The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Findings Of Fact Before his current assignment to a textbook depository, respondent Kerby Clifton Smith taught school for the Duval County School Board for 26 years. Mr. Smith holds a teacher's certificate, No. 145127, authorizing him to teach physical education to sixth through twelfth graders and science to seventh, eighth and ninth graders. In 1980-81, respondent received an unsatisfactory evaluation, which he attributed to the distraction of his mother's terminal illness, culminating ultimately in her death on Thanksgiving Day 1981. Otherwise, his annual evaluations were satisfactory through the 1986-87 school year. He began in August of 1963 as a physical education teacher at Lake Shore Junior High School. He ended that school year and spent all the next at "Paxon Junior High School teaching physical education, coaching track, baseball and basketball." (T.557) Mr. Smith returned to Lake Shore Junior High School in the fall of 1965. Until 1967, all his classes were physical education classes. In 1967, when he began teaching three science classes, he continued to teach two physical education classes, and to coach after school. After 1974, although he continued to work as a coach, he did not teach physical education classes, with the exception of a single physical education course for hearing impaired students. Instead, he taught physical science and earth science (or earth and space science) to junior high or middle school students, mainly with ninth-graders. Leaves Lake Shore With the intention of pursuing computer science training, respondent requested a leave of absence for the school year 1986-87. Request granted, he began at Jacksonville University in the fall of 1986. But when he began to run out of money toward the end of the first semester, he decided to return to work. Because his position at Lake Shore was filled, he was sent to Fort Caroline Junior High School, where he substituted for eight days before he took over a retiring science teacher's five earth science classes, effective February 2, 1987. Soon after Mr. Smith began teaching the science classes, the principal at Fort Caroline Junior High School, Mr. Pratt-Dannals, conducted a formal observation, the first of at least three he conducted before the academic year ended. He gave respondent special attention because, during the school years 1981-82 and 1982-83, when Mr. Pratt-Dannals was dean of boys at Lake Shore Junior High School, he had concluded that "a general lack of proper classroom decorum" (T.43) in one or more of Mr. Smith's classes accounted for an "inordinate number of referrals" (T.53) to the dean's office. But he evaluated Mr. Smith's teaching in the spring of 1987 as satisfactory over all. He also offered criticisms of various aspects of his performance as a teacher, telling him he needed to improve. He urged Mr. Smith to enroll in certain methodology courses in the summer of 1987, but Mr. Smith declined because he "had the summer planned." T. 617. When Mr. Smith returned in the fall, he found himself without a classroom of his own. As a "travelling teacher," he moved from one classroom to another in the course of the school day. This may have accounted for some of his classes' getting off to less than a smooth start. T. 573. 1987-88 Observations On September 15, 1987, Mr. Pratt-Dannals observed Mr. Smith teaching an earth science class. On a "Summative Observation Instrument" he kept track of specified behaviors classed either as effective, or as ineffective, indicators. The former outnumbered the latter, and Mr. Pratt-Dannals commended respondent for "asking a large number of questions on the film strip" which he saw as evidence of a "desire to involve students in the discussion." Petitioner's Exhibit No. 5. But, from where he sat, Mr. Pratt-Dannals saw "students openly cheating on the quiz," (T.88) (although he took no action against the supposed offenders.) Mr. Smith did not see students cheating. T.594-5. "Mr. Smith warned a student to stop talking. The student continued to talk, and there was no repercussion." (T.88) On October 21, 1987, Mr. Pratt-Dannals observed another of Mr. Smith's earth science classes devoted, except for 18 minutes, to a test. He saw "13 students . . . openly sharing answers on the test," (T.88) again without taking any action. Again Mr. Smith did not see students cheating. T.594-5. Using the same "Summative Observation Instrument," Mr. Pratt-Dannals identified about as many "ineffective indicators" as "effective indicators." Among the ineffective teaching behaviors Mr. Pratt-Dannals made note of on October 21, 1987, was Mr. Smith's defining "seismograph" for the class without giving an example. (T.90) When one student said to another, "You do and I'll beat your butt," (T.88) and the other responded, "Faggot," neither the principal nor the teacher intervened, although respondent later reprimanded both students outside the class. T. 582. Mr. Smith recognized the voice of only one of the protagonists, and decided against "ask[ing] a class of 35 which one of you said, you're a faggot?" T.585. From the owner of the voice he recognized, he learned the identity of the other miscreant. On November 5, 1987, Mr. Pratt-Dannals observed Mr. Smith administering yet another test to yet another earth science class. Using the same form as before, he recorded more ineffective indicators than effective indicators. Petitioner's Exhibit No. 7. Mr. Pratt-Dannals testified: There's some additions and corrections to the test at the beginning of the period that created some confusion. These were said orally, so the student had to understand what he was saying orally and write it down on his test in order to do well on the test. I suggested Mr. Smith write these on the board if there were corrections necessary. The cheating continued, particularly where students sat next to each other. This was when Mr. Smith was helping another student. There is a term called with-itness, and that is where a teacher is able to do two things at one time. One of the things that would be required in this situation would be to assist a student who may have a question about the test while continuing to look over the rest of the class to determine if any cheating was going on. He told one student that he would deduct 10 points the next time he was talking. This was on the test. The student talked, and he did not deduct the points. In written remarks made at the time, Mr. Pratt-Dannals noted, "While there was some cheating going on, it was less than before," and suggested, "It looks like it is time to rewrite the 'House Rules' on your cart. The pencil scribble detracts from the impact." Petitioner's Exhibit No. 7. When Mr. Pratt-Dannals next observed respondent's teaching, on December 1, 1987, he perceived no "classroom management problems." (T.100) But he felt "[t]here were problems with presentation of content," id., specifically the effort to discuss dinosaurs, AIDS, the space program and the greenhouse effect in the same class period. He nevertheless commended respondent on a "[g]enerally good question/answer time with extension or correction as needed," Petitioner's Exhibit No. 8, and recorded many more "effective indicators" than "ineffective indicators." Id. Biweekly the science department received 50 student issues and a teacher's edition of Science World, a magazine to which the school subscribed. "There were eight science teachers and one set of magazines." T.591. The chairman of the science department asked science teachers to include all topics pertinent to their courses covered in the magazine "in our lesson plan biweekly." T.586. The then current issue contained articles on dinosaurs, AIDS, the space program, and the greenhouse effect (as well as numerous other topics) and respondent had passed copies out to the students. On February 18, 1988, Mr. Pratt-Dannals again observed respondent teaching and again recorded many more "effective indicators" than "ineffective indicators." But "problems with classroom management persisted, specifically open talking, interrupting and socializing." (T. 117) Nevertheless, according to Mr. Pratt-Dannals, "almost half of [Mr. Smith's] interventions were effective." Petitioner's Exhibit No. 9. Mr. Pratt-Dannals commended Mr. Smith for "[g]ood use of materials, orienting statements, and beginning review . . [g]ood circulation during seatwork . . . [and a]dequate coverage of 4 of 6 of the concepts," Petitioner's Exhibit No. 9, he explicated on February 18, 1988. The two concepts Mr. Pratt-Dannals felt received inadequate coverage "were that light passing through a prism gives a spectrum . . . [and] that the earth is spherical, therefore, that the light hits the earth directly at the equator, but it hits it at an angle at the poles. [Mr. Smith] stated those but did not give any kind of application." T.118. Finally, Mr. Pratt-Dannals again observed respondent's teaching on March 2, 1988. He saw Mr. Smith stop misconduct effectively on three occasions, but, on nine occasions, misconduct extended beyond a reasonable period of time. In other words, he might say, Okay, that's enough, stop talking, and the talking continued for a period of time following that. It may be that the talking continued throughout the whole period [, while the principal sat, mutely observing.] In many cases it continued for a longer period of time than was reasonable if the students were responding to his correction. T. 124. Mr. Smith also failed to give examples of several (but not all) of the terms he defined. According to Mr. Pratt-Dannals, the "problem . . . was that a definition was provided with no example . . . similar to," (T.124) the situation with "seismograph." In conjunction with his observations that school year, Mr. Pratt- Dannals read Mr. Smith's lesson plans for each of the half dozen classes he sat in on. These, he found, "minimally covered what is required." T.130. Aside from these six, he read no other lesson plans Mr. Smith prepared that year. He evaluated Mr. Smith's performance as a teacher as unsatisfactory principally because of classroom management problems. T.131. At Mr. Pratt-Dannals' behest, Gloriden J. Norris came to the school to evaluate respondent's teaching and test administration on December 18, 1987, and again on January 20, 1988. After her first visit, she reported, "[n]o major problem identified from these observations." Petitioner's Exhibit No. 26. On her second visit she recorded 30 effective teaching behaviors and only two ineffective teaching behaviors. Petitioner's Exhibit No. 28. Both Mrs. Norris and Mr. Pratt-Dannals gave Mr. Smith advance notice before observing his teaching. On the other hand, Daniel L. Weems, one of the science teachers whose classrooms respondent made intermittent use of, had occasion to enter his room without notice, during his own free period, while Mr. Smith was teaching there, "in the range of once a week," (T.188) for from two to 15 minutes at a time. Not infrequently he found that Mr. Smith did not have all the students' full attention. He observed "[o]n a number of occasions things such as heads down on the desk, writing notes or letters to one another, just talking with one another, being teenagers." T.177. MLST Petitioner requires students in its earth science courses to pass a Minimum Level Skills Test (MLST) demonstrating mastery of a specified fraction of about 19 percent of the course objectives, in order to pass the course. In March of 1988, Mr. Pratt-Dannals told Mr. Smith he was concerned that his students would not be properly prepared for the standardized test; and encouraged him to make special efforts to prepare them. Mr. Smith did make special efforts. The percentage of his students who passed the science MLST the first time they took it was higher than comparable percentages for two other science teachers' students, but lower than the comparable percentage for one of the other science teachers' students. Respondent's Exhibit No. 5. Mr. Smith's students' scores on the earth science MLST were not significantly better or worse than their scores on minimum level skills tests in other subject areas. 1988-89 At respondent's request, he was transferred from Fort Caroline Junior High School after Mr. Pratt-Dannals gave him an unsatisfactory evaluation. That summer he signed up for two of the three education courses Mr. Pratt-Dannals recommended that he take during the summer, but they were cancelled for lack of adequate enrollment. The third recommended course was already completed by the time he looked into it. Mr. Smith's request to teach physical education during the 1988-89 school year was not honored. Instead, he was assigned to teach two science courses, four classes of life science, which he had never taught before, and one class of physical science at the Eugene J. Butler Seventh Grade Center (Butler). His physical science students had all failed earlier attempts to pass the seventh grade. For the first two weeks of school or longer, Mr. Smith called students' names, and they raised their hands when he took roll, but after that he would simply "darken in the circles" (T.603) on a "bubble sheet" that listed the class roll. Once he had learned their names, this procedure saved class time, he felt. In each class, he asked a student to remind him to fill in the sheet before the hour was up. Before conducting his initial formal observation, Butler's principal, Kenneth Leon Manuel looked for respondent's lesson plans, but did not find them on file. When he did see the lesson plans, he concluded they "did not comply with the format of objectives, instructional strategies, materials and evaluation." Petitioner's Exhibit No. 14. In the classroom, he noticed several students "discours[ing] while [Mr. Smith] was talking," (T.259) on September 13, 1988, and again on October 18, 1988. Also on September 13, 1988, "several students walked in and out of the classroom. Like one kid would walk in with the hall pass. And by the time he put the hall pass down, another kid would get up, get the hall pass and walk out." T.260. Carole Lippert Benson, Butler's vice-principal, conducted a "formal observation" in one of Mr. Smith's classes on September 28, 1988. Even though class began four minutes late, five students were tardy. "The teacher usually makes some sort of notation that the child was tardy, or gives them some sort of reprimand," (T.404), but respondent did neither. When he began his presentation, one student was at the pencil sharpener and three others were out of their seats. He stood at an overhead projector with his back to half the class. Some students talked. One put his head down and went to sleep. A girl put on make up. Mr. Smith did not have the attention of several students. Kathleen Bowles, the science and health department chairperson at Butler had her planning period second hour during the 1988-89 school year. She walked through respondent's second period class on her way to the science department's storage rooms, "probably 20 times or more, throughout the entire school year." T.246. She saw children talking among themselves, writing notes and out of their seats. She even saw some listening to radios or cassette players with headphones. School policy forbids Walkman radios on campus. Mr. Smith violated departmental policy by letting the children "dissect pumpkins" without safety goggles, and nearly violated department policy "when he was going to dissect earthworms, and the safety contracts had not been signed." Although Ms. Bowles reported a "very high" noise level, a classroom teacher nearer by was not disturbed. On November 9, 1988, Kathleen Marie Poe, who then worked for petitioner as "a science consultant with professional development" (T.454) attended one of respondent's classes in order to conduct a scheduled formal observation. When the tardy bell rang two boys were arguing over which should retrieve a desk that had been moved for an earlier class. A student arrived late. One of the students walking around the room refused to obey several exhortations to sit down, so Mr. Smith ordered him to leave the class room "and that child wouldn't step outside, so they finally negotiated that he asked him to sit in the back of the room." T.455. But, when a girl finished sharpening her pencil, the recently seated student rose to sharpen his pencil. After these preliminaries, and a quiz, Mr. Smith made use of an overhead projector and began a far ranging lecture on sea life, mentioning (without defining that day) mollusks, bivalves, scallops, univalves, stingrays, echinoderms and the Great Barrier Reef. During the lecture, one girl put on make up, another did her English homework. On November 17, 1988, a student arriving for Mr. Smith's sixth period class told him he did not feel well, and asked to go home. Mr. Smith answered, "[S]ee if you can't tough it out one more period. Your mom's not going to want to come over here. Go . . . put your head down." T.624. Instead of putting his head down, the child lay down on a table. Mr. Manuel and Levi Garrett, another administrator in petitioner's employ, were present for the first five minutes of this class. Mr. Smith introduced Mr. Garrett to the students before proceeding with a scheduled VCR presentation. Neither Mr. Manuel's testimony that, "There were several kids that walked in and just lay down on the table," (T.266) nor his assertion that respondent's lesson plans were not on respondent's desk has been credited. On February 1, 1989, Ms. Norris observed respondent at Mr. Manuel's request. "Other than the inadequate preparation and delivery of content, [she] also concluded that there were some problems in inconsistency in . . . effective strategies . . . used to manage student conduct." T.384. On the test he gave that class, "there's a mixture of multiple choice and matching without directions." T.386. On February 15, 1989, Mr. Manuel conducted another formal observation, this time of respondent's third and fourth period classes. With regard to the third period class, Mr. Manuel reported: [B]asically the behaviors that were in that particular class during that time, there was a lot of deviant behavior. Mr. Smith, at one time, responded to the deviant behavior, "Neil, you better get busy. You guys get busy." There was continuous conversation with a student that had a missing lunch ticket. During the period of time in this particular classroom, Mr. Smith did circulate around the classroom. There were numerous misconducts [sic] of students going on. He had the opportunity to cease and desist some of that; however, in some cases he did not. Also, in that particular one, in that specific case, one student had indicated to Mr. Smith that he had completed the assigned task [an essay] . . . [A]nd Mr. Smith explained to him to continue to work on the essay. The child just went ahead on. T.275-7. About a third of the class finished the essay early, and had no additional assignment other than (possibly) homework. The fourth period class was the physical science class, full of students who were repeating. Several students "were continuously off task." T.279. Mr. Smith told a student she should have raised her hand, and she said he had not required another student to do that. After two warnings, Mr. Smith "wrote [a student] up on a referral, told him to leave the classroom." T.280. Another student was playing with the thermostat. Still another student "was constantly talking and complaining." T.281. On February 28, 1989, Ms. Poe again observed respondent, whose strength she had earlier described as "science content/knowledge." Petitioner's Exhibit No. 33. In connection with her February visit, she prepared written comments. "Some conduct problems - 4 students out of their seats - talking back - frequent interruptions. One was sent out on a referral (girl) transparencies were clearer as were his directions. He never raised his voice and was calm throughout the hour." Petitioner's Exhibit No. 33. Ms. Poe felt respondent "need[ed] to provide positive feedback to students' answers and . . . for correct behavior and to be consistent with his own set of classroom rules." Id. She also noticed that "he kept calling on the same students, the ones who were paying attention, to answer the question." T. 459. Two boys played "paper football across the desk," (T.456) a boy threw "basketball paper wads . . . three of them in a row", id, a distance of about six feet, and "[t]here were a couple of paper airplanes being flown around the room." T.456. Mr. Manuel conducted a final observation on March 13, 1989. After this observation he told respondent that he wished he had taught so well for the whole year or words to that effect. He told him that this was the type of teaching he had been looking for and was generally complimentary. Nevertheless the next day he made a final evaluation that Mr. Smith's work for the year had been unsatisfactory. After January 30, 1989, respondent did not file lesson plans until June 14, 1989, when he filed lesson plans for some four months' classes late. MLST At Butler Of the 21 students in Mr. Smith's year-long physical science class, only ten passed the physical science MLST the first time it was administered. T.302. Petitioner's Exhibit No. 23. Even fewer students passed the course itself. "That's the class that were repeaters . . . ." T.603. Most of the students who flunked the class "failed because we had an attendance policy. If you missed more than seven days [in "[e]ach grading period" (T.607)] . . . you automatically received an F or an E in the class." Id. Students in Mr. Smith's four first semester life science classes passed the life science MLST at rates of 34.8, 52.0, 52.2, and 63.6 percent, as compared to a 77.7 percent pass rate for all teachers' first semester life science students. Petitioner's Exhibit No. 24. But students in Mr. Smith's second semester life science classes passed the life science MLST at rates of 92.0, 93.8, 94.1 and 94.7 percent as compared to an average 93.9 percent for all teachers' life science students that semester. Petitioner's Exhibit No. 25. Popular With Colleagues A number of respondent's colleagues testified for him at hearing. Paul Z. Martin, a teacher at Lake Shore Junior High School from 1954 to 1976, said, in answer to counsel's questions: A He got along fine. I got jealous of him a lot of times, because he could handle the students so well, and the students liked him, and he had no problem there at all. And another thing -- let me say right there -- you know, things will happen, which is natural. They'll come up in class, or maybe under me or maybe under another coach. And, well, two or three times I recall where I would ask Kerby to go see if he could resolve that situation, and he did. He did a good job. He's a good disciplinarian. Q Good disciplinarian? A Good disciplinarian. And his work in his classroom was very efficient. (TR 344) Barbara Miller who taught at Lake Shore Junior High School for twenty- six (26) years and who, like Mr. Martin, had no personal knowledge of respondent's performance at Fort Caroline Junior High School testified: I think he is a very competent teacher. I say this due to the fact that when I walked into his classroom the many, many times that I did, that his class was in order, that he had control of his classroom, that his test scores were good, that his grades were better than mine, that he did take an interest in the children. And I have one real criteria for being a good teacher, and that is it involves the heart and the love of your job and the love of the children, and I absolutely will say under oath that Kerby has these things, that he enjoyed his job, he loved the kids, and he gave to them beyond the capacity of just your 7:30 - to - 2:40 requirement. And that says a lot for me. (TR 359, 360) A former principal, John Rowell, who served as principal at Lake Shore Junior High School, until 1969 testified: I would say he tries to reach every student that he can. He's very pleasant, and he -- for me, he maintained good order in the classroom and a well-disciplined gym class, and his teams that he coached were well-disciplined teams. He called on the kids to recite. He would explain, and they would recite. Q Do you think he was a competent teacher? A Yes. He was a competent teacher for me. Between 1963 and 1969, he was a very competent teacher." (TR 484-485) Another colleague who had not taught with Mr. Smith since he left Lake Shore Junior High School was Betty Tut who had herself taught for some twenty- five (25) years. She said: Did you ever observe Kerby Smith in the classroom? A No, not observe him in the classroom, but we taught P.E. kind of together. Sometimes we would be outside, but this was some time ago, not recent. Q But you could see each other? A Yes. Q What was his conduct with the class when you observed him? A Very caring and compassionate about them and wanting them to do well. He was very concerned about each of the kids and wanted them to do exceptionally well in what he was doing. I know that much. Q Did he seem to have control of his class? A Being outside, he had pretty good control outside. But when he was inside, I did not observe him. (TR 494) Another Lake Shore colleague, Floyd Watson, who taught at Lake Shore Junior High School from 1966 to 1988, answered counsel's questions, as follows: Q How did Mr. Smith conduct this classes? A What do you mean? Q You saw him in some of his classes. What were they like; well-run, poorly-run, whatever? A Of course, I'm not a science teacher, so I can't say that sort of thing. Q Did you find any atypical disciplinary problems in his classes, as compared to the others that you were familiar with? A No. Q Did he seem to have a rapport with the students or lack or rapport? A He seemed to have a good rapport. I think, with the latter part of the years, I was just thinking, when I came down here the other day, that he seemed to have a right good rapport, especially with minority students. Not all teachers have that." (TR 502) "Q In your opinion, from '63 to '85, was Mr. Smith a competent teacher? A Yes. Q And the reason for that statement? A Well, I think he's knowledgeable in his subject matter. I think he put the material across to the students. He did have a classroom management so that a student that wanted to learn could learn. He was able to talk with the students and get along with them reasonably well. Of course, like any teacher, you don't satisfy all of them. That never happens. But, overall, I think he got along very well with the students, and they tend to respect him. He made it such that if they wanted to learn they could, and he would try to teach them. (TR 503, 504) Robert A. Birmingham, an occupational specialist at Lake Shore Junior High School, 1985-1990, testified: Q What was the conduct of his classroom when you were there? A They're junior high kids, you know. In an educational setting, there can be noise, and it's educational noise, and there can uncontrolled noise. And I don't recall anything that I was unhappy with. (sic) (TR 510) Phil Valla, a 20-year teacher who taught with respondent early in his career, testified: Q How did he conduct his classes, as far as demeanor and the rest of it? A How did he conduct his classes? Q Yes. From your viewpoint as a teacher, yourself, do you have an opinion about how Kerby conducted his classes? A His classes were fine. Q Do you think he's a competent teacher? A Yes, sir. Q And could you tell the Hearing Officer why you think he's a competent teacher? A When we worked together, we seemed to accomplish everything we set out to do with the kids, and he seemed to get along real well with the kids and fellow coaches. Q How was discipline in his class? A Fine. Q What rapport, if any, did he have with his students? A It was excellent. He had superior rapport with the students. Q Do you think the students respected him? A Yes, sir. Q You say he accomplished everything he wanted to accomplish; was that subject matter? A Yes, sir. Q Do you think that got across? A Yes, sir. We taught -- our goals were to teach skills in physical education, and we accomplished that in those years. (TR 516, 517) And Georgette Macarthur, a teacher with 28 years of experience, offered her opinion, in response to counsel's questions: Q Do you have any opinion about how he conducted his classes? A Yes. He had a real special, I think, rapport with the students, and they liked him, and they performed for him. And I don't think he had a military discipline style, but that mold -- everybody doesn't fit that mold. His style of discipline was a little more relaxed, but the students learned well, I think, and they all did what they were supposed to do. I'm more of a relaxed teacher, myself. And I can see that what is right for one teacher, as far as discipline goes, is not right for another teacher. And students can't learn in chaos. That's not what I'm saying. What I'm saying is that if they're all tense and tight sometimes they don't do their best. I really like the way Kerby teaches, from my memory. It's been several years, but, from what I know, I really like the way he teaches. Q You've known him for over 20 years at Lakeshore (sic)? A Right, right. Q That's a long time to observe somebody. A That's right. That -- well, go on with your questions. Q And he left to go on a sabbatical? A Yes, and then he came back. Q And then -- I don't -- if I asked you this -- did I ask you, "Do you think he's a competent teacher?" A Yes, I do. From my observations and just from what I have known, I do think he's competent. (TR 524, 525) On the other hand, Messrs. Pratt-Dannals and Manuel, along with Ms. Bowles testified that respondent was not a competent teacher. Of the 6200 teachers the school board of Duval County employed in 1988-89, it sought to terminate the employment of only three. Raymond Bailey, petitioner's "director of certificated personnel," (T.200) testified: A competent teacher is one that has knowledge of subject matter, is able to impart and deliver that subject matter to students. That competent teacher also is one that is competent in the area of classroom management, meaning managing the learning activities that take place within those four walls. He's also an individual that is effective in his delivery of curricular material to students, interpreting the curriculum of the district and, again, imparting its students. He is an individual that is charged with the responsibility of teaching the curriculum as outlined by the district and has the knowledge and background to proceed through that and to provide his students with the very best education. While it is clear respondent did not provide his students with "the very best education," the evidence fell well short of a showing that he was among the three worst teachers in the school system. At one point when respondent was teaching at Lake Shore and Mr. Wechsler was serving as principal, all five or six science teachers were evaluated by the School District's "teacher educational consultant for science" (T.369), Gloriden J. Norris. Ms. Norris, who observed all of the teachers in their classrooms, did not conclude that respondent's performance was significantly worse than any of the other science teachers' performances. (T.399-400).
Recommendation It is accordingly, recommended that petitioner renew respondent's employment contract. RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 22nd day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4132 Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 45, 79, 87, and 89 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7, 12, 13 and 14 pertain to matters outside the two-year period alleged by the Board, or are otherwise immaterial. Petitioner's proposed findings Nos. 15, 16, 17, 18, 23, 24, 25, 32, 33, 34, 36, 46 and 81 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 19 through 22, see finding of fact Nos. 11 through 22. Petitioner's proposed findings of fact Nos. 35 and 86 were not established by the evidence. With respect to petitioner's proposed finding of fact No. 41, the testimony was that in no other case of this kind was a teacher assigned to teach subjects he had never taught before. With respect to petitioner's proposed findings of fact Nos. 42, 43 and 44, the evidence did not show that he was at any less disadvantage teaching life science, and the "special accommodations" were contrary to his request to teach physical education. With respect to petitioner's proposed findings of fact Nos. 47 through 65, 82, 83 and 84, see findings of fact Nos. 27 through 45. With respect to petitioner's proposed findings of fact Nos. 66 through 75, see findings of fact Nos. 46 and 47. Petitioner's proposed findings of fact Nos. 76, 77, and 78 have been adopted in substance, insofar as material, except that Mr. Manuel's testimony that lesson plans were not on respondent's desk has been rejected. With respect to petitioner's proposed findings of fact Nos. 80 and 85, that is the answer he gave on deposition. With respect to petitioner's proposed findings of fact Nos. 85 and 88, petitioner proved respondent was a weak teacher, but did not prove that he was incompetent, within the meaning of the statute. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 10, 13, 17 and 18 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 6 and 15 pertain to subordinate matters. The final two sentences of respondent's proposed finding of fact No. 7 have been adopted, in substance, insofar as material, but there were not six formal evaluations. With respect to respondent's proposed finding of fact No. 9, nobody testified that a traveling teacher should have any greater problems with discipline after the first few minutes of class. With respect to respondent's proposed finding of fact No. 11, the evidence did not show that he actually attended summer courses. With respect to respondent's proposed finding of fact No. 12, the first sentence has been adopted but it is not clear what comparison the second sentence is intended to make. Respondent's proposed finding of fact No. 14 is rejected. With respect to respondent's proposed finding of fact No. 16, she characterized certain behavior as inconsistent. COPIES FURNISHED: The Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 James L. Harrison, General Counsel Gail Stafford, Assistant Counsel 421 West Church Street, Suite 715 Jacksonville, FL 32202 Al Millar, Esquire 2721 Park Street Jacksonville, FL 32205
The Issue The issues to be determined are whether Respondent reported for duty while under the influence of alcohol in violation of section 1012.795(1)(j), Florida Statutes (2016), and Florida Administrative Code Rule 6A-10.081(2)(a)1.1/, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Jones held Florida Educator's Certificate No. 866702, covering the area of Music, which was valid through June 30, 2018. At all times pertinent to the Administrative Complaint, Ms. Jones was employed as a music teacher at Village Green in the St. Lucie County School District. On May 8, 2017, Ms. Cynthia Garcia reported to work at Village Green around 7:30 a.m. The desk where visitors and staff members sign in is adjacent to the front office where Ms. Garcia works. Sometime between 7:30 a.m. and 7:50 a.m., Ms. Jones signed in at the desk and crossed the front office. Ms. Jones said hello to Ms. Garcia and apologized for the way that she looked. Ms. Jones had on no makeup and her hair or wig was unkempt. Ms. Garcia asked Ms. Jones if she was okay because she was acting a little giddy and didn’t seem to be herself. Ms. McQueen was in the hallway at Village Green going to her classroom when Ms. Jones called out to her. Ms. McQueen went over to her to see what she wanted. Ms. Jones was laughing and told Ms. McQueen that the students would not recognize her because she wasn’t wearing any makeup. Ms. McQueen smelled alcohol and noticed that Ms. Jones’ was inappropriately dressed and that her hair was untidy. Ms. McQueen testified that Ms. Jones was slurring her words, but she was able to understand what Ms. Jones was saying. Ms. McQueen testified that Ms. Jones did not have any coordination problems or trouble walking. Ms. McQueen told Ms. Jones to go to her office to straighten herself up. Ms. McQueen testified, “And my reason for doing that, because I wanted to get her away from the students, so that I could go to the office to get help, to tell administration.” Ms. McQueen testified that while she was talking with Ms. Jones, a few students began waiting outside of the music room where they were to rehearse for a musical production. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen told Ms. Brown that she thought Ms. Jones was drunk, or had been drinking. Ms. Brown asked Ms. McQueen to take over her responsibility to stay with the children who were having breakfast so that Ms. Brown could go see Ms. Jones in the music room. Ms. Brown testified that when she spoke to Ms. Jones: [Y]ou could smell the alcohol, and her eyes was swollen and the whites was red. And the students kept trying to come through the back part of the –- it’s like the stage, because they was practicing. They practice in the morning for a play. And I wanted to try to keep the students from seeing her, so I like get in front of her. * * * Because I didn’t want them to see how she looked. Because her hair was kind of wild and her top was up, you can kind of see her stomach. I didn’t want the students to see Ms. Jones like that. Ms. Brown told Ms. Jones she needed to get herself together, and Ms. Jones responded that she would leave the school. Ms. Brown asked Ms. Jones if she wanted her to get someone to help, was told no, and she then told Ms. Jones that she would tell the school administration that they would need to get a substitute teacher for the day. This credible, eyewitness testimony of Ms. Jones’ colleagues that she smelled of alcohol, had swollen and bloodshot eyes, exhibited slurred speech, and was acting in an unusual, “giddy” manner is sufficient evidence to reasonably infer that Ms. Jones was under the influence of alcohol when she reported to the school for duty on the morning of May 8, 2017. Ms. McQueen and Ms. Brown left campus, with Principal Barrett-Baxter’s permission, to make sure that Ms. Jones had arrived at her home. When they arrived, they saw her rental car parked there. Later the same morning, Ms. Jones returned to Village Green. She went to the office area to talk to Principal Barrett- Baxter. It was not clearly shown that Ms. Jones intended to return to duty or be in contact with students when she returned. Principal Barrett-Baxter said that she could smell alcohol from across the desk, and confirmed the others’ earlier observations that Ms. Jones’ appearance was unacceptable. Ms. Garcia also credibly testified that the smell of alcohol was so strong that it lingered in the room after she left. Based on her observations and reports, Principal Barrett-Baxter directed Ms. Jones to have a reasonable suspicion drug test conducted. Officer Ken Rodriguez, who transported Ms. Jones for the testing, also testified that he smelled alcohol, that Ms. Jones was a “little foggy,” and that she appeared to be under the influence of alcohol. Two breathalyzer tests were conducted at Absolute Testing, indicating that Ms. Jones had blood alcohol level readings of .186 and .191. The events after Ms. Jones returned to Village Green were of little value in considering the charge in the Administrative Complaint because of the interplay of two circumstances: 1) Ms. Jones spent time at home alone after her initial presentation at Village Green and before the time the alcohol test was conducted; and 2) it was not clearly shown that Ms. Jones was reporting for duty to teach students when she returned to the school. There was no evidence of any prior discipline involving the Florida Educator Certificate of Ms. Jones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Renya Jones in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1.; renewing her teaching certificate and placing her on probation for a period of three years; requiring her to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Commission; and requiring her to pay administrative fees and costs. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of November, 2018.
Findings Of Fact The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.
The Issue The issues in this case are whether, as Petitioner has charged, Respondent offered for sale training in a program of physical exercise, or the right or privilege to use equipment in furtherance of a program of physical exercise, at an unregistered business location, in violation of section 501.015(1), Florida Statutes; and, if so, whether a penalty should be imposed.
Findings Of Fact The Department is the state agency responsible, among other things, for administering the laws regulating health studios. For purposes of circumscribing the Department’s jurisdiction, the term health studio “means any person who is engaged in the sale of services for instruction, training, or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.” § 501.0125(1), Fla. Stat. Magloire is a person who meets the definition of a “health studio” subject to the Department’s regulatory jurisdiction. During the period from, roughly, December 2018 until December 2019, Magloire operated a gym under the name “Adrenaline Fitness,” which was located at 3700 Northwest 124th Avenue, Coral Springs, Florida (the “Gym”). There is no dispute that Magloire allowed persons to use equipment or facilities at the Gym for the purpose of physical exercise. It is also undisputed that Magloire never registered the Gym with the Department, which would have been required if the Gym were a “business location.” See § 501.015, Fla. Stat. A health studio constitutes a “business location” if “studio services” are performed onsite. The term studio services “means privileges or rights offered for sale or provided by a health studio.” § 501.0125(2), Fla. Stat. Magloire maintains that the Gym was a “private facility” where services were not “offered for sale” to the public, but rather were made available as a convenience to his personal friends and acquaintances. The relevant distinction here, however, is not between private and public facilities, per se, but between commercial and noncommercial gyms. A homeowner who installs exercise equipment in his garage for personal use and invites a few friends over for a workout once in a while does not thereby turn his home into a “business location.” Magloire’s Gym did not involve this kind of obviously personal, noncommercial use. Magloire testified that many of the persons who worked out at the Gym did not pay him with money for the privilege, although a few did, occasionally, tender cash; the undersigned accepts this as true. Magloire admitted, however, that he received other valuable consideration from guests, such as services, in exchange for his letting them use the Gym’s equipment and facilities. The undersigned determines as a matter of ultimate fact, based on clear and convincing evidence, that the Gym constituted a “business location” where “studio services” were “offered for sale.” Magloire, therefore, was required to register the Gym with the Department pursuant to section 501.015(1), which he failed to do, in violation of the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing a fine of $1,000 against Magloire for providing studio services at an unregistered business location in violation of section 501.015(1), Florida Statutes. DONE AND ENTERED this 24th day of February, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 24th day of February, 2020. COPIES FURNISHED: Genevieve Hal1, Esquire Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Vladimir Magloire Adrenaline Fitness Studio 10370 Northwest 40th Place Coral Springs, Florida 33065 (eServed) Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
Findings Of Fact Rasberry holds Florida Teaching Certificate Number 069503 post-graduate rank II, valid through June 30, 1983, covering the areas of physical education, health education and junior college. At all times pertinent hereto, Rasberry was employed in the public schools of Duval County, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Rasberry was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Mr. James E. Thompson was principal of Matthew Gilbert during the summer school session of 1978. The usual procedure established by Mr. Thompson for the summer school physical education was to assign two teachers to the physical education program with only one of the teachers being responsible for attendance and grade records. Such was the case during summer school 1978. Rasberry was one of two teachers assigned to the physical education program. Mr. Rasberry was excluded from the requirement of reporting attendance and grades because of his other extensive duties. This procedure had the "blessing" of principal Thompson. Rasberry never submitted any paper work regarding the physical education course for summer school 1978. All grade reporting forms and attendance records were prepared and submitted by another instructor who in some cases signed Rasberry's name to the form. However, at no time did Rasberry sign his own name to any of these forms. While the evidence demonstrated that a high number of discrepancies exist in these reporting forms, there is no evidence to establish any connection between Rasberry and the inaccurate attendance data or the award of undeserved grades.
The Issue Whether Tina Pate violated Subsection 486.125(1)(b), Florida Statutes, by committing deceit in obtaining a license as a physical therapist, and, if so, what penalty should be imposed; and whether Tina Pate violated Subsection 455.624(1)(w), Florida Statutes, for failing to report to the Board of Physical Therapy her conviction of aggravated child abuse, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony of Pate and the evidence submitted, the following findings of fact are made: At all times material, Pate held a license as a Physical Therapist in the State of Florida. The Department of Health, through the Board of Physical Therapy Practice, is the state agency that licenses and has regulatory jurisdiction of physical therapists. As authorized by Florida Statutes, AHCA performs investigative and prosecutorial services for the Department of Health. Pate pled nolo contendere to a charge of aggravated child abuse in 1979. Aggravated child abuse is a felony (AHCA Exhibit 2). Pate applied for a physical therapy license on August 1, 1996. The license application contained, among other things, the following question: "12. Have you ever been convicted or found guilty of a felony, regardless of adjudication? (A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges)." Pate answered "No" to this question. Pate testified that she was advised and that she believed that having successfully completed three years of probation that her record would be expunged. She further testified that because she found Question 12 and another question on the application regarding criminal convictions confusing, she sought legal counsel prior to answering the questions and answered the question as counseled. In this particular factual situation, based on the nature of the felony, the text of the question, the counsel she received, and her mistaken belief that the record of criminal conviction had been expunged, Pate's incorrect answer to Question 12 was not deceitful. Late in 1998, Pate discovered, as a result of an investigation by a prospective employer, that the 1979 nolo contendere plea was still a matter of public record. On February 15, 1999, Pate applied to AHCA for an exemption hearing. Subsection 400.215(4)(b), Florida Statutes, states: (b) As provided in s. 435.07 the appropriate regulatory board within the Department of Health, or that department itself when there is no board, may grant an exemption from disqualification to an employee or prospective employee who is subject to this section and who has received a professional license or certification from the Department of Health or a regulatory board within that department. Subsection 435.07(1), Florida Statutes, states: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: (a) Felonies committed more than 3 years prior to the date of disqualification; In response to Pate's request for exemption hearing, Mr. Joe Baker, Acting Bureau Chief, Heath Care Practitioner Regulation, by letter dated February 24, 1999, granted her request stating, "an exemption from disqualification for the above disqualifying offense(s) is granted." Subsection 456.072(1)(w), Florida Statutes, states: The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * (w) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999. While she was preparing her request for exemption hearing, Pate had telephone conversations at the Board of Health with an individual she identified as Kay Howerton, who Pate believed had reviewed her request for exemption hearing. Pate's request for exemption hearing contains specific reference to her plea of nolo contendere to the November 3, 1978, Pasco County, Florida, charge of aggravated child abuse. It is not unreasonable for a lay person, having made an application to AHCA for an exemption from licensure disqualification for having pled nolo contendere to aggravated child abuse, and having received a letter from the Board of Health granting her the exemption, to believe that she had reported her plea of nolo contendere to the Board in writing as required by Subsection 456.072(1)(w), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Physical Therapy Practice, find Tina Pate not guilty of having violated Subsections 486.12(1)(b) and 455.624(1)(w), Florida Statutes, and dismiss the Administrative Complaint filed against her. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2001. COPIES FURNISHED: Herbert Allen, Jr., Esquire 2000 Highway A1A, 2nd Floor Indian Harbour Beach, Florida 32937-3525 Mary Denise O'Brien, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The ultimate issue for determination at the formal hearing was whether Respondent's teaching certificate should be revoked for violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e), as more fully described in the Administrative Complaint.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a substitute teacher pursuant to certificate number 479861 from the State of Florida Department of Education. Respondent's teaching certificate expires on June 30, 1991. Respondent had approximately 10 years experience as a substitute teacher in Dade and Broward counties. He never received an evaluation less than satisfactory and never received a written reprimand during his 10 years of employment as a substitute teacher. Respondent never achieved annual or continuing contract status with any school board in Florida. Respondent was a permanent substitute teacher in physical education during the 1988-1989 school year. His teaching responsibilities were divided between Natural Bridge Elementary and Biscayne Gardens Elementary. Respondent also worked as an actor and had appeared in at least one episode of the television program "Miami Vice". One of Respondent's students at Biscayne Elementary was Omar de Jesus. Omar was in the sixth grade at the time. Racquel de Jesus, Omar's younger sister, was in the fifth grade at Biscayne Elementary but was not one of Respondent's students. Judy Aulet is the mother of Omar and Racquel. Mrs. Aulet and her children lived approximately two blocks from Biscayne Elementary. They moved to Florida after the school year began. Omar and Racquel began attending Biscayne Elementary sometime in October, 1989. Neither Omar, Racquel, nor Mrs. Aulet knew that Respondent was an actor. Respondent approached Omar approximately two to three weeks after Omar began attending school in October, 1989. Respondent told Omar that Respondent had noticed Omar's mother the first day Omar started school and that Omar's mother was very pretty. Respondent asked about Omar's mother during class on several subsequent occasions, asked Omar for his mother's telephone number and address so Respondent could talk to her, and generally engaged Omar in extended conversations about Omar's mother. On one occasion, Respondent told Omar that Respondent had obtained the address and telephone number of Omar's mother through the school records and was coming over for dinner that evening. Omar was alarmed at Respondent's apparent preoccupation with his mother and was embarrassed by Respondent's repeated comments and inquiries. Omar disclosed the problem to his mother. When Respondent told Omar that he was coming over for dinner, Omar disclosed the situation to his mother. At that time, Omar discovered that Respondent had also been talking to Omar's sister, had given a picture of himself to Racquel, and had asked her to take the picture to her mother. Racquel was first approached by Respondent during physical education class one day. Racquel accompanied two of her friends over to where Respondent was teaching another physical education class. After the two friends left, Respondent told Racquel that her mother was very pretty. The next Monday during Racquel's lunch break, Respondent asked Racquel if her mother was going out with anyone or if she had a husband. Approximately two to three days later after school, Respondent gave Racquel a picture of himself and told Racquel to give it to her mother. Racquel did not want Respondent to go out with her mother and was concerned over the situation. Racquel was afraid that Respondent would get mad if Racquel told Respondent that her mother did not want to go out with him. Racquel was also afraid to tell her brother for fear her brother would get mad at Respondent. After Racquel disclosed the situation to her mother, Racquel was concerned enough to telephone her father in New York for advice. /1 One day during his physical education class, Omar accused Respondent of cheating in-favor of the girls' team when Respondent was refereeing a game between the boys and girls. Omar and Respondent began arguing. Omar told Respondent that he was going to get Respondent fired for confronting Omar and his sister about their mother and that a detective was coming to school to investigate the matter. Respondent grabbed Omar by the arm, shook him, called Omar a "motherfucker", and threatened Omar. Respondent told Omar that if he was fired over this he would "come after" Omar. Omar had a disciplinary history involving failure to listen, inattentiveness, and "mouthing off" at teachers. Omar was sent to the principal's office many times by other teachers. Omar accused Respondent of cheating in favor of the girls team whenever Respondent refereed games between the girls and boys. Omar called Respondent a "cheat" to Respondent's face on more that one occasion. Respondent never sent Omar to the principal's office for discipline. Respondent awarded Omar a grade of B in physical education and a C in conduct. The altercation between Omar and Respondent occurred approximately two to three weeks after Omar and Racquel had disclosed the situation to their mother. At the time of that disclosure, Mrs. Aulet had put Respondent's picture in a drawer and told her children she would report the matter to the school. She told her children not to confront Respondent with the issue. Mrs. Aulet did not know Respondent and had never communicated with him or met him. Mrs. Aulet reported the incident to Dr. Jolivette, the school's principal, after the altercation between Omar and Respondent. Dr. Jolivette questioned Respondent and verbally reprimanded Respondent. Dr. Jolivette requested an investigation, and the matter was investigated by a detective. Respondent was suspended from his employment and remained suspended at the time of the formal hearing. Respondent's actions subjected Omar and Racquel to unnecessary embarrassment. The conditions both children were subjected to were harmful to learning. Respondent demonstrated extremely poor judgment in his course of conduct. He used Omar and Racquel in an attempt to attain personal gain outside the scope of his employment. Respondent's actions and course of misconduct were serious in their nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e). It is further recommended that Respondent's teaching certificate be revoked for a period of three years from the date of the final order in this proceeding. DONE and ENTERED this 4th of September 1990, in Tallahassee, Florida. DANIEL MANRY 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 4th day of September 1990.
