Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The Respondent requested a Formal Administrative Hearing. The matter was referred to the Division of Administrative Hearings and later relinquished back to the Agency. On February 27, 2014, the Respondent surrendered its license. The Agency filed a Motion to Dismiss Petition for Formal Hearing, which was granted on May 14, 2014. (Ex. 2) Based upon the foregoing, it is ORDERED: 1, The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. 2. An administrative fine of $23,000.00 is imposed on the Respondent. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 Filed June 4, 2014 8:00 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 7 day of Fac , 2014. Elizabeth Dudek, Necretary Agency for Health/Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Nes served on the below-named persons by the method designated on this LA of BN , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Nelson E. Rodney Craig A. Brand, Esquire Office of the General Counsel Brand Law Firm Agency for Health Care Administration Grove Forest Plaza (Electronic Mail) 2937 S.W. 27" Avenue, Suite 101 Miami, Florida 33133 (U.S. Mail)
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.
Findings Of Fact For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question. The allowable claim for back pay is therefore $52,805.89. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case. ENTERED on April 26, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 26, 1993. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 Michael M. Disler Trombley, Lobozzo, et al. 329 South Commerce Ave. Sebring, FL 33870
The Issue Whether Respondent committed the violations in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. Pecan Grove is an assisted living facility which is owned by North Florida Living Facilities. Pecan Grove has a licensed capacity of eight beds and is located in a home in Pensacola, Florida. Case No. 01-1209 Robert DuBose is the Director of Environmental Health for the Escambia County Health Department. His office is responsible for inspection of facilities, including assisted living facilities, regarding environmental health matters. His agency works in cooperation with AHCA in that AHCA handles licensure and related inspections and his agency handles the environmental health portion of the inspections. His agency is primarily interested in facility sanitation and issues that would be related to the health of the residents. In September of 2000, Mr. DuBose received a call from an AHCA nurse informing him of certain environmental health conditions at Pecan Grove. Also in September of 2000, AHCA responded by letter to a resident of Pecan Grove regarding a complaint made by the resident regarding the facility. The letter to the resident stated that an unannounced visit to the facility would take place. Mr. DuBose, the Deputy Director of Environmental Health, and a facility inspector from his agency went to Pecan Grove and conducted an inspection of the facility. During the inspection, Mr. DuBose and his colleagues found numerous environmental health problems: I was appalled at the condition of this facility. And as I indicated in my written statement, I couldn't believe that something like this had a license in the State of Florida. I just -- I have never seen anything like this that had any type of license from the State in all the years of being a health inspector. I've seen things like this in private residences where we had dilapidated homes, indigent folks living there, people that were mentally ill, living conditions like this, but I just can't -- I still don't understand how or why this place was licensed. And I'm sure, you know, AHCA may have some feelings in the same -- it's not that someone -- I'm not sure what happened but it's not any facility we want to have licensed, I guess is what I was trying to say. It was just -- there was roaches in the refrigerator. There was roaches in the building. There were no linens on the beds. People were sleeping on mattresses without covers, pillows without covers. There were evidence of rats in the heater closet. There was no hot water in one of the bathrooms. There was some improper storage of garbage. When we were outside, the mosquitos [sic] were just eating us up. I mean, we had bites all over us just waking [sic] around outside. And we found the storage containers with stagnant water in them sitting around in the yard. Thee [there] was sewage overflowing and they had a septic tank that a laundry or the laundry wastewater was overflowing, some type of sewage was overflowing in the middle of the back of the yard. There were rat burrows up under the house. It was -- it was just the carpets were filthy. You couldn't even tell what color they were. It's just housing that you would -- that I've -- I haven't seen anything like that since, I suppose, the times that we did the I-110 road control project when we put I-110 through Pensacola and the people -- there was some low income people in that area and the people moved out of the houses and we had to go in there or our inspectors had to go in to kill the rats and fleas before we tore the houses down and it was similar to that type of condition. And like I say, I've seen some elderly people that were mentally ill living in that type of condition, but never, never seen any kind of a facility like that. No question that this was a health hazard. The people needed to be moved. These environmental health problems described by Mr. DuBose constitute gross environmental health hazards. Rats carry fleas that can cause disease when they bite people. Additionally, rats urinate as they travel and carry a disease called leptospirosis in their urine and other diseases. Upon inspection, Mr. DuBose found mosquito larvae in several containers in all different stages of development indicating the containers had been standing for some time. Mosquitoes carry several diseases including dengue fever and West Nile virus. The sewage overflow in the backyard also constituted a health hazard even though it was from wash water, as that is still highly contaminated wastewater. The inside of the facility also contained many health hazards including inadequate air conditioning and a leak in the sink so severe that the bottom of the cabinet under the sink was saturated from water before a bucket had been placed there to catch the dripping water. The inside of the refrigerator was 70 degrees which was significantly above the temperature adequate to safely store food. Roaches were found inside the refrigerator. Roaches are a health hazard because they track contaminants onto food. A burner on the stove was not working causing concern that an electrical fire could result. The carpets and floors were filthy. There were no sheets on the beds and the mattresses and pillows were filthy. There were rat droppings and pecan shells in the water heater closet which was adjacent to the bedrooms and hallway. The bathrooms were in poor condition in that there was no hot water in the hand sink in one of the bathrooms and no faucet on another. Mr. DuBose and his colleagues called Adult Protective Services requesting they send an inspector there as the inspection team felt the residents needed to be removed immediately. The owner agreed to move the residents immediately and the residents were moved to another facility owned by Respondent, Willow Grove. Margot Robinson, administrator of Pecan Grove and wife of the owner of Pecan Grove, attempted to explain some of the health hazards found by Mr. DuBose. She and her husband had started to remodel the facility. They had removed some carpet and started painting one of the bedrooms. She also explained that on the day of Mr. DuBose's inspection, she had ordered a staff person to remove the bed linens for washing and to bleach the mattresses. Further, she explained that a house across the street from Pecan Grove had burned down several months prior to the inspection and that rats were coming to Pecan Grove from a pile of wood left from the burned house. She also accused a former resident of causing damage to the facility. AHCA placed a moratorium on admissions to Pecan Grove on September 26, 2000. By letter dated October 24, 2000, AHCA lifted the moratorium on admissions indicating that Tag A1006, which with Respondent had been cited in the Administrative Complaint, had been corrected. Case No. 01-2107 As the result of a complaint received by AHCA, Sandra Corcoran and Norma Endress, registered nurse specialists employed by AHCA, conducted a survey inspection of Pecan Grove in April 2001. The complaint was in regard to two issues: threat of harm to a resident and that a resident was not getting the type of food he could eat. During the survey inspection, Resident #1 informed the surveyors that he had been threatened by Resident #3 that if Resident #1 changed the thermostat, that Resident #3 would hit him. Resident #3 was present at the beginning of the survey inspection. He was a tall man whose demeanor was threatening to a point that even the AHCA nurses were intimidated by him. Resident #3 first lived at Willow Grove, but was moved to Pecan Grove. He had a history of psychological problems and would at times check himself into a local psychiatric care facility. At the time of the survey visit, Resident #3 had been given his discharge notice from Pecan Grove. The AHCA surveyors instructed the staff person to call the police if Resident #3 made threats to the other residents. Resident #1 was thin and pale and complained to the surveyors that he was not given appropriate food to eat. That is, Resident #1's teeth were in very poor condition and he requested soft foods such as Vienna sausage, potted meat and oatmeal. During the survey inspection, Ms. Corcoran did not observe these types of food to be available for Resident #1. However, Mrs. Robinson explained that Resident #1 had been given Promote, a nutritional drink, to supplement his diet. Ms. Corcoran asked a staff person to look at Resident #1's "1823" which is the document that contains any medical orders for the resident as well as diet requirements. However, none of the records for the resident were at the facility. All of the residents' records had been taken to Willow Grove by David Davis, area manager for Pecan Grove and Willow Grove. Mr. Davis' office was at Willow Grove and he had taken the records to his office to update them. Pecan Grove failed to have available the residents' medical records at the facility. AHCA placed a moratorium on admissions to Pecan Grove which was lifted on May 11, 2001, as the result of corrected deficiencies including the three deficiencies with which Respondent was charged in the Administrative Complaint, i.e., Tag A718, Tag A802, and Tag A300.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revoking Respondent's license for Pecan Grove Living Facility. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Richard P. Warfield, Esquire 201 East Government Street Pensacola, Florida 32501 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of August, 2012.
The Issue In an order dated September 18, 1991, the Florida Commission on Ethics found probable cause that George Walter Anderson, as mayor of the Town of Caryville, violated Section 112.313(6), F.S. by assisting a town councilman in having street lights put in the councilman's private trailer park at public expense. The issue in this proceeding is whether the violation occurred, and if so what penalty should be recommended.
Findings Of Fact Respondent, George Walter Anderson, is the elected mayor of the Town of Caryville, Florida and held that office at the time in question. As mayor, he serves as the chief executive officer of the municipality. He supervises town employees and executes the directives of the town council, the legislative body. Henry Chambers was a Caryville town councilman in 1990 at the time in issue. He owns a trailer park variously referred to as "Henry's trailer park", "Chambers' trailer park" or "Camelia Circle". The trailer park was annexed into the city limits by Chambers' petition in 1988. Sometime in early 1990, the town was having problems with flowers being taken from graves in the cemetery. The town council voted to put lights up to provide better security. Henry Chambers asked about putting lights up in his trailer park, but no official action was taken on the request. Mayor Anderson was at the meeting and remembers the discussion generally. Mayor Anderson was not at an April 10, 1990, meeting when the issue about Henry Chambers' trailer park lights was discussed again. The recollection of several council members is that Mayor Anderson was directed to meet with a man from the Rural Electric Authority (REA) about placing or "spotting" the lights in the trailer park. No one remembers a specific vote to put lights in the trailer park. Peggy Kirk is employed by West Florida Electric Cooperative Association, Inc. (REA) and was working there on April 11, 1990, when she took a call from someone about the Town of Caryville requesting lights at Henry Chambers' trailer park. She does not remember who called, but thinks from her notations on the job order that it must have been Mayor Anderson. The town has an account with REA, and a job order could be placed by phone. The job order specifies two yard lights to be installed at Chambers' trailer park, with directions to talk with Mayor Anderson about where to put the lights. (Exhibit D) The lights were installed by REA at Henry Chambers' trailer park sometime in mid-April. The town was initially billed for the lights and poles, but the bill was later adjusted because utility poles were already in place. When the monthly bills for the lights came in, Judy Huggins, the town clerk, did not pay them because they had not been authorized. She ordinarily disbursed funds for the town, some automatically, such as power bills, when the disbursal had been approved. When a bill was questionable, she presented it to the council for approval. The matter of the trailer park lights and bill was discussed at the July 10, 1990 Caryville town council regular meeting. At the meeting the town attorney, William Howell, Jr., advised that the council could vote to pay for the lights, but that Councilman Chambers should deed an easement to the town. The council voted to approve and pay the bill as soon as the town received its easement. The power bills for the trailer park lights are now being paid by the Town of Caryville. Henry Chambers has three documents which he feels are evidence of his easement to the city. The first is his petition for annexation of the property into the Caryville city limits in September 1988. He and some of the council members believe that the annexation alone made the trailer park "public property". The second document is a March 1991 Right of Way Easement from Henry Chambers and his wife to the REA for power lines to the trailer park. And the third document is a perpetual easement from Chambers and his wife to the Town of Caryville to construct and maintain a public road, and install utilities. The easement is dated November 17, 1992. According to the current town attorney, Owen Powell, Mr. Chambers had a clear intent to give an easement; if there is any problem at all, it is with the legal description. Mayor Anderson has known Henry Chambers off and on since he was born. They have not been social buddies and there was no evidence of involvement with each other's campaigns. Anderson's involvement with the placement of the lights was no more nor less than what he does, and perceives he should do, in the routine course of his executive function. As confirmed by several council members, the mayor is often instructed to carry out tasks without a formal vote of the council. Such was the case here. There was no formal vote; the mayor was told to work with REA on "placement" of the lights. He did, and the lights were installed. There was substantial confusion about whether the lights were placed on private property, but there was no evidence that Mayor Anderson acted with wrongful intent in carrying out what he believed was the direction of the council.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by Respondent Anderson in this case. DONE AND RECOMMENDED this 21st day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 21st day of April, 1993. COPIES FURNISHED: Michael Ingram, Esquire Craig Willis, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 George Walter Anderson Post Office Box 152 Caryville, Florida 34227 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether Respondent is guilty of misconduct in office.
Findings Of Fact Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]." The second note, which is dated May 29, 1990, mentions a dream that C. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis." At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes: . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . . During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade. A more serious incident took place the summer following seventh grade. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem. There is no evidence that Respondent had any significant contact with C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is Respondent'sson. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads: Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now! LOVE YA ALWAYS, [C.] [B.] Jarvis I wish! On the same day, C. B. wrote a note to a classmate. The note states in part: Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back! On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states: O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!! *Love ya Always & Never won't stop! [C.] [B.] Jarvis Oh, you want to hear a joke-- In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998. *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C. B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent. For the above-cited reasons, none of the above-cited testimony of C. against Respondent can be credited. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other." In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time). Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were B., C. Ba., and S.H. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges. Respondent also enjoys substantial support among students. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay. ENTERED on May 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 4, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2 (second sentence): adopted or adopted in substance. 2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence. 6-8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant. 11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two of the notes. 16 (first sentence): adopted or adopted in substance. 16 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence. 18-20: adopted or adopted in substance. 21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate. 25: rejected as unsupported by the appropriate weight of the evidence. 26-32: rejected as unsupported by the appropriate weight of the evidence. 33 (first and second sentences): adopted or adopted in substance. 33 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony. 35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room. (second sentence)-36 (first sentence): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. 37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant. 47: rejected as unsupported by the appropriate weight of the evidence and subordinate. 48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant. 53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors. 74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant. 75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos." 76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, repetitious, subordinate, and irrelevant. 150-58: rejected as irrelevant and subordinate. 159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities. 172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors. 191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5-17: adopted or adopted in substance. 18 (first three lines): rejected as unsupported by the appropriate weight of the evidence. 18 (remainder)-53 (second sentence): adopted or adopted in substance. 53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance. COPIES FURNISHED: James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870 Ronald G. Meyer Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Dr. Richard Farmer Superintendent Highlands County School District 426 School St. Sebring, FL 33870-4048
The Issue Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification. Petitioner timely requested a hearing under Chapter 120, Florida Statutes. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 29th day of January, 1998, 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32299-0700 William Brown, pro se 504 West Halmcrae Boulevard Avon Park, Florida 33825 Jack Emory Farley Chief Legal Counsel, District 14 Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030
The Issue The issue at hearing was whether the Orange County Parks Department is entitled to dredge and file permit #48-118375-4 for its public boat ramp and dock project in Trimble Park.
Findings Of Fact Trimble Park is one of thirteen public parks operated by the Orange County Parks Department. It is located in Orange County on a small peninsula protruding into Lakes Beauclaire and Carlton, two lakes in the Oklawaha chain. Orange County owns a portion of the park and leases the remainder of the park property from the State of Florida. The park shares the peninsula with approximately eight private residences located near the base of the peninsula along Trimble Park Drive. At present the only entrance road into the park, Trimble Park Drive, dead-ends with a cul-de-sac near the upper tip of the peninsula well within the park. S. J. Stephany and his wife live in one of the eight residences on Trimble Park Drive directly across from the berm constructed by Orange County in the park to serve as a buffer between the proposed project and the private residences. The Stephanys' backyard is on Lake Carlton. Trimble Park currently provides camping, picnicking, playground and boating facilities near the tip of the peninsula. The current boat ramp and dock are located in a wetland area on the shore of Lake Beauclaire. There are no established parking places for boaters to leave their cars and boat trailers, and the boaters park anywhere they can find space off the road, including under trees and within the playground and picnic area. Three oaks and a pine tree have died in recent years in the area where the boaters now park. Ginger Corless attributes the loss of trees to root damage caused by the vehicles. The project which is the subject of this proceeding seeks to move the boating facility (ramp and dock) from the current site to a small natural cove closer to the base of the peninsula also on the shore of Lake Beauclaire. The new site includes less than one-half acre of wetlands. The ramp is to be removed from the current site and the site will be allowed to revegetate. The new site will include 15 paved parking spaces for boaters and 15 more spaces on a stabilized surface, for a maximum of 30 boaters. A ranger will be on site seven days a week and the gate to the boating facility will be closed whenever the 30 spaces are full, thus limiting access to the ramp. A road separate from Trimble Park Drive is to be constructed for traffic to the ramp and dock. That road will divert boat traffic away from the front of all but two of the private residences. A six-foot berm has been constructed along Trimble Park Drive and will be landscaped with palm trees and pampas grass to shield the boat facility from the private property. The new ramp is not intended to accommodate larger boats and the new facility will not result in increased boating traffic as the current usage is already at least the 27 trailers observed by Ginger Corless in the Park on September 21, 1986. The Department of Environmental Regulation issued a permit (number 48- 097955-4) for this same project on March 13, 1985. The permit expired a year later, before Orange County could obtain the funds for construction. Since an extension was not timely requested, Orange County re-applied in April 1986. The application in 1986 is essentially the same as that approved in 1985: the construction of a boat ramp and docks, the dredging of 946.9 cubic yards of sand and the filling of 43.12 cubic yards of material. Dr. Stephany brought to the attention of the Parks Department an error in the latitude and longitude reference to the project location in the application. The application has been corrected and the error is deemed a non- substantive clerical error. No one claims to have been misled as to the actual location of the park. After review of the application, file documents and site, Department of Environmental Regulation staff concluded that the requirements of Section 403.918 Florida Statutes were met. Lake Beauclaire is not an outstanding Florida water. While Lake Beauclaire frequently does not meet class III water quality standards, the proposed project will not further degrade the quality. There are bald eagles, osprey and likely some otters on the site, but these species adapt to human pressures and adapted to the existing boat ramps. They will not leave the area. The site for the new dock and ramp is less significant from an environmental standpoint than the existing site. The area was previously cleared for agricultural purposes and noxious water hyacinths and cattails predominate. The site is not significant from an historical or archeological standpoint. S. J. Stephany received notice of the permit by mail, by copy of the June 6, 1986 cover letter and Notice of Permit addressed to the Orange County Parks Department. He availed himself of the point of entry by requesting and actively participating in this formal hearing. The Department of Environmental Regulation did not require the Orange County Parks Department to publish notice in a newspaper because this was a short form application. Dr. Stephany candidly conceded that he is not a water quality expert. His concerns about the project at hearing were limited to: a) lack of notice, b) an adverse impact on the value of his home, c) an increase in noise from the project from outboard motors and vehicles and d) zoning problems. His neighbors are also concerned about their property values and want the road to the park rerouted to avoid traffic past their property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is therefore, Recommended that a Final Order be entered issuing Department of Environmental Regulation permit no. 48-118375-4 as described in the Department of Environmental Regulation Notice of Permit dated June 6, 1986. DONE AND RECOMMENDED this 21st day of October, 1986, in Tallahassee, Florida. MARY CLARK 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 21st day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2470 The following comprise my specific rulings on the proposed findings of fact submitted by the parties in this proceeding: Findings of Fact proposed by Petitioner, S. J. Stephany. Rejected as unsupported by the evidence in this proceeding. A prior permit had been issued and there was no evidence of controversy regarding that permit. Adopted in paragraph 7 as to absence of newspaper notice; otherwise rejected as immaterial. Rejected as immaterial. The nursery is not a party to this proceeding. Adopted in general in paragraph 1 as to the description of the Park. The "clouded jurisdiction" is immaterial in this permit proceeding. &6. Rejected as unsupported by evidence. 7.&8. Rejected as immaterial. Adopted in paragraph 6. Rejected as immaterial. The evidence in this case supports a finding that no increase will result from this project. Adopted in general in paragraph 4. Rejected as unsupported by evidence. 13.-20. Rejected as irrelevant and immaterial. 21. Rejected as contrary to the weight of evidence. 22.&23. Rejected as unsupported by evidence. Rejected as unsupported by evidence. Rejected as immaterial. The existence or appropriateness of an alternative site is not at issue. Adopted in paragraph 5, otherwise rejected as immaterial. Findings of Fact Proposed by the Department of Environmental Regulation and Concurred in and Adopted by the Orange County Parks Department 1.-4. Adopted in paragraph 5. Adopted in paragraph 7. Adopted in substance in paragraphs 1 and 3. 7.&8. Adopted in paragraph 3. 9. Adopted in substance in paragraph 1. 10.-13. Adopted in paragraph 4. Rejected as unsubstantiated by the weight of evidence. Adopted in paragraph 4. 16.-18. Adopted in substance in paragraph 6. Adopted in paragraph 8. Adopted in paragraph 7. COPIES FURNISHED: S. J. Stephany 105 Rockport Street Eustis, Florida 32726 Vivian Feist Garfein, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John Gehrig, Esquire Orange County Legal Department 201 South Rosalind Avenue DER 5th Floor Orlando, Florida 32802 Victoria Tschinkel, Secretary 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301
The Issue Whether respondent, an elementary school principal, is guilty of immorality and misconduct in office where he allegedly solicited another to commit a lewd act and was arrested for such solicitation. By its petition of January 29, 1981, seeking dismissal of Russell W. Rowe ("Respondent") from the Broward County school system, petitioner School Board of Broward County 1/ ("the School Board") alleged that respondent: . . . is guilty of immorality and/or misconduct in office [in violation of Section 231.36(6), Florida Statutes (1979)] in that [he] on or about January 22, 1981, made to Sergeant Thomas [sic], a female police officer, an offer of ten dollars for her to engage in an act of masturbation with him, the act resulting in his being arrested for solicitation of prostitution. (P-6.) By appeal dated February 6, 1981, respondent denied the allegations and requested a formal hearing; thereafter, the School Board referred this case to the Division of Administrative Hearings. Final hearing was initially set for March 26, 1981. Upon the parties' joint request for continuance, hearing was rescheduled for May 12 and 13, 1981. On May 7, 1981, respondent moved to dismiss or strike the School Board's petition for dismissal insofar as it was based on Chapters 6B-3, 6B-4, and 6B-5, Florida Administrative Code--rules promulgated by the State Professional Practices Council. After the School Board filed a responsive memorandum, the motion was denied. At final hearing, the School Board called as its witnesses: Russell W. Rowe, William T. McFatter, Emil Mosny, Norman Swigler, Sandra Ledegang, Alan L. Van Sant, Emmett R. Thomas, Dollye R. G. Woodside, Barbara N. Simmons, and Geraldine Introcaso. It offered into evidence Petitioner's Exhibit 2/ Nos. 1 through 12, inclusive, each of which was received. The respondent testified in his own behalf and called as his witnesses: Larry Katz, Warren S. Goldstein, Millicent Sworn, Patricia Mason, Perry Rollins, and Ronald Broman; he offered into evidence Respondent's Exhibit 2/ Nos. 1 through 14, inclusive, each of which was received. On June 24, 1981, the parties submitted proposed findings of fact and conclusions of law. It was agreed that the 30-day time period for submittal of a recommended order to the School Board would commence on that date. Based upon the evidence adduced at hearing, the following evidentiary and ultimate facts are determined:
Findings Of Fact The Respondent Respondent has been employed by the Broward County School Board for 27 years. He Has served as an elementary school principal for 20 of those years; since 1975 he has been principal of Sanders Park Elementary School, located in Pompano Beach, Florida. (Testimony of Rowe.) Prior to his alleged misconduct on January 22, 1981, respondent had an unblemished employment record with the School Board. He had never been disciplined. His performance evaluations were always "satisfactory" --the highest rating obtainable. At Sanders Park Elementary, he worked closely with parents and teachers; 3/ his programs were credited with a dramatic rise in student achievement levels. His supervisor considered him an above-average principal, a principal who has proven competent, effective, and efficient. (Testimony of Rowe, Sworn, Swigler, McFatter.) Since 1972, in addition to his employment by the School Board, respondent has been employed as a part-time instructor at Broward Community College. In that capacity, he has taught various courses, including psychology sociology, and education. Although his alleged January 22, 1981, misconduct caused the School Board to suspend him from his employment, Broward Community College has continued to employ him as an instructor. (Testimony of Rowe, McFatter.) During the 1980 fall semester, he taught introductory sociology and social problems courses at Broward Community College. In January, 1981, he began teaching an educational course and another social problems course. He ordinarily teaches the social problems course by proceeding through a course textbook, chapter by chapter. The third chapter discusses variations in human sexuality, including such topics as homosexuality, prostitution, lesbianism, and pornography. To supplement the text, he frequently invites persons with special expertise or personal experience in an area to lecture his class. In connection with the topic of prostitution, he has interviewed prostitutes in the past for the purpose of obtaining information for his course. During January, 1981, Fort Lauderdale was experiencing a substantial increase in the number of prostitutes and street walkers openly soliciting business along Federal Highway: it was recognized as a growing community social problem. Respondent was aware of this prostitution problem aid had previously interviewed several prostitutes along Federal Highway. During the later part of January, at a time when Fort Lauderdale was experiencing this increasing prostitution problem, respondent--in his Broward Community College social problems course--was preparing to teach the third chapter of the course textbook, the chapter covering prostitution. (Testimony of Rowe, R-9.) II. The Alleged Misconduct At approximately 5:15 p.m., on January 22, 1981, respondent was driving south on Federal Highway, en route to check on his boat which was moored nearby. Heavy traffic brought him to a standstill at the corner of Southeast 18th Court and South Federal Highway. There he observed a young, casually dressed female standing on the sidewalk. [Unknown to respondent, she was Officer Sandra Ledegang, a Fort Lauderdale police officer working as a decoy on South Federal Highway. Her task was to stand on the corner and arrest men, referred to as "Johns," who approached her and made offers with reference to prostitution.] Respondent exchanged glances with Officer Ledegang. He interpreted her gestures and facial movements as a typical "come-on" (Tr. 13-53); 4/ he believed she was a prostitute. He then pulled alongside the rear of a nearby building, and she walked to his car. He rolled down his window and they engaged in some general conversation for several minutes. He asked her if she was a police officer, and she said no. She, in turn, asked him if he was a police officer, and he said no. Respondent indicated that she looked like a police officer; she reassured him she wasn't. After inquiring about prices for different sexual favors, he asked, "Do you do hand jobs;" she answered "yes." (Tr. 13-62.) He asked her the price, but she resisted giving a figure. Instead, she asked him what it was worth to him; she insisted he name a price. He continued asking her to name the price. After several minutes of this back-and-forth conversation, she advised him that she didn't have time to talk, turned away, and began walking back towards the corner. Respondent, wanting to continue the conversation, called her back, and said, "How about $10?" or words to that effect. She immediately told him to pull across the street behind a restaurant- -which was a signal for her back-up officers to move in. Within seconds, Lieutenant Van Sant and Sergeant Thomas surrounded respondent, and arrested him for soliciting for prostitution. (Testimony of Rowe, Ledegang, P-1, P-2.) During the conversation between respondent and Officer Ledegang, there was no exchange of money, and no physical contact. No disrobing took place. Although prostitutes ordinarily require payment prior to performing sexual favors, Rowe did not have $10 with him at the time. (Testimony of Rowe, Ledegang.) At the time of his arrest, respondent was noticeably nervous and upset. In response to questions from the police officers, he identified himself as an elementary school principal, but offered no other explanation for his conduct. (Testimony of Ledegang, Van Sant, Thomas.) The charge against respondent--solicitation for prostitution in violation of Section 796.07(3)(b), Florida Statutes--was subsequently nolle prossed; consequently, respondent has neither been convicted nor acquitted of the charge. The court records concerning the offense have been sealed by order of the County Court of Broward County. (Testimony of Rowe, P-11.) Respondent's arrest was reported in one six-inch news article published by a newspaper of general circulation within the county. (Testimony of McFatter.) III. Respondent's Intent and Motive Respondent explains that Officer Ledegang appeared to be an unusually articulate individual who could provide information about prostitution which would be useful to his social problems course; that by assuming the role of a customer--using an investigatory technique known as "participant- observationist"--he could effectively elicit such information. He asserts that, at the time, he did not believe his actions were unlawful or immoral: he had interviewed prostitutes, in like manner, numerous times before. He contends that his question, "What about $10?" was intended to continue the discussion on prices and avoid termination of the interview. (Testimony of Rowe.) Respondent's explanation of his motive and purpose in interviewing Officer Ledegang and asking the question, "What about $10?" is accepted as persuasive. It is plausible, as admitted by both the school superintendent and area supervisor. It was corroborated by independent evidence. Ronald Broman, principal of Mary McLeod Bethune Elementary School, testified that respondent stated--approximately a month before the alleged incident--that he was interviewing prostitutes on the beach in connection with his course at the community college. Broman responded that it appeared to be "an interesting and possibly a difficult assignment. . ." (Tr. 12-399.) Furthermore, since respondent lacked sufficient funds to pay for the ostensible sexual favor--and payment precedes performance--it may be reasonably inferred that his purpose was to elicit information, not sexual acts. Lastly, the offending question which was the cause of his arrest and this dismissal proceeding consists of three words: "What about $10?" 5/ When considered in the context of the conversation between respondent and Officer Ledegang, this question is ambiguous and susceptible to different interpretations. Instead of constituting an unlawful request that another commit a lewd act, it may reasonably be construed as part of a price bargaining exchange. (Testimony of Broman, McFatter, Swigler, Ledegang.) The School Board failed to effectively discredit or rebut respondent's explanation of his conversation with Officer Ledegang. In light of the above, it is concluded that, respondent, in conversing with Officer Ledegang, (1) intended only to elicit information on prostitution which could be useful to his community college course; and (2) did not intend to commit an immoral or unlawful act. IV. Community Reaction to Respondent's Alleged Misconduct Respondent's arrest on the charge of soliciting for prostitution was reported in one county-wide newspaper. Public reaction was mild and relatively quiet. The reaction of students, teachers, and principals in the Broward County school system was favorable toward respondent: there was virtually no negative comment. (Testimony of Mason, McFatter, Sworn, P-14.) The superintendent--upon whose recommendation the School Board instituted this dismissal proceeding--admitted that the immorality of conduct, i.e., whether it offends the public's conscience, can be measured by public reaction: [Superintendent of Schools] I would say the reaction to the. . . [Respondent's alleged misconduct] would reflect public conscience, yes. [Counsel for Respondent] Q. Has the reaction been overwhelming in support of Mr. Rowe? A. As far as the petition and the letters and responses that I've had, yes sir. (Tr. 13-106.) He also testified that public reaction should be used to measure whether respondent's effectiveness and fitness as a School Board employee has been diminished. When asked if there had been any overwhelming negative reaction to respondent's alleged misconduct and arrest, the superintendent replied: A. I haven't any overwhelming negative reaction. At any time? A. No. (Tr. 13-107.) (Testimony of McFatter.) Respondent's alleged misconduct and subsequent arrest have not impaired his effectiveness as a principal in the Broward County school system. The superintendent's opinion to the contrary is rejected as unpersuasive since it was based on his experience with several teachers who were guilty of sexual acts with school children. Such offenses are materially different from the charge against respondent. 6/ The faculty of Sanders Park Elementary School unanimously support respondent and petitioned the School Board: We, the faculty of Sanders Park Elementary School in Pompano Beach, stand whole heartedly behind our principal, Russell W. Rowe. Mr. Rowe is known as a fair man and an honest man. He has been at our sides when we needed him in professional and personal crises. We look up to him as our leader. He has the utmost respect from our faculty and students. We feel he is an excellent administrator and friend to all. Mr. Rowe is our guiding light in these troubled times of education. He is the motivation behind the fine academic work at Sanders Park. Our love and respect for Mr. Rowe is never ending. The elementary school principals of Broward County support respondent, as do officials in the Parent Teacher's Associations. Respondent's reinstatement as a principal at Sanders Park Elementary School is supported by a broad cross- section of the educational community. If reinstated, it is likely that he will continue to perform his duties effectively. (Testimony of Rowe, McFatter, Swigler, Simmons, Katz, Goldstein, Sworn, Mason, Rollins, Broman, R-14.)
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a final order dismissing the charges against respondent and reinstating him to his former position. DONE AND ORDERED this 23rd day of July, 1981, in Tallahassee, Florida. L. CALEEN, JR. 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 day 23rd of July, 1981.
