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 The issue for determination at hearing is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact Calder Race Course, Inc. (Calder) is a pari-mutuel facility, located in Dade County, Florida. Calder is authorized to conduct thoroughbred racing in the State of Florida. On or about August 15, 1994, the Director of Security (Director) at Calder commenced an investigation into the selling and buying of illegal drugs at Calder. The Director had received information of the alleged illegal activity from reliable, confidential informants who included Calder employees. The alleged drug dealing was occurring at a part of Calder described as the second floor alcove, directly outside the grandstand. The alleged illegal activity involved Calder employees, as well as patrons. As a result, hidden video cameras were installed to provide surveillance of the area where the alleged illegal activity was occurring. Using the video surveillance equipment, the area was monitored by Calder security continuously each day during racing hours - - commencing at the start of each racing day, approximately 12:30 p.m., and ending at the finish of the last race, approximately 5:30 p.m. on weekdays and 6:00 p.m. on weekends. The video surveillance spanned almost 30 days. The video surveillance revealed a behavioral pattern by the alleged drug dealers and buyers. The individuals involved in the alleged illegal activity would walk in the hidden camera view area and either (a) go behind the wall where they allegedly would make deals for the drugs and return in camera view with the alleged drug dealer putting money in his pocket, or (b) the individuals would make an exchange in camera view with the alleged drug dealer putting money into his pocket. William Naum (Respondent) was observed by video surveillance on two occasions. These observations occurred almost at the end of the surveillance period. Respondent is well known by the Director. Respondent is a regular and frequent patron of Calder. Also, during the investigation of the alleged drug activity, Respondent was under investigation by the Director for another alleged illegal act. On August 28, 1994, Respondent was observed by video surveillance with the alleged drug dealer. They went behind the wall and shortly thereafter, the alleged drug dealer returned alone and left the surveillance area. On or about September 9, 1994, Respondent was observed by video surveillance meeting with the alleged drug dealer and making an exchange of money for something that could not be seen. The Director has more than 30 years in law enforcement in which he spent many of those years engaging in surveillance in drug investigations, as well as making undercover drug purchases as an investigator for the Thoroughbred Racing Protective Bureau at race courses. Based upon his experience and the behavioral pattern exhibited on the surveillance cameras, the Director determined that Respondent had purchased drugs from the alleged drug dealer. Besides patrons, Calder employees and licensees were observed on the surveillance cameras exhibiting this same behavioral pattern. Because the investigation expanded beyond patrons, the Narcotics Unit of the Metro-Dade Police was requested to assist with the investigation after about two weeks into the surveillance. The Metro-Dade Narcotics Unit successfully made an undercover purchase of drugs from the alleged drug dealer. On September 10, 1994, the alleged drug dealer was brought into Calder's security office where the Director was present. The alleged drug dealer admitted to selling cocaine at Calder for the last two years. On September 11, 1994, Respondent was at Calder, as a patron. He was brought into the Calder security office and advised by Calder security that Calder no longer wanted his business, that he was being ejected and barred from Calder and that, if he returned, he would be subject to arrest for criminal trespass. This action by Calder is referred to as a "management exclusion." Respondent was not informed of the reason for his exclusion. Respondent was one of the first patrons to be brought in and notified of their exclusion and Calder security had more patrons who would be given the same management exclusion. Calder security was concerned that the other patrons, who were subject to the exclusion, would be deterred from coming to Calder if they discovered that Calder was excluding patrons for purchasing illegal drugs. All patrons who were determined to have purchased illegal drugs were treated the same way as Respondent by Calder and Calder Security.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order excluding William Naum from all pari-mutuel facilities in Florida under terms and conditions it deems appropriate. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 22nd day of December, 1995.
Findings Of Fact Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board. A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order. Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty (80) or more families residing in Tyrone Mobile Home Park. On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor. Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the license of Robert C. Channell until he has reestablished himself as a licensed pool contractor in Hillsborough County, Florida. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Bearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box L386 Tallahassee, Florida 32302 Mr. Robert C. Channell 309 Jennal Place Tampa, Florida 33612 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Ms. Rokos' teaching certificate should be revoked or otherwise disciplined for gross immorality or moral turpitude in violation of Section 231.28(1)(c), and (f), Florida Statutes (1987), of Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, and Section 231.28(1)(h), Florida Statutes (1987).
Findings Of Fact Nicole D. Rokos holds Florida Teaching Certificate 542378, in the areas of mental retardation and specific learning disabilities. She is 35 years old and has taught at exceptional student education programs for 11 1/2 years. At the time of the incident involved, Ms. Rokos was employed as a special education teacher at Ely High School by the School Board of Broward County. Ms. Rokos teaches students who are learning disabled, mentally handicapped, and emotionally disturbed. Learning-disabled students are typically of average or above average intelligence who do not learn in the same way as regular students, but require different teaching strategies and methods to succeed academically. Ms. Rokos often had contact with her students in addition to her regular class periods. She attempted to involve students in activities relating to areas in which they were insecure in order to improve their self-concept. As a teacher for 8 1/2 years at Ely High school, Ms. Rokos received very good evaluations of her performance which noted not only her teaching skills, but also her involvement in extra-curricular activities, see, e.g., the evaluations of December, 1982 and February, 1985. None of her evaluations contained any entries in the portion of the form used to describe areas needing improvement. Other teachers at Ely High School regard Ms. Rokos as an excellent teacher. Former students also regard her as an inspiring teacher. One of Ms. Rokos' students at Ely High School in 1988-89 school year was Earl Thomas Williams, Jr. He has learning disabilities in the areas of oral and written communication and mathematics and is of average intelligence. During December of 1988-89 school year he was 18 years of age, 6'3" tall and weighed 226 pounds. During evenings Earl Williams often would call Ms. Rokos for help with homework. Earl's father has high regard for Ms. Rokos, and believes that due to her work with Earl, Earl has stayed in school, and now attends community college. During the 1988-89 school year Marla Henderson, a cousin of Nicole Rokos by marriage, also attended Ely High School. She met Earl Williams through Ms. Rokos. Marla and Earl went out together from mid-September to mid-November, 1988. On December 3, 1988, at Earl's suggestion Ms. Rokos and another teacher accompanied Marla Henderson and Earl Williams to an Ely High School football game. That night Ms. Rokos dressed in socks and sneakers, white jogging shorts, white sweatpants which said "Tigers" down the side in orange letters, white tank top under a gray T-shirt with "Ely" written in orange letters across the front and a green "Ely" windbreaker. Earl Williams wore a yellow shirt, white jeans, and under them black cotton shorts that reach to the mid- thigh, which are similar to spandex bicycle shorts, but which fit somewhat more loosely. Those shorts had large white lettering horizontally at the elastic waist, as well as large white lettering vertically on the outside thigh area. After the game, at approximately 10:00 p.m., all four returned to the other teacher's home, where Ms. Rokos picked up her car, and left with Marla and Earl. Ms. Rokos' car has tinted windows. Marla was in the front seat and Earl in the back. Earl was sulking due to the recent break-up of his relationship with Marla. Ms. Rokos first dropped off Marla at approximately 11:00 p.m. Before returning to Earl's home, Earl ostensibly asked Ms. Rokos if they could go to a park and talk. Ms. Rokos drove to Kester Park in Pompano Beach, a park of approximately one square block. She pulled into the park between tall trees which line the perimeter of the park. The tree canopy obscured the light from near-by street lights in the car. A home invasion robbery had been reported to the Pompano Beach Police Department at a home near the park at about 11:00 p.m. At approximately 11:30 p.m. Officer William Weir of the Pompano Beach Police Department was in the area. He found Ms. Rokos' vehicle pulled between the trees at the park, which was then closed. Because the park was closed, and the car was partially concealed from view by the trees, he was alarmed, because the car could have been involved in the nearby robbery. Officer Weir was in a marked police car. Officer Weir drew near Ms. Rokos' car, and parked behind it so that the car could not back on to the street, nor go forward because of the trees and foliage in the park. He activated the spot lights on the top of his car, and could clearly identify a female figure inside the car. The driver side window was partially opened. As Officer Weir approached the car on foot, the driver attempted to back out, and although the car lurched back, its path was obstructed by the police car. As Office Weir reached the side of the car, a back-up officer arrived on the scene and also approached the vehicle. Officer Weir shined his police flashlight into the automobile where he could see Ms. Rokos and, for the first time, a man who was sitting in the passenger seat, who had not been visible before because the passenger seat was fully reclined. Officer Weir saw that Ms. Rokos was dressed only in a shirt, and was nude from the waist down. He could clearly see her thighs, pubic hair and genital area. Earl Williams was completely nude, and attempting to hide his genitals with the cloth of his yellow shirt. Officer Weir saw the student's penis protruding from beneath the material and his pubic hair. All facts taken together have led the Hearing Officer to infer that sexual contact between Ms. Rokos and the student had occurred or was imminent but interrupted by Officer Weir. In order to investigate further, Officer Weir directed both Ms. Rokos and Earl Williams to dress and exit the vehicle. After seeing Ms. Rokos' clothing with the Ely High School logo and noting the youth of her passenger, he asked whether she was a teacher. Initially, she denied it but later admitted to Officer Weir that Earl Williams was one of her students. Earl Williams readily admitted he was a student at Ely and Ms. Rokos was his teacher. She asked the officer not to report the incident, and was obviously distraught. Officer Weir then determined that Earl Williams was not a minor, and then warned Respondent about her conduct and allowed both of them to leave. Although no arrests were made, Officer Weir did file a uniform offense report about his contact with Ms. Rokos and Earl Williams at the end of his shift. Ms. Rokos testified that she was not nude, but had removed her socks, shoes, and sweatpants to be more comfortable, but was still wearing her shorts, and that Earl Williams had removed his shirt, which was in his lap, and had taken off his jeans, but he was not nude because he was wearing the black shorts. The testimony of Officer Weir is more credible. He saw the student completely nude and Ms. Rokos nude from the waist down. His testimony was emphatic and specific. Moreover, it was quite cool during the early morning hours of the night of December 3-4, 1988. There is no reasonable explanation for a teacher to have been parked in a car in a closed city park late at night with a student who had, according to her testimony, removed both his shirt and jeans, and for her to have removed her running shoes, socks, and sweatpants. Moreover, due to the bold white lettering horizontally across the waistband of the student's black shorts, and the bold white lettering vertically down the outside thigh of the shorts, the police officer would not have mistaken the shorts for flesh, even though the student is black. After receiving the incident report completed by Officer Weir, Lieutenant DeFuria of the Pompano Beach Police Department forwarded the report to the Director of Special Investigations at the School Board of Broward County, Howard J. Stearns. After reviewing the report on December 5, 1988, the first school day following the incident, Mr. Stearns had the administrators of Ely High School notify Ms. Rokos to meet with him at his office concerning the incident. At the interview, Ms. Rokos told Stearns that she was wearing underpants and the student was not nude. Having heard her denial, Mr. Stearns suggested that if she were being truthful, then Officer Weir must be lying, and the Pompano Beach Police Department should be requested to investigate the false report made by Officer Weir. Mr. Stearns began to dial the number of the Police Department, when Ms. Rokos relented and said that she did not think that any investigation of Officer Weir should be made. Ms. Rokos then broke into tears and asked to see her union representative. After meeting with that representative, Ms. Rokos resigned her position with the School Board of Broward County. One of the reasons she did so was to avoid the publicity incident to an investigation into the incident by the School Board. As the result of being discovered in such a compromising situation with one of her own students, Ms. Rokos has lost her effectiveness as a teacher in Broward County and would not be reemployed by the School Board of Broward County as an educator.
Recommendation It is recommended that the teaching certificate of Nicole D. Rokos be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. WILLIAM R. DORSEY, JR. 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 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3947 Rulings on findings proposed by the Commissioner of Education: 1. Adopted in finding of fact 1. 2. Covered in finding of fact 1. 3. Adopted in finding of fact 6. 4. Adopted in finding of fact 6. 5. Adopted in finding of fact 11. 6. Adopted in finding of fact 12. 7. Adopted in finding of fact 12. 8. Adopted in finding of fact 12. 9. Adopted in finding of fact 13. 10. Incorporated in finding of fact 13. Considered in finding of fact 15. Considered in finding of fact 16. Considered in findings of fact 6 and 12. The remaining portions of the proposal are rejected as argument. It is true, however, that it would have been impossible for Earl Williams to have disrobed without Ms. Rokos being aware of it. Discussed in finding of fact 15. Rejected as unnecessary. Discussed in finding of fact 16. Rejected as unnecessary. Rejected as unnecessary. Discussed in finding of fact 17. Rulings on findings proposed by Ms. Rokos: Adopted in finding of fact 1. Adopted in finding of fact 2. Generally adopted in finding of fact 3. To the extent appropriate, the evaluations are discussed in finding of fact 4. To the extent appropriate, discussed in finding of fact 5. Rejected as subordinate to the findings of fact made in findings 3-5. Rejected as unnecessary. To the extent appropriate, discussed in finding of fact 5. Discussed in finding of fact 6. Discussed in finding of fact 7. To the extent appropriate, discussed in finding of fact 8. Rejected as unnecessary. Adopted as modified in finding of fact 8. Discussed in finding of fact 9. Discussed in finding of fact 10. Rejected, see the findings made in finding of fact 10. Rejected; even if Ms. Rokos and Earl Williams discussed any matters relating to school, such discussions were not the focus of their activities in the car. See, the final sentence of finding of fact 12. Discussed in finding of fact 12. Discussed in finding of fact 12. How far the window was open is not significant; the officer had an adequate view of the scene. Adopted in finding of fact 12. Rejected for the reasons stated in finding of fact 15. Adopted in finding of fact 13. Rejected as subordinate to finding of fact 13. Rejected as unnecessary. 25 and 26. Discussed in finding of fact 16. To the extent appropriate, discussed in finding of fact 16. It is not clear whether Mr. Stearns said anything which would have led Ms. Rokos to believe than the school board would not report the matter to the Department of Education. The school board had no choice, and the matter was reported and investigated by the Department, which led to this proceeding. COPIES FURNISHED: Carolyn LeBoeuf, Esquire Brooks & LeBoeuf, P.A. 836 East Park Avenue Tallahassee, Florida 32301 Thomas W. Young, III, Esquire FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Department of Education Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent, American Amateur Mixed Martial Arts, Inc.'s (AAMMA), license as an amateur mixed martial arts sanctioning organization, should be disciplined and, if so, the penalty therefore.
Findings Of Fact Mixed Martial Arts (MMA) is a form of combat that grew out of Mui Thai. MMA combines two or more forms of martial arts (grappling, boxing, karate, etc.) and involves throws and strikes with the feet, hands and knees. Over the years, such combat has also been known by a variety of names, such as, Brazilian kickboxing, No Holds Barred fighting, or Ultimate Fighting, etc. Additionally, MMA schools and training have grown significantly in popularity. Further, as with most sports, MMA competition developed in both the professional and amateur arenas, with some states regulating amateur and/or professional competition and some states not regulating such competition. Additionally, MMA competitions and related items have grown into a significantly large market in the sports industry. Prior to July 1, 2008, the State of Florida in chapter 548, Florida Statutes, the law governing the State Boxing Commission and certain pugilistic events, prohibited sanctioning or holding amateur mixed martial arts matches in Florida. In 2008, chapter 2008-240, Laws of Florida, was enacted and, among other things, amended section 548.008, to eliminate the state's prohibition of amateur mixed martial arts matches. The Act also provided that the Commission could summarily suspend "the approval of an amateur sanctioning organization" and/or suspend one or more sanctioned amateur matches or events for violation of to be established health and safety standards. Ch. 2008-240, § 41, at 32, Laws of Fla., amending § 548.0065(4). Oddly, the Act did not appear to provide for the licensure or regulation of amateur MMA sanctioning organizations. Finally, the Act provided that professional MMA fighters, known as "participants," could not be licensed if the fighter was under 18 years of age and had not participated in a minimum number of amateur MMA matches. Ch. 2008-240, § 43 at 33, Laws of Fla., amending § 548.041(1). In 2009, chapter 2009-195, Laws of Florida, amended section 548.003(k), to permit the regulation and licensure of amateur mixed martial arts sanctioning organizations in Florida. In general, the regulation of such matches was placed under the auspices of the State Boxing Commission, which was granted the authority to adopt health and safety rules for amateur mixed martial arts matches and license amateur sanctioning organizations for mixed martial arts. More importantly, the Commission was given the authority to: "adopt by rule, or incorporate by reference into the rule, . . . the health and safety standards of the International Sport Kickboxing Association as the . . . minimum health and safety standards for an amateur mixed martial arts sanctioning organization." § 548.003(k), Fla. Stat. However and confusingly, the International Sport Kickboxing Association does not exist, but is a name sometimes used by the International Sport Karate Association, Inc., which has moved into the area of kickboxing and MMA. The Association uses the initials "ISKA" to reference its organization by either name; and, it is the International Sport Karate Association that appears to be the organization to which the legislature was referring when it enacted chapter 2009-195, Laws of Florida. On March 15, 2010, Florida Administrative Code Rule 61K1-1.0031(1)(c), which previously governed only amateur boxing and kickboxing sanctioning organizations, was amended to add amateur MMA sanctioning organizations. The result is a rule, as it is now composed, that is very confusing partly due to the addition of amateur MMA sanctioning organizations to a rule that was originally written for boxing and kickboxing sanctioning organizations. The rule states: Criteria for Approval. An amateur sanctioning organization seeking approval from the . . . Commission to sanction and supervise matches involving amateur boxers or kickboxers shall meet the following criteria: (emphasis supplied) For amateur boxing . . . . For amateur kickboxing . . . . For amateur mixed martial arts, a statement of agreement to adopt and enforce the health and safety Standards of the International Sport Kickboxing Association (ISKA) as provided in the ISKA Amateur Rules Overview, incorporated by reference, effective July 2008. (emphasis added). * * * * The remainder of the rule addresses required agreements by the amateur sanctioning organizations which, among other things, address health and safety issues involving required minimum ambulance service; emergency health equipment at matches; "on- call" ambulance service; event physicians and their qualifications; approval of applications; and disciplinary actions against a licensed amateur sanctioning organization. Because of the wording of the rule, it is unclear whether any of these other subsections of the rule apply to amateur MMA organizations or only to amateur boxing and kickboxing organizations. Evidence suggests that these provisions apply to amateur MMA organizations. The disciplinary subsection of the rule refers to violation "of the provisions of section 578.041, Florida Statutes." However, chapter 578, Florida Statutes, titled "The Florida Seed Law," does not relate to boxing, kickboxing or MMA, but involves agriculture. In fact, section 578.041 does not exist within that chapter and the reference appears to be a typographical error with the intended Commission statute being referenced left unclear.2/ Unfortunately, the statutory reference to a non-existent statute has not been corrected in the more than two years since the rule's adoption and serves to highlight the problems the Commission has in its regulatory rules and their enforcement. As indicated, the 2010 amendment to Rule 61K1-1.0031 incorporated by reference only the health and safety rules contained in the 2008 version of the ISKA Rules Overview. In fact, the ISKA Rules Overview is a general document that contains a variety of sections and requirements related to running “ISKA” amateur MMA events consisting of individual matches with “ISKA” officials and certifications. Such “ISKA”-related references create confusion as to what part of the ISKA Overview applies at non-ISKA events and/or to sanctioning organizations, such as Respondent, who are not affiliated with ISKA. More importantly, the ISKA Overview addresses a variety of things necessary to put on an ISKA amateur MMA event and come to a valid and fair decision in the matches. As such, the document contains rules related to fees, proceeds and ticket sales that are clearly unrelated to the health and safety of fighters. Other sections relate to the equipment, ring, personnel (referees, timekeepers, etc.) and scoring requirements for an event, as well as, a section on legal techniques and fouls. None of the sections in the ISKA Overview are specifically identified as health related. In fact, there is only one section, Section VI, titled "Physical Examinations and Safety Regulations," that appears to contain the identifiable minimal health and safety regulations that the Commission has the authority to adopt. This section does not contain any restrictions on age or weight. The section does contain health and safety rules regarding required physical examination of fighters, attending physicians, ringside physicians, activities of seconds during a fight and presence of an emergency mobile unit. However, the section also contains rules related to fees to be provided to the physician and rules related to who is responsible for paying such fees. Such fee provisions do not appear to relate in any way to the health and safety of a fighter, but have been incorporated by reference in rule 61K1- 1.0031. The section also contains language that prohibits a ringside physician or second from treating a fighter’s injury. Again, these provisions do not appear to be related to the health and safety of a fighter, but are incorporated by reference. Apart from Section VI described above, Section III(6) of the ISKA Overview prohibits a person who is under the age of 18 from competing in an “ISKA MMA event.” The rule does not address non-ISKA events leaving it open to interpretation whether this “prohibition” is applicable to Respondent. Moreover, the evidence did not show that the Commission issued an official statement interpreting the age prohibition as a minimal health standard prior to the events at issue in this case. The claim that DBPR staff or investigators told Respondent about any Commission policy related to the age of a fighter or the ISKA Overview was not supported by the evidence and was not credible. In fact, the evidence demonstrated that ISKA itself did not interpret the age prohibition as a minimal health standard when it included matches for fighters under age 18 in at least one of its events and developed a "sport" MMA program in which minors could and did compete in MMA tournaments sanctioned by ISKA. Notably, ISKA was not disciplined for these matches. Further, the evidence showed that whether an age prohibition of 18 is viewed as a health issue depended on the martial arts background of the individuals interpreting the ISKA Overview, since, as with the individuals in Respondent’s organization, some martial arts, such as boxing, permit fighters under the age of 18 to compete in either junior matches or compete as adults depending on the fighter’s level of skill. Indeed, the age prohibition appears to be a physical standard and not a health standard for purposes of matchmaking at ISKA events. Similarly, Section III(2) of the ISKA Overview sets forth modifiable weight classes for fighters competing in its matches. Unless modified, the weight classes for male mixed martial arts contained in the ISKA Overview are: Flyweight 124.9 lbs and less; Featherweight 125 lbs – 134.9 lbs; Bantamweight 135 lbs – 144.9 lbs; Lightweight 145 lbs – 154.9 lbs; Welterweight 155 lbs – 169.9 lbs; Middleweight 170 lbs – 184.9 lbs; Light-Heavyweight 185 lbs – 204.9 lbs; Heavyweight 205 lbs – 234.9lbs; Super Heavyweight 236 lbs and up. However, such modifiable criteria do not constitute minimal health standards, but only establish variable physical standards used in efficient matchmaking at an ISKA event and are dependent on differing interpretations that can be given to the ISKA Overview. Moreover, the evidence showed that such weight classifications would be inappropriate in smaller non-tournament, MMA events, such as those involved here, where matchmaking is based more on a fighter’s level of skill than on a fighter’s weight. Significantly, since the Commission incorporated the entire ISKA Rules Overview into Rule 61K1-1 without identifying specific parts of that document that it considered to be the minimal health and safety ISKA rules it intended to adopt, it created an unintelligible set of rules that result in differing interpretations as to the minimal health and safety standards it contains and fails to put individuals on notice as to the minimal health and safety standards required by the Commission. In 2010 and 2011, Respondent was licensed and regulated by Petitioner as an amateur sanctioning organization, holding license numbers AMAT 8 (boxing), AMAT 9 (kickboxing), and AMAT 10 (MMA), with only the MMA license as the direct subject of the Administrative Complaint at issue here.3/ In fact, Respondent's amateur MMA license was issued to it on July 7, 2010. In order to become licensed, Respondent, using the ISKA rules as its model, developed a set of rules for its events which it submitted to the Commission with its licensure application. As a consequence, Petitioner approved Respondent’s license based on its application; agreement to enforce, "at a minimum," unspecified health and safety standards contained in ISKA rules; and the rules Respondent adopted for its sanctioning organization. The license was issued with the condition that any changes to Respondent's rules or standards be submitted to the Commission. Notably, the Commission has no authority to approve the rules or standards adopted by Respondent for its sanctioning body, but only has authority to license an amateur sanctioning organization or discipline an organization for failing to comply with licensure requirements. The first iteration of Respondent’s rules prohibited minors from engaging in mixed martial arts matches and provided for weight classes with corresponding weight differentials to be used in tournament (larger) types of events. Respondent's original rules provided tournament weight classes with weight differentials as follows: (a) Light Flyweights 106 lbs. differential 8 lbs.; (b) Flyweights 112 lbs. differential 8 lbs.; (c) Bantamweights 119 lbs. differential 8 lbs.; (d) Featherweights 125 lbs. differential 8 lbs.; (e) Lightweights 132 lbs. differential 10 lbs.; (f) Light Welterweights 141 lbs. differential 10 lbs.; (g) Welterweights 152 lbs. differential 10 lbs.; (h) Middleweights 165 lbs. differential 10 lbs.; (i) Light heavyweights 178 lbs. differential 15 lbs.; (j) Heavyweights 201 lbs. differential 15 lbs.; (k) Super Heavyweights Over 215 lbs. differential none; However, Respondent, around July 20, 2010, modified its rules to permit minors to compete in mixed martial arts events under a program of "modified martial arts." The amended rules regarding minors were modeled after Olympic rules and USA Boxing rules which permit minors to compete at their events and permit sufficiently skilled 17-year-olds to compete against adults. These modified rules were sent to the Commission as required. Further, the rules provided for "junior athletes" to wear headgear and stated in paragraph 6 under the section titled "Student Athlete Eligibility": All student athletes must be 18 years of age or older. In states where Junior MMA is approved, student athletes must be 13 years of age or older with no more than a 24 month age difference between the competing students. The modified rules also contained weight classes for tournament- type events; however, the number of classes was reduced with the weight differentials for the new classes adjusted. Later, at some point prior to December 2011, the Respondent amended its rules for a third time and provided the amended rules to the Commission. Again, the amended rules were modeled after Olympic rules and USA Boxing rules. Although not stated, the amended rules indicate and tried to clarify that 17-year-olds may be considered adults or juniors depending on the match. The amended rules also provided that junior athletes wear headgear and stated in paragraph 6 under Student Athlete Eligibility: Student athletes must be 13-16 years of age with no more than a 24-month age difference between the competing student athletes. There will be no more than a 10 lb. weight difference between competitors and in all circumstances, the experience of the competitors must be taken into consideration. **A 15- or 16-year-old may compete against a 17-year-old as long as the Junior MMA rules are followed.** The amended rules also modified the tournament weight classes and weight differentials for each class, as well as removed weight class names. Respondent's amended rules provided tournament weight classes with weight differentials as follows: 70 lbs. differential 5 lbs.; 75 lbs. differential 5 lbs.; 80 lbs. differential 5 lbs.; 85 lbs. differential 5 lbs.; 90 lbs. differential 5 lbs.; 95 lbs. differential 5 lbs.; (g) 100 lbs. differential 5 lbs.; (h) 106 lbs. differential 9 lbs.; (i) 115 lbs. differential 10 lbs.; (j) 125 lbs. differential 10 lbs.; (k) 135 lbs. differential 10 lbs.; (l) 145 lbs. differential 10 lbs.; (m) 155 lbs. differential 10 lbs.; (n) 165 lbs. differential 10 lbs.; (o) 175 lbs. differential 15 lbs.; (p) 200 lbs. differential 15 lbs.; (q) over 201 lbs differential no limit. On February 21, 2011, Representatives of Respondent appeared at the Commission meeting to discuss the changes to its rules. It was unclear in the evidence which set of Respondent's amended rules was being considered by the Commission. Further, the evidence was not clear as to the details of what occurred at this meeting. However, the focus of the meeting regarding these amended rules seemed to be on allowing strikes known as "ground and pound" to be used in amateur MMA matches and that DBPR staff did not approve of the Respondent's modified rules. Such staff opinion does not establish Commission policy. However, after a break in the proceedings, Respondent withdrew its modified martial arts rules from further consideration at the meeting since Respondent’s representatives believed the Commission had no authority to approve or disapprove a sanctioning organization’s rules. This withdrawal created some confusion within DBPR as to which set of rules were in effect for Respondent, with DBPR investigator’s incorrectly insisting that the only valid rules “approved by the Commission” that Respondent could use were the rules Respondent had initially adopted when it was licensed. Further, DBPR’s position would cause confusion between the investigators and Respondent during the time period of this case since Respondent believed it had established a valid junior MMA program and utilized appropriate matchmaking criteria for setting matches. In short, because these rules were the adopted rules of Respondent, the organization sanctioned and conducted matches pursuant to the “modified martial arts” rules and allowed minors to compete in “modified martial arts” or the "junior MMA program." Seventeen-year-old fighters could compete as either a junior or an adult, depending on the fighter's skills. Kody Downs is a well-trained MMA fighter who has competed in MMA events in Florida and other states for a number of years. His birthday is August 5, 1993. In 2011, at the age of 17, Mr. Downs had sufficiently high MMA skills to qualify for competition against adults at MMA events and had competed as an adult in other states. On January 29, 2011, Respondent sanctioned an amateur pugilistic event, at the Pensacola Beach Hilton hotel. In that event, Respondent matched Mr. Downs, who was a little over six months away from turning 18, with 23-year-old Chris Hart in an MMA match. The opponents were evenly matched based on their fighting skills and the match proceeded to a decision with Mr. Downs winning the match against Chris Hart. On February 26, 2011, Respondent sanctioned an amateur pugilistic event, entitled “Gulf Coast Fight Fest 6,” at 1621 Dog Track Road in Pensacola, Florida. Respondent matched Mr. Downs, who was a little over five months away from turning 18, with 23- year-old Edwin Ladley in an MMA match. Again, the opponents were evenly matched on their fighting skills, with Mr. Downs winning the match. The evidence showed that all of the fights involving Kody Downs were matched according to Respondent's rules which were intended to provide, however inarticulately, that fighters under the age of 18 could compete under certain circumstances and at certain skill levels. Moreover, as discussed earlier, the evidence did not demonstrate that the ISKA Overview regarding age was a minimum health and safety requirement. More importantly, the Commission’s carte blanche incorporation of the ISKA Overview and lack of official policy on the issue made it impossible for a reasonable person to determine whether the ISKA age restriction was a health or safety requirement in amateur MMA events and left interpretation of such requirements open to varying interpretations depending on an organization's or individual's martial arts background. Respondent followed the lead of the U.S. Olympic committee and the U.S.A. Boxing association which permitted matches similar to those involving Kody Downs. In fact, Respondent's matchmaking based on a fighter's skills was shown by the evidence to be professional and ethical. Given these facts, no violations of the Commission's rules or unprofessional/unethical conduct under chapter 548, Florida Statutes, was shown by the evidence and the allegations of the Administrative Complaint related to Kody Downs should be dismissed. On July 16, 2011, Respondent sanctioned an amateur pugilistic event at Bay Banquet Hall, 5420 Hickory Street, in Panama City, Florida. Respondent matched 17-year-old Jacob Owens with 21-year-old Brandon Grooms in an MMA match. Like all of Respondent's matches involving age issues, the opponents were appropriately matched based on their fighting skills. Mr. Owens won the match against Brandon Grooms. Notably, as with the underage allegations involving Kody Downs, there were no violations of the Commissions' rules or unethical/unprofessional conduct shown by the evidence and the allegations of the Administrative Complaint relative to Mr. Owens should be dismissed. Additionally, at the July 16 event in Panama City, Respondent matched heavyweight Robert Birge, weighing 206 pounds, with super heavyweight Travis Grooms, weighing 267 pounds in an MMA match. Whether either fighter is labeled a heavyweight or a super heavyweight depends on whether the weight classes set forth in the ISKA Overview which contained named weight classes, or the Respondent's rules which did not contain named weight categories, is used. In either case, Robert Birge and Travis Grooms competed outside the weight requirements articulated in the ISKA Overview, but within the weight requirements adopted in Respondent’s rules. These contestants were matched appropriately according to their level of skill, with the lighter weight fighter winning the match. More importantly, as indicated earlier, the ISKA weight rules are subject to modification and were not shown to be minimum health requirements within the ISKA Overview. However, even assuming the very unclear ISKA weight rules are minimum health and safety requirements, the evidence showed that these rules were appropriately modified by Respondent based on the skills of the fighters involved and non-tournament nature of the event being held. Given these facts, there were no violations of the Commission’s rules or chapter 548 and the allegations regarding violations of the ISKA weight rules should be dismissed. On August 13, 2011, Respondent sanctioned an amateur pugilistic event, at the North Florida Fairgrounds, 441 Paul Russell Road, Tallahassee, Florida. During the event, 15-year- old Josh Douglas competed in an exhibition mixed martial arts match against 17-year-old Jonathan Tyler Dew. Both contestants wore protective headgear as provided in Respondent's rules and were appropriately matched. Again, as indicted earlier, no violations of the Commission's rules or unethical/unprofessional conduct by Respondent was demonstrated by the evidence and the allegations of the Administrative Complaint related to Dew and Douglas should be dismissed. On May 6, 2011, Respondent sanctioned an amateur pugilistic event at Hooters Restaurant, located at 180 Cracker Barrel Road in Crestview, Florida. The event was put on by Sammy Collingwood, who operated an MMA school in Crestview. Mr. Collingwood's school was an "affiliated" school of Respondent's organization. As an affiliated school, Mr. Collingwood agreed to abide by the rules of Respondent. However, such affiliation did not make Mr. Collingwood or his school a representative of Respondent. In fact, the evidence was clear that Mr. Collingwood did not represent Respondent and that Respondent only sanctioned the event under its rules. It was Mr. Collingwood who set up the venue, purchased insurance, obtained the announcer for the event, and advertised the May 6, 2011, event. Respondent was not involved in the business details of running the event and was not responsible for advertising the event. Further, there was no credible or substantive evidence that showed Respondent had any knowledge regarding the content of any of the advertisements for the Crestview event. Just prior to the event, Sammy Collingwood, who did not testify at the hearing, reported to Respondent that he “hooked up” with the American Legion. Thereafter, Respondent's officials discussed obtaining an exemption based on the American Legion's sponsorship. Towards that end, Respondent requested Sammy Collingwood to obtain a written statement from the American Legion Post regarding their sponsorship. Mr. Collingwood provided a letter on Respondent's letterhead from the Post indicating that the Post was the sole sponsor of the event. There was no credible or substantive evidence, as to who drafted the American Legion letter or how it came to be on Respondent's letterhead. However, the evidence was clear that no official from Respondent drafted the letter or issued it as Respondent's official statement. On the day of the Crestview event and prior to its start, Larry Downs Jr., who was then a volunteer with AAMMA, argued with DBPR investigator Jami McClellan Molloy, regarding whether the May 6, 2011, event was exempt from state regulation since it was his belief that the American Legion was the sole sponsor of the event. Ultimately, the Post letter was not utilized by the Respondent and not relied upon by the Commission. Unfortunately and unknown to Respondent, the American Legion Post was not the sponsor of Respondent’s May 6, 2011, amateur pugilistic event. In fact, former Post Commander, Rob Davis, testified the Post did not sponsor the event. However, the Crestview event was not held as an event exempt from the Commissions' regulations under section 548.007, Florida Statutes, and the evidence did not demonstrate any fraud on the part of Respondent. As such, these facts related to the letter provided by Mr. Collingwood do not demonstrate that Respondent engaged in unethical or unprofessional conduct relative to the Crestview event and the allegations of the Administrative Complaint regarding the same should be dismissed. At the Crestview event, Respondent matched Kody Downs, who was three months away from turning 18, with 23-year-old Erik Register in an MMA match. However, the undisputed evidence showed that the official match did not occur as scheduled; but, that the two individuals engaged in a sparring match after the Crestview event had ended. Sparring matches are practice matches and are not subject to regulation by the Commission. In fact, Mr. Downs and Mr. Register were going to use protective gear during their sparring. Mr. Register declined to use such equipment, desiring instead to practice as if the match was a real fight. The fact that the practice match was similar to a regular match does not change the characterization of the match as a sparring match especially since both participants described the match as such and both participants wanted to practice their competition skills, a legitimate goal in sparring matches. Given that no official MMA match regulated by the Commission occurred between Mr. Downs and Mr. Register, no violations of the Commissions' rules or unethical/unprofessional conduct occurred on Respondent's part. Therefore, the allegations of the Administrative Complaint relative to this match should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, State Boxing Commission enter a final order finding Respondent not guilty of violating Florida Administrative Code Rule 61K1-1.0031(1)(c), sections 548.006(4), 548.071(1), or 548.071(4), Florida Statutes, and, and dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of June, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 20th day of June, 2013.
Findings Of Fact The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards. The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment. The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB. The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized. The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received. At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were: Blountstown - September 18, 1981 Jefferson County - October 2, 1981 F.A.M.U. - October 9, 1981 Rickards - October 23, 1981 Port St. Joe - November 13, 1981 There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season. During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted. During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors. There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom. Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs. A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit. In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit. In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further, RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 13th day of August, 1982.
