The Issue Whether Petitioner, a Program Director of a residential child-caring agency, is entitled to a waiver of the educational requirements of Florida Administrative Code Rule 65C- 14.023(15)(b), pursuant to section 120.542, Florida Statutes.
Findings Of Fact The Parties Petitioner has worked continuously at His House, a non-profit child-caring agency, since 2000. Since July 2013, Petitioner has served as the Program Director of the Unaccompanied Children (UC) Program, established through a grant to His House from the federal government, which temporarily shelters and places foreign children who enter the United States without an adult caregiver. In his role as Program Director, five His House supervisors report to Petitioner. These include the supervisors of the clinical staff, case managers, residential services, administration, and medical services. The UC Program currently employs a staff of 175, has 120 beds available, and an annual budget of $12 million. Rule 65C-14.023(15)(b) requires that program directors or staff serving a similar function, who are responsible for supervising, evaluating, and monitoring the delivery of services within the child-caring agency and for overseeing supervisors of direct care staff, shall have a master’s degree in social work or in a related area in section 402.402(1)(b), Florida Statutes, of study from an accredited college or university and at least two (2) years of experience in social services or a bachelor’s degree from a college or university and four (4) years of experience working with children. During a random personnel file check as part of a routine DCF relicensing audit of His House in March and April 2016, conducted by Adriana Clavijo, DCF Family Services Specialist, it was discovered that Petitioner's highest level of education completed is high school. Petitioner does not hold a bachelor's or master's degree. Ms. Clavijo advised Petitioner how to comply with the DCF rule and told His House and Petitioner to seek a waiver of the educational requirements. Ms. Clavijo first met Petitioner in 2009 when doing relicensing for His House. She performed inspections at His House for approximately three years, and Petitioner responded to her requests for information and aided her licensing investigations. When Ms. Clavijo discovered Petitioner did not have the requisite degree, she had no concern regarding his ability to do the job of UC Program Director. She was aware Petitioner filed a waiver request in August 2016, and His House informed her of its compliance efforts on Petitioner's behalf. Petitioner's Experience in Social Work and Child Welfare Petitioner began working for His House in 2000 as a Case Manager/Partial Shelter Case Worker, a position for which no degree was required. At the outset of his employment with His House, Petitioner successfully completed the Professional Development Center training, a six-week, full-time course of professional development training at Florida International University. This course is given locally, primarily to teach case managers how to work in the dependency system with children who have been abused, neglected, or abandoned. During Petitioner's role as a Case Manager/Partial Shelter Case Worker from 2000 through 2005, His House provided two cottages with 12 shelter beds. Petitioner's role included: linking the children to medical and any other services they needed; enrolling them in school; participating in their court hearings; advocating on behalf of the children; facilitating supervised visits with parents; gathering pertinent information regarding the children's removal from home; assessing and advising the courts of the children's needs; and coordinating transportation of the children to their appointments for services. During this time, Petitioner handled approximately 200 cases. During 2001 through 2003, Petitioner and his wife became co-house parents of one of the cottages. They provided daily shelter and care for over 100 children. When they decided to move off-campus, Petitioner and his wife became licensed foster parents so that they did not have to leave a sibling group of four children behind. In approximately 2005, Florida's foster care system was privatized and Petitioner was selected by His House in-house counsel, Elizabeth Anon, Esquire, to serve as Intake Coordinator and Incident Report Liaison. Petitioner served in this dual role from June 2005 until July 2013 and handled the cases of over 500 children. As the Intake Coordinator, Petitioner was required to be on call 24/7 and worked with Our Kids of Miami-Monroe County (Our Kids)2/ and DCF protective investigators to find appropriate placement for children who had been removed from their parents/custodians. His job duties and responsibilities as the Intake Coordinator included daily interface representatives from Our Kids and DCF, information gathering of the children, linking services, finding an appropriate placement within three hours of the child’s removal from home, attending all shelter court hearings, attending case staffings, and participating in the assignment of the His House case managers. Petitioner was responsible for the first 30 days after a child came into foster care. He handled well over 500 cases in this role, and children never got hurt while Petitioner was supervising their care. Petitioner's duties and responsibilities as an Incident Report Liaison included preparing and transmitting incident reports to Our Kids, following up on the nature of the incident, and coordination of any post-incident action that was required to ensure the safety and well-being of the children. In 2008, His House was awarded a contract with the federal government to run a UC Program for children arriving from Cuba and Haiti. Petitioner assumed the additional responsibilities of UC Program Coordinator and was tasked with being the lead employee handling the contract for the UC Program. The program began in 2008 as one cottage with eight beds and a $1 million budget. Under Petitioner's supervision and guidance, the program grew to 166 beds and a $12 million budget by 2015. Due to his existing relationship with the federal government, after the Haitian earthquake in 2010, Petitioner approached the federal government regarding His House's capacity to assist in the receipt, relocation, and reunification of orphans. As a result of Petitioner’s management with the UC Program goals and his demonstrated job performance, the federal government designated His House as the facility to receive orphans arriving to the United States directly from Haiti. Petitioner’s team was responsible for transporting orphans from the airport to His House. These military flights arrived around the clock. Petitioner's team was available 24/7 to pick up the children who were arriving at His House, ensuring that the children's basic needs were immediately met. All of the children submitted to medical examinations upon arrival. Petitioner’s team worked in collaboration with the federal government representative to ensure pre-adoptive families were on campus within 24 to 48 hours of arrival of the children to His House and that the orphans were transitioned to their new homes within 30 days. His House assisted over 500 orphans as a direct result of the earthquake. In 2013, due to the rapid expansion and success of the UC Program, Petitioner was promoted to the position of UC Program Director. Petitioner's duties remained basically the same with the addition of an increased level of responsibility in supervising more employees, being responsible for the UC Program budget, and having to participate in weekly meetings with the Executive Director, His House program directors, and with the directors’ team members. Additionally, Petitioner was designated as the person to have communication with the federal government representatives. Petitioner is now their primary contact at His House. Petitioner's Training, Evaluations, and Reputation Throughout his tenure with His House, Petitioner has engaged in continuing education in the field of social work and child welfare, participating in at least 30 hours of in-service training a year in these areas. Although Petitioner does not have the required degree, he possesses over 16 years of varied experience in the area of social services, foster care, and almost four consecutive years in management. Petitioner's yearly job appraisals were consistently excellent. Petitioner maintains a stellar reputation in his field. It is undisputed that he is considered the consummate professional who is knowledgeable, organized, efficient, and a dedicated, beloved, and proven leader with talent and compassion for the welfare of children who are abused, neglected, or abandoned. According to the His House Executive Director, Silvia Torres, who supervised Petitioner since her hiring in 2014, Petitioner was directly responsible for increasing the bed capacity of His House. Petitioner has an outstanding reputation and relationship with the federal government to the extent that Ms. Torres rarely interacts with it regarding the UC Program. Even when Ms. Torres attends meetings regarding the UC Program, Petitioner leads due to his unparalleled knowledge of the frequently changing applicable federal rules and the program. Ms. Torres characterized Petitioner's team as "high achievers" due to Petitioner's leadership. Petitioner not only embraced Ms. Torres’ recommendations, but he created his own tracking processes to hold staff accountable and put performance measures in place. Since 2014, His House's UC Program has met all measurable outcomes in the contract with the federal government. The main criterion is to reunify 25 percent of the children in the program every week. His House met and continues to exceed these goals under Petitioner's direction. From 2008 through 2016, under Petitioner's guidance, the UC Program has assisted approximately 3,000 children. In order to do this, Petitioner ensures that all departments work together in a timely fashion. Petitioner is known for his saying, "all hands on deck," meaning that the staff must do everything for the best interests of the children. According to Ms. Torres, Petitioner leads by example and has inculcated his staff with the culture that the number one goal is to ensure the children are safe and quickly reunified with family. Ms. Anon, the in-house counsel who supervised Petitioner from 2004 until 2013, considered Petitioner her "right hand person." During the time they worked together, Ms. Anon described Petitioner's performance as "outstanding," that he had exceptional follow through, and exemplary managerial skills. Ms. Anon frequently relied upon Petitioner to represent the interests of His House and the children it served in court. Dr. Jesus Perez, a clinical psychologist, has known and worked with Petitioner since they were both employed as partial Case Managers at His House in 2000. Dr. Perez left His House in 2001 to pursue two master's degrees and his doctorate, but returned as a psychology intern in 2006 and has provided services as a clinical psychologist for His House clients since 2009. Dr. Perez describes Petitioner as an excellent professional "whose work ethics are beyond compare." According to Dr. Perez, Petitioner is a fast learner, who analyzes things well and provides good feedback and assessment regarding the best interests of the children and families served. Dr. Perez teaches courses as an adjunct professor at graduate school. Dr. Perez believes Petitioner's experience of 17 years in social work and child welfare is more valuable than a formal education. Petitioner's knowledge regarding the dependency system and working with a vulnerable population is something that most students do not have. Further, according to Dr. Perez, Petitioner possesses qualities an education does not provide–-ethics, collaboration, and leadership. Even two of DCF's witnesses readily acknowledged Petitioner's unique combination of knowledge and experience. Sonia De Escobar, DCF Family Safety Program Manager, who supervises licensing, public assurance, and protective investigations, has known Petitioner throughout his tenure at His House, and she placed children in his care while he was a house parent. Ms. De Escobar described Petitioner as easy to work with and an "educated professional." Similarly, Ms. Clavijo found Petitioner "knowledgeable in the areas of child welfare, crisis management, and child safety." Petitioner's expertise and accomplishments in the fields of social work and child welfare have been recognized by other professionals outside of His House. For example, in 2004, Petitioner received a commendation from Miami-Dade Juvenile Court Judge Cindy Lederman for his work. Petitioner received an Outstanding Service Award from Our Kids in 2007 for "service above and beyond with dedication, compassion, and perseverance." From 2011 to the present, His House received numerous commendations from the federal government for the work of Petitioner and his UC Program team for the reunification process, handling transfers from Homestead, taking on challenging cases, and an overall thank you for a job well done. Further, Petitioner's UC Program is used by the federal government as a training example for similar programs across the country. Hardship to Petitioner and His House If a Waiver Is Not Granted Petitioner earns $80,000.00 at His House and is the sole source of income for his family. He financially supports his wife, who stays at home to take care of her mother, his mother-in-law, and his adult son who recently returned from a military deployment in Afghanistan and is attending firefighter's school. If Petitioner is not granted a waiver from the educational requirement, he will lose his job at His House, which will impose a severe financial hardship on his family. It is highly unlikely Petitioner can find comparable employment with any other child-caring agency without an advanced degree. Failure to secure a waiver would force Petitioner to leave the profession he loves and to which he has dedicated his life over the last 17 years. Denial of Petitioner's waiver request will also create a significant hardship to His House, its employees, and the children they serve. Ms. Torres estimated it would take her at least six months to identify a qualified candidate and fill the UC Program Director position. There would be a challenging and steep learning curve for any replacement. The UC Program is funded by a grant, and, therefore, many are reluctant to become involved with such a program. If Petitioner is forced to leave his job at His House, it will drastically affect morale and the ability to meet the daily and weekly reunification goals. As described by Ms. Anon, replacing Petitioner would be like "trying to change the wheels of a car while the car is still moving." DCF's Basis for Denial Xiomara Turner, a DCF Statewide Licensing Specialist, who has been in this role for less than two years, is the individual who reviewed Petitioner's waiver petition, supporting materials, and who recommended denial of the waiver. According to Ms. Turner, she has never granted a waiver of this rule. If the person does not have the education, she will not grant the waiver. Ms. Turner stated that there was no combination of years of experience, knowledge, productivity, or performance by Petitioner that would have resulted in granting him a waiver. "The Department's stance is that years of experience are not to be a substitute for education," said Ms. Turner.3/ Ms. Turner is aware that section 120.542(2) allows a waiver when the purpose of the underlying statute is achieved by other means. However, Ms. Turner stated that the hardship must be created by DCF, and it must be more onerous for the Petitioner than for anyone else. In this case, she did not see a hardship created by DCF and believed it no more unfair for Petitioner than anyone else to abide by the educational requirement for a program director level positon. Ms. Turner testified that despite Petitioner's exceptional experience in every aspect of the child welfare system over the last 17 years, she recommended denial because of the "Department's current position that they will deny a waiver, regardless of experience, if there is a lack of a diploma." No evidence was presented to show that Petitioner's experience, education, and training was not adequate to demonstrate competence as a supervisor or in ensuring the health, safety, and welfare of the children in his care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order granting Petitioner's request for a waiver from rule 65C-14.023(15)(b). DONE AND ENTERED this 11th day of May, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 11th day of May, 2017.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Henry Young, is employed as a teacher by the Dade County School Board at Nathan B. Young Elementary School in Miami, Florida. Respondent holds teaching certificate #177938 issued by the State of Florida, Department of Education, in Elementary Education, Guidance and Early Childhood Education. On January 19, 1984, Metro-Dade Police Officer Michael Amabile was on routine patrol in the Liberty City section of Miami when he received a call for assistance from another unit on an arrest for a weapons violation. When Officer Amabile arrived at the scene, he observed that Police Officer Strohs had detained a female who was seated in her automobile. While Officer Strohs ran a routine check on the weapon, Officer Amabile observed the Respondent standing in the street near the female's automobile. After the check determined that the weapon was stolen, Officer Amabile asked Respondent to leave the immediate area. The Respondent refused to leave the area, began to talk with the female, and told Officer Amabile that he was a member of the City Crime Watch and that he did not have to leave. Officer Amabile and two other police officers at the scene repeatedly asked the Respondent to leave the area so that the female could be transferred from her vehicle into a police cruiser and the matter further investigated. The Respondent refused to leave the area and began arguing loudly back and forth with the police officers. A crowd began to gather and Respondent was informed that if he did not leave the area, he would be arrested. The Respondent moved slightly away from the area towards the middle of the street but continued arguing with the police officers. The Respondent was subsequently arrested and charged with resisting an officer without violence, On February 29, 1984, the charge was disposed of in the County Court of Dade County. The Respondent was given credit for two (2) days time served in jail (after his arrest) and the case was closed. The record did not indicate what plea was entered to the offense by Respondent and failed to show whether the Court adjudicated the Respondent guilty of the offense. On April 16, 1984, Officer Smith of the City of Opa-Locka Police Department received a call for back-up from Officer McQueen in reference to an altercation at a bar located on Ali-Baba Avenue in Opa-Locka, Florida. When Officer Smith arrived at the bar, the Respondent was "yelling and screaming" at a small crowd of people and the person in charge of the bar indicated that he wanted the Respondent to leave. When the officers approached Respondent to find out what the problem was, Respondent directed his loud and abusive language toward them. The Respondent refused to calm down and was arrested for disorderly conduct. A search incident to Respondent's arrest revealed a small amount of suspected cocaine concealed in his clothing. A subsequent laboratory analysis determined that the suspected substance was, in fact, cocaine. The Respondent was taken to the Opa-Locka Police Station for processing. While in custody at the police station, Respondent was removed from his jail cell for photographing. At that time, the Respondent became extremely violent and hostile toward the police personnel. The Respondent punched one officer in the head and spat on two officers. Based on the incident of April 16, 1984, the Respondent was charged with disorderly conduct, possession of cocaine, possession of drug paraphernalia, battery on a police officer, and resisting an officer without violence. On or about November 15, 1984, all of the charges were dismissed. There was no evidence as to why the charges were dismissed. On January 1, 1985, the Respondent was arrested outside of the Orange Bowl in Dade County, Florida, for the offense of scalping tickets to the Orange Bowl football game between the University of Oklahoma and the University of Washington. The Respondent attempted to sell four game tickets for $30.00 each. The face value of the individual tickets was $25.00. On September 24, 1985, Metro-Dade Police Officers Garvin and Jackson observed the Respondent enter a Mercedes Benz automobile carrying a machine gun- type weapon with a strap. The Respondent opened the right rear door of the vehicle and placed the weapon in the back seat. While approaching the automobile, the officers observed the Respondent turn and place something in the back seat. At this time, the officers converged on the automobile and ordered the Respondent and a female passenger to get out. During a search of the vehicle incident to arrest, the officers found a white paper bag in the back seat containing a small quantity of suspected marijuana and a glass pipe which contained suspected cocaine residue. The officers placed Respondent and the female under arrest. The weapon was later determined to be an Intratec 9MM Luger, Model TEC-9, a semi-automatic weapon which has the appearance of a machine gun. The weapon contained a clip with twenty-five (25) live rounds of ammunition. Possession of such a weapon is not illegal in Dade County, Florida, and the weapon in question was found to be registered. The Respondent was charged with the offense of carrying a concealed firearm and carrying a firearm without a license. There were no charges brought concerning the suspected illegal drugs. The case was subsequently nolle prossed by the State Attorney's Office. On March 4, 1986, John Riley, the then Mayor of the City of Opa-Locka, observed what he believed to be a drug buy by the Respondent in the "triangle" area of Opa-Locka. The triangle area has a reputation for heavy narcotics activity. Mayor Riley summoned Opa-Locka Police Chief Reeves and Officer Davis to the scene. As the officers and Mayor Riley approached the Respondent, he was observed standing outside a Mercedes Benz automobile talking to several young people on the street. When Respondent observed the police officers and Mayor Riley approaching, he acted in a "suspicious manner" and appeared to Chief Reeves to be attempting to conceal something. The Respondent entered the automobile and started the engine. Reeves identified himself as a police officer. Chief Reeves asked Respondent to turn off the engine and get out of the car. The Respondent refused to do either. Chief Reeves then reached inside the vehicle and attempted to switch off the ignition. The Respondent knocked Chief Reeves' hand loose and sped away. Chief Reeves' arm was brushed by the car but he was not injured. The Respondent was apprehended several days later. The Respondent was charged in Dade County Circuit Court with battery on a law enforcement officer and resisting an officer without violence. On January 7, 1987, Respondent entered a plea of no contest to a reduced charge of simple battery. The Court withheld adjudication of guilt and placed Respondent on probation for a period of two years with the special conditions that Respondent serve six months in the Alcohol and Drug Abuse Program (ADAP) at the Dade County Stockade, followed by six months in the Structured Treatment Program (STP). On September 26, 1986, Metro-Dade Police Detective Taylor was working in an undercover capacity. At approximately 9:20 p.m. on that date, Respondent approached Officer Taylor on the roadside at 17th Avenue and Northwest 83rd Street in Miami. Respondent asked: "What do you want," and Officer Taylor responded: "Two ten cent pieces," street language for two ten dollar portions of crack cocaine. The Respondent then produced two pieces of crack cocaine which he sold to Officer Taylor for $20.00. The Respondent was subsequently arrested and charged by information with the offense of possession of cocaine. On January 7, 1987, Respondent entered a plea of no contest to the charge. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of two years with the special conditions that he serve six months in the Alcohol and Drug Abuse Program in the Dade County Stockade, followed by six months in the Structured Treatment Program concurrent with the sentence imposed for the battery offense of March 4, 1986. Many of the activities of Respondent resulting in his arrests previously described herein received media attention and press coverage in the Miami Herald, a daily newspaper distributed throughout Dade County. On June 28, 1985, the Respondent submitted a sworn application for extension of teaching certificate to the Florida Department of Education. In Section V of the application, Respondent answered "no" to the question: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a miner traffic violation or are there any criminal charges now pending against you other than minor traffic violations." The Department of Education extended the Respondent's teaching certificate through June 30, 1990. Respondent is currently on authorized leave without pay for medical reasons from his duties as a teacher with the Dade County School Board. The Respondent is voluntarily enrolled in the Dade County School Board's Employee Assistance Program which is designed to provide treatment, care and follow-up to teachers with substance abuse problems. The Respondent, Henry Young, is 42 years old, married and has two sons. Respondent attended undergraduate school at Bethune Cookman College in Daytona Beach and received a graduate degree at Florida A&M University in Tallahassee. Respondent has taught in the Dade County school system continuously since 1966. Respondent started drinking heavily during his senior year in college and started using hard drugs when he became friends with several of the Miami Dolphin professional football players. Respondent developed an addiction to and dependence upon, both drugs and alcohol. Respondent first entered Dade County's Alcohol and Drug Abuse Program in May 1986. Respondent was assigned to the Structured Treatment Program (STP), a residential program where the participant is required to live in a structured, drug and alcohol-free environment from three months to one year. Respondent initially remained in the program from May to October of 1986. In October of 1986 the Respondent left the program, only to encounter additional problems with his drug and alcohol addiction. Respondent re-entered the program in January of 1987 where he remained up to the date of the final hearing. Respondent plans to remain in the STP residential setting until July or August of 1987. Drug and/or alcohol addiction is a physiological or psychological dependency upon a narcotic or other psychoactive or mood altering substance to the extent that such dependency impairs a person's health and substantially interferes with the person's social and/or occupational functioning. Respondent's addiction interfered with his social functioning, his decision making, and his judgment. During Respondent's total of ten (10) months in the STP program, he has received intensive individual and group counseling focusing primarily on his long history of alcohol and drug abuse. Since the Respondent's return to the program in January of 1987, he has exhibited a marked change in his behavior and his attitude towards both his treatment and himself. Respondent has accepted the fact that he has an addiction problem and that he will need to be involved in some type of treatment program for the rest of his life. Breaking through the participant's denial of addiction is one of the primary goals of the STP program and is considered to be a real and positive step toward recovery. Steven Fogelman, supervisor of Metro-Dade County's Alcohol and Drug Abuse Program believes that after the Respondent leaves the STP program, he will need to continue in STP's two-year aftercare program, receive additional outpatient counseling and continue to attend Narcotics Anonymous and Alcoholics Anonymous meetings. Fogelman feels that if Respondent stays in treatment that he will have a very good chance of leading a substance-free life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's teaching certificate be suspended for a period of three years from the date of the Final Order. Respondent be placed on probation for a period of five years with the following conditions: Respondent shall be required to enroll in the Metro-Dade County's Drug and Alcohol Program's two-year aftercare program and submit to the Department of Education, Education Practices Commission, signed and notarized statements from appropriate managerial personnel of the ADAP establishing that he has, in fact, satisfactorily completed the two-year aftercare program. Respondent shall be required to continue his present participation in the Dade County School Board's Employee Assistance Program for substance abuse during the full five-year period of probation and cooperate fully with the terms of any treatment plan implemented in his behalf, including, but not limited to, enrollment in a private substance abuse counseling program at Respondent's own expense. Respondent be assessed an administrative fine of $2,000.00, specifically for the offense of providing false information on his application for teaching certificate. Said administrative fine shall be due no later than 45 days after the date of the Final Order. DONE AND ORDERED this 17th day of July 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4148 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 5. 8. Adopted in Finding of Fact 6. 9. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 11, matters not contained therein are rejected as subordinate and/or not established by the weight of the evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 13. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 9 and 15, matters not contained therein are rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 18, matters not included therein are addressed in the Conclusions of Law section. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 14 and 22. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1, 19 and 20. Adopted in substance in Finding of Fact 14. Partially adopted in Findings of Fact 2, 3 and 4, matters not contained therein are rejected as misleading and/or subordinate. Partially adopted in Findings of Fact 6, 7 and 8, matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in substance in Findings of Fact 10, 11 and 12. Adopted in substance in Findings of Fact 13 and 14. Partially adopted in Findings of Fact 15 and 16, matters not contained therein are rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 17. Adopted in substance in Findings of Fact 22 and 23. Adopted in substance in Finding of Fact 24. Adopted in substance in Finding of Fact 24. Rejected as subordinate. 14. Rejected as subordinate and/or misleading. Although the Respondent is on the road to recovery, the evidence did not establish that Respondent has in fact made a complete recovery. 15. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 William DuFrense, Esquire 2950 Southwest 27th Avenue Suite 310 Miami, Florida 33132 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street Room 3 Tallahassee, Florida 32301
Findings Of Fact The Department, a state agency, initiated both of the underlying proceedings when the Notices of Violation were issued for each trailer as an unpermitted sign. The Notice of Violation for Case No. 90-2427T was issued on April 2, 1990. The Notice of Violation for Case No. 90-4982T was issued on June 20, 1990. Petitioners, Mathews, is a Florida corporation, which has its principal office in this state. At the time both actions were initiated by the Department, the corporation had less than 25 full-time employees and a net worth of less than $2 million dollars. Case No. 90-2427T A Final Order was entered in Case No. 90-2427T on January 9, 1991. Mathews was found to have fully complied with the Notice of Violation properly issued by the Department on April 2, 1990, because he had removed the trailer within the period of ten working days, as set forth in the notice. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. The underlying Notice of Violation directed to Mathews was based upon a determination made by the Department's outdoor advertising administrator with District 7. The administrator had observed the trailer at its stationary location on a regular basis during a sixty-day period. He decided that the printed message on the trailer's side advertising contractor's exams was an unpermitted sign, in violation of Section 479.07(1), Florida Statutes. Once the Department made the determination that the trailer embodied all of the characteristics necessary to classify it as a sign under Chapter 479, Florida Statutes, and was located in an area requiring a sign permit, the agency was required by law to issue the notice, and to inform the sign owner of its right to request a hearing. Upon receipt of the Notice of Violation, Mathews timely requested a hearing. During the hearing, Mathews proved it did not specifically intend to advertise the school's services when the trailer was placed at the I-4 and Buffalo Avenue location. If the Notice of Violation involved a violation that required specific intent, the proof offered would have been determinative and Mathews would be the prevailing party for purposes of this hearing. In this case, however, the issue was whether the trailer was a "sign", as the word is defined in Section 479.01(14), Florida Statutes, and whether it was a "public and a private nuisance" that had to be removed, pursuant to Section 479.105(1), Florida Statutes. The Recommended Order and Final Order reflect that the trailer was a "sign" and a "public and a private nuisance." As a result, the Department's issuance of the Notice of Violation was proper and the agency action requiring Mathews to remove the "sign" from that location was appropriate. The owner could not seek just compensation for the "sign" removal, nor could the corporation require the Department to put the "sign" back at the location after the formal hearing. The underlying Notice of Violation was based upon the outdoor advertising administrator's correct analysis that the trailer was a "sign" as defined by Chapter 479, Florida Statutes, and his personal observation that it remained at the same location for a sixty-day period. At the time the notice was issued, the Department had reason to believe the trailer was an illegal "sign" that did not have the proper permit. II. Case No. 90-4982T The Notice of Violation issued by the Department on June 20, 1990, in Case No. 90-4982T was withdrawn on November 16, 1990. Mathews was notified of the Department's intention to file the Notice of Voluntary Withdrawal with the Division of Administrative Hearings shortly before the final hearing scheduled for November 14, 1990. The reason given by the Department for the withdrawal was that the Department did not have jurisdiction over the trailer as a "sign" because it was located within the corporate limits of the City of Tampa. The Department knew or reasonably should have known that the trailer was outside of its territorial jurisdiction under Section 479.105(1), Florida Statutes. Because the Department is the agency responsible for the classification of roads within Florida, there was no reasonable basis in fact for the issuance of the Notice of Violation at the time it was posted on the trailer. The proceeding on the alleged sign violation was not substantially justified from its inception. The affidavit for attorney's fees and testimony at hearing reveals that Mathews paid $1,207.50 in fees to defend against unreasonable governmental action in Case No. 90-4982T. The rate of $175.00 per hour was a reasonable and necessary fee in both proceedings based upon the reasons presented by Carl Mathews, the corporate president and secretary. The Department's counter affidavit as to the unreasonableness of the hourly fee rate did not effectively refute the testimony of Carl Mathews that the hourly rate and total fee amounts in each case was reasonable and necessary.
The Issue The issues are whether Petitioner was a prevailing small business party in Division of Administrative Hearings Case No. 98-2043, and if so, whether he is entitled to reimbursement of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On April 3, 1996, Respondent issued Petitioner a provisional license to operate a foster home. This license was effective until August 3, 1996. On August 3, 1996, Respondent lifted the provisional license and issued Petitioner a regular foster home. The latter was effective through March 31, 1997. On March 31, 1997, Respondent again issued Petitioner a provisional license. This provisional license was effective until July 31, 1997. On July 31, 1997, Respondent issued Petitioner a regular foster home license. This license was effective until March 31, 1998. On February 27, 1998, Respondent issued an Administrative Complaint seeking to revoke Petitioner's foster home license. Said complaint gave Petitioner the right to request an administrative hearing to contest the factual allegations contained within the complaint. Petitioner's counsel filed an Answer to Administrative Complaint dated March 27, 1998. Said answer requested a formal administrative hearing to contest the factual allegations contained within the complaint. Respondent referred Petitioner's request for a formal hearing to the DOAH on May 4, 1998. DOAH assigned Case No. 98-2043 to this matter. On October 16, 1998, Petitioner's counsel filed a Motion for Summary Judgment and/or Motion to Dismiss in DOAH Case No. 98-2043. Said motion asserted that the Administrative Complaint should be dismissed because Petitioner had never had foster children placed in his home. The motion also references, among other things, the "denial and suspension" of Petitioner's foster home license and the "subsequent denial of re-licensing in April 1998." The motion does not argue that Petitioner's current license had expired, rendering the issue of revocation moot. The motion was denied by order dated October 22, 1998. On October 27, 1998, Petitioner's counsel filed a Notice of Withdrawal of Request for Hearing in DOAH Case No. 98-2043. A telephone conference on the motion was held that same day. On October 28, 1998, an Order Closing File was entered in DOAH Case No. 98-2043. This order cancelled the formal hearing scheduled for November 2-3, 1998, and relinquished jurisdiction to Respondent. On December 4, 1998, Respondent entered a Final Order in DOAH Case No. 98-2043, revoking Petitioner's foster home license. Petitioner did not appeal the Final Order and the time for an appeal has expired. At the hearing on the instant case, Petitioner presented no evidence that he prevailed in DOAH Case No. 98-2043. The pleadings and orders entered in that case conclusively establish that he did not prevail. Likewise, Petitioner presented no evidence that he was a small business party. Family foster homes are distinct from larger operations, such as residential child-care facilities, which might under some circumstances be construed as businesses. A foster home license is not a permit to engage in a business activity for profit. Instead, foster home parents act as temporary surrogate parents. Payments to foster parents are reimbursements for moneys advanced by the parents for the care of children placed in their care. The payments are not fees for services rendered. They are not taxable as income. Through out the proceedings in the instant case, Petitioner maintained that he never authorized his attorney to withdraw his request for formal hearing in DOAH Case No. 98-2043 as to the merits of that case. He did not personally receive a copy of his counsel's Notice of Withdrawal of Request for Hearing, the Order Closing File, or the Final Order until sometime after January 5, 1999. Therefore, Petitioner filed his request for fees and costs in the instant case on December 14, 1998, believing that he had prevailed as a small business party in DOAH Case No. 98-2043. He was under the mistaken impression that his counsel's withdrawal of his request for hearing and the subsequent Order Closing File in DOAH Case No. 98-2043 deprived Respondent, as well as DOAH, of jurisdiction in that case. Even after receiving copies of the above referenced pleading and orders, Petitioner maintained a good faith belief that because his foster home license expired on March 31, 1998, there was no license for Respondent to revoke in its Final Order dated December 7, 1998. Petitioner mistakenly believed that the Final Order was a "nullity" because Respondent had not amended the Administrative Complaint to deny his March 1998 request for re-licensure.
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER 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 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation, misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.
The Issue Whether Petitioner is entitled to a foster care license upon satisfactory evidence of financial ability to provide care for children placed in her home.
Findings Of Fact Petitioner took the required courses through the Department and applied for a foster home license. She passed all home visits with flying colors and was recommended for licensure. Her application contained a family financial statement which reflected her monthly income as $660.00 and her estimated monthly liabilities (expenditures) as $625.62. The Department calculated Petitioner's residual income as $34.38 by deducting her usual expenses from her usual income. Because substitute care parents must have sufficient income to assure the stability and security of their own family without relying on foster care payments and must have sufficient income to cover four to six weeks of a foster child's care during anticipated lag time in receiving foster care payments, Petitioner's application was denied. The $660.00 Petitioner declared in her financial statement is made up of $460.00 monthly social security income plus $200.00 from unenumerated sources. Petitioner is not employed outside the home. Petitioner testified credibly that, as of the date of hearing on January 18, 2001, she had nearly $15,000.00 saved in her bank account, mostly as the proceeds of the "Black Farmers Settlement" of a class action lawsuit. In support of her testimony, Petitioner also had admitted in evidence an undated letter addressed to her, showing transmittal to her of a check for $50,000.00 "cash award," in the cases of Pigford et al. v. Glickman, and Brewington et al. v. Glickman. Petitioner also had admitted in evidence an AmSouth "Official Check," dated January 3, 2001, made out to her in the amount of $14,928.88. This appears to be a certified cashier's check she asked for in order to demonstrate her bank balance for the hearing. Petitioner further testified that she had made a deposit to her checking account. She had admitted in evidence an AmSouth customer receipt (deposit slip) showing an AmSouth account balance of $59.85 to which a $3,000.00 check had been deposited on November 1, 2000. The numbers on this item did not match those on her check cashing card or her voided check, which items were also admitted in evidence. However, there is no reason to believe the numbers would match, considering modern automatic banking safeguards. What, precisely, this receipt was intended to demonstrate is unclear. Much of Petitioner's $50,000.00 settlement monies went to pay for hip replacement surgery, and she is fully recovered. Prior to making her application and while she was still in training, that is, prior to November 29, 1999, the Department allowed Petitioner to take in some foster children on an emergency basis. The understanding at that time was that Petitioner would bear all the children's expenses with no reimbursement by any government program except for their medical aid. During this period, Petitioner frequently complained that she had no money to put gas in her car to bring a certain child or children to the Department office for their medical care or to see their case workers. As near as can be determined from this record, these events occurred in the fall of 1999 or early in the year 2000, but without information as to when Petitioner received her lump-sum class action settlement, it is impossible to assess whether these events occurred before or after Petitioner received her class action settlement. Petitioner's Lease for Voucher Tenancy, Section 8, Tenant-Based Assistance Rental Voucher Program, signed April 7, 2000, stated that she lives in the home with four other individuals: Irene Turner, Lionel Cook, Iman McCullough, and Christina Honeycutt. However, a June 26, 2000, Home Study Report concluded, based on visits in April and May 2000, that Petitioner lives alone. Iman McCullough, a foster child, lived in Petitioner's home for a short period in 1999, but by September 2000, she was living in another foster home. Christina Honeycutt, also a foster child, lived in Petitioner's home only briefly in 1999. Another individual listed on the April 7, 2000, lease as a resident of the home is Lionel Cook, one of Petitioner's sons. However, the June 26, 2000, Home Study Report stated that Petitioner did not know her sons' addresses or phone numbers and that she had stated she has no contact with them. The Petitioner's Section 8 rent is $30.00 per month, calculated on five residents in the home. It is conceivable that a change in the number of people in the home may alter the amount paid for rent. There was no evidence presented concerning how much per child Petitioner would receive if her application were granted. Petitioner testified that she hoped to have four children assigned to her. The June 26, 2000, Home Study Report recommended that she receive five children.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner's application for a foster home license at this time and without prejudice to reapply. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of March, 2001.
The Issue Whether Respondent failed to preserve and maintain broker records in violation of Section 475.5015, Florida Statutes. Whether Respondent committed culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Chapters 120, 455, and 475, and the rule promulgated thereto. Respondent is and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued License No. 600642 in accordance with Chapter 475. The last license was issued to Respondent as a broker of Cascade Referral Service, Inc., 2439 Bee Ridge Road, Sarasota, Florida. At all times material, Respondent was the president and registered agent of Knightsbridge Park International (KPI), a corporation under the laws of Florida. At all times material, Respondent was the registered agent of an entity called Knightsbridge Vacation Homes (KVH). Between August 14, 1999, through May 21, 2001, Respondent was an active broker/officer of Knightsbridge Realty, Inc. (KRI). In the Fall of 1999, Sharon Malecki (Malecki), a resident of Wisconsin, met with Respondent's wife, Janet Wilkes, who was vice-president of KPI, to discuss engaging KPI's services in managing Malecki's property in Kissimmee, Florida. On or about February 14, 2000, as a result of this initial contact, Malecki entered into a contract with KPI to manage her property. Respondent signed the contract as president of KPI. The contract required Respondent and KPI to provide general management services to Malecki and to provide a monthly accounting showing all income and expenses for a period of one year commencing on March 1, 2000. The contract also required Malecki to keep a balance of $500 as a "management reserve balance." Respondent and KPI were required to deposit any amounts held in excess of the reserve amount in Malecki's bank account. Implicit in the monthly accounting requirement was that KPI and Respondent would collect the rental proceeds from Malecki's property and remit the proceeds to Malecki. At the same time the parties executed the contract, Malecki sent KPI a check for $500 to be kept in the escrow account for incidental maintenance and repairs of the property. Between August 10, 2000, and August 24, 2000, KPI placed a tenant by the name of "Plant" in Malecki's property and collected $1,214.29 in rent from the tenant. Between August 29, 2000, and September 12, 2000, KPI placed a tenant by the name of "Lusted" in Malecki's property and collected $1,309 in rental income funds from the tenant. The monthly accounting for August of 2000, purports to represent that KPI paid Malecki $616.42 toward the balance owed. Malecki never received this payment. Respondent failed to remit any of the above-referenced funds to Malecki. Respondent sent Malecki a letter dated November 7, 2000, in which he terminated the management contract and promised to send Malecki a final accounting "as soon as possible." On or about January 2, 2001, Respondent sent Malecki a letter, in which he acknowledged that there had been a "major accounting breakdown." In the letter, Respondent promised to make an interim payment within the next week. Subsequent to receipt of the two letters, Malecki made various attempts to obtain an accounting of the rental proceeds due. Respondent never remitted nor accounted for the funds. At all times material, Respondent failed to account for the $500 deposit he held for the benefit of Malecki. In June of 1999, a real estate broker by the name of John Young (Young) referred Isabel Benitez (Benitez) to Respondent after she bought a home through Young. On or about June 23, 1999, Benitez signed a contract with Respondent to manage her property located at 7981 Magnolia Bend Court, Kissimmee, Florida. The contract period was for one year and was renewed for an additional year in June of 2000. Although structured in the form of a lease, there was a clear understanding that KPI and Respondent were performing property management services and were obligated to pay a guaranteed amount to Benitez every month. The contract required Benitez to place a $500 deposit with Respondent and KPI as a "management deposit" to be used for incidental expenses associated with the management of the property. In approximately August of 2000, Benitez stopped receiving monthly payments from KPI. During the latter part of 2000, Benitez made various attempts to contact Respondent to determine the whereabouts of the monies due her. On or about December 14, 2000, Benitez sent Respondent a letter, in which she requested the monies due her under the contract. On or about December 15, 2000, Respondent faxed to Benitez a response to her letter, in which he accepts her termination of the contract and confesses that he had "not been involved in property management matters, let alone accounting aspects " On or about January 2, 2000, Respondent mailed to Benitez a letter informing her that there had been an "accounting breakdown," and promising to make an interim payment within a week. A review of an accounting provided to Benitez, dated February 9, 2001, indicates that Respondent owes Benitez funds in excess of $8,473. At all times material, Respondent has failed to remit the funds due or otherwise account for said funds. Around February of 2001, Thirza Neal (Neal), a resident of Washington, D.C., engaged the services of KRI to manage her property located at 114 Dornock Street, Davenport, Florida. Neal delivered a check for $1,000 to a Chris Turner (Turner), who was an agent of KRI, for the "start-up of utility costs." At some point, Neal decided not to engage the services of KRI, and on March 12, 2001, Neal sent an e-mail to Turner, in which she terminated the management contract and requested a return of her deposit. The above e-mail contains an indication that it was copied to the attention of Respondent. On or about March 26, 2001, Neal sent a certified letter to Respondent demanding a return of the deposit. On or about March 28, 2001, Neal received a letter from a gentleman by the name of B.C. Murphy, referencing her letter to Turner, denying that the check had been deposited into KRI's account and informing Neal that he had purchased KRI during the previous year. Eventually, Neal determined that the bank had inadvertently deposited the check into KVH's account. Neal made several attempts to contact Respondent personally and through his attorney and received no response. Neal was eventually able to obtain a reimbursement from the bank. Respondent neither provided assistance to Neal, nor did he remit the funds on his own accord. At some point later, Petitioner began an investigation and David Guerdan (Guerdan) was assigned to investigate the case. During the course of his investigation, Guerdan conducted interviews of the complaining witnesses and Respondent. On or about September 26, 2001, Guerdan conducted an interview of Respondent. During the course of the interview, Respondent was unable to address the specifics of the complaints. Respondent told Guerdan that he was not involved in the day-to-day operations of the business. He stated that his wife and son actually ran the business and that they had "poor accounting practices, overspent and ran out of the money." During the interview, Respondent could not be specific as to the amounts due each owner. Guerdan was unable to determine whether Respondent paid the funds due to each owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Florida Real Estate Commission issue a final order finding Respondent guilty of violating Subsections 475.25(1)(a) and (e) and Section 475.5015, as charged in the Administrative Complaint; and Impose a fine of $1,000 and suspend Respondent's license for a period of two years and require Respondent to make restitution to his former clients and complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of August, 2003. COPIES FURNISHED: Christopher J. De Costa, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1772 Brian John Wilkes 55 Pacific Close Southampton, England SO143TY Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
