The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Respondent is and at all times has been a licensed physician, holding Florida license number ME 0029977. He has been licensed in Florida since about 1976. G.L. is 73 years old. He has a third grade education. Previously, he was a farmworker in the fields. He is at most barely literate. In any event, he would not appreciate the meaning of a document of the type described below. G.L. and his companion, A.M., who is 59 years old and unemployed, had been patients of Respondent for about eight years at the time of the subject incident. From time to time, Respondent has lent his patients money, such as for transportation or medicine. Respondent's daughter, who serves as his office manager, has even provided transportation for patients in order to get them to the office and back home. On certain occasions, Respondent has lent G.L. money or paid for his medicine, although the amounts involved were not significant. On many other occasions, Respondent provided G.L. with free medication by giving him samples. Respondent did not keep track of the amounts involved because of the unlikelihood of any repayment. Between 1980 and the time of the incident, G.L.'s total charges for medical services rendered by Respondent were less than $5000. Medicare or Medicaid paid for about 80% of these costs. In May, 1986, G.L. suffered injuries as a result of an automobile accident. Respondent treated G.L., who had a balance due of about $824 at the time in question. Respondent referred G.L. to Franklin Douglas McKnight, who also served as Respondent's attorney, for representation in the recovery of damages for personal injuries. By January, 1987, Mr. McKnight was close to settling the case. At this point, Respondent visited Mr. McKnight and said that G.L. had agreed to pay Respondent a percentage of the settlement. The net amount that was estimated to be due G.L. was roughly $25,000, and Respondent was claiming $12,500. Mr. McKnight informed Respondent that he could not pay him a percentage and, in any event, could not pay him anything unless G.L. signed a letter authorizing the disbursement to Respondent. Mr. McKnight showed Respondent a simple example of such a letter. Respondent then prepared a letter for G.L. to sign. The letter stated: To Whom It May Concern: For past services, medical, social and humane assistance and personal loans rendered to me [G.L.] and my family during last many years. We hereby agree that the sum of $12,500 ... may be deducted from the net proceeds recovered as a result of the automobile accident, of date 5-30-86. I, [G.L.] Hereby thus authorize you, Mr. Douglas McKnight, (My representing Lawer) to disburse above amount out of net proceeds to Dr. Prem N. Tandon, M.D. without reservations. Thanking you: [Signed by G.L. and A.M. as witness.] During an office visit, Respondent presented the letter to G.L. and A.M. for their signature. Little if any meaningful explanation accompanied the signing. G.L. and A.M. signed the letter based on their trust of Respondent as their physician. When Respondent delivered the signed letter to Mr. McKnight, he told Respondent that he would not disburse any sums to Respondent without the consent of G.L. at the time of disbursement. G.L. later refused to honor the disbursement letter. Confronted with conflicting claims to nearly $12,000 of the settlement proceeds, Mr. McKnight interpleaded the sum in Orange County Circuit Court. Respondent has been disciplined twice previously. In a Final order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing to himself two legend drugs, Nembutal and Ritalin. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for one month. In a Final Order dated June 15, 1988, Petitioner found, Respondent guilty of various statutory violations concerning generally recordkeeping requirements with respect to controlled substances. Petitioner imposed an administrative fine of $1500, reprimanded his license, required him to attend 60 hours of Category I Continuing Medical Education courses in legal aspects of dispensing controlled substances, and restricted his license by prohibiting him from dispensing drugs in an office setting and maintaining drugs for the purpose of dispensing until he complied with certain conditions concerning recordkeeping requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating of Section 458.331(1)(n), Florida Statutes, suspending Respondent's license for six months, and imposing an administrative fine of $5000. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1989. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-3 Adopted. 4 Adopted in substance. 5-7 Adopted. Adopted except as to the mischaracterization of the document as a promissory note. Rejected as irrelevant, contrary to the greater weight of the evidence, and recitation of testimony. Whether G.L. was able to read is beside the point. He was incapable of understanding the meaning of the document that he signed. Rejected as against the greater weight of the evidence. Rejected as cumulative and, to the extent not cumulative, irrelevant. 12-15 Rejected as recitation of testimony and subordinate. 16-17 Adopted in substance. 18 Rejected as recitation of evidence and legal argument. 19-21 Rejected as recitation of testimony and subordinate except that the first sentence of Paragraph 21 is adopted. Rejected as irrelevant. Rejected as recitation of testimony. Rejected as against the greater weight of the evidence. Adopted. Rejected as cumulative and, to the extent not cumulative, irrelevant. Rejected as legal argument contrary to the cited statutory definition of the practice of medicine. Rejected as recitation of testimony. Adopted in substance. Treatment Accorded Respondent's proposed Findings 1-4 Adopted. 5-6 Rejected as subordinate. Adopted. Rejected as irrelevant and, to the extent implying that G.L. understood the meaning of the document that he was signing, against the greater weight of the evidence. 9-10 Rejected as irrelevant. See Paragraph 9 in preceding section. 11-14 Adopted. 15 Adopted in substance. 16-19 Adopted in substance except that the first sentence of Paragraph 16 is rejected as against the greater weight of the evidence. Rejected as irrelevant. First sentence adopted. Second sentence rejected as irrelevant. Adopted. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 David G. Pius, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph M. Taraska, Esq. Launa K. Cartwright, Esq. Taraska, Grower, Unger and Ketcham, P.A. Post Office Box 538065 Orlando, FL 32853-0065 =================================================================
Findings Of Fact On November 11, 1989, Respondent forwarded a request for hearing by Petitioner to contest his suspension without pay and dismissal by the school board. Due to insufficient information being furnished, no case was opened. Subsequent administrative oversight resulted in no action being taken on this request by the Division of Administrative Hearings. By letter dated June 5, 1989, Petitioner, by and through his attorney, requested the status of the hearing requested by the school board in November 1987. In response thereto, Respondent filed the Motion to Dismiss that constituted the basis for the telephone conference call. At this conference call hearing, Petitioner conceded that all facts recited in the Motion to Dismiss are accurate and, that on May 14, 1987, Petitioner and the Florida Department of Education entered into a Stipulation for Settlement wherein Petitioner's teaching certificate was suspended for one year retroactive to April 25, 1986. Petitioner was suspended without pay by Respondent on May 14, 1986, based upon his arrest for the offense which resulted in the suspension of his teaching certificate by the Department of Education. Petitioner was subsequently terminated by Respondent on May 26, 1987, retroactive to May 14, 1986, the date he was suspended without pay. On the effective date of Petitioner's termination by Respondent, May 14, 1986, he did not hold an active teaching certificate from the State Department of Education and was not qualified to work as a teacher in any Florida public school.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Franklin B. Etheridge's request for hearing to challenge his dismissal by the School Board of Polk County be denied, and Respondent's Motion to Dismiss be granted. Entered this 18th day of August, 1989, in Tallahassee, Florida. K.N. AYERS 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 18th day of August, 1989. COPIES FURNISHED: Dr. John A. Stewart Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 C. A. Boswell, Esquire School Board of Polk County Post Office Box 391 Bartow, Florida 33830 John F. Laurent, Esquire Post Office Box 1018 Bartow, Florida 33830
The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher, without pay, for five days.
Findings Of Fact The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. The School Board hired Respondent in 2004 as a teacher at Dr. Michael M. Krop Senior High School, a public school in Miami-Dade County. Since the 2009 school year, and at all times relevant to this case, Respondent was employed at David K. Lawrence, Jr., K-8 Center (“David Lawrence”), a public school in Miami-Dade County, pursuant to a professional services contract.1 At all times relevant to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The collective bargaining agreement provides that: “Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes.” 1 Respondent is no longer a teacher at David Lawrence. However, she is still employed by the School Board as a teacher at another school. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent occurred during the 2018-2019 school year, at which time Respondent was a special education teacher at David Lawrence, teaching fourth and fifth grade autistic students in the school’s “ESE” special education program. At that time, Mary Kate Parton was principal; Dr. Charlene Olicker was assistant principal; Elvia Nunez was a classroom paraprofessional assigned to Respondent’s classroom; and Jason Hocherman was a one-to-one paraprofessional assigned to another classroom. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent is contained in paragraphs 16 and 18 of the Notice of Specific Charges.2 Allegations Involving Ms. Nunez on February 15, 2019 The School Board alleges in paragraph 16 of the Notice of Specific Charges that “[o]n February 15, 2019, a student under Respondent’s supervision hit Ms. Nunez in the face causing her face to swell and causing Ms. Nunez to feel nauseous and dizzy.” According to the School Board, the incident “occurred in Respondent’s presence, however, Respondent prevented Ms. Nunez from obtaining medical treatment, did not assist Ms. Nunez with any treatment and prevented Ms. Nunez from reporting it to the administration.” The School Board further alleges Respondent “failed to write a Student Case Management Form (“SCM”) on the student for his actions toward Ms. Nunez.” On the day of the incident, Ms. Nunez wrote a statement detailing her version of the events. In her statement, Ms. Nunez explained she was in the classroom when a female student hit Ms. Nunez on her face with her elbow 2 At hearing, the School Board abandoned the allegations in paragraph 17 of the Notice of Specific Charges related to a purported incident on February 22, 2019. Accordingly, no findings are made with respect to the allegations in paragraph 17 of the Notice of Specific Charges. and fist. Ms. Nunez called the office on the radio for assistance, and Dr. Olicker and Ms. Mejia came to the room to assist her. Ms. Mejia stayed with Ms. Nunez until Respondent finished what she was doing. They all took the students to lunch. Ms. Nunez stayed outside the cafeteria and told another assistant principal what had happened. In the meantime, another student started running behind the bathroom in the cafeteria, and Ms. Nunez and other employees went to catch the student. Ms. Nunez later returned to the classroom and told another staff member she was not feeling well. Ms. Nunez then went to the library and office and told Dr. Olicker she “was feeling dizzy.” Dr. Olicker called “911,” and Ms. Nunez was transported to the hospital by fire rescue. Respondent did not witness a student hit Ms. Nunez and she had no knowledge of the incident at the time. Respondent did not prevent Ms. Nunez from obtaining medical treatment and she did not prevent Ms. Nunez from reporting the incident to administration. Respondent did not write an SCM referral for a student because she did not witness the incident. There is no School Board rule or policy requiring Respondent to write an SCM referral on a student for an incident she did not witness or have knowledge of at the time.3 In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in any of the conduct as alleged in paragraph 16 of the Notice of Specific Charges, which constitutes misconduct in office. Allegations Involving J.H. on February 25, 2019 In paragraph 18 of the Notice of Specific Charges, the School Board alleges that “[o]n February 25, 2019, Jason Hocherman (‘Mr. Hocherman’), a 3 In any event, Dr. Olicker submitted an SCM referral on the student. paraprofessional at Lawrence K-8 while in the school’s hallway[,] observed J.H. in the hallway without Respondent.” J.H. was a student in Respondent’s class who frequently and spontaneously ran from the classroom. According to Respondent, J.H. would run as often as 12 to 15 times a day. J.H. was well known as a “runner” by Mr. Hocherman, other staff members, and the school’s administrators.4 On February 25, 2019, Mr. Hocherman was leaving his assigned classroom for the day at around 3:00 p.m., when students were also being dismissed for the day. At that time, he observed J.H. unsupervised standing in the corner of the first floor interior hallway of the building by the doors leading into the main lobby of the school. Mr. Hocherman does not know how long J.H. was standing in the hallway without adult supervision. Mr. Hocherman asked J.H. if he was alright, but J.H. did not respond. A few minutes after Mr. Hocherman first observed J.H., Respondent came upon the scene. According to Mr. Hocherman, J.H. became agitated or scared upon Respondent’s arrival on the scene. Mr. Hocherman tried to calm J.H. down, but J.H. took off running towards the stairwell in the middle of the hallway. J.H. often ran to the third floor. Respondent told J.H. she was not going to chase after him, hoping that would stop him from running. J.H. ignored Respondent and ran up the stairs to the third floor landing of the stairwell. Respondent and Mr. Hocherman followed in pursuit of J.H. Mr. Hocherman got to J.H. first, was able to calm him down, and took him by the hand directly to the bus loop in front of the school to get on his bus to go home. The evidence presented at the hearing did not establish that J.H., a known runner, was ever in any danger. 4 Notably, J.H. was the student who ran behind the bathroom in the cafeteria on February 15, 2019. J.H. got on the bus, went home, and did not suffer any injuries as a result of the incident. Under the particular facts of this case, Respondent’s conduct was not inappropriate. In sum, the persuasive and credible evidence adduced at hearing demonstrates that on February 25, 2019, Mr. Hocherman “observed J.H. in the hallway without Respondent,” as alleged in paragraph 18 of the Notice of Specific Charges. However, such conduct does not constitute misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension of Respondent, Linda A. Moreau, with full back pay. 5 In its Proposed Recommended Order, the School Board argues that Respondent violated School Board Policy 3213 by failing to “immediately report a harmful situation to the administration.” However, the alleged conduct in paragraph 18 of the Notice of Specific Charges is not based on a failure to report; rather, the alleged conduct is solely that J.H. was observed unsupervised in the hallway. Accordingly, any contention by the School Board that Respondent engaged in misconduct in office or violated School Board policies based on a failure to report J.H. being observed unsupervised in the hallway, is beyond the scope of the charge. Even if the School Board’s contention is not beyond the scope of the charge, however, J.H. was never in any danger or harmed, and, therefore, any failure of Respondent to report the incident does not constitute a violation of School Board Policy 3213 and does not constitute misconduct in office. DONE AND ENTERED this 21st day of April, 2021, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2021. COPIES FURNISHED: Christopher J. La Piano, Esquire Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit. Ms. Alvarez held a conference with Respondent. Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement." Ms. Yassin violated that clear and unequivocal directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/ Respondent's misconduct, as described herein, has impaired her effectiveness in the school system. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.
The Issue Whether Respondent violated the Florida Statutes and Florida Administrative Code rules, as charged in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator's Certificate No. 803275, valid through June 30, 2021, covering the areas of elementary education, exceptional student education, middle grades integrated curriculum, and social science. At the time of the final hearing in this proceeding, Respondent had taught for approximately 17 years. The Complaint The Complaint alleges that Respondent spoke ill of student E.J.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, E.J. was embarrassed. Additionally, the Complaint alleges that Respondent spoke ill of student A.S.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, A.S. was embarrassed. The Complaint also alleges that Respondent criticized student J.P.'s work on an assignment, including, but not limited to, saying he had not put any work into it. As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(j), and rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5. Evidence Adduced at the Final Hearing Respondent began teaching in the St. Lucie County School District ("District") on August 1, 2016. At the time of Respondent's conduct that is alleged to violate section 1012.795 and rule 6A-10.081, Respondent was employed as an eighth grade social studies teacher at West Gate K-8 School ("West Gate"), in the District. The 2018-2019 school year for the District began on August 13, 2018. September 14, 2018, was Respondent's last day of employment with the District. The alleged conduct giving rise to this proceeding occurred at some point between August 13, 2018, and September 14, 2018. On or about September 14, 2018, the District initiated an investigation into Respondent's conduct while she had been employed at West Gate. E.J. was a student in Respondent's eighth grade history class. Respondent assigned the students to complete a history project. After E.J. turned in his project, Respondent called him up to her desk and told him, in the front of the class, that his work on the project was "lazy" and "pathetic." Other students in the class saw Respondent's conduct and heard her comments to E.J. E.J. testified, credibly and persuasively, that he was embarrassed and hurt by Respondent's comments, and that he went back to his desk in tears. The credible evidence establishes that after seeing E.J.'s reaction to her comments, Respondent called E.J. outside of the classroom and apologized. Respondent testified, credibly, that she felt "terrible" about making E.J. cry, and that she had made the comments because she was frustrated with the quality of the students' work on the project. E.J.'s father, Jermaine Jones, who had picked him up from school on the day of the incident, confirmed that E.J. was upset by Respondent's comments on his project. Jones immediately set up a meeting with Assistant Principal Guzman and Respondent for the following day. At that meeting, Respondent apologized to E.J.'s parents and said she was having a stressful day when she made the comments to E.J. According to Jones, the incident made E.J.—who normally is quiet— further withdrawn, and he became, in Jones's words, "a little depressed." According to Jones, following the incident, E.J. did not want to go to Respondent's class. Other student witnesses testified at the final hearing, credibly and consistently, that they saw and heard Respondent's comments directed at E.J., and that E.J. was upset by her comments and started to cry. Another student, J.P., testified that he had been unable to complete the project for Respondent's class because his grandfather was ill and had been hospitalized, and that he and his family had been spending time at the hospital. J.P. took a note from his mother, to Respondent, on the day the project was due, explaining the reason why J.P. had been unable to complete his project. J.P. testified, credibly, that Respondent told him, in front of the class, that she really did not care about the note, and if he did not turn in the completed project by the following day, he would receive a grade of "zero." J.P. credibly testified that other students in the class heard Respondent's comments to him, and that he was "very shocked" and felt "very embarrassed." J.P. did not turn in a project. Student A.S. testified, credibly, that Respondent told him that his work on the project was unacceptable and "pathetic." Respondent made these comments in front of the entire class. A.S. testified, credibly, that he felt "very embarrassed and upset." He testified, credibly, that Respondent did not apologize to him. Respondent testified on her own behalf. She acknowledged calling E.J.'s work "lazy" and "pathetic," but testified that she had not intended to hurt his feelings, and when she realized that she had, she "felt terrible about it." She acknowledged that she has "a deep voice, and I come off harsher than I mean to." She called E.J. outside to explain that she had not intended to hurt his feelings, and there would be other opportunities to make up the bad grade he received on the project. She testified that as a result of their talk, E.J. calmed down, and that she did not have any further issues with him in class. She confirmed that on the day following the incident with E.J., she met with E.J.'s parents to discuss the incident. She testified that the meeting was "civil," and that she left the meeting feeling like "it was taken care of." Regarding the incident with J.P., Respondent testified that the students had two weeks in which to complete the project, and that when J.P. approached her with the note regarding his grandfather's illness, she told him to turn in, the following day, what he had completed to that point. She confirmed that J.P. did not turn in a project. She also testified that she did not hear from J.P.'s mother regarding the project. Regarding student A.S., Respondent testified that she did not call his work "pathetic," and that, given E.J.'s reaction, she would not have used that word again.4 Respondent also presented the testimony of K.K., who also had been a 4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the same project, and that E.J. and A.S. had turned the project in on the same day. Thus, the undersigned questions whether Respondent would have had sufficient time to reflect on the effect that the word "pathetic" had on E.J., such that she would not have used that word in speaking with A.S. on the same day. student in Respondent's eighth grade history class in the 2018-2019 school year. K.K. testified that Respondent discussed E.J.'s paper with the class because it was a good paper, and that she did not see anyone cry in Respondent's class. She also testified that Respondent did not speak in negative terms about anyone's project in front of the class. However, K.K.'s testimony and written statement are directly contradicted by the testimony of four other students, as well as by E.J.'s father and Respondent herself, who admitted having called E.J.'s work on the project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s testimony and statement are not deemed credible. Respondent has been a teacher for 17 years. She testified that her educator's certificate has never been subjected to discipline, and no evidence was presented showing that disciplinary action has ever been taken against her educator's certificate. Findings of Ultimate Fact Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint. Whether particular conduct constitutes a violation of the applicable statutes and rules is a factual question to be decided in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Whether specific conduct constitutes a deviation from the required standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Rule 6A-10.081(2)(a)1., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to make reasonable effort to protect a student from conditions harmful to learning and to the student's mental health. It is determined that by disparaging E.J.'s work in front of the entire class—which caused him to suffer distress, withdraw, and avoid going to Respondent's class—Respondent violated this rule. Rule 6A-10.081(2)(a)5., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to avoid intentionally exposing a student to unnecessary embarrassment or disparagement. As found above, Respondent intentionally engaged in conduct that resulted in unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is determined that Respondent violated this rule. By violating the Principles of Professional Conduct for the Education Profession in Florida, Respondent violated section 1012.795(1)(j).
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Way, Suite 200 Wellington, Florida 33414-8594 1 All references to chapter 120 are to the 2020 version.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order placing Respondent's educator's certificate on probation for a period of one year from the date of the Final Order. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Diane Tirado 3502 Southwest Vollmer Street Port St. Lucie, Florida 34953 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this matter is whether Petitioners are entitled to attorneys’ fees pursuant to Section 120.595(3), Florida Statutes (2006), and Section 57.105, Florida Statutes (2006).
Findings Of Fact In Peter J. Singhofen, P.E., and Streamline Technologies, Inc. v. Board of Professional Engineers, DOAH Case No. 05-3674RX, Petitioner challenged the validity of Florida Administrative Code Rule 61G15-22.011(2), promulgated by Respondent. The Rule generally denied owners of technology, such as computer software programs the ability to qualify a course, taught by the owner on the technology, from qualifying for continuing education credit. The published purpose of the rule was to prevent a continuing education provider from having a conflict of interest. Petitioner filed an Affidavit detailing the hours and work performed in the rule challenge care and requesting fees in the amount of $15,750. Respondent also submitted an Affidavit from an expert supporting the hours, work, and fees requested as reasonable. In the underlying case, the record contained some evidence of some meaningful discussion by the Board supporting the Rule. The discussion primarily reflected that the Board’s desire was to prohibit and prevent “shill” courses from receiving continuing education credit. Significantly, the Board had previously denied applications for continuing education providers proposing to offer “shill” courses. However, the record did not contain any evidence that the Board considered whether the Rule was consistent with NCEES guidelines as required by statute. There was no discussion or finding by the Board prior to engaging in rulemaking that a continuing education provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest or be inconsistent with NCEES guidelines. Additionally, the published purpose for promulgating the Rule was admitted to be erroneous by Respondent’s Executive Director. This error alone was material and a sufficient ground to invalidate the rule. Petitioner’s courses met both the NCEES and Florida Administrative Code Rule 61G15-22.003 as a qualifying activity for purposes of continuing education credit. The Rule resulted in Petitioners’ being denied approval to teach such qualifying activity; and was therefore, inconsistent with NCEES guidelines. Such inconsistency was outside of the Board’s rulemaking authority. In this case, Respondent stipulated to the reasonableness and the amount of fees, subject to the statutory cap. Respondent presented no evidence showing that special circumstances existed which would make the award unjust. Therefore, Petitioner is entitled to attorneys’ fees and costs subject to the statutory cap.
