The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.
Findings Of Fact Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]). On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment. DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida. S 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 11th day of September, 2007.
The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Petitioner, Phillip McTaggart, is a white male who retired after more than 20 years in the United States Air Force (including the reserves), and 18 years with Delta Airlines. Respondent, Pensacola Bay Transportation Company, specializes in the transportation of people with special transportation needs, including the elderly, disabled, and economically disadvantaged. Respondent contracts with the Escambia Area Transit Service, the local coordination board of the Florida Commission for the Transportation Disadvantaged, to provide these services. Many of Respondent's customers are wheel-chair bound or otherwise need assistance with transportation. Respondent uses both automobiles and specially designed buses for the transportation of wheel-chair bound customers. Petitioner applied for a job with Respondent by filling out an application on January 20, 2009. His application did not specify for which position he was applying. Respondent had hired a white driver just days before Petitioner's application. Respondent hired three African- American drivers after Petitioner applied. Each of the hired drivers stated on their applications that they were applying for driver positions. The last driver hired by Respondent in 2009 was on April 13. All of the drivers hired after Petitioner applied had submitted their application before Petitioner applied. Each of the hired drivers' application reflected previous wages in line with wages paid to other drivers in the Pensacola area. Petitioner's application showed he had earned wages at his previous jobs that significantly exceeded the wages Respondent was paying its drivers. Petitioner testified that he either re-applied or updated his application for a driver position in May 2009, but Respondent has no record of the subsequent application. Petitioner contends, through the use of a vocational expert, that Respondent hires minority candidates for its driver workforce at a rate that far exceeds the demographics of the Pensacola area. Also, a large number of the drivers are minority women, who statistically receive lower wages than white male employees based upon national Department of Labor figures. Petitioner contends that he was discriminated against by being a white male with a history of receiving higher wages than the typical driver employed by Respondent. Some companies refuse to hire individuals they believe are overqualified for the position for which they apply. The reasons for this failure to hire the "overqualified" are that they command higher wages, as well as a general fear they will leave to seek higher-paying employment. Petitioner listed on his application his previous experience in the Air Force as an aircraft mechanic. He listed his previous experience with Delta Airlines as a customer service agent in public relations, baggage, and ticketing. Nowhere did Petitioner hint at previous experience as a driver. Petitioner's updated resume, which he testified he supplied to Respondent with his application failed to make mention of any professional driving experience. He testified at hearing, however, that when he went to update his application in May 2009, he told Respondent's personnel that he had driving experience from his time serving in the Air Force. Respondent is a unionized company that operates under a collective bargaining agreement (CBA). Its wages are set by the CBA. Petitioner's vocational expert was not aware of the company's union status when she performed her wage study for the Pensacola area. Respondent inherited many of its employees from a company it acquired in 2001. The company was required to keep these employees at the wages they were already receiving under the CBA. Respondent had never hired a driver with an employment background matching Petitioner's. Tammie Nelms, the human resources manager for Respondent, liked the fact that Petitioner had such a stable work history. She would have called him back had she known he was seeking a driver position. Although Respondent has a box full of driver applications (about 50 applied in 2009 alone), few whites apply for driver positions at Respondent's Pensacola location. The company has three white maintenance workers in the Pensacola location. White drivers more commonly apply at Respondent's Santa Rosa County location. Respondent has a policy of non-discrimination in the hiring of employees.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of June, 2010. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs & Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32501 Elizabeth Darby Rehm, Esquire The Kullman Firm Post Office Box 1287 Mobile, Alabama 36633 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent was first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Ernesto E. Luque. RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated May 28, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 999830, covering the area of elementary education, which is valid through June 30, 2010. Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. On August 1, 2008, Respondent was operating a motor vehicle in which her three children were passengers in Pasco County, Florida, in an erratic manner, causing law enforcement officers to stop the vehicle. Upon stopping Respondent’s vehicle, the law enforcement officers observed Respondent exhibiting multiple indicators of impairment. Respondent advised the law enforcement officers that she was taking five prescription medications: Soma, Clonazepam, Oxycondone, Prozac, and Fentanal. Respondent was arrested for driving under the influence and taken to a local hospital for medical clearance. She was subsequently booked at the Land O'Lakes Detention Center. On November 20, 2008, Respondent entered a plea of no contest to an amended charge of reckless driving. The law enforcement officers presented clear and convincing evidence that Respondent operated a motor vehicle while impaired by prescription medications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Tina Ramette Adams, be found not guilty of violating Subsections 1012.795(1)(d) and (f), Florida Statutes, and that no disciplinary action be taken. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of February, 2010.
The Issue Whether Petitioner's application for licensure as a Community Association Manager by Examination should be granted.
Findings Of Fact When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than $500, or by both. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding. The application submitted by Petitioner contained the following question regarding the applicant's criminal history: Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ). This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes. Petitioner explained that he thought the withholding of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or misdemeanors and then adding "violation of the laws" as an afterthought. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Edward D. Broyles, Executive Director Department of Business and Professional Regulation Division of Professions Regulatory Council of Community Association Managers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Michael Kennedy, Esquire Kennedy & Pyle 687 Beeville Road, Suite A South Daytona, Florida 32119 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
