The Issue The issues in this case are whether Respondent failed to make reasonable effort to protect a student from conditions harmful to learning, or to the student's mental or physical health or safety, in violation of section 1012.795(1)(j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1.; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in a chapter 120 administrative hearing if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 633378, covering the areas of Early Childhood Education, Elementary Education, and English for Speakers of Other Languages (ESOL), which is valid through June 30, 2024. At the time of the allegations in the Administrative Complaint (in the fall of 2017), Respondent was employed as a first-grade teacher at Millennia Gardens Elementary School (Millennia Gardens) in the Orange County 4 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. School District (School District). Respondent had just begun teaching first grade at Millennia Gardens that school year (2017-2018). Respondent has been employed by Orange County Public Schools (OCPS) since November 7, 1988. Before the 2017-2018 school year, she was a classroom teacher for only four years early in her career, teaching kindergarten at Pines Hills Elementary School from 1990 to 1994. For the next nine years, Respondent taught ESOL "pull-out" sessions for small groups of students who were learning English. The students would be taken out of their regular classrooms to work with Respondent for about 45 minutes per day, and then they would return to their regular classrooms. In 2003, Respondent became the curriculum compliance teacher for the ESOL program. She explained that this primarily involved paperwork, parent meetings, and student testing. Her job was classified as a non- classroom position. She did some work with small groups of students, usually on an informal basis. Instead of all-day responsibility for a full classroom, she would work with four or five students for thirty-minute sessions. Prior to the 2017-2018 school year, Respondent had been working at Grand Avenue Primary Learning Center in the ESOL curriculum compliance position for ten years. Respondent offered in evidence the annual performance evaluations for her last five years in this non-classroom position, showing she achieved overall ratings of effective or highly effective.5 Grand Avenue Primary Learning Center closed after the 2016-2017 school year. The School District placed Respondent at Millennia Gardens, where she was assigned to a first-grade classroom teaching position because there was an opening. Respondent did not request the assignment, nor did 5 Respondent did not offer her performance evaluations as a classroom teacher in evidence, from either the four-year period in the early 1990s or any period since her return to the classroom in August 2017. Respondent described her evaluation for 2018-2019, testifying that her overall evaluation was "needs improvement," with an "unsatisfactory" rating for student learning gains. She said no annual evaluations were done for the 2019-2020 school year due to the COVID-19 pandemic and the change to remote online classes. There is no record evidence as to Respondent's evaluation for the 2017-2018 school year at issue here. Millennia Gardens select Respondent following an interview process to fill the opening, but the placement was made and Respondent took the position. Respondent's re-entry into classroom teaching after a 23-year hiatus was challenging, primarily because of new technologies incorporated into teaching. Millennia Gardens was a new school, having opened in 2016, and it was fully digital in 2017. Her classroom had a Smart Board she was supposed to use to teach, and the students had individual devices (tablets or laptops). Respondent admitted she was slow to adapt to technology. The students were accustomed to digital experiences in the classroom, but Respondent often resorted to "old school" methods. The students became antsy and impatient with her fumbling and shying away from technology she was supposed to use. Some aspects of classroom teaching, however, were not new. First graders, Respondent knew, could present management challenges. As she put it, first graders all have their moments. While her students were on their best behavior for the first couple of weeks of the school year—what she called the "honeymoon" period—that ended by September 1, 2017, when Respondent began having to call for assistance from the "School Wide Assistance Team," referred to as the SWAT team. Her calls, logged by the front office, were sporadic at first, then more frequent beginning in late September 2017. Respondent's first-grade classroom was relatively small in terms of physical space and number of students (17 or 18 students in the fall of 2017). Among Respondent's 17 or 18 students were J.C., K.R., P.C., and R.D.6 Respondent described K.R. and P.C. as troublemakers—the two students most consistently engaging in disruptive behavior, and the ones for whom she would resort to calls for SWAT assistance. As for the other two, Respondent described R.D. as "a bright kid" who did not initiate trouble but would sometimes join in the disruption started by K.R. and P.C.; and Respondent described J.C. as a happy child most of the time, though on occasion, 6 These four students were all in Respondent's classroom until October 12, 2017, when K.R. was transferred to another first-grade class at Millennia Gardens taught by Ms. Rivera. something would set her off and she would talk back or refuse to follow instructions. J.C. was described by a Millenia Gardens assistant principal and the master principal7 as a very smart, articulate little girl. Inside Respondent's classroom was a bathroom designed for one occupant, with a single toilet and sink. Respondent's rule to control bathroom traffic was to require a student to raise his or her hand and receive Respondent's permission to go to the bathroom. Respondent knew that, in defiance of her rule, sometimes more than one student would go into the bathroom at the same time. Respondent acknowledged that there were multiple occasions when P.C. and K.R. would run into the bathroom together to hide when they were in trouble. (These occasions would have been before October 12, 2017, when K.R. was transferred to another class.) Another time, two girls went into the bathroom together to share chewing gum. When Respondent noticed multiple students going into the bathroom together, she would order them out, unlocking the door if necessary. Although Respondent knew that sometimes multiple students went into the bathroom together—a risky, potentially dangerous situation given the lack of any supervision—Respondent did not employ special procedures or increase her vigilance to ensure she would be aware of, and thwart, attempts by multiple students to disappear into the bathroom. In Respondent's small classroom, heightened vigilance would have meant keeping eyes on, and knowing the whereabouts of, all students—particularly the troublemakers. Respondent's classroom was set up so that from anywhere in the classroom, she would have been able to account for the whereabouts of her students. The student desks were grouped in five clusters. Four clusters had four desks pushed together, with two desks side-by-side facing two more 7 As "master principal," Ms. Lynaugh was principal of two schools in the 2017-2018 school year: Millenia Elementary School and Millenia Gardens. She was aided by two assistant principals at Millenia Gardens: Michelle Carralero and Sandra McGraw. desks side-by-side. The fifth cluster had three desks, with two desks pushed together facing each other and the front of a third desk pushed up to the side of the two desks. Respondent's desk was in the far corner of the classroom, diagonally across the room from the classroom door. Her desk faced out to the classroom, although she testified that she rarely sat at her desk, which was covered with papers in wild disarray, some half falling off the desk's surface. On November 1, 2017, Respondent gave her students an assignment to write about something they had done the previous day. While circulating, Respondent noticed J.C.'s paper. On one side, J.C. wrote: "Last night I had fun. First, Next. Movie." However, on the other side of the paper, a picture was drawn of a shape—possibly a face—with two hearts, the word "Love" next to the hearts, and immediately below, the words, "I like to have sex." Respondent asked J.C. why she wrote that, referring to the note about "sex." J.C. responded that she did not write it. However, Respondent saw that the words appeared to be in J.C.'s handwriting, comparable to J.C.'s writing on the same paper responding to the assignment. Respondent took the paper away from J.C. and wrote J.C.'s name and the date on it. However, she did not immediately report it or show the paper to an administrator, to the school counselor, or to J.C.'s parents that day, November 1, 2017 (a Wednesday), nor on Thursday, November 2, 2017, or Friday, November 3, 2017. It was not until after the school day on Friday that Respondent decided to leave a note for the school counselor, along with J.C.'s paper, in the counselor's mailbox. Her note said: "Mr. Gonzalez, I wanted you to see what J.C. wrote on the attached paper. Could you please speak with her sometime? Thank you! Jane Meister." Respondent explained: I had intended to discuss it with our guidance counselor in person, but I was, you know, we had a lot of meetings that week and I was having issues with my leg that I was not able to arrange to catch him within a reasonable period of time. So then I wrote a note asking him to discuss this with J.C. and put it in his mailbox. (Tr. 466-67). Respondent admitted she knew the counselor may well have already left for the weekend, which turned out to be the case. It was not until late morning on Monday, November 6, 2017, that the counselor, Mr. Gonzalez, checked his mailbox and found J.C.'s paper with Respondent's note. Although Respondent had not acted with any sense of urgency, Mr. Gonzalez did. He described J.C.'s note about sex as a red flag. As he and other witnesses explained, it is not normal for a first grader to use the word "sex," so J.C.'s "sex" note raised concerns about what was going on in the student's school life, family life, or community life.8 Mr. Gonzalez immediately notified assistant principal Sandra McGraw about the two notes (J.C.'s "sex" note and Respondent's note asking him to speak with J.C. "sometime"). Ms. McGraw asked Mr. Gonzalez to follow protocol and speak confidentially to J.C. about it. That afternoon, Mr. Gonzalez took J.C. out of Ms. Meister's classroom and escorted her to his office to speak to her privately. Once in the office, he asked her about the note, showing it to her. J.C. said that she did not write the note, but she also said that there were three boys involved in getting her to write the note and helping her with the spelling. She identified the three boys as R.D., P.C., and K.R. Mr. Gonzalez testified that J.C. seemed distressed and was not very forthcoming, so he did not prolong the interview. He returned J.C. to the classroom after five minutes. Mr. Gonzalez then spoke separately with each of the three boys about J.C.'s note. Each of them denied pressuring J.C. to write the note about "sex." 8 Respondent asserted otherwise in her PRO. Respondent offered this statement to suggest that J.C.'s "sex" note may not have been cause for concern: "Children of 6 and 7-year-olds [sic] begin to be curious about sex at this age." (Resp. PRO at 33). More boldly, Respondent asserted: "Children of 6 and 7-years old engage in exploratory sexual play. This is normal." (Resp. PRO at 35). These statements were not supported by citations to record evidence; there is no record support. All the credible record evidence was to the contrary. Mr. Gonzalez also spoke briefly to Respondent that afternoon, reminding her that she was required to report the "sex" note to the Department of Children and Families' (DCF) abuse hotline. She responded, "I know." She had not yet reported the "sex" note to DCF; she testified she did not call the abuse hotline to report the "sex" note until told to do so.9 Mr. Gonzalez updated Ms. McGraw and suggested that she might want to try to follow up with J.C. He testified that both Ms. McGraw and Ms. Carralero spoke with these children a lot—he called them "go-to" persons for the young students—and he thought J.C. might be more comfortable speaking to a female about the "sex" note. Ms. McGraw followed up with J.C., as suggested. On November 7, 2017, she took J.C. out of Respondent's class and brought J.C. to her office to talk. Ms. McGraw testified credibly that she already had an established rapport with J.C. and that J.C., like other students, tended to open up to and talk easily with Ms. McGraw. To encourage this, Ms. McGraw had a comfortable set-up in her office, including a beanbag for children to sit on. Ms. McGraw's purpose in talking to J.C. was to follow up about the "sex" note. She let J.C. get comfortable on the beanbag, then asked J.C. to tell her about it. To Ms. McGraw's surprise, J.C. opened up and volunteered information about a different subject: an incident in the bathroom in Respondent's classroom. J.C. told Ms. McGraw that she did not know how it happened, she thought she had locked the door, but three boys—K.R., P.C., and R.D.—followed her into the classroom bathroom. She told Ms. McGraw 9 Respondent claimed that when she called the DCF abuse hotline to report the "sex" note, someone told her the report did not meet DCF's criteria. Her testimony regarding what she was told is hearsay that would not be admissible over objection in a civil action and that neither supplements nor explains any admissible evidence. It is insufficient to support a finding of fact and no finding is made on this subject. that one boy stood guard at the door, while the other two got her down to the floor and held her down, doing inappropriate things to her.10 Ms. McGraw testified credibly that when J.C. told her about the bathroom incident, the first thing Ms. McGraw asked J.C. was where Ms. Meister was when J.C. went into the bathroom. J.C. responded that Ms. Meister was in the classroom. Ms. McGraw had J.C. write down what she was able to, but all she wrote was the names of the three boys. Ms. McGraw did not belabor the matter, as she wanted to speak with the three boys before the end of the day (November 7), contact the students' parents, and report the incident to OCPS officials, to DCF, and to the Orange County Police Department. Ms. McGraw had the three boys taken out of class and put in separate rooms. She spoke with each boy separately. Each boy admitted to a bathroom incident of some kind, and two of the boys admitted that J.C. was touched inappropriately. K.R. admitted that he and P.C. followed J.C. into the bathroom, P.C. touched her on her "private part," and J.C. tried to stop him. K.R. admitted to touching J.C.'s belly, and J.C. pushed him back. R.D. said that P.C. and K.R. went into the bathroom while J.C. was using it, and they tried to kiss her and jump on her. P.C. only said something about playing in the bathroom. Each boy wrote a short statement, signed by Ms. McGraw. K.R. had difficulty writing what he had said—he was not very good at writing yet—so Ms. McGraw arranged for Mr. Gonzalez to assist by writing down what K.R. said. When assisted statements are taken, the practice is to bring in a witness to ensure that what the recorder writes down accurately reflects what the witness said. Ms. McGraw started off as a witness to this 10 Ms. McGraw's testimony regarding what J.C. told her supplements and explains the credible testimony of both J.C. (by deposition admitted in lieu of hearing testimony) and R.D. (who testified at the hearing). It also refutes Respondent's position, raised before the hearing as the rationale for allowing expert testimony, that improper and suggestive interview techniques used in investigating the bathroom incident shaped the children's statements about the incident. See Response to Petitioner's Daubert Motion (filed Aug. 21, 2020). assisted-statement process, but was called away (because the students' parents whom she had called had arrived to speak with her) and the other assistant principal, Michelle Carralero, took her place as the witness. Mr. Gonzalez wrote down K.R.'s exact words except in one or two instances where he paraphrased what K.R. said without changing the meaning. Ms. McGraw testified that, like with J.C., her first question to R.D. and to K.R. after they each described a bathroom incident like what J.C. had described was where Ms. Meister was when the bathroom incident occurred. They each reported that Ms. Meister was in the classroom.11 Before the end of the school day, Ms. McGraw also spoke briefly with Respondent to let her know they were now looking into a bathroom incident involving J.C., K.R., P.C., and R.D. Respondent declined to talk about the incident, but commented that it would not be the first time that multiple students had been in the bathroom together. Ms. McGraw's testimony regarding what she was told by J.C. and the three boys on November 7, 2017, was generally consistent with her sworn statement provided to the Orlando Police Department later that same day.12 11 Ms. McGraw's testimony regarding what the three boys said to her about the bathroom incident on November 7 and the written statements produced and/or signed by the boys that day supplement and explain admissible evidence in the form of R.D.'s and J.C.'s testimony. 12 Respondent's PRO inaccurately stated that Ms. McGraw's written police statement "did not contain J.C.'s statements to her" and instead, Ms. McGraw wrote about what was said to others in interviews. (Resp. PRO at 11, ¶ 49). To the contrary, Ms. McGraw's statement reported what J.C. told her about the bathroom incident: "On Thursday, November 7th, as a follow-up, I pulled J.C. from her classroom to ask[ ] her more about the ["sex"] note. Then, J.C. preceded [sic] to tell me about what happened to her in the restroom. … According to J.C., there were three boys who entered the restroom. One boy, R.D., was in there blocking the door and the other two boys, P.C. and K.R., took turns holding her down and getting on top of her." (Pet. Ex. 19, Bates p. 66; children's names replaced with initials). Ms. McGraw did not include in her written police statement the fact that J.C. (as well as the boys) told her Respondent was in the classroom at the time of the bathroom incident, but Ms. McGraw testified that she told the police this, and also told them that Ms. Meister had said this would not be the first time multiple students went in the bathroom together. (Tr. 173-74). Omitting those details in her written police statement is not surprising, since the police were investigating "allegations of sexual misconduct by juvenile offenders with a juvenile victim." Amended Stipulated Motion for Protective Order, ¶ 2, filed March 16, 2020. Details relevant here to whether Respondent met her supervisory responsibilities in the classroom would not be important in a police investigation of what the boys did to J.C. in the bathroom. One open question following J.C.'s revelation of the bathroom incident was when the incident took place. Ms. McGraw testified that she filled in the "date of the incident" space on J.C.'s written statement, writing that the incident was "last week." The boys' written statements are similar. At the hearing, Ms. McGraw testified that she was uncertain whether she just assumed the bathroom incident had occurred the prior week because that is when the "sex" note was written, or whether J.C. or the boys had said the incident was the prior week. Regardless, as Ms. McGraw and other witnesses agreed, first-graders do not have a very good concept of the passage of time so as to accurately report whether past events were last week or last month. Over the next two days (November 8 and 9), two DCF child protective investigators conducted interviews of the children regarding the bathroom incident. Either Ms. Carralero or Mr. Loomis sat in on the interviews and took notes, but let a DCF investigator conduct the interviews. Ms. Carralero was asked to sit in on the interview of K.R. in Mr. Loomis's place, because she had a preexisting relationship and good rapport with K.R., having known him and his family from having worked with and supervised his older brother. Notes of interviews of J.C., R.D., P.C., and K.R., are generally consistent with admissible evidence regarding the bathroom incident, at least in most respects that are material to the issues in this case. Ms. Carralero was tasked with following up to determine a timeframe for the bathroom incident. To accomplish this, she spoke separately with J.C. and K.R. on several occasions, finding the two of them to be most forthcoming about the details (perhaps in part because of the good rapport she already had with K.R.). First, Ms. Carralero attempted to narrow the time of day when the bathroom incident occurred, using broad frames of reference such as before or after "specials" (a slot for rotating special classes in art, music, and physical education), and before or after lunch. The students separately identified the time after specials and before lunch. That time slot, according to the first-grade classroom schedule, was for math. As a cross-check, Ms. Carralero then asked each student separately what they were working on, and they both responded that they were working on math. She then took it the next step, asking each student separately if they could recall what type of math they were working on. They each responded separately that they were learning counting by tens. Ms. Carralero then separately handed each student their math workbook and asked if they could identify what they were working on in their workbook. The students each identified a workbook page. Although they were not identical pages, they were in the range of pages worked on one day apart, according to Ms. Meister's lesson plan that she was required to draw up each week and follow. J.C. identified page 250 of the workbook, which was on the lesson plan schedule for individual work on Thursday, September 28, 2017. K.R. identified page 246 of the workbook, which was on the lesson plan schedule for individual work on Wednesday, September 27, 2017. As a final step to narrow down the timeframe, Ms. Carralero asked J.C. if she recalled what she was wearing the day of the bathroom incident. J.C. responded that she was wearing something pink and something black with sparkles, and that her hair was braided. Ms. Carralero asked K.R. separately if he remembered what J.C. was wearing that day, and he also said something pink and black. Ms. Carralero then studied security video recordings for the week pinpointed by the students' identification of what they were working on in their math workbooks. Ms. Carralero found a match on September 28, 2017: that day, J.C.'s clothing and hair fit the description given by J.C. and K.R. Ms. Carralero then verified from school records that the four students and Ms. Meister were all present in class that day. Ms. Carralero's approach was reasonable, and her testimony regarding how she made her determination was clear, credible, and consistent with the evidence of Respondent's class schedule and lesson plans. While it cannot be said with 100 percent certainty that the bathroom incident occurred on September 28, 2017, that date is supported by clear and convincing evidence. In addition to the indicators determined by Ms. Carralero's studied approach, each indicator confirming and reinforcing the others, a few independent factors tend to add credence to her timeline determination. One fact establishes that the bathroom incident must have occurred before October 12, 2017: K.R. was removed from Ms. Carralero's class and transferred to Ms. Rivera's class on October 12, 2017. In addition, a review of the SWAT logs shows that, while Ms. Meister's calls for assistance began on September 1, they were sporadic until late in September.13 September 28, in particular, stands out as the first banner problem day, with three separate calls for assistance with P.C. The first call, just after the school day began, was because P.C. had locked himself in the classroom bathroom and assistance was needed to coax him out. As Respondent put it, on some days, P.C. just showed up in an unhappy state, and it seemed to get worse throughout the day. But this day-long trend was not evident until September 28, 2017. A predetermination meeting was held on December 6, 2017. Respondent and her union representative were provided the investigative file material, including the student statements and notes of interviews, and Respondent was given an opportunity at the meeting to respond. Respondent repeated what she had told Ms. McGraw on November 7—that there were a number of occasions when multiple students had gone into the bathroom together before. When asked how she could have failed to notice nearly one- fourth of her class disappearing into the bathroom at the same time, she said that she may not have noticed because she was circulating around the 13 The log of SWAT calls shows the following calls by Ms. Meister for assistance: once on September 1 for K.R.; once on September 7 for P.C.; on September 20, once at 9:02 a.m. for P.C. and once at 9:40 a.m. for "J.R." (an apparent mistaken reference to K.R.); once on September 22 for P.C.; on September 25, once at an unknown time for P.C., and again at 1:05 p.m. for K.R.; once on September 26 for both K.R. and P.C.; and three times on September 28 for P.C., at 8:53 a.m., 9:50 a.m., and 12:50 p.m. Respondent points out in her PRO that there were 31 total SWAT calls for P.C. through the end of October, but only five of those calls were before September 28, 2017. classroom. She acknowledged that as of September 28, 2017, the bathroom door made a loud noise when closed, but she said that she would not necessarily have heard the loud bathroom door close on September 28, 2017, if her class was being noisy at the time. Following that meeting, the School District's investigation was summarized in a report prepared by Mr. Loomis. Respondent was disciplined in the form of a written reprimand for misconduct, by failing to properly supervise her class. She also received a non-disciplinary directive reminding her that she was required to adequately supervise her students. Respondent points out inconsistencies in the details regarding the bathroom incident, as set forth in the reports, statements, notes from interviews, and hearing testimony, which Respondent contends undermines the reliability of all the evidence. Respondent's point might be well-taken if this were a proceeding to determine whether one of the three boys had committed specific acts against J.C. during the bathroom incident, because the inconsistencies are in the details of who did exactly what to J.C. However, that is not the issue for determination in this case. Respondent offered testimony from an expert in child interview techniques, to point out that "best practices" for interviewing children were either not followed in the investigations of the bathroom incident or it cannot be discerned whether they were followed. The "best practices" guidelines offered in evidence provide a template for law enforcement officers to follow in interviewing alleged child victims of sex abuse. Examples of "best practices" to follow were: developing rapport with a child before delving into the sex abuse topic; interviewing the child in a comfortable, child-friendly place; not asking leading questions; limiting the number of adults in the interview room to one, ideally; limiting the times a child is interviewed; video recording interviews of child witnesses; and keeping a written record of the questions asked to ensure they were not leading. Since the interviews of children in this case were not recorded and Respondent's expert could not determine whether other best practices were followed, she offered the opinion that the children's statements could have been tainted by the process. She opined that the children's statements may have been born not of true memories of what happened, but rather, memories of what they may have been led to say or write, reinforced in repeated interviews that did not follow best practices or may not have followed best practices. In the context of this case, the expert opinions were not persuasive. While the concepts of the "best practices" guidelines in evidence may have some application beyond the context of a police officer interviewing an alleged child victim of sex abuse, there are some obvious differences with interviews conducted by school personnel investigating classroom matters. The initial interviews were conducted by the assistant principals and school counselor with whom the children frequently talked—they were the "go-to" persons—who already had good rapports established with these children, and who were all well-trained and experienced in conducting interviews of children to carry out investigations in school matters. That is very different from the first encounter of a police officer with an alleged child victim of sex abuse; rapport-building would be necessary before diving into the topic of sex abuse. In addition, Respondent's expert had the impression that the initial interviews were in a conference room with multiple strangers participating. Those were the second interviews controlled by DCF child protective investigators (who, presumably, were also well-trained in interviewing children, since that is their job). Respondent's expert did not have the benefit of Ms. McGraw's testimony regarding the child-friendly beanbag set-up in her office where J.C. first revealed the bathroom incident. Of note, Respondent's expert acknowledged that an alleged victim's first interview is the strongest evidence, particularly if the child witness volunteers the critical information rather than providing it in response to leading questions. In this case, it was striking that the first reveal of the bathroom incident came from J.C. volunteering the information, not in response to any question because no one knew to ask about it. Ms. McGraw's testimony regarding J.C.'s surprising reveal of the bathroom incident was clear, credible, and compelling to refute Respondent's argument raised before hearing that the way in which the interviews and investigation were carried out may have infected the children's statements. Although the expert testimony offered by Respondent addressed interviewing children generally, the "best practices" guidance document offered in evidence was specific to interviewing alleged child victims of sex abuse. Respondent's expert did not address the fact that in this case, interviews involved more than the alleged victim, J.C.; they extended to the alleged perpetrators. Here, three boys each admitted, to varying degrees, that they were involved in a bathroom incident in which J.C. was the unwilling recipient of kisses and touches on her "private part." The fact that each of the boys tended to point the finger of blame for specific offensive kisses and touches at one of the other boys might be an impediment to finding that one particular boy committed a particular wrongful act, but that is not the issue in this case. Here, that phenomenon adds force to the collective story told by these boys who were admitting, against their self-interest, to participating in a bathroom incident, while trying to minimize their personal culpability. The credible hearing testimony of R.D. and J.C., nearly three years after the bathroom incident, painted a clear big picture that three boys (K.R., P.C., and R.D.)14 went into the bathroom in Respondent's classroom with one girl, J.C., and while the four students were in the bathroom together, there were one or more occurrences of unwelcome and inappropriate touching of J.C.'s "private part." This clear and convincing big picture was supplemented, 14 In her deposition, J.C. named all three boys by their first names: K., P., and R. When converting the boys' first names to first and last initials for the transcript, the court reporter combined two boys' first initials, merging two boys into one. See Pet. Ex. 23 at 8 and 10 (referring several times to two boys, KP and RD, instead of three boys, K.R., P.C., and R.D.). The video recording of the deposition shows that all three boys were named, rather than two. explained, and corroborated by the statements and interviews of these children. By admitting their involvement, each of the three boys ended up serving a suspension. Respondent's expert failed to offer an explanation as to why boys would admit to their own involvement in the bathroom incident if there had been no such incident. Respondent has maintained that she was not aware of the bathroom incident. She attempted to suggest the possibility that the bathroom incident may have occurred during one of the "few occasions" in all of fall 2017 when she left the classroom, a couple of times to go to the office and a couple more times to go to the restroom, leaving a paraprofessional in charge. However, Respondent also admitted that it was entirely possible that the four students could have been in the bathroom together for as long as five minutes while she was in the classroom without her even being aware of their absence. When asked how that could have happened, she testified as follows: Probably, you know, when the students were doing work in their seats, I would circulate and help the students as it was needed. So if it was -- if I was helping a student on the far side of the room I would have had my back turned to the restroom. And, you know, if I was focused on the child I was talking to and their work on the desk in front of me, I would not have seen what was going on behind me. * * * Probably not five whole minutes with one student. But it would be entirely possible that I moved from one student to another sitting right next to that student without turning my back or without turning around again. (Tr. 495-97). Respondent's testimony stands as an admission that she was inadequately supervising her class. Having her back to her whole class— including the known troublemakers and the bathroom that they were known to run into and hide—for as long as five minutes is unreasonable and unacceptable. It is incomprehensible that while helping one student, she would not position herself to see the rest of the class in her peripheral vision, or regularly swivel her neck to make eye contact with the other students— particularly the known troublemakers. Rather than making this reasonable effort to protect her students from harm, she created conditions that were harmful to the physical and mental health and safety of one student. The credible testimony of both J.C. and R.D. established that Respondent was in the classroom at the time of the bathroom incident. J.C. testified that Respondent was the one who gave her permission to go to the bathroom when J.C. raised her hand. R.D. also testified that Respondent was in the classroom when he, K.R., and P.C. went into the bathroom. And both J.C. and R.D. testified that Respondent was in the classroom when they came out of the bathroom. J.C. added that Respondent was on the school phone when J.C. left the bathroom. While there were details that neither J.C. nor R.D. could recall about the bathroom incident, testifying nearly three years after it occurred, their testimony was clear, credible, and consistent regarding Ms. Meister's presence in the classroom at the time of the bathroom incident.15 Their testimony on this point was corroborated by Ms. McGraw's 15 Respondent's PRO argued that testimony of J.C. and R.D. should be discounted or ignored as the product of leading questions. No "leading" objections were made during J.C.'s deposition. As for R.D., Respondent's counsel did not object to R.D.'s testimony that he, P.C., K.R., and J.C. were all in the bathroom in Ms. Meister's classroom. A single "leading" objection was made after the following two questions and answers: Q: Okay. Now, before you all went into the restroom, was Ms. Meister in the classroom? A: Yes. Q: When you all came out of the restroom, was Ms. Meister in the classroom? A: Yes. Ms. Parker: I'm going to object. Leading the witness. (Tr. 121). The belated objection was overruled. That a question calls for a yes or no answer does not make it leading; instead, a question is leading if it suggests the answer. Happ v. State, 922 So. 2d 182, 185 (Fla. 2005) ("This court has long held that a question is not necessarily leading simply because it calls for a "yes" or "no" answer. Instead, a question is leading when it points out the desired answer."); Porter v. State, 386 So. 2d 1209, 1211 (Fla. 3d DCA 1980) (abbreviated definition of a leading question as one calling for a "yes" or "no" answer is misleading; the real test is if a question suggests only the answer yes or only the answer no). clear testimony that J.C. and the boys told her Ms. Meister was in the classroom at the time of the bathroom incident when that incident was first revealed on November 7, 2017. Respondent presented evidence of circumstances which she asserted should mitigate against any disciplinary consequences. She argued that Millennia Gardens' administration was to blame by assigning her to a classroom with very difficult students to manage and not giving her more help to learn the new technologies while trying to manage her classroom. Yet Respondent acknowledged the importance of her supervisory responsibilities as a first-grade teacher. She was responsible for the care and safety of the students in her classroom who were under her charge. As the master principal of Millenia Gardens put it: "Supervision is number one. You've got to have your eyes on the children at all times." Respondent identified two students who were involved in the bathroom incident, K.R. and P.C., as the ones who were most consistently disruptive in her class. She testified that at some point during the fall of 2017, she submitted a recommendation that the two boys should be evaluated for possible special education status. This evaluation process, referred to as the "MTSS" (multi-tiered student support) process, cannot happen quickly. If a school determines that a child should be evaluated for possible support, notice must be given to the parents and a meeting must be coordinated with the parents and a multidisciplinary team of school personnel. At such a meeting, a discussion ensues regarding the child's needs, possible interventions, and possible areas for professional evaluation. If and only if it is agreed that professional evaluation should occur, and the parents give their informed written consent, then a 90-day professional evaluation process begins. At the end of a 90-day evaluation process, it is possible that the school's determination would be that no special support is warranted; or it is possible that the school determines that student support in some form is warranted. If the latter determination is made, then the school would draw up an individual education plan (IEP) for the child, providing for such measures to be taken as are appropriate for the child, based on the evaluation results. In addition to an IEP, one possibility for a child with behavioral problems is the development of a behavioral improvement plan (BIP). No particular measures are employed in all IEPs or BIPs. One possibility is that a child would remain in a regular classroom with an aide assigned to help the child; however, that is only one of many possible measures that may be employed. Respondent was unable to say exactly when during the fall she submitted her recommendation that K.R. and P.C. go through the process for possible evaluation for special education. Although the evidence was not clear in this regard, at the time of the bathroom incident, Respondent may have been just about to make that recommendation or possibly may have just made that recommendation. The evidence was clear that at the time of the bathroom incident, the process had not gone forward to the point where parents had been contacted, a meeting set up, or parental consents for professional evaluations obtained. It would be sheer speculation to say what determinations could result following a 90-day evaluation period that had not yet been authorized or begun. Respondent cannot simply abdicate her responsibilities upon identifying two students for whom she recommended that such an evaluation process should start, as if that step created an entitlement to a particular end result. Respondent's claim that these two disruptive students made it impossible for her to manage her classroom is particularly troubling in the context in which it is being raised. Respondent cannot claim that she was oblivious because she was distracted by the two disruptive students. Those two disruptive students were secreted away in the bathroom. This makes it all the more incomprehensible that Respondent was unaware that nearly one-fourth of her class had disappeared.16
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) through a violation of rule 6A-10.081(2)(a)1., and imposing the following as penalties: suspension of Respondent's educator's certificate for a period of two years from the date of the final order; probation for a period of two years after the suspension, with conditions to be determined by the Education Practices Commission; a requirement that Respondent take a college level course in professional ethics for educators; and payment of a $750.00 fine. DONE AND ENTERED this 29th day of December, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of December, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive, 2nd Floor Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact The Evans Rooming House is owned and operated by the Respondent, Margaret D. Evans, who holds license number 23-4776-H issued by the Division of Hotels and Restaurants. This establishment consists of 17 units subject to rental as living space. On March 13, 1981, Mrs. Teresa Iglesias, an experienced sanitarian employed by the Petitioner, made a routine inspection of these premises. The following conditions existed in the Evans Rooming House on March 13, 1981: There were no fire extinguishers on the third floor. The hallway doors were not kept closed. These doors did not have operational automatic closing devices. There was a garbage can on the exit stairway. The plumbing and hot water boiler on the third floor were damaged and leak- ing. The water from this leakage was standing on the floor in the boiler room and was leaking to lower floors. There was a hole in the wall by the second floor exit. The door to the electrical meter room had been damaged. The third floor had been damaged by fire. The ceiling in one of the rooms on this floor had a large hole in it, the plaster residue therefrom lying on the floor. A strong odor was present on the third floor. At least four of the windows of the Evans Rooming House did not have screens. In addition to the garbage can on the stairway there were only two other garbage cans for use of the building residents. These were overflowing with trash and garbage. Rodents were evident around the trash containers. The premises were not clean. Dirt and trash were in the hallways, in the meter room, in the bathrooms, on the entire third floor, and in the garbage can area adjoining the building. On July 30, 1981, Mrs. Iglesias again inspected the Evans Rooming House. The same conditions found there on March 13, 1981, were still in existence. On October 26, 1981, Mrs. Iglesias returned to the Evans Rooming House and again found the same conditions as existed there on March 13, 1981, with the exception that the third floor plumbing and hot water boiler had been repaired. On June 1, 1982, prior to the hour of the final hearing in this case, Mr. Harry Kennedy, Supervisor of Sanitarians for the Petitioner, re-inspected the Evans Rooming House and determined that of the conditions found there by Mrs. Iglesias on March 13, 1981, and previously listed above as items 1 through 10, the following were still in existence: There were no fire extinguishers on the third floor. At least four of the windows of the Evans Rooming House did not have screens. There were only two or three garbage cans for the entire building, and these remained overflowing with trash and garbage. The hallways, the third-floor, and the garbage can area adjoining the building were unclean. Dirt and trash here observed in each of these areas. In her own behalf, the Respondent contends that as of the date of the final hearing on June 1, 1982, all of the conditions charged as violations had been corrected, with the exception of the missing screens. Nevertheless, there is sufficient competent evidence to support a finding that the four conditions found by Mr. Kennedy existed on June 1, 1982, rather than only the one admitted by the Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Margaret D. Evans, d/b/a Evans Rooming House, be assessed a civil penalty of $100 for each of the ten violations charged, except for the four violations which were uncorrected as of June 1, 1982, for which the Respondent should be assessed a penalty of $200 each. The total of these penalties is $1,400.00. The Respondent should be required to make this total payment within 30 days from the date of the Final Order; and if not paid within such period, license number 23-4776-H held by the Respondent should be suspended for a period of twelve (12) months. THIS RECOMMENDED ORDER entered on this 14th day of July, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 14th day of July, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Ms. Margaret D. Evans 1374 West Flagler Street Miami, Florida 33135 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Hans Steiner is the owner and operator of Am-Swiss Coffee Shop, which is located in the lobby of an office building in Miami, Florida. There are no bathrooms on the lobby floor of that office building. The nearest bathrooms to the coffee shop are located on the second floor of the office building, and the bathroom facilities in that building are kept locked. Petitioner has placed signs within the coffee shop indicating the location of the bathrooms and the manner in which the keys will be issued. Petitioner's coffee shop has access from the street and, therefore, can be open even when the offices in that building are closed. Petitioner's patrons include employees and visitors from that office building, from the office building next door, and the public. Petitioner's coffee shop is not incidental to another occupancy. A patron wishing to use the toilet facilities while at the coffee shop would first obtain a key and would then exit the restaurant establishment, travel down a hallway approximately 20 feet, take an elevator to the second floor, and then travel approximately another 20 feet to where the bathroom facilities are located. Petitioner holds a license as a take-out facility but has been refused an eat-in license due to the location of the toilet facilities. The management of the office buildings is responsible for maintaining and cleaning the bathrooms, not Petitioner. Rule 10D-9.028 is incorporated into Rule 10D-7 13.027(5), Florida Administrative Code. Footnote No. 10 of Rule 10D-9.028(21)(o) requires an eating establishment to have toilet facilities on the same floor as that establishment. The relevant portion provides as follows: All toilet rooms shall be of easy and convenient access to both patrons and employees, and shall be located on the same floor of the premises served and under the responsible direction of the management of the premises served. Rule 10D-9.028 became effective on January 1, 1977, and was most recently amended in 1981. The substance of the rule was contained in former rule 10D-9.08 which was amended in 1976. Toilet facilities have been required to be located on the same floor as the eating establishment since at least 1976. Patrons of eating establishments may need to use the restroom while at the establishment. Some patrons such as the elderly, infirm, handicapped, pregnant women, and small children may have greater need of restroom facilities. They may have more difficulty finding the toilet facilities and may experience bladder or bowel failure in the eating establishment if the facilities are not accessible. Patrons of eating establishments may become ill at the establishment and need to vomit. Some types of food poison or food allergy cause persons to vomit within a few moments from ingesting that food. If facilities are not immediately accessible, patrons may vomit in the eating establishment. The presence of vomit, urine, or feces in an eating establishment creates a health hazard. It is more difficult for patrons to locate a restroom which is on a different floor from the eating establishment than one which is on the same floor. Washing of hands is the single most important step that can be taken to prevent the spread of bacteria in the food service context. It breaks the fecal-oral chain by preventing germs on hands from being ingested through the mouth. Readily-accessible handwashing facilities for both employees and patrons are important to the prevention of the spread of disease-causing bacteria. There are sound health reasons for requiring toilet facilities to be on the same floor as the eating establishment. In addition to all of the health reasons, it is more convenient for patrons to have restrooms on the same floor as the floor on which the eating establishment is located.
The Issue The issue involved herein is whether or not the Respondent 2/ guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. Based upon my observation of the witnesses and their demeanor while testifying, documentary-evidence received and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 715 Northwest Sixth Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license No. 16- 5268H. During the inspection by Mr. Bragg, the following violations were observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon and/or by the lack of service tags thereon. The general condition of the building was run down, paint was peeling from the walls, windows and doors were broken, the roof was leaking, and window screens were missing. A severe infestation of rodents and roaches existed on the premises. Papers and assorted trash were located around the building. There were no outside garbage containers furnished for the building, which contains six apartment units with kitchen/cooking facilities in each apartment. Stairways and walkways were not well lighted and the handrails on the stairways and walkways were loose. Electrical fixtures did not all have covers and were not all in working order. Plumbing fixtures in several apartments were leaking. (Testimony of Richard Bragg, an inspector employed by the Petitioner for approxi- mately 14 years and who has approximately 25 years in the hotel/restaurant business.) Mr. Bragg made subsequent inspections of these premises in September and October, 1981, and the same conditions were in existence, except that an outside garbage container had been provided. A subsequent inspection of the premises was made by Mr. Bragg on November 11, 1981, and the original conditions existed, except for the provision of the garbage container. On December 12, 1982, Mr. Bragg found no evidence of correction of the remaining problems since his November 11, 1981 inspection. Finally, on February 18, 1982, Mr. Bragg observed all of the original cited problems as existed on July 24, 1981, except for those relating to furnishing a garbage container. Mr. Bragg was unable to check the condition of the plumbing and the electrical fixtures due to the lack of access to the apartments on February 18, 1982. Respondent tendered extensive documentary evidence consisting of receipts for various repairs made to the subject premises, including plumbing, roofing, window and screen repairs; extermination for pest control and trash services. Respondent's agent, Harry A. Wright, had the fire extinguishers inspected and replaced on an annual basis. All of the documentary evidence submitted respecting expenditures were for repairs subsequent to the date of Mr. Bragg's initial inspection on July 24, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 for each of the eight conditions for the subject premises found herein to be violations of the rules of the Division of Hotels and Restaurants, with the exception that it is RECOMMENDED that the Respondent only be assessed a civil penalty of $50 for the violation found above relating to outside garbage containers due to the effective and corrective action taken by the Respondent to correct said deficiency. Accordingly, the total amount of the civil penalty is $750. It is further RECOMMENDED that the Respondent shall pay the above amount of $750 within thirty (30) days of the date the Petitioner enters its final order, which funds shall be made payable to the order of the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if the Respondent fails to remit such civil penalty to the Petitioner within such period, the Division of Hotels and Restaurants' license No. 16-5268H for the Pinewood International Apartments located at 715 Northwest Sixth Avenue, Pompano Beach, Florida shall be suspended for twelve (12) months or until reinstated for good cause by the Division of Hotels and Restaurants. RECOMMENDED this 14th day of July, 1983. JAMES E. BRADWELL, 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 14th day of July, 1983.
The Issue Whether Respondent violated Chapter 509, F.S., and Chapter 7C, F.A.C., as stated in Notice to Show Cause, dated January 5, 1979. Respondent appeared at the hearing without counsel and was advised as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. He elected to represent himself at the hearing.
Findings Of Fact Respondent Alfred L. Merritt owns and operates the Steven Hotel located at 136 Northeast 9th Street, Miami, Florida, under license No. 23-13111 issued by Petitioner. (Testimony of Brown, Merritt) On December 6, 1978, Roger Brown, an inspector for Petitioner, conducted a routine inspection of Respondent's public lodging establishment and, accompanied by the hotel manager, found apparent violations of Chapter 509, F.S., and Chapter 7C, F.A.C., during the course thereof as follows: Ceiling leak in third floor hall; ceiling out of bathroom on third floor, west side with rafters exposed; overhead doorframe in apartments 305 and 309 were loose and insecure; floors in room 307 and mens room, third floor, west side had rotten boards which were termite infested as evidenced by the presence of droppings and wings; baseboard in bathroom by the shower needed replacement; windows on the north side of the second and third floors were broken; plaster in ceiling of ladies room, second floor, needed repair of rotten boards; ceiling and wall in bathroom of east side, second floor, had exposed rafters and pipes and needed repair; storeroom floor on porch of the second floor was rotten and needed repair; wood strips were missing on the floor of first floor hall; toilets on the west side of the first and second floors needed repair; wall on the west side of the first floor had a hole which needed repair; an inoperable dumbwaiter needed to be closed or covered. (Rule 7C-1.03(1)) Reinspection on June 6, 1979, revealed that although some repairs had been effected, ceiling leaks still existed in the third floor hall, the ceiling of the bath of the third floor, west side, was still open, and doorframes in apartments 305 and 309 were still loose. Showers on second and third floors had mildew odor and needed cleaning, ceiling and walls in restrooms on the second and third floor were rotten and deteriorated. (Rule 7C-3.01(2)) Reinspection on June 6, 1979, revealed that these conditions had not been cured. Restrooms had not been designated by sex for men and women. (Section 509.221(1), F.S.) Reinspection on June 6, 1979, indicated that the restrooms were now so designated. Screen on north side of second and third floors needed replacement, as did screens and crawl spaces under building. (Section 509.221(8), F.S. and Rule 7C-1.03(3), F.A.C.) Reinspection on June 6, 1979, showed that the screens had not been replaced, but that the crawl space areas had been properly covered. Roach and vermin droppings had been observed in closets, drawers and shelves in the apartments. (Rule 7C-1.03(3)) Reinspection on June 6, 1979, revealed no vermin dropping but continued presence of roaches. Trash and debris were present on the exterior premises, including old mattresses and a refrigerator. (Rule 7C-1.03(7)) Reinspection on June 6, 1979, showed the continued presence of the refrigerator and an old tub. Lid was not closed on dumpster. (Rule 7C-1.03(5)) Reinspection on June 6, 1979, showed that a lid had been placed on the dumpster. Room rates were not properly posted in each room and Form DBR208 concerning room rates had not been filed with Petitioner. (Rule 7C-3.02(1)) On June 6, 1979, although Form 208 had been filed with Petitioner, room rates were still not posted. (Testimony of Brown) Respondent testified at the hearing that he was endeavoring to bring the building up to proper hotel standards but continuing repairs were necessary and it was not possible to have the premises in an acceptable condition at all time. It was uncontroverted that a three-month sheetrock strike occurred at the time of ceiling and wall repairs which made that material difficult to obtain, but that Respondent had used plywood in certain areas as a substitute. Respondent further contested the allegations that termites existed in the building and claimed that rotten flooring was caused by dry-rot. (Testimony of Merritt)
Recommendation That Petitioner impose a civil fine of $250 against Respondent, pursuant to the authority contained in Section 509.261(2), Florida Statutes. DONE and ENTERED this 22nd day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Francis Bayley Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Alfred L. Merritt t/a Steven Hotel 136 NE 9th Street Miami, Florida
The Issue The issue involved is whether the disciplinary action taken against the Appellant based on the grounds stated in the disciplinary letter dated November 9, 1976, was for good cause. The specific allegation against Moistner was that he was negligent in the performance of his duties in failing to follow rules and regulations which resulted in the escape of three (3) patients from the South Florida State Hospital. The specific act of negligence involved was stated by the agency at the hearing as Moistner's leaving the Nurses Station contrary to the rules and regulations requiring that a charge aide always be on duty in the Nurses Station.
Findings Of Fact Bobbie Moistner is a Career Service Commission employee with permanent status who filed a timely appeal of his three day suspension with the Career Service Commission. On the night of November 1, 1976, Bobbie Moistner and Wayne Andrews were on duty as charge aides in Washington Ward of the South Florida State Hospital (S.F.S.H.). On this night Moistner observed that the patients in the dormitory side of Washington Ward were behaving strangely. Because Washington Ward was understaffed with only two (2) charge aides on duty, Moistner advised the guard supervisor and requested assistance. Apparently a call was made from the guard supervisor to the guard on the front entrance of Washington Ward, who conducted a visual check of the patients from the exterior building observing them through the windows of the ward on the dormitory side. The security guard on the entrance then called Moistner and reported that the patients were seated in a common area of the dormitory having a conversation. Moistner also contacted his immediate supervisor and requested that telephone calls for the patients be cancelled for the night of November 1, based on their shortage of personnel in Washington Ward. Moistner received a call from the assistant supervisor of Nursing Services advising him that patient telephone calls would proceed as usual. This required the charge aide to contact the switchboard, give the number to the operator, and remain physically present within the immediate area while the call was made by the patient. Each patient was allowed 15 minutes to make calls, and each ward section was allowed 2 hours. The cell side was worked from at 6:00 - 8:00 P.M. and the dormitory side from 7:00 - 9:00 P.M. Beginning at 6:00 P.M., Wayne Andrews began to conduct patient telephone calls on the cell side of Washington Ward. He was located in the cell vestibule area immediately adjoining the Nurses Station. Between the Nurses Station and the cell vestibule area is a solid steel door requiring a special key which operates that door and the door between the dormitory entrance passage way cage and the dormitory side visitors room. Andrews was located at the cell door control panel in the cell vestibule area. From this position, Andrews would release one patient at a time from his individual cell, close the door behind the patient, unlock the cell door to Cell 13, permit the patient to enter Cell 13, and lock the door to Cell 13 behind the patient. In this manner the patients were separated one from another and from Andrews by at least one set of cell bars at all times. The door between the Nurses Station and the vestibule was left open. Beginning at 7:00 P.M., Moistner began to conduct patient telephone calls on the dormitory side of Washington Ward. Using his employee passkey, Moistner entered the visitors room at the dormitory side, and using the special key unlocked the solid steel door between the visitors room and the passage way cage to the dormitory area. Moistner entered the passage way cage and using his employee passkey unlocked the door between the passage way cage and the dormitory. He directed a Patient Bell to enter the passage way cage and close the door between the cage and the dormitory area. Bell did so whereupon Moistner allowed him to enter the visitors room. At this point Moistner turned his back on Bell and Bell, using a sharp object placed at Moistner's neck, overpowered Moistner, relieved him of his keys, entered the passage way cage and unlocked the door to the dormitory area releasing two (2) additional patients. Moistner was then locked into the passage way cage and patients made their way through the visitors room, the common room, into the Nurses Station where they entered he cell vestibule area and overpowered Andrews. Andrews was taken back and locked into the passage way cage with Moistner. At this point the patients went through the visitors room, the common room, and the Nurses Station, entering the kitchen area where they exited Washington Ward through the exterior door to the kitchen. At this point the alarm was set off in the main guard shack where closed circuit TV monitoring of the Nurses Station on Washington Ward was also maintained. However, at the time of the escape the guard on duty was not at his duty station and did not observe the prisoners, although they passed through the field of view of the TV monitor three (3) times, or hear the alarm. Standard procedure for the hospital would have required the guard to call the Nurses Station on Washington Ward if he failed to observe a nurses aide within the Nurses Station for a period of over one (1) minute. The patients had failed to take Andrew's employee passkey from him. Using this key, Andrews gained access to the dormitory area where Moistner and he got the attention of the guard on duty outside the front of Washington Ward, reporting to the guard that three (3) patients had escaped. This guard reported the escape, and although additional guards were on the scene within several minutes the patients were able to make their escape from the hospital grounds.
Recommendation Based upon the foregoing findings of fact, conclusions of law, and mitigating factors, the Hearing Officer recommends that the Career Service Commission not sustain the action of the agency. DONE and ORDERED this 27th day of April, 1977, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977. COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614 Bobbie Moistner 314 Northeast 5th Court Dania, Florida 33004 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent violated Chapter 509, F.S., and Chapter 7C, F.A.C., as stated in the Notice to Show Cause, filed March 13, 1979. Meyer Kaplan, treasurer of Respondent corporation, appeared in behalf of the firm and was permitted to represent its interests during the course of the hearing.
Findings Of Fact Respondent Price and Kaplan, Inc. operate the Pershing Hotel located at 226 Northeast 1st Avenue, Miami, Florida, under license No. 23-140H issued by Petitioner. (Testimony of Diaz) On May 17, 1978, Petitioner's inspector, Orlando Diaz, inspected Respondent's premises and determined that there were apparent violations of Chapter 509, Florida Statutes and Chapter 7C, Florida Administrative Code, as follows: Paint was peeling on walls of room 204; a five inch hole existed in the wall next to the wash bowl in room 202; walls of public restroom and garbage closet on second floor are deteriorated and require repair; walls in room 301 need paint; walls in room 303, bedroom and bath, require plaster repair; walls in room 304 need paint and shower room ceiling requires repair, as well as toilet tank lid; walls in room 319, bedroom and shower room, need paint and repair, and venetian blinds are in bad condition and need repair; holes in wall in area near floor of room 316 need repair and toilet tank lid needs to be replaced; walls in public restrooms on third floor have decaying walls which need repair; walls in room 405 are in bad condition and need repair; walls in ceiling and bedroom and bathroom of room 412 are in need of repair; window and screens in room 414 need to be replaced and repaired as well as walls which need paint; walls in room 402 need repair; peeling paint on walls of room 401, bath, need repair; walls of bathroom in room 517 are in need of repair; walls of fifth floor public bathroom need repair and replacement of toilet tank lid; walls in garbage closet on fifth floor need repair; walls and ceiling in room 611 and screen and windows need repair; walls of room 605 have peeling paint and need repair; walls in room 603 need paint and screen repaired; walls in bedroom and bath of room 506 need paint and repair; room 205 has peeling paint and needs repair, and hand-washing bowl is extremely dirty; walls, ceiling, floors, and windows in storage room next to room 100 need repair; floor of linen room needs repair; walls, ceilings and windows of room 100 need repair. (Rule 7C-1.03(1)) Furniture needs repair as follows: box spring broken and torn in room 505; chair upholstery open in room 506 and 614; legs of box springs missing in room 517; box springs torn and soiled in room 401; mattress and linen soiled and torn and no bed pads in room 412. (Rule 7C-3.01(6)(7)(9)) Rodent droppings and infestation of roaches observed on the premises. (Rule 7C-1.03(3)) Accumulation of garbage and trash on north and south side of building. (Rule 7C-1.03(7)) Faucets in bathroom of room 603 need repair. (Rule 7C-3.01(1)) Railing on rear fire stairway is loose and not anchored securely, and fire door on second floor is of a louver type and not solid. (Rule 7C- 1.04(3)) On July 25, 1978, inspector Diaz made a reinspection of the premises and found violations still existing. He therefore advised Respondent by letter of the necessary repairs to be made. On November 15, 1978, Diaz returned, accompanied by inspector Roger Brown. They found that a high percentage of the violations still had not been eliminated. On January 9, 1979, they again inspected the premises and found several violations still existing, particularly regarding trash in the exterior areas, and the loose fire stair railing. Further, a spot check of rooms 100, 405 and 414 revealed that required repairs had not been made, and that roaches were still evident on the premises. On June 6, 1979, inspector Brown found that trash and debris still existed in the outside alleys and rear of the building, that the garbage closet on the fifth floor had not been repaired. He further found that stairway railings on the fire stairs and third floor front stairs were not secure, and that walls and ceilings of rooms 100, 400, 405, and 516 still required repair. No bed pads were present in some twenty rooms that were spot checked and there was no doorknob on the door to room 104. (Testimony of Diaz, Brown) Meyer Kaplan, treasurer of Respondent corporation, testified that some seventy or eighty of the rooms in the hotel had been painted and plastered, but that water leaks from deteriorated piping continuously required breaking walls in order to effect repairs. He stated that the Pershing Hotel was an old building with a poor plumbing system which repeatedly required maintenance. He further stated that the hotel had a carpenter present every day to make repairs, but that the hotel guests are destructive in nature, who become drunk and ruin mattresses and throw rubbish out of the windows. He stated that the rear railing had been repaired but that it was continually used improperly by guests which caused it to become loose again. Kaplan attributed some of the trash around the exterior of the premises to other adjacent hotels. (Testimony of Kaplan)
Recommendation That Petitioner suspend Respondent's license to operate the public lodging establishment located at 226 Northeast 1st Avenue, Miami, Florida, for a period of sixty (60) days from the date of the Final Order issued herein. DONE and ENTERED this 22nd day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Francis Bayley Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Meyer Kaplan 226 Northeast 1st Avenue Miami, Florida ================================================================= MOTION TO MODIFY FINAL ORDER =================================================================
Findings Of Fact The Respondents, Charles and Minnie Hall t/a Ball Rooming House, were on July 7, 1978, licensed as a public lodging establishment. An inspection of the premises on July 7, 1978, revealed that no fire extinguishers were provided, no lighting was provided in the public toilets, insulation was rotting on the electric wiring in the toilet areas and service was connected from one building to another by way of an extension cord, the paneling on the walls of the public toilets was wet and falling apart and missing commodes had not been replaced. Subsequent inspection revealed that the defects had not been remedied.
