The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d) and (f), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a licensed teacher in the State of Florida, having been issued Florida Educator's Certificate 1021431. His certificate covers the area of social science, and expires on June 30, 2011. During the 2008-2009 school year, Respondent was a teacher and coach at Florida State University School in Tallahassee, Florida. While attending college, Respondent played football for the University of Florida. During his football career, Respondent suffered several injuries, including five concussions and injuries to his shoulder, hand, knee and ankle. Several of these injuries required surgery, and as a result, Respondent was prescribed a series of pain medications and developed a tolerance for them. Respondent continues to have surgeries related to his football injuries and continues to take pain medication. On January 17, 2009, Respondent went on a lunch date. During the date, he consumed some alcoholic drinks. At the time of the lunch date, Respondent was also taking pain killers and did not think that these medications impaired his ability to function. However, as a result of the drinks at lunch and/or drinks consumed the night before, coupled with the use of painkillers, Respondent was impaired. Respondent does not remember the incident described below, before waking up in the Leon County Jail medical ward. As acknowledged by Respondent, the ultimate facts of the incident giving rise to his arrest are not in dispute. Respondent was intoxicated or otherwise impaired when he became involved in a verbal confrontation with his neighbor, Jordan Thompson, while the neighbor and his uncle, Gene Thompson, were attempting to secure a cable to the side of the neighbor's residence. Respondent was upset about the amount of noise he perceived the neighbor to be making. Respondent knew most of his neighbors and felt he had a good relationship with them, but did not know this particular neighbor. Respondent threatened his neighbor, shouting profanities at him, and the threats by Respondent caused Thompson and his uncle to go inside his home. Respondent returned to his own home, came back outside with a shotgun, approached the neighbor's house and continued to threaten Jordan and his uncle with shotgun in hand. Jordan Thompson's aunt, Kathleen, was inside the home and called 911. Respondent was arrested and charged with one count of aggravated assault with deadly weapon without intent to kill, a felony. All three of the Thompsons were very frightened by the incident. After his arrest, at some time over the weekend, Respondent notified administrative authorities at the school where he worked of the incident, and he was placed on administrative leave. At the end of the school semester, he was notified that, along with 47 other teachers, his contract would not be renewed. The incident was reported in the local newspaper and the website of a local television station. At least one witness who testified at hearing read about the arrest in the newspaper. Respondent acknowledged that his call to the school was motivated in part so that the school could "distance" itself from the event. On or about April 2, 2009, the charges against Respondent were amended to misdemeanor charges for trespass; improper exhibition of a dangerous weapon; and using a firearm while under the influence. On or about June 10, 2009, Respondent pled nolo contendere to the charges and the court adjudicated him guilty on all counts. Respondent was sentenced to 30 days in jail, 12 months of probation, substance abuse counseling and any recommended counseling or aftercare, random drug and alcohol screenings, 60 days in jail work camp and payment of applicable fines and fees. Respondent was also ordered to have no contact with the victims and to change his address by August 2009. By all accounts, Respondent is a gifted teacher. He is currently studying at Florida State University working on his doctorate in education. Respondent is embarrassed by his actions January 17, 2009, and regrets having acted as he did. However, he stopped short of acknowledging that he should not mix drugs and alcohol, especially at the doses to which he had become accustomed, and seems to think that he could tolerate mixing the two. Colleagues with whom Respondent worked testified at hearing on his behalf. Of particular interest was the testimony of Eula Walker, a support assistant at Florida High whose daughter had been one of Respondent's students. She, along with other staff members who testified, believed that Respondent could continue to be an effective teacher. She also had no hesitation regarding his continuing to teach her daughter following the January 17, 2009, incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent is found guilty of section 1012.795(1)(d) and (f) as charged in Counts One and Two of the Administrative Complaint; that his license be suspended for a period of two years; that he be required to submit to an evaluation by a qualified provider approved by the Florida Recovery Network Program within 60 days of the entry of the Commission's final order, and follow any recommended course of treatment or counseling; that he be placed on probation for a period of two employment years; and that he pay a fine of $500 to the Commission. DONE AND ENTERED this 10th day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of June, 2011. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Brent McNeal, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner is disqualified for employment, and, if so, should she be granted an exemption.
Findings Of Fact Petitioner, Angela Harris, is a 39-year-old divorced black woman who is the mother of two children, including a 16-year-old daughter who remains dependent upon her. Petitioner is a high school graduate who is a certified nursing assistant. Petitioner was employed by Respondent at Florida State Hospital on June 29, 1990, as a Human Services Worker I-F/C, a career service position. She worked continuously for Respondent until she was dismissed on July 30, 2001. Petitioner attained permanent status in the Career Service System as a Human Service Worker I, Human Services Worker II, and Unit Treatment Rehabilitation Specialist. She was working as a unit treatment rehabilitation specialist at the time of the termination. Petitioner’s duties as a unit treatment rehabilitation specialist involved the supervision of residents or patients as they did their laundry and monitoring patients engaged in classes and physical exercise groups. The patients were ambulatory adults who were being treated at the Florida State Hospital. She did this for more than fours hours each day. Subsequent to her discharge, Ms. Harris has been employed as a dishwasher for the Cracker Barrel Restaurant. Petitioner was terminated from her employment on July 30, 2001, because the Department determined that the plea of nolo contendere that she had entered to simple battery was a disqualifying offense under the provisions of Chapter 435, Florida Statutes. The court withheld adjudication of guilt when it accepted Petitioner’s plea. The court noted that it was unlikely that she would engage in a criminal conduct in the future. The alleged victim of the battery to which Ms. Harris plead was Frank Martin. Mr. Martin was born in 1950. He is not a minor. Mr. Martin testified in this proceeding. On the morning of August 11, 2000, Ms. Harris took Mr. Martin in her vehicle to an employment training class held by Kirby Vacuum Cleaners in Tallahassee. The two had an argument during the trip. After Petitioner dropped him off in the vicinity of his class, Mr. Martin went to a McDonald's Restaurant that was across the street from Kirby's. While inside the dining room, he observed that Ms. Harris had not left and was in her car in the parking lot of McDonald’s. When he exited McDonald's, Ms. Harris drove around the block and approached him in her vehicle. As they met, they were headed in opposite directions. Mr. Martin did not stop to talk to Petitioner but continued to walk in the direction he had been going opposite from the direction the vehicle was heading. To continue the conversation, Petitioner backed up her car. To avoid further conversation, Mr. Martin crossed behind her vehicle as it was backing up and his foot was touched by the rear tire. There is conflicting evidence regarding which side of the car, passenger or driver, struck Mr. Martin. Mr. Martin suffered no injury and his clothing was unsoiled and reflected no contact with the vehicle. He did, however, call the police and reported that Ms. Harris had hit him with her vehicle. This led to criminal charges being filed against Ms. Harris. David Sims, an officer with the Tallahassee Police Department, interviewed Mr. Martin. Based upon the information obtained from Mr. Martin, Officer Sims prepared an offense report. This report indicates the victim, Mr. Martin, was not a minor and that he lived with the Petitioner, who was his girlfriend. There was no evidence presented that the employer had this record when it disqualified the Petitioner, because it would not be a document generated by screening. The parties stipulated to this relationship. After Mr. Martin spoke to a police officer, Mr. Martin proceeded to attend the full and complete training session at Kirby's. As Petitioner and Mr. Martin had previously agreed, Petitioner arrived to pick up Mr. Martin when his training session ended at approximately 4:30 p.m. It was raining and Mr. Martin and another person loaded a vacuum cleaner into the back seat of Petitioner's car. From there, Petitioner drove Mr. Martin to the home of Mr. Martin’s sister in Tallahassee. At no time did Mr. Martin tell Ms. Harris that he had called the police and reported to them that she had purposely hit him with her car. Subsequent to August 11, 2000, and before Ms. Harris was notified of any pending criminal charges, Mr. Martin attempted to withdraw his complaint. The authorities decided to prosecute anyway, and Ms. Harris was notified on or about September 11, 2000, of the charges. Thereafter she retained an attorney to represent her and paid $1,000 to Ms. Gardner to serve as her attorney. The agreement that she had with Ms. Gardner required her to pay an additional $1000 if the case was tried. October 1, 2000, Mr. Martin executed an Affidavit in which he states, "Ms. Angela Harris accidentally bumped into my foot with her car. I was not injured during this accident and do not wish to pursue any criminal charges against Ms. Harris." At hearing Mr. Martin explained that their argument had influenced his initial conclusion that Petitioner struck him on purpose. Upon reflection, he felt it was an accident and not an intentional act. Petitioner also testified she did not intentionally strike Mr. Martin. In May 2001, Ms. Gardner informed Petitioner of a plea bargain offer. If Petitioner agreed to a plea of no contest to a simple battery charge, she would be placed on probation for a year and there would be no adjudication of guilt. Ms. Gardner represented to Petitioner that there would be no consequences to her employment from the plea. Petitioner also understood that she would not have to pay an additional $1000 to Ms. Gardner to represent her at trial. Petitioner chose to enter a plea of no contest to a charge of simple battery. Petitioner is a friendly person who performed her job duties satisfactorily and related well to both staff and fellow employees. She attends church regularly and is liked and respected in her community. Her employment record shows some minor infractions; however, there is no indication that she ever has been abusive to any patient or suspected of any abusive treatment. There is no evidence that an injunction pursuant to Section 741.30, Florida Statutes, was ever entered against Petitioner. There was and is no reasonable cause for the employer to believe there were grounds to disqualify Petitioner from employment based upon Sections 435.04(2) or 435.04(4), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent failed to establish a factual predicate for Petitioner’s disqualification. There is no basis for Petitioner needing an exemption and no impediment to her employment pursuant to Chapter 435, Florida Statutes. That Respondent failed to prove Petitioner intentionally struck her boyfriend with her car. There is no basis for Petitioner needing an exemption and no impediment to her employment pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2002. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the pleadings and documents received into evidence at the hearing, the following relevant facts are found: Respondent Edward T. Goldstein holds Florida Teaching Certificate No. 174841, Post Graduate, Rank II, valid through June 30, 1992, covering the areas of science, junior college, administration and supervision. Based upon an investigation conducted by Police Detective Darron Peter Castiglione with the Hollywood Police Department, respondent Goldstein was arrested in September of 1977 and charged with two counts of first degree murder for the shooting and killing of his wife and son. (Petitioner's Exhibit 1). Respondent was found to be incompetent to stand trial and spent several years at the South Florida State Hospital. By "Order to Transport" dated March 30, 1981, Arthur J. Franza, Circuit Judge of the Seventeenth Judicial Circuit, found respondent competent to stand trial and ordered him to be transferred from the Hospital and placed in the custody of the Broward County Jail. (Petitioner's Exhibit 6). On June 1, 1981, respondent was indicted for two counts of murder in the first degree. (Petitioner's Exhibit 3). After a trial, respondent was adjudged guilty of two counts of murder in the first degree by Circuit Judge Franza. (Petitioner's Exhibit 4). On February 18, 1982, Judge Franza entered his Order sentencing the respondent to life imprisonment with a mandatory minimum twenty-five (25) year sentence on each of the two counts, the sentences to run concurrently. (Petitioner's Exhibit 5).
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violations of Section 231.28(1), Florida Statutes, and that respondent's Teaching Certificate Number 174841 be permanently revoked. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson The Law Building 315 Third Street West Palm Beach, Florida 33401 Edward T. Goldstein Inmate No. 08163 Avon Park Correctional Institute Avon Park, Florida Joseph Varon, Esquire 2432 Hollywood Boulevard Hollywood, Florida Donald Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service . ... . The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 13th day of November, 1991.
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief does not allege that Respondent is an "employer" under Section 760.02(7), Florida Statutes, and if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Maria Oliveras in DOAH Case No. 01-3928; FCHR Case No. 21-01229. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. _____________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1329 Bedford Drive, Suite 1 Melbourne, Florida 32940 Maria Oliveras 339 Galicia Street Southwest Palm Bay, Florida 32908
