education class. Had the class been cancelled, Goodman would not have received remuneration for her services as a physical education instructor during that summer session of school. The evidence does not establish Goodman's motivation as being that of protecting her income or insuring that the course was made available to those students who did attend. Goodman's efficiency ratings reflect that she is an otherwise effective teacher.
Findings Of Fact The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the determination by a licensed psychologist that Respondent was not fit to perform his duties as a classroom teacher.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. Petitioner has continuously employed Respondent since 1998 as a classroom teacher. At the times material to this proceeding, Respondent has held a professional services contract. The School Board has adopted Policy 4004, which provides for mandatory physical and/or psychological examinations for employees, as follows: AT ANY TIME DURING THE COURSE OF EMPLOYMENT WHEN IT SHALL BE DEEMED ADVISABLE BY THE SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE REQUIRED TO TAKE A PHYSICAL OR PSYCHOLOGICAL EXAMINATION. RULES The Board authorizes the Superintendent to establish procedures to carry out the intent of this policy. The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Division of Personnel, Policies, Government and Community Relations. Where the employee is found to be unable to function satisfactorily, the Division of Personnel, Policies, Government and Community Relations shall take appropriate action. At all times relevant to this proceeding, the Superintendent of Schools had in effect the following procedures (Policy 4004 procedures) relating to fitness for duty determinations: Fit for Duty Determination Procedures The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home or at an alternate site with pay, depending on circumstances (i.e. active case file/investigation). The affected employee shall select the name of a medical doctor psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 24 hours. SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Letter is sent to the doctor explaining billing instructions, and ‘Fit for Duty Evaluation’ report of findings. The doctor as delineated in the policy will conduct Pre [sic] evaluation at District expense. Note: a 2nd Opinion will be at the employee’s expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. [Emphasis is in the orginal.] A third evaluation will be mandated if previous two (Pre & 2nd Opinion) are contradicting and will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Doctor determines if employee is ‘Fit for Duty’ or [is] not [fit] for duty. Where the employee is found ‘unfit for duty’ the Executive Director of Professional Standards & Special Investigative Unit shall take appropriate action per the recommendation of the doctor, subjecting employee to a Post-evaluation by the same doctor making the initial evaluation. The Post-evaluation ought to occur within 90 days of the initial evaluation. If a doctor determines that the employee is ‘Unfit for Duty’, an administrative reassignment letter is prepared changing the employee’s pay status to ‘at home without pay (PLV)’. The employee is given information to call the Leave Department to apply for any paid leave accrued, and/or any other leave types per SBBC Policies that they are eligible for. Also, a Formal Referral to EAP is prepared for follow-up. Based on the progress and/or compliance with EAP’s recommendations, a Post Evaluation is scheduled within the 90- day reassessment period. If employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination (School Board Agenda is prepared for the next Board Meeting). Note: 2nd Opinions on the Post evaluation will be at the employee’s expense, if requested. Third evaluation, if required will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Employee and school/work site are notified of doctor’s fit for duty status via certified mail. (Note: Confidential Doctor’s report will only be distributed to the employee). The immediate supervisor is notified as well. However if the doctor has follow-up recommendations, then a Formal Referral to Employee Assistant Program (EAP) is prepared by SIU (i.e. mental health follow-up or other referrals as appropriate. If employee is found Fit for Duty, a certified letter is sent to the employee with instructions to return to work. The immediate supervisor is notified as well. Respondent was employed as a science teacher at Piper High School (Piper High) from 1999 until September of 2003. After two of Respondent’s students alleged in September 2003 that Respondent had battered them, Petitioner’s Professional Standards and Special Investigative Unit (SIU) conducted an investigation of the alleged incident. Petitioner submitted the results of the investigation to a Probable Cause Committee, which, in March of 2004, found probable cause of battery. A Pre-Disciplinary Hearing was held on June 10, 2004. The Committee recommended that Respondent's employment be terminated. Subsequently, in July of 2004, after his review of Respondent’s case, Dr. Frank Till (the Superintendent of Schools), recommended to the School Board that Respondent be reprimanded and returned to his teaching duties. The School Board followed Dr. Till’s recommendation. Respondent was notified of Petitioner’s action and the fact that he would be returned to the classroom by letter dated July 12, 2004. The letter was signed by Dr. Melita. Respondent responded to the July 12, 2004, letter with a letter to Dr. Melita dated July 15, 2004 (Petitioner’s Exhibit 8). This letter was copied to then President Bush, then Governor Bush, then Commissioner of Education Horne, Dr. Till, members of the School Board, and others. The letter consisted of two paragraphs. The first paragraph, which inexplicably contains a complaint by Respondent that he was being returned to the classroom, is set forth below. The second paragraph is not reproduced here because it pertained to an alleged leak of the SIU report to a newspaper reporter. The entire letter should be read if there is a question as to the context of the statements. Due to the fact that the students deliberately deceived in their irrefutably asinine assertion of battery, because they were failing Mr. Black’s science class, indeed, Mr. Black was wrongfully removed from his teacher position at Piper High School in the first place. It is fiercely urgent that you, Dr. Melita, and the School Board of Broward County, Florida, be aware that the students’ sickening battery hoax, which has been wantonly compounded by the draconian intimidating threat to terminate Mr. Black, has unfortunately caused Mr. Black’s family and himself exceptionally grave pain and suffering. This horrific suffering Mr. Black has been unnecessarily forced to go through since October 3, 2003, has rendered him psychologically, emotionally, physically and professionally harmed. Mr. Black immutably practiced the highest professional and ethical standards in his committed teaching duties at Piper High. Now, it is egregiously unfair to negligently dump Mr. Black back in a teacher position after his character clearly has been irreparably defamed by the mendacious students and the unjust Professional Standards Committee. Respondent’s correspondence caused Dr. Melita to be concerned as to Respondent’s emotional and mental stability. Before the commencement of the next school year (2004- 2005), Petitioner transferred Respondent from Piper High to Boyd Anderson High School (Anderson High). Respondent strenuously objected to the transfer. The decision to transfer him was made by the appropriate area office, based on a determination that his return to Piper High might disrupt the instructional program. Respondent made his objections to the transfer known by writing letters to School Board supervisory level employees, and others. Frances Bolden, the area director, communicated with Respondent about his transfer to Anderson High, and explained that she would meet him at the school to help him get acclimated. On Tuesday, August 10, 2004, Respondent reported to Anderson High. He met with Principal Timothy Gadson and Ms. Bolden twice on that day, with a faculty meeting intervening between the two meetings. Ms. Bolden described Respondent as being very anxious and nervous, despite the fact that it was a planning day before the school year commenced and no students were on campus that day. Following their meetings with Respondent on August 10, 2004, Dr. Gadson and Ms. Bolden referred Mr. Black to SIU based on the following statements he made: He was not comfortable in teaching students; He feared for the safety of the students; He had a condition that prevented him from going in the classroom; He had been out of the classroom since October 2003; and If he were forced to go into the classroom, he would leave Boyd Anderson within one week. He could not teach as he was under a doctor's care through EAP; He could not be at this school; His doctor told him that he could not work with students; and He needed help. Based on these concerns, Dr. Melita required Respondent to submit to a fitness for duty assessment pursuant to Policy 4004. Respondent was provided with a copy of the policy and procedures.1 On August 23, 2004, Respondent selected and met with Dr. Mendoza, who was on the School Board approved list. Dr. Mendoza found that Respondent was not fit for duty at that time. Respondent was formally referred to the Employee Assistance Program (EAP) and advised to follow up with Dr. Mendoza within 90 days. Respondent returned for a follow-up evaluation with Dr. Mendoza on November 10, 2004, after which Dr. Mendoza recommended that he be returned to work "in low stress settings while continuing to receive therapeutic treatment." Respondent was returned to work effective November 22, 2004, but Petitioner transferred Respondent from Anderson High to Rickards Middle School, in an attempt to comply with Dr. Mendoza’s recommendation that he be placed in a low stress setting.2 Prior to December 8, 2004, the Florida Department of Education (DOE) started an investigation into the 2003 incident at Piper High. As a consequence of that investigation, Respondent hired certain college students who, along with Respondent and some others, reenacted Respondent’s version of the events that had led to the charges of battery. Respondent videotaped the reenactment and forwarded a copy of the videotape to the DOE investigator. The DOE investigator became concerned that Respondent may have violated the Principles of Professional Conduct for the Education Profession by using high school students as part of the reenactment. On or before December 8, 2004, the DOE investigator made contact with Respondent. Respondent became distraught after that contact. On December 8, 2004, a school based administrator from Rickards Middle School contacted SIU because of concerns about Respondent. Charles Rawls (a SIU supervisor) and Richard Mijon responded to Rickards Middle School and met with Respondent. Respondent admitted that he was concerned about a possible new investigation by DOE. Respondent stated that he was too upset to be at the school and too upset to be around children and he was sent home for the day. The next day, December 9, 2004, Dr. Melita requested a second fitness for duty assessment pursuant to Policy 4004. Again, Petitioner provided Respondent a copy of the pertinent policy and procedures. Of the School Board approved psychologists, Respondent chose Dr. Forman to provide his initial evaluation. On December 15, 2004, Respondent met with Dr. Forman for the initial evaluation. Dr. Forman prepared a report (Petitioner Exhibit 32) which, together with his testimony at the formal hearing, detailed the manner in which he conducted the evaluation, the tests he administered, the reasons he selected the tests he utilized, the results of the tests, and his interpretation of his results. Dr. Forman found that Respondent was not fit for duty. Respondent was again referred to the EAP and advised to follow up with Dr. Forman within 90 days. Respondent objected to Dr. Forman's initial evaluation because, Respondent alleged, Dr. Forman's behavior was inappropriate, and Respondent asked for a new evaluation. Respondent’s objections were made both orally and in writing. On December 15, 2004, Respondent wrote Mr. Mijon the following letter: As instructed by you I did in fact promptly report to my 1:00 p.m. appointment with [Dr. Forman] for the purpose of submitting to a Fit For Duty Psychological Exam. However, I quickly became extremely uncomfortable with Dr. Forman’s deportment when he began articulating extremely graphic and indecent profanity during his evaluation session with me. Dr. Forman even questioned whether or not racism was a motivating factor in my circumstances for being ordered to take the Fit For Duty Psychological Exam. I specifically told Dr. Forman that I did not feel comfortable with his conversation and kindly asked him to please change the subject. Dr. Forman continued the besetting conversation for a while longer. Considering Dr. Forman’s clearly inappropriate conduct unbecoming a psychologist, I understandably, feel highly uncomfortable entrusting the unwavering integrity and irrefutably unbiased interpretation of my Fit For Duty Psychological Exam results in Dr. Forman’s questionable care. Moreover, my vital employment wherewithal depends on the strict accuracy and reliability of the Fit For Duty Psychological Exam, which Dr. Forman administered with suspect. Naturally, due to the immensely inappropriate conditions in which I was unfairly subjected to take the required Fit For Duty Psychological Exam, which in and of it self [sic] in part of a terribly stressful 400-question test, I am certainly poised to vigorously challenge the exam results. As such, I respectfully request that you immediately abrogate Dr. Forman’s exam results and allow me a fair opportunity to select a professional and competent psychologist to properly administer the Fit For Duty Psychological Exam. Pursuant to the School Board's Policy 4004, Respondent was entitled to seek a second opinion by being evaluated by a separate School Board approved psychologist of his choosing, but at Respondent’s expense. Respondent chose psychologist Steven Shiendling, Ph.D., for the second opinion. Dr. Shiendling met with Respondent on March 14 and 15, 2005. His evaluation consisted of face-to-face interviews lasting a total of 2.5 hours. Dr. Shiendling did not administer any standardized testing in his evaluation. Dr. Shiendling found that Respondent was fit for duty. In accordance with Policy 4004, Dr. Hohnecker was selected to provide the third evaluation of Respondent (with Dr. Forman and Dr. Shiendling having provided the first two evaluations) at Petitioner’s expense. This evaluation occurred April 1, 2005. Dr. Hohnecker’s thorough report (Petitioner’s Exhibit 36) and her testimony at the formal hearing established that Respondent was not fit for duty as of the date of the evaluation "by reason of inappropriate outbursts of anger and intense anxiety." As of April 1, 2005, Respondent was not fit for duty as a classroom teacher. Dr. Hohnecker made recommendations that, if satisfied, would warrant Respondent’s return to work. Dr. Hohnecker further recommended that Respondent not be returned to Piper High School, which Respondent still wanted to do, until the students involved in the September 2003 incident had graduated. Respondent was, again, recommended to the Employee Assistance Program and advised to follow up with Dr. Forman. On April 20, 2005, John P. Molinari, a psychotherapist who worked with Respondent through Petitioner’s EAP, sent the following letter to Michelle Moore of Petitioner’s EAP: I met with Mr. Clinton Black today as part of our ongoing treatment. Mr. Black appears much less anxious with a high degree of motivation to return to work. In view of this, I recommend that Mr. Black return to Dr. Forman to be reevaluated for his fit for duty status. Mr. Mijon advised Respondent to report to Dr. Forman on May 12, 2005, for his reevaluation. Respondent objected to returning to Dr. Forman. On April 28, 2005, Mr. Mijon informed Respondent that he would be guilty of insubordination if he did not keep the appointment with Dr. Forman. Dr. Forman was selected to provide the reevaluation pursuant to the Policy 4004 procedures. Between Dr. Forman’s initial evaluation of Respondent and his reevaluation, Mr. Mijon told Dr. Forman that Respondent had lodged complaints about the manner in which the initial evaluation had been conducted. Mr. Mijon told Dr. Forman that Respondent considered the initial evaluation to have been unprofessional and invalid. Mr. Mijon did not go into the specifics of Respondent’s complaints. Mr. Mijon had also told Dr. Melita about the complaints Respondent had as to Dr. Forman’s initial evaluation. At some undetermined point, Respondent lodged complaints against Dr. Forman with the American Psychological Association (APA) and the Florida Department of Health, Board of Psychology (DOH). On May 4, 2005, Respondent hand delivered the following letter to Mr. Mijon with copies to Dr. Till, Dr. Melita, and Michelle Moore: Due to the egregious harassment and verbal abuse Dr. Bruce Forman wrongfully inflicted upon me during my initial fit for duty session, I respectfully urge you to immediately rescind your intimidating treat [sic] to terminate me should I not report to Dr. Forman, due to my resulting genuine fear and discomfort, for the second appointment you have scheduled for me on May 12, 2005. As I previously formally documented to you, Dr. Joe Melita, Mr. Charles Rawls and Ms. Michelle Moore via letter, I factually suffered excruciating and debilitating harassment and verbal abuse while under the care of Dr. Bruce Forman during my initial fit for duty assessment on December 15, 2004. However, my authentic complaint was apparently inappropriately ignored. Furthermore, due to the fact that I have appropriately filed two investigative complaints against Dr. Forman for the abject harassment and verbal abuse he inflicted upon me during my initial fit for duty exam, it clearly would be overwhelmingly inappropriate for me to return to Dr. Forman for a second fit for duty assessment under these brutal circumstances Dr. Forman has inappropriately forced upon me. Naturally, I feel extremely afraid and uncomfortable returning to Dr. Forman for a second fit for duty assessment under his inappropriate care and thus would be incapable of relaxing and focusing for proper testing as I rightfully deserve and should have the fair and equal opportunity to do so during a valid fit for duty exam. Therefore, I unambiguously urge you to withdraw at once your intimidating treat [sic] to terminate me and cancel your scheduled May 12, 2005 appointment for me with Dr. Forman due to the exceptionally grave harassment and verbal abuse Dr. Forman wrongfully inflicted upon me. Mr. Mijon ordered Respondent to be reevaluated by Dr. Forman because he believed that paragraph 12 of the Policy 4004 procedures provided no other option than to require Respondent to be re-evaluated by the same psychologist (Dr. Forman) who performed the initial evaluation. Dr. Melita interprets paragraph 12 more liberally than Mr. Mijon. Dr. Melita testified beginning at page 47 of Volume I of the Transcript as follows: Q. Were you made aware that Mr. Mijon was sending Mr. Black back to see Dr. Forman for re-evaluation? A. Yes. If I remember correctly, because I asked why, from what I understand it was that Mr. Black said it was okay. Q. Now, did you understand that Mr. Black initially refused to go back to see Dr. Forman? Were you made aware of that? A. Yes. Q. Were you aware that Mr. Mijon then told him that if he did not go back to see Dr. Forman that he would be terminated for insubordination? A. That’s not what I was aware of, because I questioned why he was going back to Forman if there was an issue. According to what I believe to be what Mr. Mijon told me was that that was Mr. Black’s decision. Q. So you think it was Mr. Black’s decision to go back to see Dr. Forman? A. Yes, as odd as I thought it was. Q. So if Mr. Black had, in fact, had some problem with Dr. Forman, from your perspective, he should have gone to see a different doctor other than Dr. Forman, correct? A. Yes. If I remember correctly, my normal process is, Why would he go back to somebody who he has an issue with? Mr. Mijon’s response, if I remember correctly, was that Mr. Black said he had no problems going back to Mr. Forman. That’s the best of recollection. Q. So if Mr. Mijon, in fact, threatened Mr. Black with termination if he refused to go back to see Dr. Forman, that would not be consistent with your view of what should happen? A. That’s absolutely correct. I would not like to see anybody threatened. Dr. Forman was unaware of the complaints Respondent had lodged with the APA or the DOH until after Petitioner took action to terminate Respondent’s employment. Consequently, these complaints had no influence on the report Dr. Forman filed following his May 12, 2005, evaluation of the Respondent.3 Respondent agreed, under protest, to be reevaluated by Dr. Forman, but only on the condition that Dr. Forman would allow him to record the session. Dr. Forman agreed to have the session recorded on the condition that Respondent would provide Petitioner with a copy of the taped session. Respondent agreed to that condition. Respondent recorded the reevaluation session of May 12, 2005. Despite numerous requests, no tape was ever provided. Respondent testified that the tape was destroyed during Hurricane Wilma, which, according to the National Hurricane website, hit South Florida in October 2005. Dr. Forman testified at the hearing as to both the evaluation and the reevaluation. Reports as to his evaluation and his reevaluation were admitted into evidence. Dr. Forman again found that Respondent was not fit for duty on his reevaluation. The undersigned finds Dr. Forman’s testimony to be clear, professional, and persuasive. There was insufficient evidence to establish that the complaints Respondent lodged against Dr. Forman to Mr. Mijon had any bearing on Dr. Forman’s reevaluation. There was also insufficient evidence to establish that Dr. Forman should have been disqualified from providing the reevaluation. Dr. Forman’s Reevaluation Report (Petitioner’s Exhibit 43), provides, in relevant part, a recap of Dr. Forman’s findings as follows: . . . As I expressed to you by phone, Mr. Black appears to have deteriorated emotionally over the past five months and I am concerned that Mr. Black may be acutely psychotic. I can say unequivocally that Mr. Black is not ready to return to the classroom at this time. He was not fit to return to teaching duties the first time I evaluated him and given that his current emotional state is worsened, he is less able to function in an instructional capacity. I also believe an effort should be made to get Mr. Black psychiatric care as I am concerned about his wellbeing. . . . Petitioner established by a preponderance of the evidence that Respondent was not fit for duty as a classroom teacher as of May 12, 2005. On June 10, 2005, Respondent was notified that he would be recommended for termination from employment based on the finding that he was not fit for duty as a teacher. At its June 21, 2005 meeting, the School Board voted to terminate Respondent's employment pursuant to Policy 4004. The action to terminate Respondent’s employment was part of the consent agenda.4 In accordance with paragraph 12 of Policy 4004 procedures, Respondent could have requested a second opinion, following the reevaluation by Dr. Forman. Respondent did not request another evaluation. He no longer trusted the process, and stated that he could not obtain another evaluation for financial reasons. Subsequent to the School Board’s vote in June 2005, Respondent went off of the School Board approved list, looked in the yellow pages, and retained some other therapists, psychologists and/or psychiatrists to perform evaluations. Those subsequent evaluations were not offered into evidence.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of March, 2009.
The Issue The Board of Massage has charged John Ernest Hall with violations of Section 480.11(1)(a)(f)(g) and (j), Florida Statutes, "due to events on or about September 25, 1974, wherein employees of yours (Hall) at the Isometric Bath House, Ft. Lauderdale, were arrested on charges of touching the sex organs of clients, failing to have a licensed masseur on the premises and allowing unlicensed persons to give a massage." Hall petitioned for a formal hearing to resolve controverted issues of material fact, and the matter was referred to the Division of Administrative Hearings for hearing pursuant to Section 120, Florida Statutes.
Findings Of Fact Detective Hudson was called by the Board and testified that shortly prior to 4:30 p.m. on September 25, 1974, that he entered the Isometric Bath House in Ft. Lauderdale, Broward County, Florida, in the course of conducting an undercover investigation of illegal activities which had been brought to his attention by a usually reliable confidential source. There he asked Mary Yvonne Adams the price for a massage, and was advised that this would cost $50. Detective Hudson paid the $50 and was required to sign a "release" which stated that he was not a police officer and that the relaxation treatment which he was to receive was not a massage. Having signed the release, Detective Hudson was conducted to a room within said bath house where he was told to disrobe and was then taken by Adams to another room in the establishment which contained a low bench, a bath tub and a stand containing oils and lotions. Hudson was told to lie down on the bench where Adams, who was in the nude, began to rub and knead the muscles of his back and legs. He was then directed to get into the bath tub, where Adams soaped and scrubbed him with a sponge. During this process, Adams began to rub Hudson's private parts with the sponge, and in reply to a question by Hudson, advised Hudson this was necessary to prevent being "busted" by the police because the law prohibited a "touching". Thereafter Adams dropped the sponge and manually manipulated Hudson's private parts. Hudson questioned Adams about the availability of other forms of sexual release and was advised by Adams that the bathhouse offered an escort service but that sexual activity with one of the girls supplied was not included but optional dependent upon the girls. Thereafter, Hudson left the bath, redressed, and went outside the premises where he met with Detective Deaton, his backup officer. After describing the activities of the bath house, they re-entered the bath house together, identified themselves as police officers and arrested Adams and Barney Michael Woods. The officers obtained the $50 which Hudson had given Adams which had been previously marked, searched the premises, and found two or three other unidentified persons on the premises. Hudson testified that he removed a certificate of licensure #2344 issued to John Ernest Hall from the wall of the bath house, but that the search mentioned above did not reveal Hall to be on the premises. Rex Smith was called by the Hearing Officer and testified that neither Woods nor Adams held massage licenses. Hall took the stand and testified that he has practiced massage for many years having received training in both massage and chiropractic. His work experience included being head masseur on the Queen Mary, and masseur at a Miami hotel for over ten years; however, a change in management of the hotel had resulted in the loss of his position closely followed by a serious automobile accident which injured his shoulder. Having recovered from the accident, Hall's doctor advised him he could return to work but only on a part-time basis. Shortly thereafter Hall had answered a newspaper advertisement for a masseur. As a result of answering this advertisement, Hall met with Michael Woods, who was in the process of opening an isometric exercise facility and bath house. Hall told Woods that he could work only part-time which was agreeable with Woods. It was agreed that Hall would receive $50 per week and a percentage of the fees for his services on an appointment basis. He had started working four hours per day but because business was slow he reduced his hours to two hours per day. His clients were primarily by appointment. His appointments were made by the receptionist and the only employee who he knew was "Yvonne" who was an isometric therapist. Hall in response to questioning, indicated that the equipment maintained at the bath house was that which one would expect of an isometric exercise studio and bath house and that he was unaware of any illegal activities occurring on the premises during the hours he was present and was certainly unaware of any such activities when he was not present during the three weeks the bath house was in operation prior to the arrest of Woods and Adams. Hall testified he lived 8-10 miles from the bath house. Hall testified that he thought the isometric therapist had received training in isometric exercise, a recognized physical therapy.
