The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
Conclusions Mr. Klein had a duty to operate the van he was driving on the day of the accident with reasonable care. See ss. 316.183(1), 316.1925(1), F.S. Mr. Klein breached that duty when he was distracted by a cellular phone call at or around the time of the accident or otherwise not paying full attention to the road at the time of the accident. Mr. Klein’s negligent operation of the van was a proximate cause of the accident that resulted in Angelica’s death. Mr. Klein was acting within the course and scope of his employment at the time of the accident. Therefore, the County is responsible for Mr. Klein’s negligence. Angelica violated s. 316.130(10) and/or (11), F.S., when she attempted to run across SR 436 in the middle of the block rather than at a cross-walk and, as a result, Angelica’s own negligence contributed to her death. The percentage of fault allocated to Angelica by the jury -- 39 percent -- is reasonable under the circumstances. Ms. Wagner’s failure to supervise Angelica on the night of the accident was, in my view, irresponsible and unreasonable. Ms. Wagner knew or should have known that Angelica might cross SR 436 based upon prior instances of her crossing the road without permission. Furthermore, it is irresponsible and unreasonable for Ms. Wagner to allow an 11-year-old child to be unsupervised and to stay out on her own until 9:00 p.m., which was after dark. Ms. Wagner’s negligent supervision of Angelica contributed to her death because if she had been supervised she would not have gone across SR 436 in the first place. Thus, notwithstanding the jury verdict on this issue, I find that a portion of the fault for Angelica’s death should be apportioned to Ms. Wagner and, in my view, a figure of 10 percent is reasonable. In summary, I conclude that liability for Angelica’s death should be apportioned as follows: 51 percent to the County; 39 percent to Angelica; and 10 percent to Ms. Wagner. As to the damages, I find the amounts awarded by the jury -- $8,000 in funeral expenses and $1.4 million in non-economic damages -- to be reasonable. The amount of the claim bill should be reduced to reflect a set-off of the $8,000 received by Ms. Wagner from another source (i.e., Angelica’s uncle) to pay the funeral expenses and to reflect the allocation of a portion of the fault to Ms. Wagner. As adjusted, the claim bill should be for $652,080, which is calculated as follows: $1,408,000 (verdict) x 51% (County’s revised share of liability) = $718,080 + $42,000 (taxable costs) - $100,000 (partial satisfaction by County) - $8,000 (set-off for funeral expenses paid by uncle). ATTORNEY’S FEES AND LOBBYIST’S FEES: The claimant’s attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent in accordance with s. 768.28(8), F.S. The attorney’s fees will be $163,020 if the bill is approved at the amount recommended. The lobbyist’s fees are in excess of the 25 percent attorney’s fee, and according to the contract between the claimant’s attorney and the lobbying firm, the lobbyist’s fees will be an additional 5 percent of the final claim. Thus, the lobbyist’s fees will be approximately $32,604 if the bill is approved at the amount recommended. The bill, as filed, provides that payment of attorney’s fees, costs, and lobbyist’s fees are limited to 25 percent of the final claim. If that language remains in the bill and the claim is paid in the amount recommended, the claimant will receive $489,060 and the balance of $163,020 will go towards attorney’s fees, costs, and lobbyist’s fees. If that language was not in the bill, the claimant would receive only $456,456. LEGISLATIVE HISTORY: This is the second year that this claim has been presented to the Legislature. Last year’s bill, SB 62 (2007), was not referred to committee. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 26 (2008) be reported FAVORABLY, as amended. Respectfully submitted, T. Kent Wetherell Senate Special Master cc: Senator Gary Siplin Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Counsel of Record
The Issue Did the Respondent, Audie Lewis, violate the Petitioner, City of Cape Coral’s (Cape Coral), End User Computing Policy and ordinances of Cape Coral prohibiting an employee from unauthorized use of equipment and conduct detrimental to the interest of the city? If he did, what discipline is proper?
Findings Of Fact At all times material to this case, Cape Coral employed Mr. Lewis as a business recruitment specialist in the City’s Economic Development Office. Until this matter, Mr. Lewis was a satisfactory employee. He has no history of discipline. The city manager is responsible for deciding whether to terminate the employment of Cape Coral employees who are not supervised by a city department director. Mr. Lewis did not work in an office with a department director. Consequently he was under the supervision of the city manager. Chapter 2, section 2-31.1 of Cape Coral’s Code of Ordinances states that employees may only be disciplined for cause. It also establishes progressive discipline as the usual practice. But chapter 2, section 2-31.2 states: “The city, however, reserves the right to impose even the most severe discipline as an initial measure when circumstances warrant.” Cape Coral’s Administrative Regulation 46 (AR-46) page 3(J) states that every computer user must comply with all applicable policies. It cautions: “Non-compliance may result in disciplinary action up to and including discharge.” On April 20, 2016, the city manager terminated Mr. Lewis’s employment pursuant to chapter 2, section 2-31.3 of the Code of Ordinances and AR-46, the City’s End User Computing Policy. The relevant part of the Code section states: One or more of the following reasons shall constitute cause for disciplinary action: * * * (t) Unauthorized use of city personnel services, supplies, property, facilities, or equipment; * * * (hh) Actions or conduct detrimental to the interests of the city; In pertinent part, AR-46, page 6(E), states: Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email or other form of electronic communication or displayed on or stored in the City’s computers including, but not limited to, messages and material with sexual comments, obscenities, pornography, abusive or degrading language, antisocial behavior, or inappropriate comments concerning race, color, religion, sex, national origin, marital status, or disability. Any message received that contains intimidating, hostile, or offensive material should be reported immediately to management so that appropriate measures can be taken. The End User Computing Policy prohibits use of the internet to view or download material that contains pornography or that is sexually explicit. Mr. Lewis knew of the policy contained in AR-46. The city manager based Mr. Lewis’s termination on “[u]nauthorized use of city personnel services, supplies, property, facilities or equipment,” “[a]ctions or conduct detrimental to the interests of the city,” and “[v]iolation of Administration Regulation 46 End User Computing Policy.” Cape Coral maintains a “zero tolerance” policy for pornography. This is a core part of Cape Coral’s commitment to a culture of professionalism. One reason for the policy is that the proximity of computer users to each other means one user’s display of pornographic images may be viewed by other users. On March 9, 2016, Cape Coral’s “Intrusion Prevent/Detection System” alerted the Information Technology Services Department (ITS) that city computer “cm5465” was connected to a web server possibly associated with adult content. The alert cautioned that the connection may lead to a malware infection and recommended checking the computer to ensure it had not been compromised. The computer was assigned to and used by Mr. Lewis. There is no persuasive evidence that others used the computer. On March 18, 2016, ITS’ network security administrator, Elizabeth Merriken, sent the human resources director a memorandum advising her of the activity. Ms. Merriken attached a report generated by Checkpoint, a security system the city uses to monitor traffic to and from city computers through the firewall. The system also monitors URLs visited and compares them to lists of URLs for suspect sites, such as pornography sites. It reported visits from Mr. Lewis’s computer to 85 suspect sites. The system functions automatically and cannot be manipulated. The report covered traffic for Mr. Lewis’s computer from March 7 through 10, 2016. ITS duplicated the hard drive of Mr. Lewis’s computer in order to analyze it and his internet activity. Ms. Merriken conducted a forensic analysis of the duplicate hard drive. The analysis did not find any evidence of a virus or malware. An analysis using the forensic software program, “Magnet Internet Evidence Finder,” found several pornographic items. It also found that a great deal of history had been deleted shortly after Mr. Lewis learned of the inquiry into his computer use. The analysis found over 100,000 pictures and more than 1,500 videos. During March 8 and 9, 2016, Mr. Lewis’s computer accessed pornographic websites approximately 85 times. ITS contracted with DR Data Security, LLC (Data Security), to conduct further forensic analysis of the hard drive from Mr. Lewis’s computer. Ryan Irving conducted the analysis for Data Security. Mr. Irving conducted his analysis using standard forensic tools. They included SigCheck, Internet Evidence Finder 6.7, Winhex 18.7, IE Cache View, and SANS Investigative Forensic Toolkit 3.0. His analysis corroborated the report from the City’s analysis of March 8 and 9. It also identified similar activity between June and December of 2015. Mr. Irving recovered 54 images from Mr. Lewis’s computer downloaded in December 2015. The images include topless women and nude women, alone and paired in sexually explicit poses. The city manager notified Mr. Lewis of his intent to impose discipline. Cape Coral complied with its due process policies, providing Mr. Lewis notice of the charges against him and the evidence relied upon. It also gave him an opportunity to rebut or explain the information. Mr. Lewis’s statements during a pre-disciplinary interview acknowledging that he might have “accidentally” seen nude images while using Google to search for work-related subjects corroborate the reports of the images and visits to pornographic websites. The testimony that so many images would have been displayed “accidentally” is implausible; there is no expert testimony to support it and no testimony about what search subjects would have generated the images. A brief list of search terms and some of the sites visited demonstrates the implausibility of the “accidental visitation.” They include: Debbie Davis Playboy Centerfold, images.playboy.com, teen pornmovies.ratedxblogs.com, lustfulpics.com, boobieblog.com, glamourcenterfolds.com, and spylove.com, interspersed with URLs for more prosaic sites, such as Amazon and Etsy. After considering all of the information, the city manager issued a “Final Notice of Discipline” letter to Mr. Lewis, terminating his employment, stating the grounds for the termination, and advising Mr. Lewis of his right to seek review. Mr. Lewis repeatedly used his city computer to view websites with pornographic images. This activity was an unauthorized use of city equipment. Mr. Lewis used his city computer to display pornography. Mr. Lewis used his city computer to intentionally view and download electronic material that contains pornography and was sexually explicit from the internet. Mr. Lewis’s activities, summarized in paragraphs 19 through 21, were willful.
Findings Of Fact Fundamental findings Petitioner, Christian Interactive Network, Inc., is a non-profit corporation exempt from tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner's articles of incorporation provide that it is organized "[t]o operate, manage, run and otherwise do and perform those acts and things appropriate and proper for the conduct of the management and operation of a computer network, including, but not limited to the performance of services and installation or construction of the network, and purchase or writing of programing necessary to place such subsystem within the national and international computer information network system. Such computer network shall be and it is the intent hereof that the network be operated for the express purpose of Christian information and data access and for the purposes of glorifying God without personal financial gain as a motivating factor." To carry out its corporate purpose, petitioner leases approximately 3,000 square feet of office space at Suite 101, 505 Northwest 65th Court, Fort Lauderdale, Florida, wherein it maintains fifteen computers that are linked via the telephone network with the Internet. From its office location, petitioner provides an "on-line," "virtual area where people from around the world can gather . . ." in a computer networking area. There, petitioner organizes the data and electronic format for its on-line service, places leading ministries on-line, and monitors its programs and responses. Petitioner has no ministers on staff, but considers itself a "pathway" to the leading ministries by placing their program on-line, and by providing space for open forum discussion on Christian issues. Access to petitioner's resources and information is available through Internet access provided by commercial on-line services, Free-net on-line services, public access areas at libraries, and other providers or sources of Internet access. The religious activities petitioner presents on-line are of a character or nature that would qualify as "religious services and activities" under the "religious institutions" exemption provided by Section 212.08(7)(o)2, Florida Statutes; however, participants in petitioner's on-line service do not physically meet at petitioner's offices to participate in religious services, petitioner does not provide any service to physically transport its members or participants, and petitioner was not shown to be a "governing or administrative office[] . . . to assist or regulate the customary activities of religious organizations or members." The exemption at issue Here, petitioner has requested a consumer's certificate of exemption as a religious institution under the provisions of subsection 212.08(7)(o)2, Florida Statutes. Pertinent to this case, that subsection provides: The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: "Religious institutions" means churches, synagogues, and established physical places for worship at which nonprofit religious services and activities are regularly conducted and carried on. The term "religious institu- tions" includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees. The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. 2/ It is petitioner's position that usage of computer on-line services, the so called Cyberspace or information super highway, is part of a rapidly changing technological environment wherein it provides an interactive meeting place to serve the spiritual needs of participants, nationally and globally, who might otherwise be unable to physically assemble. Such, petitioner contends, qualifies it as a "physical place[] of worship," a "provide[r] of free transportation services to church . . . attendees," or a "governing or administrative office[] the function of which is to assist or regulate the customary activities of religious organizations or members." Contrasted with petitioner's contention, the Department, consistent with the statutory mandate that the exemption for "religious institutions" be "strictly . . . limited" to that defined by the law, reads the provisions of subsection 212.08(7)(o)2a to apply only when (1) there exists an established physical place of worship, i.e., a "bricks and mortar" facility, (2) the organization provides physical transportation for church members or attendees, or (3) that the provider, who claims to be a "governing or administrative office" whose "function is to assist or regulate the customary activities of religious organizations or members," be part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. Such reading is consistent with the literal import of subsection 212.08(7)(o)2a, and to the extent the provisions of that subsection relating to "other governing or administrative offices" may be unclear, is a reasonable interpretation of such provision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying petitioner's application for a consumer's certificate of exemption as a religious institution. DONE AND ENTERED this 25th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 25th day of April 1996.
The Issue : The issue to be resolved in this matter concerns whether the Okaloosa County School Board (Board) (District) (Petitioner) has just cause to terminate the Respondent's employment as a tenured classroom teacher with a professional services contract (PSC) within the meaning of Section 1012.33(1)(a), Florida Statutes (2007), for alleged misconduct in office.
Findings Of Fact The Respondent, Jerome McIntosh, is a 41-year-old divorced father of one. He obtained his entire education, prior to college, in the Okaloosa County School District. He played football and basketball at Niceville High School and subsequently attended and played football at Tulane University, obtaining degrees in sociology and physical education. Thereafter, the Respondent played professional football for a time and then subsequently worked in middle management positions with firms in the Seattle, Washington, area. He returned to Okaloosa County in 2003, to pursue a Florida Teaching Certificate, which he obtained, and embarked on a public school teaching and coaching career. The Respondent was hired as a teacher at Lewis Middle School (Lewis), by the principal, Dr. Linda Smith, for the 2003- 2004 school year. He continued to teach and coach at Lewis through the end of the 2007-2008 school year. During five years at Lewis he taught Eighth Grade Reading, Sixth Grade Honors World Cultures, and Sixth Grade Language Arts, as well as serving as the school's head basketball coach for five years, as assistant football coach for four years and as head football coach during the last year. Mr. Billy Mikel became principal at Lewis in January 2007. The Respondent attained a professional services contract status (tenure) and received a promotion to head football coach by Mr. Mikel. The Respondent's performance evaluations showed that he met expectations in every subject area, including the 2007-2008 school year evaluation, prepared by Mr. Mikel. He has been very successful as a basketball and football coach. His two teams have won four county championships. He has been asked to continue to be basketball and football coach each year and for the 2008-2009 school year, Mr. Mikel asked him to be head coach of both teams. He was working with both teams through early June 2008, up until the time of his suspension. The District has had an electronic resources use policy in effect for approximately the last five years. That policy does not prohibit the personal use of school computers by instructional personnel, and does not have objective internet use guidelines or prohibitions. Rather, it requires any use to "honor the ethical norms associated with the highest standards of professional conduct." See Petitioner's Exhibit 10 in evidence. The Respondent maintains he never saw that policy prior to the termination episode. He did learn that there was an Internet access filter in place by the District, because when he made some computer research inquiries that were teaching- related, he found that certain inquiries were blocked. The District maintains, District wide, a content filter (Websense) that prevents all District computers from visiting websites inappropriate for teacher and student access. The District also has a general personnel policy, 6-9, which requires the destruction of any anonymous written communication addressed to its employees when they receive such a communication. That policy was in effect, and applicable, according to the Respondent, to the AFF anonymous website flyer, when it was obtained by Mr. Mikel and his staff. It is also true that the anonymous website flyer was not addressed to any School Board employee; it was merely created and then distributed, apparently mostly on mailboxes, in neighborhoods of students and parents associated with Lewis. The Respondent had an intermittent romantic relationship with a fellow teacher by the name of Joni Shaw. This was when both were sixth grade language art teachers, with the same work schedules, during the 2007-2008 school year. The two had dated each other intermittently since approximately the end of 2006, and through the greater part of the 2007-2008 school year. Ms. Shaw tended to be emotional and extremely jealous and the relationship was intermittent for these reasons. She was jealous of the Respondent's time, and virtually any woman who communicated with the Respondent outside her presence. She became particularly upset by his pre-existing friendship with a mutual teaching colleague, Cindy Janazzo. This issue extended over the entire course of their dating relationship. Both the Respondent and Ms. Shaw had access to each other and to each other's classrooms during the work day. Ms. Shaw had access to the Respondent's school computer in his room and knew his computer password or log-on information. Ms. Shaw used the Respondent's computer occasionally, with his permission and/or in his presence. Sometime in August 2007, the Respondent discovered that Ms. Shaw had begun an email message, addressed to a teaching colleague at Lewis whom he knew, and another District employee he did not know. Ms. Shaw left the draft email message on the Respondent's computer. The Respondent did not notice the name of the employee he did not know (Arant Sutsko) on the address line of the draft message. He was, however, upset that Ms. Shaw had used his school computer without his knowledge when he saw the draft email message that already included the text; "if I were smart, I would have left it at that," referring to another document she sent him about why they should "break up." Mr. McIntosh then added several sentences to that draft message in which he chastised Ms. Shaw for using his computer without his knowledge and made a brief comment about the need for trust for a relationship to survive. After adding a short paragraph so criticizing Ms. Shaw for using his computer in this way, he simply added Ms. Shaw's name on the cc line and sent the resulting document. This created the erroneous impression that he had authored the entire document and consciously decided to send it to Sutsko. All the remaining emails in that sequence on the school system computer, which were found objectionable by the District, were sent by Ms. Shaw. Each of these emails was sent out by her very late at night or early in the morning and each included inappropriate, personal, and sexually-charged references. She made inflammatory remarks about the Respondent in the emails and threatened to harm his reputation and career. Upon receiving a complaint from Ms. Sutsko, Superintendent Tibbets asked Assistant Superintendent Rodney Nobles to look into the matter. Ms. Sutsko raised the concern some five months after the dates of the emails she received. Mr. Nobles spoke separately to Ms. Shaw and to Mr. McIntosh about the subject of the emails sometime in January 2008. Mr. Nobles informed the Respondent that he needed to refrain from sending out emails like that one from his school computer. He did not indicate to the Respondent that this was a formal disciplinary action or a particularly serious matter and the admonition was only verbal. The concern expressed by Mr. Nobles was only to the effect that the Respondent had sent an email of a personal nature on the school computer to someone he did not know. He only showed the Respondent the one email that was sent in error to Sustko, in cautioning the Respondent to be careful about how he used the District's email system in the future. The Respondent never again sent such an email. Ms. Shaw often spent time at the Respondent's house. She often stayed-over one or two nights per week at the Respondent's home. She sometimes stayed there by herself while he was running an errand or at athletic practice or some other event which kept him away from home for a time. At other times she would arrive before he did, as both traveled to his home from separate locations. She sometime used his home computer while he was at home doing other things. Mr. McIntosh and Ms. Shaw sometimes went shopping together and she was aware of his Visa cards, which he usually used as debit cards, although they could be used for credit purposes as well. He generally carried one of the debit cards in his wallet, leaving the other one at his home. The Visa cards were used to debit bills and purchases to the Respondent's checking account and Ms. Shaw had access to the card numbers and expiration dates due to her relationship with the Respondent, and her frequent presence in his home, sometimes when he was absent. She also knew his personal information such as age, birth date, height, weight, etc. Sabrina Hupp, at times pertinent hereto, was an 18- year-old student who knew Ms. Shaw because she dated Ms. Shaw's son, Tyler, during 2007-2008. Ms. Hupp was acquainted with the Respondent through her interactions with the Respondent and Ms. Shaw in the context of Ms. Hupp's dating relationship with Tyler and the Respondent's dating relationship with Joni Shaw during that year. On one day in April 2008, Sabrina was at the Shaw's home with Tyler when she observed Ms. Shaw viewing an AFF website entry that included a semi-nude picture of a man. Ms. Shaw stated that it was a picture of the Respondent. In her testimony, in evidence by deposition, as Respondent's Exhibit 26, she noted that Ms. Shaw had the user name/password to enter the website (the user name was "eatmyass2008"). She watched as Ms. Shaw responded to women who had sent messages expressing an interest in meeting the Respondent, based upon the AFF profile of him on the site. The only messages Sabrina Hupp observed on the website were incoming messages from women. She observed no messages emanating from the Respondent. Ms. Hupp was aware of the intermittent nature of the dating relationship between the Respondent and Ms. Shaw. Ms. Shaw was apparently a friend of the Hupp family. On May 27, 2008, Sabrina's brother passed away, and Ms. Shaw attended the visitation and the funeral after Sabrina's brother's death. The visitation for Sabrina's brother was held on the evening of May 30, 2008. The Respondent had planned to meet Ms. Shaw at his home after she returned from the visitation. In the meantime, the Respondent was at the district football jamboree while Ms. Shaw was at the visitation. The Respondent was delayed leaving the jamboree and Ms. Shaw arrived at his house well before he did. A neighbor, David Mains, observed Ms. Shaw's arrival and observed that while she was waiting for the Respondent to arrive Ms. Shaw became extremely agitated and repeatedly paced between the house and her car, angrily slamming her car doors and the Respondent's gate and garage door as she did so. Mr. McIntosh returned home later that evening and they spent the night together at his home. At one point during that evening, during a phone conversation, Ms. Shaw informed the Respondent that she had already left his home (apparently impatient due to his non- arrival there). She told him she was already some 15 miles away on the Mid-Bay Bridge. At that time the Respondent was only two to three miles from his house. The essence of their phone conversation was to the effect that Ms. Shaw would return to his home, and meet him there. However, when he traveled the two or three miles distance to his home, from the point where he had the phone conversation, upon his arrival he found Ms. Shaw already there and emerging from his shower. It is thus inferred that Ms. Shaw misled the Respondent about leaving his home before the Respondent arrived, and, implicitly, concerning how much time she had spent alone at his home that evening. After spending the night together at the Respondent's home Ms. Shaw was departing to attend the funeral on the morning of May 31, 2008, when she discovered that her car would not start. The Respondent and the neighbor, David Mains, helped to start her car, so she could get to the funeral. Mr. Mains is the neighbor who saw the activity of Ms. Shaw at the Respondent's home the evening before. When Mr. Main saw the Respondent working on Ms. Shaw's car in the driveway he inquired about the argument that he believed Ms. Shaw and the Respondent had the prior evening. The Respondent told him that there had been no argument and the Respondent had no knowledge of any angry outburst by Ms. Shaw. In any event, the Respondent and Ms. Shaw spent that weekend together and attended a cookout the next day, Sunday, June 1, 2008, at the home of friends. Cindy Janazzo is a teaching colleague of both the Respondent and Ms. Shaw. She sent a text message to the Respondent during the cookout which aroused suspicion in Ms. Shaw. Ms. Shaw apparently felt that the text message was indicative of some private relationship between Ms. Janazzo and the Respondent, or was "code" for some understanding between them and she confronted the Respondent in an angry way about it at the cookout. In the text message Ms. Janazzo had told the Respondent "not to eat too much" even though, supposedly, she was unaware that the Respondent was at a cookout at the time. In any event, Ms. Shaw confronted the Respondent about the message in a loud hostile manner in front of the Respondent and his daughter. The Respondent became very upset at Ms. Shaw's hostile behavior in front of his daughter and friends and so he abruptly left the party, further infuriating Ms. Shaw. A day or two after the Sunday afternoon argument between the Respondent and Ms. Shaw, either on Monday, June 2 or Tuesday, June 3, someone other than the Respondent distributed a flyer in neighborhoods near Lewis Middle School, that alerted residents to the existence of an AFF website profile entry that purportedly presented a danger to the school students. The flyer encouraged those who received it to open that website and find the entry with the password and the user ID information provided in the flyer. The flyer included a fully clothed picture of the Respondent standing on a football field. The semi-nude photograph of the Respondent that had been stored in his home computer could be viewed on the AFF website entry referenced in the flyer as well. A resident who came into possession of one of the flyers purportedly notified school officials of it on the morning of Wednesday, June 4, 2008. Upon being alerted to the existence of the flyers, the school officials gathered as many of the flyers as they could to try to prevent their circulation in the community. The principal, Mr. Mikel, immediately used the secure information (password and user name identification), depicted on the flyer concerning the AFF website, to see what was on the site that involved the Respondent. He thereafter called the Respondent to his office to ask him if the semi-nude photograph that appeared on the site was his photograph. The photograph depicted a man from the neck down to the legs (no facial view) seated, unclothed, but holding his hands over his genital area. Both Mr. Mikel and later Mr. Foxworthy gave the Respondent several opportunities to tell them that the picture was not a picture of him, because it seemed to them that the picture depicted a white man. The Respondent, however, in all candor, told them a number of times that it actually was his picture. The Respondent, however, consistently denied that he was responsible for the website entry. The District officials who viewed the website did not ask for or obtain permission from the Respondent or anyone else to use the password and user ID to gain access to the private, secure website entry which was attributed to the Respondent. They did not get his permission to access private, secure billing information associated with the creation of that website (credit card or debit card information). When Mr. Mikel asked the Respondent about his credit cards in the meeting on June 4, he did so because he had already accessed the billing information associated with the website entry's creation and thus learned about the credit card and card number which had been used to pay the bill for the site. In response to that question, the Respondent told Mr. Mikel that he only had a debit card, because he used his Visa card for debit purposes primarily. The Respondent then showed the Visa card he normally carried in his wallet telling Mr. Mikel that it was a debit card. The Respondent maintains that he did not think at the time about the other card that he normally kept at his home, also using it primarily as a debit card. The Respondent was then asked by Mr. Mikel to stay home for the rest of that week, which was during part of the post-planning period. The Respondent was busy that week grading exams and entering grades on the computer. He returned for the rest of the post-planning session the following week (June 9-11, 2008). He states therefore, in essence, that he did not give further consideration to the earlier question by Mr. Mikel concerning his credit card. He maintains that he did not intentionally deceive Mr. Mikel about the debit and credit card questions and answers, but rather had simply not thought about the other card, which he normally kept at home, nor the fact that both cards could either be used as credit or debit cards. The school administrators in question informed the Respondent, the morning of June 4, 2008, of the Aff website entry. He professes not to have known of it before that time and stated that he never saw the website entry until he asked for and was provided a copy of the flyer by Mr. Mikel a day or so later, so he could close down/delete the AFF profile in question. Ms. Shaw, however, as shown by Sabrina Hupp's testimony, knew of the AFF website more than a month before the flyer was distributed in the community. As Ms. Hupp testified, sometime in April 2008, Ms. Shaw entered the website in question, was perusing it and even responded to some of the comments of women who had responded to the website. Ms. Shaw had ready access to the Respondent's home computer during times pertinent to this case in the Spring of 2008, where the semi-nude photo of the Respondent was stored. Ms. Shaw knew of the existence of the website entry long before the flyers were distributed and she knew of and had access to the Respondent's Visa debit/credit cards, as shown by the above- found facts, concerning her frequent sojourns at the Respondent's home and their shopping together. She had detailed personal information about the Respondent and possessed all information necessary to have created the website and the flyers. Moreover, Ms. Shaw had threatened to cause harm to the Respondent's professional standing previously, in an email. The flyers were publicly distributed, and the related website made public, only one or two days after the hostile argument situation arose at the cookout on Sunday afternoon, June 1, 2008. Ms. Shaw and the Respondent had a stormy, intermittent dating relationship through 2007 and the first half of 2008. She had a history of becoming quite jealous and upset regarding contacts of any nature by other women with the Respondent. She seems to be a person possessed of a hot temper and dramatic personality. On balance, the preponderant, persuasive evidence underlying the above Findings of Fact does not, in light of all the above-found circumstances, establish that the Respondent created the AFF website entry. The proven circumstances of the above Findings of Fact show that there is a substantial likelihood that Ms. Shaw created the AFF website entry and distributed the flyers in question. The above Findings of Fact show significant motive and opportunity in that regard on her part. The Respondent had a duty-free lunch period between 10:45 and 11:10 on each day at Lewis. He sometimes ate lunch alone in his classroom and on some of those occasions explored internet Sports Illustrated and Fox Sports websites seeking sports-related and general information of interest to him on the school computer. On some occasions he "clicked" on items or stories of interest that took him indirectly to other websites, including the website "Bugehoobs" on one occasion. In the course of intermittent internet browsing the Respondent viewed many images of women in swim suits or otherwise scantly clad over a period of several months. There were 1000 or more other images, not of that nature, that appeared on web pages he accessed over the several month period. The District had an Internet filtering system to block particular sites or images considered to be inappropriate to be viewed on school computer systems. The Respondent was not proven to have ever attempted to by-pass the District's Internet filtering system. The images he did view on the computer system were not blocked by the filtering system, there was no restriction of access to the sites and images he viewed. The Respondent never viewed any nude or pornographic images on any occasion on the school's computer. This is undisputed. Temporary Internet File (TIF) images are created automatically as to any image appearing on an access page, regardless of the reason the page was accessed. They are not permanent files created or monitored by a computer user and can be deleted by anyone who knows how to do so. The School District's computer technician, Mr. Mitchell, was unable to obtain the "websense report," which could be generated by the District's computer system, because of time, space, and server constraints. It would be the best source of information about the Respondent's school computer, including the sites he had accessed with that computer. Because of this Mr. Mitchell drew erroneous conclusions, based upon assumptions from his TIF review, to the effect that the Respondent had tried to bypass the District's web access filter. Mr. Mitchell informed Mr. Foxworthy and Mr. Mikel that many TIF images he found on the school computer in the Respondent's custody were pornographic in nature. Foxworthy thereupon informed the Respondent that he could either resign or be terminated for viewing pornographic images, before Foxworthy had even seen the images, later described by himself as "old- fashioned cheesecake." Mr. Foxworthy first met with the Respondent on Thursday, June 12, 2008, after the end of the school year. This was before Mr. McIntosh had been informed about anything concerning alleged inappropriate website access concerns with regard to the school computer. Mr. Foxworthy told the Respondent he could resign or be terminated, but not because of the private AFF website issue, but rather for accessing pornography on his school computer. Mr. McIntosh knew that was not true and asked to see the alleged pornographic images. A meeting for that purpose was scheduled and took place on Monday, June 16, 2008. With disciplinary action in the offing, the Respondent sought the assistance of a union representative regarding the proposed termination, after that June 12, 2008, meeting with Mr. Foxworthy. He attended the subsequent scheduled meeting on June 16, 2008, accompanied by union Executive Director Greg Butler. Also in attendance at the meeting were Mr. Mitchell, the District's computer technician and Mr. Mikel. Mr. Mitchell showed the Respondent and Mr. Butler a substantial number of randomly selected, purportedly objectionable swim suit images at that meeting, which were among a larger number of non- objectionable images. Mr. Butler and Mr. Mitchell confirmed that the remaining objectionable images were of a similar nature to those Butler had already viewed and all were considered non- pornographic. After leaving the meeting Mr. Butler called Mr. Foxworthy to find out if he had seen the objectionable images and learned that he had not. During their phone conversation Mr. Foxworthy acknowledged that he should view the images before terminating the Respondent. In fact, around the time of these events a swim suit competition was being conducted by the Northwest Florida News Herald, a newspaper of general circulation in Okaloosa County. The swimsuit competition included images of many women in swimsuits which were similar in nature to the allegedly objectionable images Mr. Butler was shown by Mr. Mitchell at the meeting of June 16, 2008. None of the websites the Respondent occasionally accessed, such as the Sports Illustrated or Fox Sports websites nor even the Bugehoobs website he accessed one time, indirectly, (by clicking on a news item concerning Tiger Woods) was blocked by the District's internet filtering system at the time the Respondent accessed them. None of the images he accessed could be deemed to be any image of pornography. Ms. Alexis Tibbetts, the Superintendent, formerly was the principal at Ft. Walton Beach High School. While she was the principal there she supervised a high school teacher by the name of Michelle McVay. During the approximate time the events happened leading up to the proposed termination of the Respondent, in the Spring of 2008, Ms. McVay voluntarily entered herself in the area daily newspaper's on-line swimsuit competition, by submitting a suggestive swimsuit photo or image of herself to the newspaper, through its website. Ms. Tibbets and the District took no disciplinary action against Ms. McVay, although it was suggested that she remove the photograph from the newspaper's website. The images entered in the swimsuit contest, including Ms. McVay's, were similar in nature to those the Respondent is charged with viewing on the school computer during his duty-free lunch hour (his own time). Ms. Tibbets has also known Ms. Shaw personally for some 15 years. As superintendent she once helped Ms. Shaw out of a serious legal problem involving potential prosecution for writing bad checks to the District. In contrast, Ms. Tibbets had never met the Respondent before the events in question. The events that triggered the investigation, the distribution of the flyers, happened within two days of the end of the school year. It generated very limited public awareness, as most of the flyers were retrieved. Newspaper coverage of these matters was limited to a period of only a few days after the Board's action in July 2008, and TV coverage was minimal or non-existent. Seven months elapsed between the events in question and the hearing. The Respondent has performed both his teaching and coaching duties well, over the five years he has been employed by the District. He was and remains well-liked and respected in his school community and there are no written records of any parent or student complaints or student removal requests received by the District concerning the Respondent in the aftermath of these events. The Respondent has demonstrated by preponderant, persuasive evidence that he can still be an effective teacher and coach employed by the Petitioner. The Respondent has not been accused of any criminal violation in conjunction with the matters in question. There has been no arrest on criminal charges and no activity he is accused of committing, with regard to the issues in this case, involves students in any way. The Respondent did not engage in misconduct in office in the context of his use of the internet on his personal school computer or school laptop. He did not violate school or District policies in the context of the allegation that he created a profile on a private, secure, adult website, as no student was involved, no school computer or resources were used and it was purely a private matter that happened to be made known by someone other than Mr. McIntosh. None of the Respondent's actions alleged to have been improper, individually or collectively rise to the level of misconduct in office or immorality, if such a charge were allowed to survive the Respondent's objection on due process grounds.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered dismissing the subject charges and reinstating the Respondent with back pay and related benefits, retirement credits, supplemental coaching pay, as described above, and that he be reimbursed for all categories of lost benefits that come within the proper scope of a "make whole" remedy. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 April, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Alexis Tibbetts Superintendent Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548 Michael E. Foxworthy Chief Officer, Human Relations Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
