The Issue The issues in this case are whether Respondent, Thomas Masters, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence and testimony presented at the final hearing, the following Findings of Fact are made: Background Respondent holds Florida Educator’s Certificate 743504, covering the areas of Elementary Education and Physical Education, which is valid through June 30, 2024. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Since 1994, Respondent has been responsible for the care and development of elementary school-aged children. He became certified to teach elementary education in Florida in 1995, and at that time began teaching physical education (P.E.) for the Archdiocese of Miami. In approximately 1999, Respondent was certified in P.E. He taught P.E. for 19 years and theology for one year. He was the Athletic Director for 18 of those 20 years. In 2015, Respondent relocated from South Florida to St. Johns County to assist with the care of his mother after his father’s passing. He taught P.E. in the St. Johns County School District (SJCSD) from 2015 through 2019. At the time of the allegations in the Amended Administrative Complaint, Respondent was employed as a P.E. Teacher at W.D. Hartley Elementary School in the SJCSD. Mr. Masters also served as the volunteer coach for the Gamble Rogers Middle School girl’s softball team, also known as the Gamble Rogers Stingrays. The SJMSAA is an independent, private non-profit corporation. SJMSAA uses district middle school names and facilities under a license agreement with the district. SJMSAA is solely responsible for the operation of the SJMSAA middle school sports programs and their individual teams. The organization’s mission is to promote community citizenship, good sportsmanship, and physical and mental development through healthy, organized competition’ and team work for 12 to 15-year-old middle school students. SJMSAA is responsible for operation of the sports programs for 13 middle school sports teams and seven different sports. Thus, all middle school students from various schools within the district may participate in sports. The sports the SJMSAA oversees are: football, baseball, softball, golf, tennis, cheer, and soccer. Middle school students J.M., H.B., and S.P. were on the SJMSAA girls’ softball team Respondent coached. Allegations in the Complaint The allegations in the Amended Administrative Complaint took place during softball practice and did not involve any of Respondent’s students at Hartley. The allegations stem from a complaint made by the mother of J.M. (softball team member). At the time of the incident, J.M. was a middle school student at Gamble Rogers and a member of the softball team within SJMSAA. She was 13 years old at the time of the incident. J.M. is now a 15-year-old high school student. On April 3, 2018, J.M. told Mr. Masters that her stomach hurt because she did not have “[any] food in her stomach.” Mr. Masters then asked other players if they had any food that he could give J.M. Since none of the players had food, Mr. Masters gave J.M. a soda from his car to help her feel better. Shortly after she drank the soda, J.M. returned to practice. Before practice, Mr. Masters told the girls that they must do push-ups if they drop the ball. While throwing the ball with her partner, J.M. dropped the ball. J.M. then positioned herself to do the push-ups. Since the push-ups were modified, her hands and knees were on the ground. J.M. testified that while doing the push-ups, Mr. Masters kicked her in the stomach and placed his foot on her back. She was confused and embarrassed because she did not expect him to kick her. J.M. didn’t say anything after the incident, but rather, she looked at Mr. Masters with a shocked facial expression. Shortly thereafter, she returned to practice. She remained in practice for the duration, which was approximately 1.5 to two hours. J.M. stated that the kick caused her stomach to hurt more, increasing the pain to 9 out of 10, with 10 being the highest level of pain. However, there was no evidence offered to establish the level of stomach pain before the incident. J.M.’s teammates, S.P. and H.B., witnessed the incident. Before practice, J.M. told S.P. that she was not feeling well. Later, during warm-ups, she was standing nearby when J.M. dropped the ball. While J.M. was doing the requisite push-ups, S.P. witnessed Mr. Masters kick J.M. in the stomach. S.P. was shocked and believed Mr. Masters’ actions were wrong. S.P. did not see Mr. Masters place his foot on J.M.’s back. H.B. did not testify at the hearing. However, she provided a written statement to described what she witnessed on the date of the incident. Similar to S.P., H.B. stated that Mr. Masters kicked J.M. in the stomach while she was doing push-ups. Although the statement is hearsay, it further explains and is corroborated by admissible evidence in this matter. S.W. arrived late to practice to pick-up her daughter, J.M. S.W. recalled that her daughter seemed as if she was not as engaged as the other team members. J.M. told her mother that Mr. Masters kicked her and placed his foot on her back while she was doing push-ups. S.W. observed that her daughter was “very upset” about the incident. S.W. believed Mr. Masters’ placement of his feet on J.M. was disrespectful. S.W. contacted the SJMSAA commissioner to report what happened to her daughter. Justin Palesotti, the President of the SJMSAA, received a complaint from S.W. that Mr. Masters had inappropriately touched her daughter. Mr. Palesotti approached Mr. Masters before a softball game and asked him about the complaint. Mr. Masters told Mr. Palesotti that he swept his foot underneath J.M. while she was doing push-ups to confirm the student had space between her stomach and above the ground. After the discussion, Mr. Palesotti asked for Mr. Masters’ resignation, and he complied. Mr. Masters disputes J.M.’s complaint. He testified that J.M. arrived at practice and she did not look well. She told Mr. Masters that she was not feeling well because she had not eaten all day. He did not have snacks and none of the other girls had snacks, so he gave her a soda that he had in his car. After giving her the soda, he gave her the option to return to practice when she could. During warm-ups he told the girls that they would need to do three push-ups if they dropped the ball. J.M. and other players had to do push-ups. When J.M. had to do push-ups she had already drunk the soda. As J.M. was doing push-ups, he was being silly to help change her mood, and “pretended to fake kick her under her stomach.” J.M. unexpectedly “came down onto his foot.” She then gave him a look to communicate, “are you kidding me?” He was not trying to harm J.M., but, rather, he was “kidding” with her to lighten her mood. His attempt to make J.M. feel better was not well received. While he acknowledged that his foot made contact with J.M.’s stomach, he denied placing his foot on J.M.’s back. Character Witnesses The allegations were a surprise to Respondent’s character witnesses who disagreed that he would kick a student. Ms. Ivey Brown, the assistant softball coach at the time, testified that Mr. Masters enjoyed coaching. She had never witnessed Respondent kick a student. Likewise, John Samuels who coached basketball with Mr. Masters for a few weeks at Hartley only observed positive interactions with students. Mr. Samuels described Mr. Masters as a compassionate coach who helped improve the player’s self-esteem. Ms. Gonzalez, another assistant coach and former player coached by Respondent, testified that Respondent was always positive and encouraged players. Even at a time when players were disciplined, including herself, he spoke to them with compassion. St. Johns County Circuit Court Judge Mathis (ret.) met Mr. Masters in 2016. Judge Mathis volunteered to help coach the basketball team, of which his grandson was a member, and observed Respondent regularly interact with the students. Judge Mathis testified that Respondent had positive interactions with students, even the students who may have been difficult. He also had a reputation for helping people. Disciplinary History Although he had favorable experiences about other students, this is not the first time Mr. Masters has been subject to allegations of inappropriate contact with students. Mr. Masters was disciplined for a prior incident in Richard Corcoran, as Commissioner of Education, Case No. 19-6071PL, (Fla. DOAH Apr. 28, 2020; Fla. DOE Oct. 7, 2020), for his actions, filed on September 16, 2020.2 Respondent was issued a reprimand, placed on probation for 12 months, and required to pay administrative costs of $150.00. Ultimate Findings of Fact Petitioner has established by clear and convincing evidence that Respondent’s foot made contact with J.M.’s stomach. While the undersigned acknowledges J.M.’s recollection of Mr. Masters placing his foot on her back, the other witnesses present did not recall this and Respondent disputes it. While the possibility exists that Mr. Masters placed his foot on J.M.’s back, J.M.’s uncorroborated statement is not sufficient, without more, to establish by clear and convincing evidence that Respondent placed his foot on her back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1., that Respondent receive a Reprimand, and that he be placed on suspension for 30 days, followed by probation for a period of 12 months following reinstatement, with conditions of probation to be determined by the Education Practices Commission. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 4th day of January, 2021. COPIES FURNISHED: Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Heidi B. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
The Issue Should Petitioner's benefits under the Florida Retirement System be forfeited based on Petitioner having pleaded guilty to a felony, conspiracy to interfere with commerce by committing extortion, for which he was subsequently adjudged guilty in federal court?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Division is charged with the responsibility of administering the Florida Retirement System. At all times material to this proceeding, Petitioner, James Sanders, was employed by the Collier County, Florida Sheriff's Office as a Law Enforcement Officer. On April 26, 2000, the Grand Jury for the United States Middle District of Florida, Fort Myers Division handed down an Indictment wherein Petitioner was charged with, among other things, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. On April 30, 2001, Petitioner, in accordance with the Plea Agreement dated January 19, 2001, pleaded guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion in violation of Title 18 U.S.C. Sections 1951 and 2, a felony, as that term is defined in Section 775.08(1), Florida Statutes. On May 2, 2001, Judge John E. Steele, United States District Judge, Middle District of Florida, Fort Myers Division entered a Judgment in a Criminal Case wherein Petitioner was adjudged guilty (convicted) of Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner expressly admitted his guilt to that charge under the terms of the Plea Agreement. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner admitted to entering the conspiracy for monetary gain, and that he obtained money in furtherance of the conspiracy. After his conviction, Petitioner applied for, and began receiving, retirement benefits under the Florida Retirement System. Upon learning that Petitioner had been convicted of the charge of conspiracy to interfere with commerce by committing extortion by the United States District Court, Middle District, Fort Myers Division, the Division investigated and subsequently advised Petitioner that his retirement benefits under the Florida Retirement System were being forfeited. Neither the Division nor Petitioner presented any evidence of: (a) Petitioner's accumulated contributions to the Florida Retirement System as of the date of his termination; or the amount of retirement benefits that Petitioner had received prior to the Division advising him of the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a Final Order finding that Petitioner has forfeited all rights and benefits under the Florida Retirement System upon his April 30, 2001, federal felony conviction and requiring the refund by Petitioner of any benefits paid to him in excess of Petitioner's accumulated contributions. DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 September, 2002. COPIES FURNISHED: James Sanders c/o FCI Edgefield 501 Gary Hill Road Post Office Box 723 Edgefield, South Carolina 29824 Peggy Sanders Post Office Box 5103 Immokalee, Florida 34143 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue is whether Rules 61K1-1.0011(3)(c) and 61K1- 1.0011(3)(g), Florida Administrative Code, and a portion of Form BPR-08-451 (currently Form BPR-0009451), which is incorporated therein by reference, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, formerly known as the Florida State Athletic Commission, licensed Petitioner as a manager of participants in boxing matches effective September 5, 1997. On or about September 17, 1997, Petitioner and Intervenor entered into a contract for Petitioner to be Intervenor's manager and for Intervenor to render services for Petitioner in professional boxing contests. Petitioner did not file a copy of this contract with Respondent within seven days of its execution. Petitioner and Intervenor had a disagreement after several fights regarding their respective rights and duties under the contract. On or about April 26, 1999, Intervenor filed a Complaint for Declaratory Relief and Permanent Injunction in the Circuit Court, Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 99-781-CA-D. Among other things, Intervenor requested the court to declare the September 17, 1997, contract to be null and void for two reasons: (a) because Petitioner had not filed it with Respondent within seven days of its execution as required by Rule 61K1-1.011(3)(c), Florida Administrative Code; and (b) because the contract did not contain all provisions specifically set forth in Respondent's Form BPR- 0009451, entitled Letter of Agreement Between Participant and Manager, as required by Rule 61K1-1.0011(3)(g), Florida Administrative Code. Petitioner filed a counter-claim in Marion County Circuit Court Case No. 99-78-CA-D, bringing Respondent in as a party. Petitioner's counter-claim alleged that there was no legislative authority for an administrative rule to declare a contract between a manager and a boxer void. As of December 6, 2000, the civil suit was in abeyance pending issuance of the final order in the instant case. On April 5, 2000, Respondent issued a Notice to Show Cause directed to Petitioner. Said notice alleged that Petitioner as a manager had entered into a contract with Intervenor, a licensed boxer, and that Petitioner had not filed the contract with Respondent. The Notice to Show Cause referenced Rules 61K1-1.011(3)(c) and 61K1-1.011(3)(g), Florida Administrative Code. Petitioner filed this rule challenge proceeding on April 11, 2000. Petitioner seeks a determination that Rules 61K1-1.011(3)(c) and 61K1-1.011(3)(g), Florida Administrative Code, including a portion of Form BPR-0009451, constitute an invalid exercise of delegated legislative authority to the extent they purport to automatically void a contract if the manager is not licensed when the contract is executed or if the manager fails to file a copy of the contract with Respondent within seven days of the execution date. Rules 61K1-1.0011(3), Florida Administrative Code, states as follows in pertinent part: (3) Contracts Between Manager and Participant. * * * (c) All contracts shall be in writing and shall be filed with the commission within 7 calendar days of execution . . . . * * * (g) All contracts entered into in Florida between a manager and a participant, and all such contracts entered into outside of Florida involving participants and managers licensed by or subsequently licensed by the commission, shall expressly contain all provisions specifically as worded in Form BPR-0009451, entitled Letter of Agreement Between Participant and Manager, incorporated herein by reference and effective May, 1990, and if they do not, shall be deemed to contain such provisions. The specific language in Form BPR-0009451 that Petitioner objects to is: This contract is automatically void if manager is not licensed on the date this contract is signed or fails to file with the Florida State Athletic Commission, a copy of this contract within 7 calendar days of its execution.
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
