The Issue The issues to be determined in this proceeding are whether the Respondent committed the acts alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Amended Administrative Complaint, Respondent held Florida Educator's Certificate 726297, covering the areas of biology and technology education, which was valid through June 30, 2006.2/ At all times relevant to these proceedings, Respondent was employed as a teacher at Fort Clark Middle School in the Alachua County School District. On or about December 22, 1999, Respondent was given a Citation/Notice to Appear by the Department of Environmental Protection, Division of Law Enforcement, at the Paynes Prairie Preserve, and charged with trespass in a restricted area, a misdemeanor offense. The case was docketed as State of Florida v. Daniel Gardiner, Case No. 99-14490-MMA (Eighth Judicial Circuit, in and for Alachua County, Florida). On March 28, 2000, Respondent entered into an agreement for deferred prosecution of the criminal charge (the Deferred Prosecution Agreement). The Deferred Prosecution Agreement provided in pertinent part: It appearing that you have committed offenses(s) against the State of Florida referenced above and it further appearing after an investigation of those offense(s) and your background that the best interests of justice will be served by the following procedures: On the authority of ROD SMITH as State Attorney for Alachua County, Florida, prosecution in this matter will be deferred for a period of 6 months from the date hereof, and your bond(s), if any, returned now, PROVIDED you agree to do (sic) fully abide by the following terms and conditions during said period: You shall refrain from violating any federal or state law or county municipal ordinance. If arrested, you shall immediately inform the State Attorney's Office in writing of the charge, and promptly advise in writing of the final disposition of the charge (i.e., dismissed, plea of guilty or not guilty by a judge or jury). Your execution of this instrument shall constitute a withdrawal of any demand for speedy trial previously filed by you pursuant to Florida Statute 918.015 and Fla.R.Cr.Pr. 3.191, and a stipulation that the periods of time established by said Rule for trial and any other rights conferred upon you by said Rule are waived. * * * (5) SPECIAL CONDITIONS, if any: Donate $150.00 to Newberry High School Academy of Criminal Justice Scholarship Fund, . . . . Perform 24 hours of Community Service . . . . You shall not enter any state parks. * * * If you comply with these conditions during the period of deferred prosecution, the charge(s) referred to above will be dismissed. The period of deferred prosecution may be shortened or terminated early by the State Attorney. . . . Respondent was represented by counsel in connection with the Deferred Prosecution Agreement, and signed a statement acknowledging that he understood the conditions of the Agreement and had received advice from his attorney regarding the matter. On or about July 11, 2000, the Assistant State Attorney entered a nolle proseque/no information with respect to the above-referenced charge, and the charge was dismissed based upon Respondent's completion of the Deferred Prosecution Agreement. Respondent reported his Deferred Prosecution Agreement to the assistant principal of Fort Clark Middle School. He did so because he believed it was required under what he referred to as the educator's Code of Ethics. The Principles of Professional Conduct for the Education Profession are adopted by rule at Florida Administrative Code Rule 6B-1.006, and are in the Chapter referred to as the Code of Ethics of the Education Profession in Florida. The reporting requirement with respect to criminal proceedings provides the following: (4) Obligation to the profession of education requires that the individual: * * * (m) Shall self-report within forty-eight (48) hours to appropriate authorities (as determined by the district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. . . . In addition, shall self-report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation with forty-eight (48) hours after the final judgment. . . . On or about January 18, 2002, Respondent submitted an application to the Florida Department of Education to add an additional subject to his certification. The application contained the following question: 28. Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial or a certificate. Respondent answered question 28 "no." The text of the rule quoted above that identifies what conduct triggers self- reporting, and the text of the question on the application submitted to the Department, are virtually identical. The application contained the following statement: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete. Respondent signed the application, and his signature is notarized. Respondent did not consult his attorney before signing and submitting the application. His testimony that he did not believe that pretrial intervention encompassed a deferred prosecution agreement is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts II-V and dismissing Count I of the Amended Administrative Complaint; imposing a reprimand, a $500.00 fine, and an administrative sanction barring Respondent from applying for a new certificate for a period of six months. DONE AND ENTERED this 17th day of April, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2009.
The Issue Whether Respondent, Herman L. Tyler, failed to fulfill provisions of a Stipulation and Settlement Agreement entered into between the parties, dated February 22, 2005, that became part of a Final Order of Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission; and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a state-certified law enforcement officer and instructor holding certificates in each area of certification. On May 10, 2005, Petitioner issued a Final Order adopting a Stipulation and Settlement Agreement between the parties. The Stipulation and Settlement Agreement specifically states in paragraph 2, the following: The Respondent agrees as a condition of settlement of this cause to a one-year period of probation of his Instructor Certificate beginning fifteen days following entry of a final order in this cause. The Stipulation and Settlement Agreement specifically states in paragraph 3, the following: As a condition of probation, the Respondent shall enter into and provide Staff with proof of successful completion of Criminal Justice Standards and Training Commission or Staff-approved course in ethics prior to the expiration of the term of his probation. As noted above, the Final Order required Respondent to provide proof of his completion of an approved ethics course within a one-year period of probation. The Respondent failed to provide proof of completion of an approved ethics course as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order revoking Respondent, Herman L. Tyler's, instructor certificate. DONE AND ENTERED this 11th day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2007. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Herman L. Tyler Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Judy Limekiller (Respondent) committed the violation alleged in the Administrative Complaint dated August 30, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at all times material to this matter, the holder of a Florida real estate license, license number 3131887. At all times material to the allegations of this case Respondent was an active sales associate with Michael Saunders and Company. Respondent’s address of record is 1529 Pelican Point Drive, HA 205, Sarasota, Florida. In January 2012, Respondent was a sales associate handling a transaction with Regina Zahofnik (Ms. Zahofnik). Ms. Zahofnik was the seller of property located at 4527 MacEachen Boulevard, Sarasota, Florida. Respondent admits she signed Ms. Zahofnik’s name to a Cancellation of Contract and Release. Respondent did not have written authorization to sign for Ms. Zahofnik. Instead, she maintains Ms. Zahofnik gave her verbal authority to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Lynda Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. Respondent signed Ms. Kravitz’ name to a Seller’s Property Disclosure Statement. Ms. Kravitz did not authorize Respondent to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Cherryne Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. On or about February 10, 2012, Respondent signed Ms. Kravitz’ name to a Residential Contract for Sale and Purchase. Ms. Kravitz did not authorize Respondent to sign the document. In all situations, Respondent believed she was authorized to sign the documents. She claims either e-mail or text message gave her the go-ahead to sign documents so that they could be timely processed. In the case of Ms. Zahofnik, the “deal was dead” and could not close. Since the buyer elected to walk away from the purchase when the seller could not complete the transaction, Respondent maintains that no party was injured by the signing of the document and that by doing so the refund to the buyer was processed. In the case of the Kravitz sale, Respondent signed the property disclosure because she knew the property better than the sellers and an expedited completion of the paperwork was requested. Again, Respondent states Ms. Kravitz authorized the signature. And with regard to the signing of the contract, Respondent asserts that Ms. Kravitz was slow to return the contract and that she was getting pressure from the other Ms. Kravitz to get the paperwork completed. Eventually, both Kravitz daughters signed the contract. Respondent does not deny signing the contract. As a result of the allegations of this case, Michael Saunders and Company incurred expenses and lost commissions. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provision of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,500.00, and imposing a suspension of Respondent’s real estate license for a period of 30 days, with probation to follow for such period of time as the commission deems appropriate. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 21st day of June, 2013. COPIES FURNISHED: Susan Leigh Matchett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 James P. Harwood, Esquire James Harwood, P.A. Suite 106 1277 North Semoran Boulevard Orlando, Florida 32807 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juana Watkins, Director Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801
The Issue The issue in this case is whether Respondent, Donna Bolton, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated August 9, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a correctional officer and investigating complaints against individuals holding certificates as correctional officers in the State of Florida pursuant to Section 943.3195, Florida Statutes (2001). 1/ At the times pertinent to this matter, Respondent, Donna Bolton, was certified by the Commission as a correctional officer. In May 2002 Ms. Bolton was participating as a student in the State Officer Certification Examination (hereinafter referred to as the "SOCE") process at Miami-Dade Community College's School of Justice. Ms. Bolton was a student in a class designated as COLE 7, taught by Robert Lengel, Training Advisor. The class was part of the SOCE process. On the morning of May 9, 2002, Mr. Lengel gave the students in his COLE 7 class a quiz. The quiz consisted of having students, including Ms. Bolton, identify what ten codes that are routinely used by officers, codes 41 through 50, stood for. For example, students were to identify code 41 as standing for "sick or injured person." Another quiz had been given by Mr. Lengel in the COLE 7 class the prior week. That quiz required students to identify codes 31 through 40. Ms. Bolton had been absent on the date the quiz 2/ was given and, therefore, needed to make up the missed quiz. Therefore, Mr. Lengel asked Ms. Bolton if she would mind taking the quiz on codes 31 through 40 at the same time she took the quiz on codes 41 through 50. Ms. Bolton agreed and, therefore, on May 9, 2002, was given the quiz on both sets of codes. 3/ Although the quizzes taken by Ms. Bolton were part of the SOCE process, they were not the actual SOCE itself. As the students who were only required to take the quiz on codes 41 through 50 were completing their quiz, Regina C. Siedentopf, who was in charge of testing and curriculum and an adjunct part-time professor at Miami-Dade Community College, School of Justice, entered the room. 4/ After entering the room Ms. Siedentopf began preparing materials for a critique she was going to administer. Ms. Bolton was still taking the two quizzes when Ms. Siedentopf entered the room. Ms. Bolton had a small piece of paper between her legs, which Ms. Siedentopf noticed. Ms. Bolton was looking down at the piece of paper and Ms. Siedentopf saw Ms. Bolton do so. Ms. Siedentopf reported what she had seen to Mr. Lengel, who then asked everyone except Ms. Bolton and Ms. Siedentopf to leave the room. After the room was cleared, Ms. Bolton was asked to stand up, which she did. The piece of paper seen by Ms. Siedentopf was laying on the seat of Ms. Bolton's chair and Ms. Siedentopf retrieved it. Ms. Bolton's two quiz sheets were retrieved by Mr. Lengel. The piece of paper 5/ Ms. Bolton was looking at during the quiz was a small piece of lined paper with the explanation of what codes 31 through 50 stood for written on it. Ms. Bolton had been, therefore, looking at the answers to the quizzes she was engaged in taking. Although students are allowed to have the explanations for codes on a sheet of paper with them so that they can study the codes up until the moment of taking the quiz, students are not allowed to use these study sheets during the quiz. One of Ms. Bolton's quizzes retrieved by Mr. Lengel contained the correct explanation for codes 31 through 40 written on it. 6/ The second quiz contained the correct explanation for codes 41 through 46 and a partial explanation of code 47 written on it. Codes 48 through 50 were blank. 7/ When Mr. Lengel asked Ms. Bolton to give a written explanation of what had happened, Ms. Bolton essentially gave in the nature of "excuses" for her conduct, without explaining what that conduct was. 8/ After reading her statement, Mr. Lengel asked her to describe her actions with regard to the piece of paper that had been found. Ms. Bolton wrote: "I had the paper between my legs and I would look at it if I needed to." 9/ At hearing, Ms. Bolton admitted that she had the piece of paper with the answers to the two quizzes written on it located on the chair during the quiz. Denying that she had looked at the paper, however, Ms. Bolton explained that she had placed the paper on her chair because the paper, which she originally had in her pants pocket, irritated her. This explanation is unconvincing, given the size of the paper, and is, therefore, rejected. Her explanation also fails to explain why she looked at the paper while taking the quiz.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Ms. Bolton violated Section 943.1395(7); dismissing the allegation that she violated Rule 11B-30.009(3); dismissing the allegation that she violated Section 943.1395(6); and suspending her certification for a period of one year. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 30th day of October, 2003.
Findings Of Fact The Respondent, Dan Gardener, is a teacher in the State of Florida, licensed with the Department of Education, holding certificate number 228351. His certificate authorizes him to teach in the areas of guidance, science, elementary education, junior college and mathematics. At the time of his arrest, described below, the Respondent was employed by the Collier County School Board as a teacher at Immokalee Middle School, in Immokalee, Florida. On or about January 4, 1983, the Respondent was employed at the Immokalee Middle School in Collier County. He had in his possession approximately one gram of cocaine and transferred and sold that cocaine to one John Wesley Riley, a confidential informant for law enforcement authorities. At the tie of this sale, the Respondent also offered to sell Riley more cocaine on the following Friday, after school hours, on or near school premises in an area where school buses were parked. As a consequence of these activities, the Respondent was arrested and charged on May 6, 1983, in the Collier County Circuit Court with the crime of selling cocaine. On May 17, 1983, he was suspended from his teaching position indefinitely, without pay, by the Collier County School Board. The fact of and the circumstances of the Respondent's arrest were known to students, parents and the Respondent's colleagues in the Immokalee community. The fact of the arrest was published in newspapers of general circulation in the Immokalee community and in Collier County. On December 12, 1983, the Circuit Court of Collier County, Florida, adjudicated the Respondent guilty of the crime of "sale of cocaine," a second degree felony in violation of Section 893.13(1)(a)(1), Florida Statutes. The Respondent was fined and sentenced to a 30-month imprisonment in the state prison, to be followed by 5 years probation. Respondent is currently serving that prison sentence. In August, 1970, the Respondent submitted an application for a teacher's certificate to the Florida Department of Education. In that application he was asked if he had ever been arrested or involved in a criminal offense other than a minor traffic violation. The Respondent replied in the negative on his application and certified thereon that all information in the application was true and correct. In August, 1978, Respondent submitted an application for an extension of his certificate to the Florida Department of Education. On that application he was asked if he had ever been convicted or had adjudication withheld in a criminal offense, other than a minor traffic violation. The Respondent replied in the negative, and certified that all information on his application was true and correct. Indeed, the Respondent's replies were deceptive and failed to include any information or reference to past criminal convictions. In this connection, on April 14, 1958, the Respondent, after entering a guilty plea in the Criminal Court of Record in Polk County, Florida, was convicted of the offenses of reckless driving and using profane, vulgar and indecent language. He was ordered to pay a $50 fine or serve 60 days in the county jail. On August 8, 1960, the Respondent entered a guilty plea to a charge of arson involved in the burning of his own automobile and the filing of a false insurance claim for insurance proceeds from his insurance company. Upon his conviction of this offense of arson, the Respondent was placed on ten years probation by the court and ordered to make full restitution to the insurance company. The Respondent having comformed to the terms of this probation, the court terminated the probation on April 28, 1966. The information which Respondent failed to disclose was material and pertained to the issue of the Respondent's fitness to receive and hold a teacher's certificate. It could have resulted in the denial of the certificate or the denial of the extension of it, had the Department been informed of the past criminal convictions. The Respondent certified his replies were true and correct, when he knew they were not. Samuel Ramey Lee, Assistant Superintendent of Schools for Collier County, was qualified as an expert witness in the fields of education and personnel administration, as well as standards of teacher effectiveness as they relate to both Collier County and the State of Florida. The fact of the Respondent's conviction for the cocaine sale was communicated and published to his colleagues in the Collier County school system and to students of that school system and their parents, and to the Immokalee community by newspapers of general circulation. Because of the great public awareness of the fact of the Respondent's conviction for the sale of cocaine, his effectiveness as an employee of the school board in Collier County has been substantially reduced. Parents in that community no longer desire the Respondent to teach their children. Because the Respondent's record of conviction by the court and disciplinary action by the school board will remain a part of his permanent record, should he transfer to any other school system in the state, his effectiveness as a teacher in the State of Florida will have been substantially reduced as to his colleagues in the teaching profession in whatever school system he should attempt to become employed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the teacher's certificate of the Respondent, Dan Gardener, be permanently revoked. DONE and ENTERED this 23rd day of October, 1984, in Tallahassee, Florida. COPIES FURNISHED: Wilson Jerry Foster, Esquire Lewis State Bank Building Suite 616 Tallahassee, Florida 32301 Linnes Finney, Jr., Esquire GARY, WILLIAMS and WALKER Post Office Box 3747 Fort Pierce, Florida 33448 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 P. MICHAEL RUFF 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 23rd day of October, 1984. Donald Griesheiiner, Executive Director Education practices Commission Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to an athletic coaching certificate, or whether he should be denied a certificate based on the allegations in the Notice of Reasons.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: DOE is charged with the duty to issue Florida Educator’s Certificates to qualified persons seeking authorization to become schoolteachers and/or coaches in the State of Florida. Petitioner is an African-American male, whose date of birth is August 7, 1975. On or about July 14, 2010, Petitioner completed and signed a DOE application (Application) for a coaching certificate. Petitioner does not currently hold a certificate of eligibility or temporary Educator’s Certificate. On or about July 26, 2010, DOE’s Bureau of Educator Certification received Petitioner’s Application. On March 26, 2013, DOE advised Petitioner that his application was denied for the reasons set forth in a three-part Notice of Reasons. The Notice of Reasons alleged, as the basis for denying the Petitioner’s Application, that: On or about February 21, 2001, in Volusia County, Florida, Applicant sold 7 grams of cocaine in exchange for approximately $175.00. On or about April 3, 2001, Applicant was arrested and charged with Unlawful Sale of a Controlled Substance. On or about August 7, 2001, the charge was nolle prossed. On or about October 18, 2004, in Volusia County, Florida, Applicant pointed a handgun at an unknown male that was in a vehicle parked outside of a residence. Applicant fired two rounds into the vehicle. One of the bullets went through the living room window of a nearby residence. Applicant was subsequently arrested and charged with Shooting into a Building. On or about September 27, 2005, Applicant pled Nolo Contendere and adjudication was withheld. On or about May 5, 2006, in Clayton County, Georgia, Applicant struck a female, who was under the age of eighteen years, with a leather belt.[1/] The Notice of Reasons concluded that Petitioner had therefore violated section 1012.56(2)(e), Florida Statutes,2/ by failing to maintain good moral character (Count 1); section 1012.56(12)(a), by committing acts for which revocation would be authorized by the Education Practices Commission (Count 2); and section 1012.795(1)(d), by being guilty of gross immorality or an act involving moral turpitude (Count 3). Petitioner will be unable to pursue a career coaching or teaching students in Florida without educator certification. Petitioner is substantially affected by the intended decision to deny his certification. Reason No. 1: Alleged Sale of Cocaine On or about April 3, 2001, Petitioner was arrested and charged with the Unlawful Sale of a Controlled Substance, specifically, seven grams of cocaine. On or about August 7, 2001, the charge was nolle prossed.3/ At the time of Petitioner’s arrest, William Heiser was a drug agent with the Volusia County Sheriff’s Department, and was assigned to the Volusia Bureau of Investigation. On that day the Volusia Bureau of Investigation, including Agent Heiser, conducted an undercover operation. Agent Heiser was deposed prior to the final hearing in this matter, and his deposition was received in evidence in lieu of his live testimony. At his deposition, Agent Heiser identified the charging affidavit as a copy of the police report that he prepared and signed. The charging affidavit, prepared and signed on April 3, 2001, states that that there is probable cause to believe the defendant [Roger Washington]: On the 21st day of Feb, 2001, at approximately 1630 p.m. at Mason & Derbyshire Road within Volusia County, violated the law and did then and there: Sold 7 grams of suspected cocaine to C.I. #0015 in exchange for $175.00 in Volusia County Sheriff’s Office Pre-Recorded Monies. CI #0015 and the vehicle the CI was operating was searched for weapons, monies and drugs finding none. [The CI was kept under constant surveillance and He/She traveled to the above location.] The CI was kept under constant surveillance as He/She traveled to the above location. The C.I. was observed meeting the subject Roger Washington and was given a plastic baggie that contained approx 7 grams of an off white powder substance in exchange for the $175.00 of pre-recorded monies. The C.I. was kept under constant surveillance as He/She traveled to a predetermined meeting location where He/She handed over to Inv. Heiser the plastic bag containing the suspected cocaine. The C.I. and the vehicle the C.I. was operating was again searched for monies, weapons and drugs finding none. The off-white substance was tested by Inv. Heiser using a Nark #13 Test Kit which resulted in a presumptive reaction for the presence of Cocaine. It was placed into evidence at VCSO. At his deposition, Agent Heiser was unable to recall any of the particulars of the actual arrest of Petitioner for the incident described in the charging affidavit. He did not remember if he or another law enforcement officer arrested Petitioner. Agent Heiser testified that Confidential Informant #0015 (CI) had herself committed crimes, and participated in the undercover operation in hopes of getting out of her own legal problems. He admitted that from his position of a couple of car lengths from CI that he did not observe her entire body, and could not see inside CI’s vehicle while it traveled a “good mile” from the location of CI’s alleged interaction with Petitioner. Agent Heiser also testified that he did not personally search CI’s person nor did he witness the actual search or any strip search of CI as she was female and he is male. He testified that the off-white powder substance that he field-tested was not provided directly from the Petitioner to him, but rather through the CI who carried it approximately a mile from the buy location. Agent Heiser explained that the reason for strip- searching CIs is that “obviously, you can hide things in the cavity or you can hide things in spots that you wouldn’t normally get if you just did a pat down.” He further admitted that CI had the opportunity to hide cocaine and the money on her person underneath her clothes, for example in her bra. No evidence was presented in this record that CI was subjected to a strip-search in connection with the buy of February 21, 2001. Agent Heiser further testified that the off-white powder substance was field-tested by him and not laboratory tested, and that he could not be certain that the substance tested was actually cocaine. He further testified that he had no evidence that the field test was completely reliable. He further conceded that there is no such thing as a field test that is 100 percent reliable and that a laboratory test is more reliable. He admitted that he does not remember any details regarding any laboratory reports verifying or not verifying the substance was cocaine. No evidence was submitted that any laboratory test was ever conducted on the substance. Similarly, there was no evidence submitted that the $175.00 in pre-recorded monies provided to the CI was ever recovered or found upon Petitioner. Further, insomuch as Agent Heiser was at least two car lengths away when observing the alleged interaction between Petitioner and the CI, it was highly improbable that he was actually able to know for certain that the monies that allegedly were given by the CI to Petitioner were indeed the same pre-recorded monies mentioned in the charging affidavit. Vision at that distance would not be good enough to make that determination. Petitioner testified that he was arrested by Agent Heiser and another officer at his business, a car wash. At the time of the arrest, Agent Heiser initially approached a customer, Mike, and asked Mike if he was Roger Washington. Thus, Agent Heiser was not able to independently identify Roger Washington at the time of the arrest. Instead, Petitioner had to self-identify himself to Agent Heiser. There is no evidence in this record as to the date Petitioner was arrested in connection with the cocaine sale charge. However, the Charging Affidavit was signed by Agent Heiser on April 3, 2001, more than a month after the alleged drug buy took place. Agent Heiser testified that frequently the Volusia Bureau of Investigation conducted a “bunch” of buys prior to making any arrests. Given this testimony, it is reasonable to infer that Petitioner was not arrested until sometime after the preparation of the Charging Affidavit in April 2001. The delay in the arrest of Petitioner in connection with the cocaine buy, coupled with Agent Heiser’s inability to independently identify Petitioner at the time of his arrest, raises reasonable doubt as to whether the person who interacted with the CI was actually Petitioner. At hearing, Petitioner denied ever selling cocaine to anyone. Based upon the credible testimony of Petitioner and the lack of persuasive evidence that the Petitioner in fact sold cocaine, it has not been established that Petitioner engaged in the sale of cocaine. Rather, the competent substantial evidence of record only establishes that Petitioner was arrested and charged with the sale of cocaine, and that the charge was later nolle prossed. Reason No. 2: Shooting Into Building On June 30, 2005, Petitioner was charged by Information with shooting into a building (through a car window) in Volusia County, a second-degree felony. The shooting at issue occurred on October 18, 2004, some eight months earlier. On September 27, 2005, the Petitioner entered a plea of nolo contendere (no contest) to the charge and adjudication of guilt was withheld. Petitioner was placed on probation for three years, ordered to make restitution to the victim, and to pay court costs. At hearing, Petitioner testified that he was not even in the State of Florida on or about October 18, 2004, but rather was living in Atlanta at the time. He testified that he did not shoot into a building (or a parked car), nor did he shoot at anybody. Petitioner’s demeanor and body language while testifying in this regard were composed, did not appear rehearsed, and are found to be credible. Other than the court records reflecting the charge, and Petitioner’s plea of no contest, no other evidence was offered to rebut this testimony. At hearing, the undersigned queried Petitioner as to why he would have pled no contest to a crime he did not commit: The Court: Mr. Washington, why did you plead no contest to a charge that you did not commit? The Witness: Because they was offering me 15 years. The Court: I don’t understand that. What do you mean? The Witness: They was offering me 15 years in prison. The Court: If you didn’t plead guilty or not – I’m sorry – no contest? The Witness: Yes. The Court: What was the evidence that they had against you that formed the basis for your arrest on that charge? The Witness: I think they said someone said that it was me. The Court: So in exchange for your no contest charge (verbatim), were not adjudicated guilty and that was the deal; is that right? The Witness: Correct. Under the circumstances, Petitioner’s explanation for pleading no contest to a crime he did not commit is plausible. Based upon the record before the undersigned, there is insufficient competent evidence to conclude that Petitioner did in fact commit the crime of shooting into a building. Petitioner’s Character Petitioner is employed as a behavior specialist with Behavior Change Artists, an agency the Volusia County School System contracts with to provide behavior therapy to its students. In this capacity Petitioner works directly with children. Previously, Petitioner worked for three years as a substitute teacher at Holly Hill Middle School. Although the record does not reflect exactly when he worked in this capacity, the record does show that it was after 2006 and prior to 2012. In order to work with children as a behavior specialist and substitute teacher, Petitioner was required to undergo two Level II background screenings by the Florida Department of Law Enforcement. As a part of the background screenings he provided information related to his arrests, charges, and dispositions of the charges. As a result of those background screenings he was allowed to work in these occupations and was not disqualified from working with children or vulnerable adults. Upon applying for the positions of substitute teacher and behavior specialist, Petitioner disclosed the arrests, charges and dispositions of the incidents listed in Notice of Reasons No. 1 and No. 2 to those who hired him. Diane Mathis was an office specialist at Holly Hill Middle School, whose responsibilities included coordinating substitute teachers during the period 2006 through 2011. At hearing Ms. Mathis authenticated a letter of recommendation that she authored in early 2013 with the understanding that it would be submitted in conjunction with Petitioner’s Application. The letter states: May 13, 2013 To whom it may concern: I’ve had the pleasure of working with Roger Washington at Holly Hill Middle School in Volusia County for approximately 3 years. I was the Substitute Teacher Coordinator from 2006-2011. He was GREAT with the students and in the classroom. They loved him. The Faculty and Staff enjoyed having him on Campus as he helped out in other areas as needed. The Teachers at Holly Hill Middle School would recommend Roger to cover their class if they were absent. He was in high demand. He is dependable and showed professionalism each and every time he was on our Campus. Sincerely, Diane Mathis, Office Specialist Volusia County Schools [phone number redacted] Ms. Mathis testified that during her time working with Petitioner she did not see anything that would concern her with respect to the Petitioner being granted a Florida Educator’s Certificate. On cross-examination Ms. Mathis conceded that she was not aware of the arrests, charges and dispositions of Petitioner’s arrests and that her recommendation was limited to her own experience and knowledge interacting with Petitioner in his position as a substitute teacher. Kenya Ford is a program specialist with the Volusia County School System. Ms. Ford’s responsibilities included interacting with the Petitioner in his position as behavior specialist. At hearing, Ms. Ford authenticated a letter of recommendation she had written on Petitioner’s behalf. The letter states: To Whom It May Concern: With great pleasure, I forward this letter of recommendation on behalf of Mr. Roger Washington. I have known Mr. Washington for the past thirteen years (13), in a personal and professional manner. He has demonstrated to be ambitious, dependable, determined and hardworking young man. Knowing him personally, he has proven to be a reliable and wonderful individual. While working alongside Mr. Washington as a behavior specialist and team parent with youth sports, I found Mr. Washington to have good work ethics and a pleasant personality as a professional, team player, and leader. As a mentor and professional, Roger Washington has shown himself to be a creditable individual that I would put my trust in and builds great moral among his colleagues. Roger is very active with implementing, organizing, and supervising afterschool sports programs over several years; while being a mentor for students and guide for parents. Mr. Washington is a tenacious and straightforward individual who is determined to accomplish his goals that he has set forth for the students he mentors [sic] and nurtures, [sic] along with parents and himself. Without question Mr. Washington has been one of the most spirited individuals [sic] and professionals [sic] I have encountered while working with him as the School District Program Specialist, that work closely with the behavior specialist over the past few years of my tenure. He has taken the challenge of being a leader within the field of education, while still conquering his own challenges of continuing education. Mr. Washington would be a great asset to any organization. Considering Mr. Washington’s commitment to hard work and dedication of excellence, I strongly recommend him for an assignment into your prestigious establishment. Sincerely Yours, Kenya Ford, Behavior Initiative Program Sc-EBD Program Specialist Volusia County Schools Ms. Ford testified that she witnessed nothing in her interactions with the Petitioner that would concern her should Petitioner receive a Florida Educator’s Certificate. Rather, Petitioner was one of the better behavior specialists providing services for Volusia County Schools. She testified that she wrote the above letter based upon her on experience with the Petitioner, including the work he did at Volusia County Schools and through non-school activities in the community, including the Pop-Warner football youth program. Ms. Ford further testified that she has personally known the Petitioner for 13 years and has never known him to be a user or purveyor of illegal drugs, nor has she known him to have a temper or anger management issue of any kind. In the more than nine years that have passed since the last alleged criminal act (shooting into a building), the record establishes that Petitioner has maintained a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. He is active in his school as a behavior specialist and serves with youth sports. During his most recent employment as a substitute teacher, and then as a behavior specialist, he has performed his duties admirably, and without incident. By all accounts he is a motivated and hard-working individual, and has excellent rapport with children. In its Proposed Recommended Order, Respondent points to several other instances in which Petitioner has been arrested. While these instances were not included in the Notice of Reasons, Respondent argues they are pertinent to the determination of whether Petitioner is of good moral character. Specifically, Respondent cites a 1996 arrest for disorderly conduct and a 1997 arrest for battery. It is noted that Petitioner pled not guilty to both of those charges. The battery charge was nolle prossed, while adjudication was withheld on the disorderly conduct charge. Petitioner was 21 and 22 years old, respectively, at the time of these arrests, which occurred some 17 or 18 years ago. Given the remoteness in time, age of Petitioner, and disposition, these arrests are not indicative of Petitioner’s character today. The greater weight of the evidence in this record does not support a finding that Petitioner committed the criminal acts set forth in Reasons No. 1 and No. 2. However, even had the record supported a finding that Petitioner committed those criminal acts, the record also established that in at least the past nine years Petitioner has comported himself in a responsible and professional manner. If Petitioner ever was a miscreant, he is now fully rehabilitated. Petitioner has had no further interaction with the criminal justice system since 2005, and if indeed he did commit the criminal acts accused of, they were isolated incidents, and not indicative of poor moral character. Even if Petitioner did commit the criminal acts referenced in Reasons No. 1 and No. 2, the record established that he is of good moral character today. A couple of isolated events that may have occurred nine or more years ago are not determinative of his character today.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order approving Petitioner's application for a Florida Educator's Certificate. DONE AND ENTERED this 14th day of February, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 14th day of February, 2014.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 30, 2002.
Findings Of Fact Veita Jackson-Carter is the assistant principal at Eastside High School (Eastside) which is located in Gainesville, Florida, and is part of the Alachua County School District (school district). In the summer of 2002, Petitioner came to Eastside to talk to Ms. Jackson-Carter about employment there. At that initial meeting, Petitioner and Ms. Jackson-Carter discussed instructional positions at Eastside. While Petitioner gave a resume to Ms. Jackson-Carter, Ms. Jackson-Carter informed Petitioner that he needed to submit an employment application with the school district's personnel office. Ms. Jackson-Carter was very interested in hiring Petitioner. However, she explained to Petitioner that while the individual schools make recommendations regarding hiring, the school district actually hires applicants. Petitioner submitted a completed Application for Instructional Position on June 28, 2002, to the school district.2/ Because of her interest in hiring Petitioner, Ms. Jackson-Carter checked with someone in the school district's personnel office on the status of his application for an instructional position. She learned that there was a problem with his obtaining a teaching certificate. During this same period of time, Petitioner met with Marcia Shelton. At that time, Ms. Shelton was a certification specialist with the school district's department of personnel services. She worked with applicants in assisting them in determining eligibility for certification. However, neither she, nor anyone who works for the school district, has the authority to issue teaching certificates or statements of eligibility for teaching certificates as only the Florida Department of Education has the authority to do that. At the initial meeting between Petitioner and Ms. Shelton, Petitioner informed Ms. Shelton that a particular school was interested in hiring him for an instructional position. She began the process of assisting him to determine his eligibility for certification. Petitioner's application contained his educational achievements. He earned a bachelor's degree from Kentucky State University with a major in criminal justice and a minor in political science, and a master's degree with a major in human resource management and a minor in the area of public administration. Ms. Shelton asked for and received copies of Petitioner's academic transcripts. Ms. Shelton's review of the transcripts revealed that Petitioner had a cumulative undergraduate grade point average (GPA) of 2.322. She informed Petitioner that the minimum GPA required for issuance of an initial teaching certificate was 2.5 and that he would not be eligible for certification because the GPA for the courses needed for certification were not high enough. While Petitioner had the course work to meet specialization requirements for political science, the grades were not what was required. In an effort to help Petitioner, Ms. Shelton contacted Jean Morgan with the Bureau of Educator Certification of the Florida Department of Education (Department), to inquire as to whether public administration courses Petitioner had taken could be counted toward those required for certification in political science or social science. Petitioner's own exhibits establish that Ms. Shelton made numerous attempts to assist Petitioner by making repeated inquiries in August 2002 to Ms. Morgan and Ms. Morgan's supervisor, Kathy Hebda, in an effort to find a way for Petitioner to meet the Department's requirements. Ms. Shelton's efforts included faxing course descriptions to the Department for evaluation in an effort to satisfy the Department's certification requirements. Ms. Shelton's efforts, however, on Petitioner's behalf were unsuccessful. That is, she learned from both Ms. Morgan and Ms. Hebda that the Department would not accept the public administration courses to bring up Petitioner's GPA in political science. On August 5, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. She informed him of some career service positions at Eastside for which he could apply. Petitioner completed and filed a Career Service Application Form dated August 13, 2002, with Respondent. There is an inconsistency in Petitioner's answers to a question regarding criminal background on each application for employment with Respondent. Each application contains a question regarding whether the applicant had ever been found guilty of, regardless of adjudication, or entered a plea of nolo contendere to offenses listed in three categories. On the Application for Instructional Position, Petitioner checked "no" for all three categories: felony, first degree misdemeanor, and second degree misdemeanor involving a minor child or involving violence. He then answered "yes" to the question, "Have you ever been judicially determined to have committed abuse or neglect against a child." The application instructs the applicant that if any question was answered yes, to explain and attach all pertinent documents. Despite having answered yes to one question, Petitioner wrote "N/A" in the blank provided. However, on the Career Service Application Form, he answered "yes" to the category generally entitled "misdemeanor." The application instructs the applicant that if the answer to any of the criminal background questions was "yes," that the applicant must list charge(s) and disposition. In the blank provided to list charge(s) and disposition, Petitioner put "N/A" in the blank provided, despite having answered "yes" to the category entitled "misdemeanor." The application also instructs the applicant to attach all pertinent documents. On or about August 16, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. He inquired of Ms. Jackson-Carter when he was to report to work. Ms. Jackson- Carter inquired of Petitioner if the school district had offered him a position as she was not aware of any position having been offered to him. The last correspondence in the record from Ms. Shelton to the Department is dated August 29, 2002, in which she notes that the Bureau Chief of the Department's Bureau of Educator Certification was personally reviewing Petitioner's documents. She also noted that "he still has not applied to DOE." In Ms. Shelton's and Dr. Pratt's experience, it is unusual for the bureau chief to become personally involved in such a review. Ms. Shelton received a call from Ms. Hebda and the bureau chief during which Ms. Shelton learned that the bureau chief personally was going to accept the course work to enable Petitioner to meet specialization requirements for a temporary certificate in political science. Ms. Shelton did not have the authority to make that determination that was ultimately made by the bureau chief of the Bureau of Educator Certification. On August 23, 2002, the school district sent a letter to Petitioner informing him that his application for substitute teaching had been approved for the 2002-2003 school year. The letter informed him about a mandatory new employee orientation. It also specified that state law requires that all new employees be fingerprinted. The letter was signed by Josephine Brown, Coordinator, Personnel Services. Being a substitute teacher requires direct contact with students. The position of substitute teacher is not a permanent position with the school district. It is a conditional offer pending cleared fingerprint processing. Dr. Leila Pratt was Director of Personnel Services for the Alachua County School Board in August 2002. She was Ms. Shelton's and Ms. Brown's supervisor. She has since retired. On August 27, 2002, Dr. Pratt attended the criminal history review committee meeting during which Mr. Price was discussed. Of particular concern to Dr. Pratt were certain entries on Mr. Price's criminal history record received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation which Ms. Pratt believed reflected violent behavior. She was concerned that these offenses would make Petitioner ineligible for employment because of statutory and school district policy requirements. She was also concerned about the inconsistencies between the answers provided on the two applications. A Criminal Records form was completed regarding Petitioner as a result of the committee meeting which included the following notations: "criminal possession of handgun (87); possession of handgun (93); DUI & suspended license (2000); violation of KY charges (01). Falsification of application." The recommendation of the committee was termination. The school board issued a Separation of Service form to Petitioner dated and signed by Petitioner and Dr. Pratt August 28, 2002. The form identifies the reason for separation as "background check." Petitioner requested and was given the opportunity to explain his criminal history. On August 29, 2002, he went to Dr. Pratt's office to discuss his criminal background and to provide Dr. Pratt with pertinent documentation. However, the information which Petitioner provided to Dr. Pratt did not satisfy her concerns. On August 29, 2002, Dr. Pratt wrote a letter to Petitioner which stated as follows: Dear Mr. Price: In response to the three charges: criminal possession of a weapon, menacing and assault filed in August 1987, your documentation does not indicate your charges were dropped to a misdemeanor. It indicates that you pled guilty and was sentenced to thirty (30) days confinement. [sic] In response to your charge filed on April 6, 1989 for trespassing on property after a warning, you provided no official documentation from the court records. In response to the charge filed on November 12, 1993 for possession of a handgun by a convicted felon, your documentation does not officially state that your charges were dismissed or that the charges were dropped. We are unable to determine what is meant by the statement, "lack of probable cause" on the paperwork you submitted. In response to the charge filed on April 20, 2000 for DUI and suspended license, your documentation stated the case was dismissed, but there was probable cause for the arrest and your case was remanded back to another court for the disposition. You submitted no documentation as to the final disposition. A restraining protection order was issued from 2000 to 2003 for domestic battery. No official court documentation regarding this charge has been provided. In addition to the information you submitted being incomplete, one of the documents you presented was not an official court document, which is what we requested, official court records. To provide further consideration to your request for employment, official court documents will need to be provided for all of the charges that have been filed. Until this information is received and reviewed, you are not eligible to work for the School Board of Alachua County. According to Ms. Price, official court documents are required of everyone under these circumstances. Even if the court documents had been official, Dr. Pratt's concerns would have remained because of the violent nature of some of the offenses in the documents and the statutory and school district policy requirements. Petitioner did not submit further documentation to Respondent clarifying his criminal history. Petitioner completed an Application for Florida Educator Certificate which was mailed to the Department on August 30, 2002. The Department issued an Official Statement of Status of Eligibility to Petitioner dated May 28, 2003, which explained to Petitioner what was required of him to get a temporary certificate and a professional certificate covering political science for grades 6 through 12. The Official Statement of Status of Eligibility also informs Petitioner that issuance of a certificate will be contingent upon a review of any criminal offense as a result of fingerprint processing. Dr. Pratt characterized Ms. Shelton's efforts on Petitioner's behalf as going "beyond the call of duty." She believes that her entire staff acted appropriately in dealing with Petitioner. Petitioner is an African-American male. At the time of the adverse employment action giving rise to this proceeding, Petitioner was 42 years old. Ms. Jackson-Carter and Dr. Pratt are African-American females. Ms. Shelton is a white female. Beyond Petitioner's allegation of discrimination, Petitioner presented no evidence that his race, sex, or age played any role in any action taken by Respondent regarding Petitioner's eligibility for teacher certification or its decision to terminate his probationary employment as a substitute teacher. The Department's ultimate acceptance of coursework and issuance of a Statement of Status of Eligibility some eight months after the adverse employment action taken by Respondent does not establish that Respondent engaged in discriminatory conduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 19th day of December, 2003.
