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
Findings Of Fact Based on the evidence adduced at hearing, the undersigned makes the following findings of fact: Respondent holds a license issued by Petitioner which permits it to engage in the business of a motor vehicle dealer at 9901 N.W. 80th Avenue, Bay 3C, Hialeah Gardens, Florida. On Friday, September 9, 1988, during normal business hours, Karen Reyes, who is employed by Petitioner as a License and Registration Inspector, visited this location to attempt to conduct an annual inspection of Respondent's records. The doors to the warehouse where the business was supposed to be located were closed and locked and no one was around the dealership. Reyes left a note requesting that a representative of the dealership contact her. She then-departed. Reyes returned to the location on Tuesday, September 20, 1988. Although it was mid-morning, the warehouse doors were closed and locked and there was no one present. Before departing, Reyes left a second note asking that she be contacted by someone from the dealership. The following day Reyes attempted to telephone the dealership. No one answered the phone, however, when she called. Reyes reported her findings to her supervisor. As a result, on October 20, 1988, Respondent's President, Javier F. Rodriquez, was sent a letter in which he was advised that Petitioner proposed to revoke Respondent's motor vehicle dealer license on the ground that Respondent had closed and abandoned its licensed location. The letter further advised that Respondent had the right to request a formal hearing before any final action was taken against it. Rodriquez responded to the letter by requesting a hearing at which he would have the opportunity to present proof that the dealership had not been closed or abandoned. In view of this response, Reyes was instructed by her supervisor to pay another visit to the dealership. She made this visit on Tuesday, November 8, 1988. This time she encountered two men at the location. There were also a couple of cars there as well. One of the men, who claimed to be a representative of the dealership, telephoned Rodriquez's wife and had her speak with Reyes. During their telephone conversation, Mrs. Rodriquez informed Reyes that her husband was still active in the automobile sales business, but that he was conducting his business at their home. At the conclusion of their discussion, Reyes asked Mrs. Rodriquez to have her husband call Reyes' office. Mr. Rodriquez telephoned Reyes' office on November 16, 1988. Reyes was not in, so Rodriquez left a message. Later, that day, Reyes returned the call, but was unable to reach Rodriquez. The following day, Reyes went back to the dealership, where she found the same two men she had met there on November 8, 1988. Rodriquez, however, was not at the dealership. Reyes therefore left. She came back later in the day. This time Mr. Rodriquez was present and he spoke with Reyes. When asked by Reyes why there was no business activity nor records at the licensed business location, Rodriquez responded that the dealership was now open every day from 9:00 a.m. to 4:00 p.m. He provided Reyes with no additional information. Reyes revisited the dealership on Friday, January 13, 1989, Wednesday, January 18, 1989, Thursday, January 19, 1989, and Monday, January 23, 1989, during normal business hours. On each of these occasions, she found no one at the location and the doors to the warehouse closed and locked. She made another visit on Monday, January 30, 1989. Although it was during normal business hours, there was no indication of any activity at the dealership. Furthermore, the sign which had identified the business had been removed. This prompted Reyes to speak with the leasing agent at the warehouse complex. The leasing agent told Reyes that Respondent was no longer occupying space at the complex.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's motor vehicle dealer license. DONE and ORDERED this 27th day of March, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989. COPIES FURNISHED: Michael J. Alderman, Esquire Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504 Javier F. Rodriquez, President Inrodar Auto Sales, Inc. 9901 N.W. 80th Avenue, Bay 3C Hialeah Gardens, Florida 33016 Charles J. Brantley, Director Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether Respondent, Candido Iglesias, d/b/a Iglesias Driving School, on November 4, 1981, and March 4, 1982, violated Rule 15A-2.05(3), Florida Administrative Code, by failing to keep a duplicate copy of every contract entered into between his school and every person taking lessons, lectures, tutoring, and instructions relating to the operation of a motor vehicle on file at the school location. If such violations occurred, whether the Respondent's commercial driving school license should be suspended for a period of three months, or until compliance with Rule 15A-2.05(3), Florida Administrative Code, is demonstrated.
Findings Of Fact Respondent, Candido Iglesias, d/b/a Iglesias Driving School, is presently licensed by Petitioner, Department of Highway Safety and Motor Vehicles, as a commercial driving school and has been so licensed for approximately the last four years. On November 4, 1981, and again on March 4, 1982, the Respondent was in violation of Rule 15A-2.05(3), Florida Administrative Code, in that he did not have on file at his school location a duplicate copy of every contract entered into between the school and its driving students. An interim inspection on November 19, 1981, found Respondent to be in compliance with Rule 15A-2.05(3), Florida Administrative Code, and it was stipulated by the parties at hearing that as of March 5, 1982, through the time of final hearing, Respondent was in full compliance with that rule. In both instances in which Respondent was found to be in noncompliance with Petitioner's rules, the fault lay with one of Respondent's driving instructors, whom he has since terminated. Enforcement of Rule 15A-2.05(3), Florida Administrative Code, is important to public safety in that it enables Petitioner to determine whether students taught by driving schools have had their eyesight and knowledge of the traffic laws tested by Petitioner, and whether competent instructors are teaching driver training. Respondent was warned on more than one occasion that it was necessary for him to demonstrate compliance with Rule 15A-2.05(3), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED That a Final Order be entered by the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, suspending Respondent's commercial driving school license for a period of three months, and, in light of Respondent's demonstrated compliance with the department s rules at time of final hearing, that that suspension be itself suspended, and Respondent be placed on probation for a period of one (1) year subject to a demonstration of continuing compliance with the department's rules and regulations at such intervals as the department may deem appropriate. DONE AND ENTERED this 4th day of October, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 4th day of October, 1982. COPIES FURNISHED: Michael J. Alderman, Esquire Alan Goldfarb, Esquire Assistant General Counsel 12th Floor, Roberts Building Department of Highway Safety 28 Flagler Street and Motor Vehicles Miami, Florida 33130 Neil Kirkman Building Tallahassee, Florida 32301 James T. York, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 =================================================================
The Issue The issues are whether Respondent properly suspended Petitioner's Contract for Transportation of School Children and revoked his license to drive a school bus.
Findings Of Fact Respondent's method of providing transportation for its students is unique in the state of Florida because it contracts annually with independent contractors for each bus route. Pursuant to the contract, independent contractors furnish a bus or busses and are responsible for employing qualified drivers. In order to be qualified, drivers must hold a license issued by Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code. Respondent and Petitioner entered into an annual contract for Petitioner to transport school children in Bus #657 for the 1991-1992 school year. At all times material hereto, the parties continued to perform under the terms of the 1991-1992 contract because Respondent was still negotiating the bus contracts for the 1992-1993 school year. Petitioner had been an independent bus contractor for approximately nineteen (19) years. The contract provided no guarantee that Respondent would renew its contract with Petitioner from year to year. At all times material hereto, Petitioner's wife, Eloise J. Lester, was the independent bus contractor for Bus #28. At all times material hereto, Petitioner held a Florida Department of Education school bus license issued by Respondent to operate a school bus. He had been licensed to drive a school bus for Respondent for nineteen (19) years. During that time, he had driven a bus on the Plummer Road route approximately 1,800 times with no reported mishaps. His prior record as a bus driver and bus contractor was unblemished. Respondent uses the Florida School Bus Drivers Handbook, published by the Florida Department of Education, as the curriculum to initially train drivers and for annual in-service training. Respondent gives a copy of this handbook to every driver. On the morning of February 8, 1993, Petitioner was driving his wife's bus #28 with students on board. He approached the railroad crossing at 9520 Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern Railroad train #229 a "good ways" down the track. The railroad crossing signals, flashing lights and bells, were activated indicating that the train was approaching the crossing. The engineer blew the train's whistle. Despite these warnings, Petitioner drove the bus across the tracks in front of the approaching train. The bus cleared the tracks just seconds before the train entered the crossing. The engineer, Jimmy W. Carter, and the conductor, Everett Maine, witnessed the incident and immediately reported the "near miss" to the railroad yard by radio. Later they prepared written incident reports. Norfolk Southern Railroad reported the incident to Respondent. Mr. Carter has been a train engineer for twenty-five (25) years. Mr. Maine has been a train conductor for forty-three (43) years. They were not under the influence of drugs or alcohol at the time of the incident. They were not involved in any conspiracy to harm Petitioner. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the bus in her driveway with her grandchildren on the morning of February 8, 1993. She testified that she did not know where the train was when the bus crossed the tracks. She did not remember hearing any bells or whistles. Petitioner testified that he could see the light of the approaching train before he entered the crossing. He denied that the crossing lights were flashing or that the alarm bells were ringing at that time. However, Petitioner stated that under certain circumstances, even if the crossing signals were activated, he had discretion to cross the tracks, i.e. when there is no train in sight or a train is stopped on the track. The eyewitness testimony of the engineer and the conductor relative to the activated signals and the distance of the train from the crossing at the time Petitioner drove across the tracts is more persuasive than any testimony to the contrary. After completing an investigation, the Director of Transportation, as the designee of the Superintendent made a determination in writing to suspend Petitioner's bus contract and revoke his school bus driver's license effective February 19, 1993. The initial suspension of the contract and revocation of the license was not permanent because both actions were subject to review by Respondent. The Respondent has discretion to enter into a new bus contract with Petitioner and to reinstate Petitioner's school bus license provided he meets the requirements of Rule 6A-3.0141, Florida Administrative Code. In March of 1993, Respondent assigned the contract for Route #657 (School Bus #657) to Petitioner's wife at her request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order affirming the suspension of Petitioner's bus contract and revoking his school bus license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of May, 1995. SUZANNE F. HOOD, Hearing Officer 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 17th day of May, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Accepted in paragraph 6 of this Recommended Order. Accepted in paragraphs 2-4 of this Recommended Order. Accept that the testimony of the witnesses is in conflict. However, the testimony of the engineer and conductor is more persuasive than the testimony of the neighbor, the Petitioner, or any other witness. Rejected. The suspension and revocation was subject to review by Respondent and will not become final until the Respondent issues a Final Order in this proceeding. Respondent has discretion to enter into a new contract with Petitioner and to reissue a school bus license. Rejected. Ms. Mardis did not see the bus as it crossed the tracks. The testimony of the engineer and the conductor is more persuasive. Rejected. The testimony of the engineer and the conductor is more persuasive. Rejected. The contract was suspended and the license revoked subject to review by Respondent. Even though the contract does not expressly provide for an appeal to Respondent under the facts and circumstances of this case, the right to review is implicit in the contract. Rejected. Regardless of what was said at staff meetings or in conference with Petitioner, the contract was not suspended and the license not revoked until Petitioner was notified in writing. Even then the adverse decisions were reviewable by Respondent. The contract does not specifically provide Petitioner an opportunity to explain why his contract should not be suspended and his license revoked at the time of the staff conference. The suspension and revocation was subject to review before the Respondent. Moreover, Respondent has provided Petitioner with a due process hearing by referring this matter to the Division of Administrative Hearings. Rejected. Ms. Lester was paid for transporting students in Bus 657 for the balance of the 1992-1993 school year beginning March of 1993. Since that time, Ms. Lester has been paid for transporting children in Bus 657. Respondent's Proposed Findings of Fact 1.--15. Accepted in paragraphs 1-12 of this Recommended Order. 16.--17. Accepted in paragraphs 1-2 of this Recommended Order. 18.--19. Accepted in paragraph in paragraph 11 of this Recommended Order. Accepted but unnecessary to resolution of case. Accepted but not at issue in this case. 22.--23. Accepted in paragraph 3. 24.--25. Accepted in paragraph 12 of this Recommended Order. COPIES FURNISHED: Michael Mullin, Esq. 26 S. 5th St. Fernandina Beach, FL 32034 Clay Meux, Esq. Vicki Reynolds, Esq. 600 City Hall 220 E. Bay St. Jackonsville, FL 32202 Dr. Larry Zenke Duval County School Board 1701 Prudential Dr. Jacksonville, FL 32207-8154 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue presented in Case No. 92-2911 is whether Respondent is guilty of the allegations contained within the Notice of Specific Charges filed against him, and, if so, whether his employment with the School Board of Dade County, Florida, should be terminated. The issue presented in Case No. 92-7414 is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action, if any, should be taken against his licensure as a teacher in the State of Florida.
Findings Of Fact Respondent holds Florida teaching certificate number 451673, covering the areas of driver education, reading, and physical education. His teaching certificate is valid through June 30, 1999. At all times relevant hereto, Respondent has been employed by Petitioner School Board of Dade County, Florida, as a teacher at Miami Killian Senior High School, pursuant to a professional service contract. During the 1991-92 school year Respondent was employed as the department head of the driver education program at Killian. For that school year, it was determined that an additional driver education class would be offered after regular school hours, during the seventh period, through the adult education program at Killian. Anthony Pariso, who was the principal at Killian, wanted to offer that seventh-period driver education class to Respondent, an opportunity which would provide extra salary to Respondent. He discussed his desire with Patrick Snay who was then the assistant principal at Killian and who was also in charge of Killian's adult education program. Snay was strongly opposed to giving the seventh-period class to Respondent because Snay had problems in the past with Respondent maintaining accurate enrollment and attendance records in the adult education program. Pariso reminded Snay that Pariso was the boss. Because of Snay's concerns, Pariso and Snay met with Respondent. They advised Respondent that the class would be offered only if enough eligible students enrolled in the class since funding for the class (and Respondent's extra salary) was dependent upon a minimum of 24 sixteen-year-olds. Although the course itself was not new, the fact that it was being offered during the seventh period as part of the adult education (night school) program made it a pilot program, which would serve as a model for other high schools in Dade County. Therefore, it would be closely monitored, and it was important that all of the requirements of adult education be met. During that conference Pariso and Snay specifically went over the requirements of the course, even though Respondent was the driver education department head and quite familiar with the course requirements. They made it very clear to Respondent that he had to have 24 sixteen-year-olds enrolled before the course could be offered. He was given specific instructions in terms of how to enroll the students. In that conference Pariso and Snay specifically told Respondent the rules relating to driver education classes in the Dade County Public Schools. Specifically, driver education class cannot be repeated unless the student received a "D" or an "F" in the class and then only during summer school. The class cannot be repeated for credit or for insurance reasons. Because of the problem Snay had in the past with Respondent, Pariso and Snay made Respondent repeat to them the instructions regarding who would be eligible to take the new seventh-period class. Respondent also coached the baseball team at Killian. As part of his efforts to enroll students in the class, Respondent met with the baseball team. He told them that they were to enroll in his seventh-period driver education class. The baseball players attending the meeting told Respondent that they had already taken the class from him. Respondent specifically told them that it did not matter, that they were to sign up for his class, that they were not required to attend the class, and that he would give them credit and an "A" without them attending. He passed out forms for enrollment and told them to fill out those forms and to sign the name of one of their parents on the portion of the form that required the signature of a parent to give permission for the student to attend night school. Several of those students who did not complete the enrollment form when first directed to by Respondent were contacted by him at their homes. Respondent reminded at least one of them that Respondent was in charge of deciding who would play baseball, implying there would be repercussions if that student did not enroll in the class. Respondent did such a good job enrolling students that it was possible to offer a second class during the seventh period. Snay was opposed to giving Respondent the opportunity to teach the additional class. Vincent Kubicek, another teacher in the driver education department at Killian, was offered the second class. Pariso and Snay met with Respondent and Kubicek. They explained to Kubicek and reminded Respondent that the offering of the driver education class as part of the adult education program was a pilot program initiated by the Superintendent of the Dade County Public Schools and that Kubicek and Respondent would have to stay in strict compliance with attendance guidelines, with grading, and with all School Board policies. The requirements for eligibility to take the class were again explained. The two seventh-period driver education classes were combined into one large class, known as Group A and Group B. Both groups were taught at the same time. Kubicek taught the class lecture and driving range portions. Respondent was in charge of the on-street driving part of the class. Respondent, as the department head, was responsible for the entire driver education program. He was also responsible for enrolling students in the seventh-period driver education course and for making an accurate and official record of attendance. Kubicek took the daily attendance for his portion of the course from the grade and range cards which he created. He did not have access to the official driver education seventh period attendance sheet. Respondent had the official attendance sheet, and the official attendance report was signed by him. There were students enrolled in the seventh-period class who were on the official attendance sheet signed by Respondent who never attended the class and who were not eligible to take the class. When it was time to fill out the official grade sheets for the first 9-week grading period, Kubicek was responsible for completing them. For the first time in the years they had worked together, Respondent insisted on helping Kubicek average the grades. While they were doing that, Kubicek discovered that there were students on the official grade sheets who had never attended the class. Kubicek called that to Respondent's attention, and Respondent replied that he would take care of it. Respondent told Kubicek, however, to give "A"s and "B"s to the students who had never attended the class. Kubicek awarded grades to all the students on the grade sheet, as instructed by Respondent, Kubicek's department head. Kubicek then took the official grade sheets to assistant principal Snay and explained what had happened and what Respondent had instructed him to do. Snay reported Respondent's falsification of the official records to principal Pariso. Pariso and Snay confronted Respondent about enrolling students who were ineligible and about directing Kubicek to give them passing grades when they had not attended the course. Respondent admitted his actions, stating that he was simply trying to help the students. Pariso fired Respondent from the seventh-period driver education class and replaced him with another of Killian's driver education teachers Eric Fleming. Respondent intentionally failed to follow the direct and reasonable orders of his superiors for enrolling students in the driver education class. Those orders were given to Respondent on at least two occasions, and he had been required to repeat them to show that he understood them when they were given. Despite those clear orders from both Pariso and Snay, Respondent enrolled students in the after-school driver education course that he knew had already taken the course and passed it and who were, therefore, ineligible to take the course again. As a result of an anonymous phone call to the principal of Palmetto Adult Education Center regarding improprieties in Killian's after-school driver education course, Pariso initiated a personnel investigation. He told Respondent that an investigation was forthcoming. Respondent contacted the students affiliated with his baseball team who were ineligible but enrolled in the class to tell them that they would be questioned. He also told them to tell the investigator the same story, i.e., that they had enrolled but that they had dropped the course because they had a job or had other demands on their time during the seventh-period class. He also told them what had occurred during the class in order that they could answer any questions regarding the class itself. When the investigator interviewed the ineligible students, they gave the false statements that Respondent had told them to give. One student later went to the investigator and told him that they had all lied and told the investigator why. The students were interviewed a second time. During the second set of interviews, the ineligible students admitted that they had taken the class previously and had received passing grades, that Respondent had pressured them to enroll again, that they had forged their parents' signatures to the form as instructed by Respondent, that some had agreed to take the course based upon his offer to give them credit and an "A", and that Respondent specifically said they did not have to attend. Moreover, at least one of the students had been enrolled in the seventh-period class by Respondent without her knowledge. After the ineligible students admitted that they had provided false statements to the investigator during the first interviews and after they had provided truthful statements in the second set of interviews, Respondent contacted at least one of those students and attempted to pressure that student into retracting the second statement and returning to the original false statement. In approximately 1989 Respondent asked two Killian students to follow his ex-wife home from work so Respondent could find out where she lived. They did so, and Respondent paid them $20. He then asked them to damage his ex- wife's car, which they refused to do because they thought that part was too risky. In approximately October 1991 Respondent asked those same students who had by then graduated from Killian to follow Fleming and Kubicek, the two teachers teaching the seventh-period driver education class, home from work. He offered them $50 to "trash" Fleming's and Kubicek's cars. Although those former students did follow Fleming home and subsequently gave Fleming's address to Respondent, they did not follow Kubicek home and they refused to damage either Fleming's or Kubicek's cars. On December 20, 1991, Kubicek's car was deliberately scratched with a key or other sharp object in the faculty parking lot at Killian. On that day, Fleming and Respondent were together all morning except for one period of time which lasted a few minutes during which Respondent left the driver education portable and then returned holding his keys. After his return, it was discovered that Kubicek's car had been "keyed". Later that day, Greg Dunn, a math teacher at Killian, was talking to his students about honesty while he was teaching his sixth-period consumer math class. One of the students challenged Dunn, asking the teacher how he could talk about honesty when the student had seen a teacher "keying a car." Dunn asked that student if he would talk to him after class, and the student agreed. The student explained that he and another student were behind a row of trees next to the faculty parking lot while they were cutting classes that morning. They saw and heard a teacher scratching Kubicek's car. Dunn reported his conversation to principal Pariso, who contacted the special investigative unit of the Dade County Public Schools. The investigator interviewed those two students individually, and both students independently identified Respondent as the teacher who keyed Kubicek's car. Further, both students independently identified Respondent from a photo line-up even though the photograph of Respondent used in the line-up was taken from a old yearbook and showed Respondent at a time when he wore a mustache. During the 1988-89 school year, Respondent engaged in an inappropriate relationship with a minor female Killian student, which included sexual activity. That student's father met with Respondent and requested Respondent to terminate the relationship, unsuccessfully. The student's father subsequently scheduled a conference with principal Pariso and played a tape which the father had secretly made of a telephone conversation between his daughter and Respondent. It was clear to Pariso from the tape that Respondent and the student were engaging in a sexual relationship and that Respondent had ignored the father's request to terminate that relationship. Pariso confronted Respondent about the tape and the relationship. Respondent was visibly shaken and quite upset about the tape. At first, Respondent suggested that he would simply lie to the father about the contents of the tape. Thereafter, however, Respondent admitted the relationship and assured Pariso that he would terminate it. Pariso directed Respondent to stay completely away from that student. Respondent did not terminate the relationship as ordered to by principal Pariso. Respondent's inappropriate sexual relationship with the minor female student was well known among students and teachers at Killian. Respondent's effectiveness in the school system has been severely impaired.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A Final Order be entered by Petitioner Dade County School Board in DOAH Case No. 92-2911 terminating Respondent's employment and denying his claim for back pay from the date of his suspension, and A Final Order be entered by the Education Practices Commission in DOAH Case No. 92-7414 permanently revoking Respondent's teaching certificate. DONE and ENTERED this 24th day of August, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2911 AND 92-7414 Petitioner School Board's proposed findings of fact numbered 1, 3-31, 34-47, and 51 have been adopted either verbatim or in substance in this Recommended Order. Petitioner School Board's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner School Board's proposed findings of fact numbered 32, 33, and 49 have been rejected as being unnecessary to the issues involved herein. Petitioner School Board's proposed findings of fact numbered 48 and 50 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner School Board's proposed findings of fact numbered 52-56 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner Castor's proposed findings of fact numbered 1-6, 10-64, 68- 77, 81, 82, and 84-87 have been adopted either verbatim or in substance in this Recommended Order. Petitioner Castor's proposed finding of fact numbered 66 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner Castor's proposed findings of fact numbered 7-9, 65, 67, 83, 88, and 89 have been rejected as being unnecessary to the issues involved herein. Petitioner Castor's proposed findings of fact numbered 78-80 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Patricia D. Bass, Esquire Luis Garcia, Esquire 1501 North East 2nd Avenue Miami, Florida 33132 Robert J. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Mark H. Klein, Esquire Allison L. Nash, Esquire Grand Bay Plaza, Suite 606 2665 South Bayshore Drive Coconut Grove, Florida 33133
Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers were Relford Cooper (black male) and Steve Smith (white male). One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to do. Scott spoke directly with Petitioner and explained to him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male). For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them. Of the 54 drivers employed by Respondent, 15 are black.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied. DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1986. COPIES FURNISHED: Wayne L. Helsby, Esguire 201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280 Willie Hudson, Jr. 11705 Park Orchard Circle Apartment #3 Tampa, Florida 33612 Affiliated of Florida, Inc. 1102 N. 28th Street Tampa, Florida 33605 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303 APPENDIX Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Findings of Fact 12, 13 and 14. Adopted in Findings of Fact 14, 15, 16 and 17. Adopted in Findings of Fact 17, and 18.
