The Issue The issue to be resolved in this proceeding concern whether the Petitioner was subjected to an adverse employment action (termination) for discriminatory reasons, based upon his race, an alleged violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Billy K. Speed was an employee of Premier Hospitality, Management, Inc., doing business as the Grand Seas Resort, for approximately three years prior to the termination of his employment, which resulted in this action. Mr. Speed is a black male. The Respondent operates a resort in Daytona Beach and a substantial portion of its business activities involves conducting sales tours of its properties. A significant part of Mr. Speed's duties as an employee of the resort was to drive the tour buses bringing potential customers to the Grand Seas Resort facility. His duties additionally involved working on the "image team" involving keeping the exterior of the facility and grounds in proper condition. He worked on the maintenance staff and the maintenance manager or supervisor was his immediate superior. Mr. Speed occasionally assisted in cleaning up "the fitness center" in the Grand Seas facility, although this was not part of his regular duties. He was not performing that duty on the day the events in question, described below, unfolded. Mr. Speed had a prior criminal record but the Grand Seas Resort management was aware of that when he was hired. As shown by the testimony of Managers Mr. Rinear and Mr. Cottelli, Mr. Speed was a good employee and was well liked by his fellow employees and by the members of management who testified for the Respondent in this proceeding. He had good evaluations and had good personal relationships with his superiors at the facility. On or about October 23, 2004, a motor cycle wash or "bike wash" was conducted on the grounds of the resort, just outside the fitness facility on the ground floor level. Various employees were helping with the bike wash which was apparently a charitable fund raising event. During the course of the day one of the employees who was helping with the bike wash, Heather Wood, placed her purse (apparently on a shelf) under the receptionist counter in the fitness facility. The fitness facility was open that day and various persons and employees had access to the facility and could move in and out of it, including the Petitioner. The Petitioner maintains that there were five white females who were helping with the bike wash who he saw in the fitness center at various times that day in the vicinity of the receptionist counter. Three of the white females were employees and two of them were former employees. The Petitioner also had access to and did enter the fitness center that day. He contends that sometime around 2:30 in the afternoon of that day, just before he left the resort's premises for the day, he went into the fitness facility to use the telephone. The telephone was kept on top of the counter in the fitness facility. The Petitioner maintains that it was his habit and on this occasion he did squat down or sit down behind and below the level of the counter top while using the phone. There was a bar-type stool behind the counter in the fitness facility. The five white females had access to the fitness facility that day as did an unknown number of employees and non- employees of the resort who were either working at the bike wash event or present on the premises for other reasons. The Respondent employees a substantial number of minority employees as well as Caucasian employees. Many of them, whether or not their work assignment involved their presence in the fitness facility, had access to the fitness facility that day. Heather Wood reported to the Respondent's management that money was missing from her purse which had been behind and underneath the reception area counter in the fitness facility. Upon learning of that occurrence, Mr. Colitelli, a partial owner of the resort and Mr. Rinear, the general manager, viewed a surveillance tape recorded by the security company used by the Respondent, which was taken that day by a surveillance camera located in the fitness facility. Mr. Colitelli and Mr. Rinear viewed the entire tape for that day as well as the portion of the tape which was introduced into evidence.1/ In viewing the tape both Mr. Colitelli and Mr. Rinear observed that the Petitioner had gone behind the counter in the fitness facility that day during a relevant time period before the alleged theft was reported and they observed that he bent down for some substantial period of time behind the counter, out of sight of the camera and where the purses were located. Both Mr. Colitelli and Mr. Rinear maintained in their testimony that no other person who entered the fitness facility during that day was shown on the surveillance tape to be in the area of the purses behind and beneath the counter. The Petitioner maintained in his testimony that the five white females he considers to be similarly situated employees (or former employees) were around and behind the counter at various times that day and, under his theory of the case, would have opportunity to have been suspects in the theft as well. It is also a fact that due to the circumstances of the way the bike wash event was conducted and due to the fact that the fitness facility was open that day to other employees of the resort, as well as persons participating in the bike wash, that other persons both employees and otherwise had access to the fitness facility that day. In any event, according to both Mr. Colitelli and Mr. Rinear, no other person who entered the facility during the day in question was shown on the tape to have been in the immediate area of the purses, including the purse from which money was allegedly taken. Accordingly, they believed that they had a reasonable suspicion that the Petitioner may have been involved in the theft of the missing money. This belief is based upon his presence behind the counter and his bending down out-of-sight behind the counter for a significant period of time where the purses were located. Consequently, the Petitioner was called to a meeting with Mr. Colitelli and Mr. Rinear for them to question him about this occurrence. When they questioned the Petitioner about what he knew concerning the theft incident he denied any knowledge or responsibility for it. Mr. Colitelli's and Mr. Rinear's testimony indicates that the Petitioner offered to take a polygraph to establish that he was not guilty of the theft and the Petitioner maintains that they asked him to take a polygraph. The Respondent had never followed a practice of requiring any employees to submit to a polygraph examination and this was the first such occasion where a polygraph was scheduled for an employee. In fact, as established by Mr. Rinear, in his four years with the Respondent company no employee had ever been required to take a polygraph. He did not even know of a polygraph examiner, but had to look in the yellow pages to locate one when he and Mr. Colitelli decided to schedule a polygraph for the Petitioner. The polygraph was scheduled for two days later Friday, October 26, 2004. The Petitioner told them that he would have to "speak to someone" about whether or not to take the polygraph. The next morning, Thursday morning, he came in and talked to Ms. Thompson about the matter and told her that upon advice of an attorney that he had decided not to take the polygraph. At that point Ms. Thompson recommended to her superiors that he be "laid-off." The Petitioner's employment was terminated that day. The Petitioner admitted that he was in the fitness center on the day the theft occurred and admitted going behind the counter. He admitted stooping down behind the counter for a significant period of time and offered no explanation for doing so other than using the phone. In fact, in order to use the phone it was not necessary to stoop down low behind the counter because the phone was kept on top of the counter. The Petitioner could have access to the phone from in front of the counter, or alternatively, their was a bar stool behind the counter upon which the Petitioner could sit while using the phone. He offered no plausible explanation as to why he had to stoop down low behind the counter where he would not appear on the camera. The management of the Respondent's facility, Mr. Colitelli and Mr. Rinear, did not question other persons who had entered the fitness facility on the day in question because no other person shown on the video tape had been in the immediate area of the purses and squatting down behind the counter, out-of-sight of the camera. The five white females referenced by the Petitioner in his testimony were not questioned, but neither was any other employee or other person who had access to the fitness facility that day. This is because the witnesses for the Respondent saw no other persons on the tape they viewed who were in the vicinity of where the purse was kept behind the counter and who behaved in such a way as to arouse suspicion that they might have been capable of taking the money. The Petitioner offered no witnesses in support of his contention or version of events other than his own testimony. The Petitioner admitted that he had a good relationship with his manager, Mr. Rinear, who made the decision to lay him off. They had always had friendly relations and he did not ever feel discriminated against by Mr. Rinear or other Grand Seas employees or managers, except with regard to the termination incident at issue. The Petitioner also admitted that it would have not have been necessary to go behind the counter to use the phone and that he had no employment business in the fitness center that day. He offered no reason why he was there on that date other than the stated need to use the telephone. The Respondent clearly had a reasonable suspicion that the Petitioner might have taken the money. The Respondent candidly acknowledges that the suspicious nature of the Petitioner's behavior depicted on the tape does not prove that, in fact, the Petitioner took the missing money. It terminated him because of its suspicion that he took the money not because it had proof that he took the money. The Respondent elected not to make any record of the Petitioner being terminated, as a termination for cause, because of any misconduct related to this incident. Rather, it entered the reason for his termination on employment compensation filing documents as being that the Petitioner was the subject of a lay-off that it carried out with regard to some forty-five or forty-six other employees. This was due to hurricane damage to the resort suffered during the 2004 hurricanes. Ms. Thompson, the personnel director, testified that the Petitioner was selected to be part of the lay-off because he did not have alternative skills such as plumbing, painting, or electrician skills, which might have enabled him to assist in the repair work being done on the facility due to the hurricane damage. It is determined, however, that such was a reason given by the Respondent in order to insure that the Petitioner would not have a firing for cause on his record, would be able to obtain a good employment reference upon leaving the Respondent's employ, and would be able to obtain his unemployment compensation benefits. It is found that the real reason he was terminated was due to the Respondent's suspicion of his involvement in the theft. The Respondent's witnesses established that they and the Petitioner had always had a good relationship and that, by showing his departure as being as a result of a lay-off due to a reduction in employees because of hurricane damage, they would be doing him a favor by preserving his right to unemployment compensation benefits and to a good reference for other employment. There was no testimony elicited by the Petitioner or the Respondent which indicated that the employment decision was affected by or based upon the Petitioner's race. The Respondent has employed substantial numbers of minorities of several categories. In fact, the percentage of black employees was approximately double the percentage of blacks available in the community labor market for employment. The lay-off due to hurricane damage of approximately 46 persons did not disproportionately consist of minorities either. In fact, the majority of the persons laid off in this effort were Caucasian. The only incident of racial discrimination during his employ with the Respondent, testified to by the Petitioner, was an incident that had occurred approximately 1 1/2 years before when an unknown person had written a racial epithet on a newspaper in the work area where Mr. Speed worked at the time, while he was away from the area. The Petitioner admitted that he had no idea who had done it but he reported it to his superiors and Ms. Thompson, the personnel director. She vigorously investigated the incident and interviewed all employees who had reasonable access to the area where the newspaper was found. She was unable to determine if anyone who worked for Grand Seas, or any other person, might have been guilty of committing that act. Whether or not the Petitioner requested the polygraph or Mr. Rinear and Mr. Colitelli requested that he take the polygraph makes little difference. The Petitioner maintains that he was discriminated against because of being black because the five white females he postulated as comparative employees were treated more favorably than he with regard to the incident (no questioning and no polygraph.) This theory fails to take into account the fact that it has not been demonstrated that the Petitioner and those five white females were the only persons who had access to the fitness facility when the purported theft occurred during that day. No other employees, whether white females or other minority or Caucasian employees were questioned or scheduled for a polygraph. The Petitioner was questioned because of the above-referenced behavior, witnessed by management on the video tape on the day at issue, which caused them to focus their suspicions on him. Since they felt they had no reasonable suspicion of any other employee whether minority or not, who had access to the fitness facility that day, they had a plausible reason for not attempting to schedule a polygraph or questioning of such other employees or persons.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 18th day of May, 2006, 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 18th day of May, 2006.
Findings Of Fact The Parties. Petitioner, Frank T. Brogan, as Commissioner of Education, is authorized to file and prosecute formal complaints against persons holding teaching certificates in the State of Florida. Respondent, Lee Christine Gaul, is certified to teach in Florida. Ms. Gaul holds Florida Educator's Certificate 716132. The certificate authorizes Ms. Gaul to teach in the area of history and is valid through June 30, 1997. Ms. Gaul's Employment as a Teacher. Ms. Gaul is currently employed as a teacher at Belle Vue Middle School (hereinafter referred to as "Belle Vue"), in Tallahassee, Leon County, Florida. Laura Hassler, Ph.D., is the principal of Belle Vue. Ms. Gaul has been employed continuously as a teacher at Belle Vue since 1993. Ms. Gaul is responsible for some of the most difficult and troubled students at Belle Vue. Ms. Gaul's students are all students that have been unable to function in other classes. None of the students which Ms. Gaul is responsible for in her position as a teacher at Belle Vue were involved in any way in the incident which is the subject of this proceeding. Leon Crew Boosters, Inc.. Leon Crew Boosters, Inc. (hereinafter referred to as "Leon Crew"), is a not-for-profit corporation. Leon Crew is exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code. Leon Crew was created in 1992. As a corporation, Leon Crew operates through its board of directors, officers and committees. The purpose of Leon Crew is to provide an opportunity for high school students to participate in the sport of rowing or "crewing". To date, only students at Leon High School have participated in Leon Crew. The Board of Directors has considered allowing students from other schools to participate in Leon Crew. To date, however, students from other schools have not been allowed to participate so that the crews could participate in state high school championships. Approximately 80 to 100 students participate in Leon Crew activities. Several boats are manned by several crews. Leon Crew provides all equipment needed for crew members. Leon Crew owns all boats, trailers and other equipment utilized by crews. All funding for Leon Crew comes from its supporters and members. Leon Crew receives no public funding from any source, including Leon High School or the Leon County School Board. Leon Crew and the crews are not members of, or directly regulated by, the entity that regulates publicly funded high school sports programs in Florida, the Florida High School Activities Association. Coaches for the crews are interviewed and hired by Leon Crew. Coaches need not be certified to teach. Leon Crew is responsible for the payment of any salary paid to coaches. Leon High School officials do not participate in the process of hiring or firing coaches. Nor does Leon High School contribute to the salary of any coach. Although Leon Crew does not practice on the grounds of Leon High School (there is no water available), they are allowed to utilize Leon High School facilities. Leon Crew members are featured in the Leon High School student yearbook. Leon Crew teams are allowed to use the name "Leon" and to participate as "school" crews at state championships. Although Leon Crew is a separate corporation over which Leon High School has no legal authority, the relationship of Leon Crew and Leon High School requires mutual agreement of Marvin Henderson, the principal of Leon High School, and the Board of Directors of Leon Crew to continue operating in the manner they have been operating. Without mutual agreement and cooperation, Mr. Henderson could limit Leon Crew's association with Leon High School. For example, Mr. Henderson could eliminate Leon Crew from the yearbook, prohibit use of school facilities, not allow the use of the school's name and not authorize students to travel to regattas. On the other hand, without Mr. Henderson's cooperation, Leon Crew could disassociate itself from Leon High School. Ms. Gaul's Association with Leon Crew. In 1992, Ms. Gaul was interviewed and hired by Leon Crew as the coach of the men's and women's crew teams. She initially served without pay as a volunteer coach. Ms. Gaul was the first coach hired by Leon Crew. Ms. Gaul, who was living in Jacksonville, Florida when hired, moved to Tallahassee. She worked at a stock brokerage firm until her employment at Belle Vue. At not time has Ms. Gaul been employed by Leon High School. Nor has she been associated with Leon High School except through Leon Crew. Ms. Gaul is not evaluated as a teacher or coach by Leon High School. Ms. Gaul did not answer directly to Mr. Henderson. Mr. Henderson's authority over Ms. Gaul was not based upon a teacher-principal relationship. It was based upon the cooperative association of Leon High School and Leon Crew. As coach, Ms. Gaul has established rules of behavior which crew members are required to follow in order to continue to participate in Leon Crew. Ms. Gaul has imposed discipline to members of crews that have violated those rules. The Sunday, May 22, 1994 Incident. At the end of the crew season and the state championships in the Spring of 1994, a few of the better boat crews traveled to Atlanta, Georgia to participate in a crewing event known as the "Southeast Regionals". One of the students who attended the Southeast Regionals, T. C., planned to have a party at her home upon the return to Tallahassee of the students that had travelled to Atlanta. The party was to be held upon the students' return on Saturday evening, May 21, 1994 and Sunday morning, May 22, 1994. T. C. had obtained permission from her parents for the party. T. C.'s parents were not to be home during the party. An adult house sitter was to be at the home, however. T. C. had invited some of the crew members who participated in the Southeast Regionals to attend the party. At some time on Saturday, May 21, 1994, before leaving Atlanta, T. C. and some of the other crew members invited Ms. Gaul to attend the party. Ms. Gaul agreed. The crew members returned from Atlanta on Saturday evening, May 22, 1994, in several vans. Those crew members that attended the party drove directly to T. C.'s house. Ms. Gaul was in the last van to arrive at the party. Ms. Gaul arrived at approximately 2:00 a.m., Sunday, May 22, 1994. Most of the individuals attending the party were already at T. C.'s house. There were approximately 20 to 25 people in attendance at the party, some of whom were crew members and students at Leon High School. T. C.'s older brother, D. C., and some of his friends were also in attendance. D. C. and his friends were not associated with Leon Crew. The evidence failed to prove the ages of most of the participants. D.C. and his friends and the members of the crew in attendance were, however, high school students. Most of the crew members in attendance were juniors and seniors in high school. T. C., however, was 14 years of age at the time of the party. The party was not a school or Leon Crew official function. Ms. Gaul did not have supervisory authority over all of the students in attendance at the party. Some of the Leon Crew members in attendance had completed their participation in Leon Crew. Ms. Gaul could, however, have attempted to control the activities of the Leon Crew members who were not graduating. She had established strict rules for all crew members concerning the behavior of crew members and the consumption of alcohol and tobacco. On one trip, two students were caught shoplifting. They were immediately sent home by Ms. Gaul. The adult house sitter was also present and Robbie Drew, the mother of a crew member, was also present in the house. Beer and liquor was available at the party before and after the crew members arrived. It had been planned from the beginning by at least some of the participants of the party that beer and liquor would be available. Some, but not all, students in attendance at the party, including some crew members, consumed beer and liquor both before and after Ms. Gaul arrived. The evidence failed to prove how much beer and liquor was consumed or the number of students or crew members that consumed beer and/or liquor. Upon arriving at T. C.'s home, Ms. Gaul confirmed with the adult house sitter that T. C.'s parents had authorized the party. At some point after her arrival, Ms. Gaul noticed that some students, including crew members, were consuming beer and liquor. Ms. Gaul did not make any effort to prevent the students from drinking. Nor did she leave the party. It had been arranged by some of the students for additional beer to be brought to the party. Those plans fell through, however, sometime after Ms. Gaul arrived. Some of the students began taking up a collection of money to go purchase more beer. Some of the students believed that they would have been able to obtain additional beer that evening. Ms. Gaul overheard two of the students discussing their plan to go purchase more beer. Ms. Gaul was concerned about the students leaving the house to purchase beer because the house at which the party was held was a considerable distance from the nearest store, the road to the nearest store was dark and winding and she knew some of the students had been drinking. Ms. Gaul had doubts as to whether she could stop the students from going to purchase more beer. Therefore, rather than attempt to stop them, Ms. Gaul decided that she would drive to the store and purchase the beer herself. This decision was made at least in part because she believed that the students had the means to purchase the beer regardless of what she did. Because of her concern over students leaving the house who had been drinking, Ms. Gaul got the students to agree that no one would leave the party that evening if she went and purchased the beer for them. Ms. Gaul drove to a store to purchase the beer. J.E.G., a female crew member, and L.A.G., another female crew member, accompanied Ms. Gaul. Ms. Gaul purchased one and one-half to two cases of beer, which she brought back to the party. Some, but not all, of the participants at the party consumed the beer. For the first time that evening, Ms. Gaul also consumed at least one can of beer after returning from the store. Ms. Gaul spent most of the time in a room away from where the students were located. Students did, however, walk through the room where Ms. Gaul was located and where she consumed beer. Ms. Gaul felt a need to "keep a lid on the party" and to ensure that none of the participants left T. C.'s house until morning because she did not want anyone who had been drinking to drive. Throughout the evening, the participants at the party were well- behaved. At no time did the party get too loud or otherwise get out of hand. Ms. Gaul's presence at the party contributed to this fact. No one, including Ms. Gaul, left T. C.'s house until after daybreak, Sunday morning. Ms. Gaul's Actions Immediately After the Incident. After daybreak, Ms. Gaul began to reflect on her actions during the party. She realized that she had made an error in judgement by purchasing beer for the participants of the party, especially the crew members, for letting crew members drink alcohol and for drinking in their presence. On Monday morning, May 23, 1994, Ms. Gaul arranged to meet with the members of the crew teams that had attended the party at T. C.'s. She met with them at Leon High School immediately before classes began that morning. Ms. Gaul told the students that what she had done, purchasing the beer, allowing them to drink beer, and drinking in their presence had been wrong. Ms. Gaul told them that she did not want them to get the wrong message: [w]hile they were young, they might not see that what I had done was wrong. They might have gone so far to think that it was cool, but it was not. That I had done them a huge disservice. And whether they figured it out then or later, that I had hurt them, and that I was sorry. Transcript, Page 166, Lines 12-17. Approximately one and one-half weeks later, on June 3, 1994, Ms. Gaul reported the incident of May 22, 1994, to her supervisor at Belle Vue, Dr. Hassler. Ms. Gaul submitted her resignation as a teacher at Belle Vue to Dr. Hassler. Dr. Hassler, who had a child on a Leon Crew team at the time, decided to not accept the resignation at that time so that the incident could be investigated further. The incident was reported to Marvin Henderson, the principal of Leon High School, by Dr. Hassler. Ms. Gaul met with Mr. Henderson and admitted her errors in judgement. Ms. Gaul also reported the incident to the Board of Directors of Leon Crew at a regularly scheduled meeting on June 6, 1994. Ms. Gaul offered her resignation as crew coach at that meeting. Ms. Gaul admitted that she had made a mistake, took responsibility for her actions and apologized for her conduct. Sanctions Imposed on Ms. Gaul. Dr. Hassler ultimately declined to accept the resignation offered by Ms. Gaul. On or about September 14, 1994, Dr. Hassler did, however, issue a letter of reprimand to Ms. Gaul. Dr. Hassler cited the attendance by Ms. Gaul at the party where alcohol was consumed by Ms. Gaul and minor-students and Ms. Gaul's purchase of beer for consumption by minors as the reason for the reprimand. Initially, after being informed of the incident on June 6, 1994, the Leon Crew Board of Directors accepted Ms. Gaul's resignation. They did so without further investigation. In August of 1994, after further investigation and consideration of all of the events and circumstance surrounding the incident, the Board of Directors of Leon Crew reinstated Ms. Gaul as coach. On or about September 29, 1994, Mr. Henderson issued a letter of reprimand to Ms. Gaul. Mr. Henderson discussed the discipline outlined in the letter with the Board of Directors of Leon Crew. The Board of Directors concurred with Mr. Henderson's decision. The letter of reprimand from Mr. Henderson restricted Ms. Gaul's activities as coach of Leon Crew during the 1994-1995 school year, including the following: Because of the severe nature of this incident, the following consequences are imposed: (1) Probation for a period of seven months; it is understood that during this period, you are to have no contact with members of the team for socialization purposes. (2) A sixty day suspension; (during the first thirty days, you are permitted to work with team members as long as you are accompanied by at least one other Crew coach. During the second thirty days, no contact with Crew Team members shall be permitted.) This arrangement is allowed because of your value to the Crew Team's workout schedule and in the interest of safety. (3) At the end of the school year, an assessment of your position with Crew will be made to determine your continued involvement with Leon High School and the Leon Crew Team. The discipline imposed on Ms. Gaul through Mr. Henderson's letter of September 29, 1994, was modified on or about October 31, 1994. In particular, Ms. Gaul was allowed to associate with crew members through November 21, 1994 and then the thirty day period of disassociation was to begin. This modification was suggested by Leon Boosters in the interest of crew members. Ms. Gaul did not contest any of the actions taken by Dr. Hassler, Mr. Henderson or the Board of Directors of Leon Crew. She accepted the discipline proposed by all of them. Ms. Gaul completed the suspension and the probation period imposed on her. The Impact of the Incident on Ms. Gaul's Ability to Teach. Two of Ms. Gaul's fellow teachers and her principal, Dr. Hassler, uniformly testified that Ms. Gaul has evidenced exemplary ability as a teacher. According to Dr. Hassler, Ms. Gaul is an extremely important and valuable member of the teaching staff of Belle Vue and contributes greatly to the welfare of her students. Dr. Hassler described Ms. Gaul as "one of the most outstanding teachers I have ever had the opportunity to work with." Transcript, Page 53, Lines 8 and 9. The evidence in this case failed to prove that the incident of May 22, 1994, has impaired in anyway Ms. Gaul's ability to carry out her responsibilities as a teacher. In fact, the incident has matured Ms. Gaul and improved her ability as a teacher. Since the incident, she has continued to carry out her duties at Belle Vue in an exemplary fashion. She has been evaluated once since the incident and received a very high evaluation from Dr. Hassler. The evidence also failed to prove that the incident has had any negative impact on participants of Leon Crew. Again, the incident matured Ms. Gaul and improved her ability to act as one of the coaches of Leon Crew. Ms. Gaul has continued to function as a coach of Leon Crew in an effective manner and without any impairment. All the students who participated in crew after the incident and the parents of students who are participating in crew who testified in the hearing of this case spoke highly of Ms. Gaul and her ability to effectively act as a coach. The incident of May 22, 1994 was an isolated incident of failing to exercise good judgement on Ms. Gaul's part. The parents of students involved in Leon Crew who testified at the hearing of this matter and all other witnesses who testified indicated their belief that Ms. Gaul is of high moral character, an outstanding role model and an excellent teacher. The evidence also failed to prove that Ms. Gaul's conduct was sufficiently notorious to bring her or the educational profession into public disgrace or disrespect. Only those immediately involved in the incident, her immediate supervisors (her principal, Leon High School's principal and Leon Crew's Board of Directors) and two teachers at Belle Vue were aware of the incident. The incident was not, however, known among the parents and the general teacher population at Belle Vue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the portion of the Administrative Complaint charging Lee Christine Gaul with a violation of Section 231.28(1)(c), Florida Statutes. It is further RECOMMENDED that the Education Practices Commission find Lee Christine Gaul to have violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Lee Christine Gaul be placed on probation for a period of two (2) years and that she be issued a letter of reprimand. As a condition of her probation, Ms. Gaul should be required to attend appropriate courses dealing with the harm of alcohol on minors. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 26th day of February, 1996. APPENDIX Case Number 95-4047 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact 1 Accepted in 2. 2 Accepted in 8, 10, 15 and 17. 3 Accepted in 12. 4 Accepted in 22. 5 Accepted in 5. 6 Accepted in 36 and hereby accepted. 7 See 27. 8 Accepted in 31-32. 9 Accepted in 33. Accepted in 37. Accepted in 34-35. Accepted in 38. Accepted in 38 and 41. The evidence failed to prove what a "Jello shooter" is. Accepted in 42-44. 15 See 36 and 44-46. Accepted in 47-48. Accepted in 45 and 49. Accepted in 52 and hereby accepted. The testimony concerning whether the competency applies to students in teh classroom and out involves and conclusion of law and is rejected as such. Accepted in 53. Accepted in 4 and 55. Accepted in 54. Accepted in 55. Accepted in 57. Accepted in 60. Accepted in 58. The last sentence is irrelevant and ignores Dr. Hassler's explanation of why she made the statement. 26-27 See 21. The last sentence is not supported by the weight of the evidence. 28 Accepted in 61. 29 Accepted in 62. 30 Accepted in 63. 31 Accepted in 39, 41, 45 and 47-48. 32 Accepted in 41. 33 See 26, 36 and 45. 34-35 Argument. Hereby accepted. Not supported by the weight of the evidence. Accepted in 41. The last two sentences are not supported by the weight of the evidence. Accepted in 65-71. While Ms. Gaul has admitted a lapse in judgement, the evidence failed to prove that she lacks an "indispensable necessity for her to be entrusted with the education of young people." Not supported by the weight of the evidence. Ms. Gaul's Proposed Findings of Fact Accepted in 8-10. Accepted in 15. Accepted in 17. Accepted in 22 and hereby accepted. Accepted in 14. See 18. Accepted in 16. Accepted in 11-12. Accepted in 22-23. Accepted in 4-5 and 24. Accepted in 24 and hereby accepted. Accepted in See 21. 13 See 27-51. Accepted in 27. Accepted in 28. Accepted in 29. Accepted in 31 and 37. Accepted in 34 and 37. Accepted in 33. Accepted in 40. Accepted in 37. Accepted in 41. Accepted in 39. Accepted in 28 and hereby accepted. Accepted in 13. Accepted in 42-43. 27-28 Accepted in 44-45. 29-30 Accepted in 45. 31 Accepted in 48. 32-33 Accepted in 47. 34-35 Accepted in 50. 36-37 Hereby accepted. Accepted in 43. Accepted in 52. See 53. Hereby accepted. Accepted in 57. Accepted in 57 and 59. Hereby accepted. Accepted in 54. Accepted in 55. Accepted in 60. Accepted in 61-63. Hereby accepted. Accepted in 71. Accepted in 26 and 36. Accepted in 65-71. Accepted in 5-6. Accepted in 65-71. See 72. 56-59 Accepted in 65-71. 60-61 Hereby accepted. COPIES FURNISHED: Ronald G. Stowers, Esquire Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Davisson F. Dunlap, Esquire Post Office Box 10095 Tallahassee, Florida 32302-2095 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Room 224-C Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
The Issue Whether proposed rules promulgated by the Florida Marine Fisheries Commission are an invalid exercise of delegated legislative authority.
Findings Of Fact The Florida Marine Fisheries Commission (MFC) has proposed rules requiring use of bycatch reduction devices (BRD.) The proposed rules are applicable where trawling for shrimp is permitted in specified Florida waters within the Gulf of Mexico. The notice of proposed rulemaking was published in Volume 23, Number 30, Florida Administrative Weekly, July 25, 1997. The Petitioners have challenged the proposed rules, specifically the provisions prohibiting possession of an otter trawl (a type of trawling net) that is rigged for fishing aboard any vessel without having a required BRD installed. All parties have standing to participate in this proceeding. The federal government requires BRDs in the Florida waters not impacted by the proposed rules at issue in this proceeding. The federal rules are intended to protect red snapper in the Gulf and weakfish and Spanish mackerel in the Atlantic Ocean. The MFC rules are intended to offer broader protection than federal rules, and are intended to protect the Gulf ecosystem rather than specific species of organisms. Shrimp trawls operating in the Gulf of Mexico harvest approximately 2.4 pounds of non-shrimp species for every pound of shrimp harvested. The MFC goal is to reduce the level of bycatch harvested by 50 percent. The proposed rules do not cover the “Big Bend grass beds” where trawling for shrimp is already prohibited. The proposed rules do not cover Florida’s northeast coast where other BRD rules are in effect. The Petitioners challenge the same provision in three separate rules. Proposed Rule 46-31.010(4), Florida Administrative Code, provides: In the Northwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.012(4), Florida Administrative Code, provides: In the Southwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.013(2), Florida Administrative Code, provides: In all waters of the Southeast Region outside nearshore and inshore Florida waters, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) On a shrimping boat, “otter trawl” nets are suspended from the ends of “outriggers” attached to the sides of the boat. When in use, the nets are dropped from the outriggers into the water. Once in the water, the nets are dragged along behind the boat, collecting shrimp and other marine species. The non-shrimp marine species collected are referred to as the “bycatch.” The phrase “rigged for fishing” means that the nets are shackled to the outriggers and are in a condition ready to fish, but are not yet in the water or being dragged along the bottom of the water. Nets attached to the outriggers of a shrimping boat and ready to be dropped into the water are rigged for fishing. Nets lying on the deck of the boat which are not attached to the outriggers are not rigged for fishing. It takes no more than a few minutes to attach the nets to the outriggers. The phrase being challenged in the proposed rules essentially prohibits a shrimp boat operator from suspending the nets above the water prior to dropping the nets into the water without having the BRD installed in the nets. Although there is no credible evidence indicating the reason shrimp boats leave the docks with nets in a position rigged for fishing, many apparently do so. There is no credible evidence suggesting any reason nets would be suspended from the outriggers other than in anticipation of initiation of shrimp harvest activity. There is no credible evidence that any impact would result from requiring that non-BRD equipped nets remain unrigged for fishing until outside of waters affected by the proposed rule. Use of the BRDs results in a substantial reduction of bycatch. There is no evidence that use of the BRDs results in any reduction in shrimp harvest. The evidence establishes that the reduction in bycatch will contribute towards the preservation of renewable marine fishery resources and will benefit the continuing health of the resources. There is no evidence that the proposed rules are unfair or inequitable to any persons including shrimp boat operators. The Petitioners assert that because the penalty for violations of the rules may eventually result in incarceration, the cited phrase creates a criminal presumption that a shrimp boat operator with non-BRD equipped nets is presumed to be fishing without a BRD. The evidence fails to support the assertion. There is no presumption being created by the proposed rule. The challenged rules are gear specifications for shrimp trawls, and are clearly within the realm of the MFC's rulemaking authority. The cited phrase does not prohibit the mere possession of a net without a BRD installed. The cited phrase prohibits suspension of a net from an outrigger without having a BRD installed in the net. There is no reason, other than in anticipation of immediately dropping the net into the water, that a trawl net must be suspended from an outrigger. The Petitioners assert that the rule would impact shrimp boat operators who are passing through Florida waters traveling to waters outside the areas impacted by the proposed rules. There is no evidence that the proposed rules would interfere with fishing operations. In the example of boat operators fishing outside Florida waters and using non-BRD equipped nets, compliance with the rule requires only that the nets remain unrigged for fishing while passing through Florida waters. The Petitioners assert that there are instances due to emergency, weather or otherwise, that may result in a shrimp boat operator working waters outside those covered by the proposed rules, raising non-BRD equipped nets and moving through into Florida jurisdictional waters. In such an event, the Petitioners assert that an operator could be subject to application of the rule even though the non-BRD equipped nets, still rigged for fishing, were not used in Florida waters. The Florida Marine Patrol will be responsible for enforcement of the proposed rules. Obviously, a Marine Patrol officer’s judgment will be required to determine the existence of an emergency and whether any official action is appropriate. A shrimp boat officer cited for violation of the proposed rules is entitled to challenge the application of the rule.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. The School Board has employed Respondent for approximately 15 years as a school security monitor. As such, at all times relevant to this proceeding, Respondent was a non- probationary “educational support employee” within the meaning of Section 1012.40, Florida Statutes, whose employment can be terminated for reasons stated in the applicable collective bargaining agreement, which is the contract between the Miami- Dade County Public Schools and the United Teachers of Dade (the CBA). Article XXI, Section 3.D of the CBA provides that educational support personnel can be terminated for “just cause.” The term “just cause” is defined by that provision of the CBA as follows: . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule [Florida Administrative Code Rule] 6B-4.009. During the 2007-2008 school year, Respondent was a school security monitor assigned to the Lawrence Center. Prior to that assignment, Respondent had been assigned to Miami Beach Senior High School (Beach High School). While at Beach High School, there was a probable cause finding that Respondent had engaged in an inappropriate sexual relationship with a high school student who was over 18 years of age. As a result, Respondent’s employment was suspended without pay for a period of 30 days. Respondent accepted the 30-day suspension and agreed not to appeal. Ms. Durden began working as a Data Input Specialist at the Lawrence Center in May of 2008. Shortly after her arrival, Respondent asked Ms. Durden (then known as Ms. Williams), who was on her way to lunch, to bring him back lunch. The request, which Ms. Durden denied, caused her to feel uncomfortable. Thereafter, Respondent came to come to Ms. Durden’s work area on several occasions and asked her for the mints that she kept on her desk. Ms. Durden believed that Respondent was leering at her. Ms. Durden clearly disliked Respondent and felt uncomfortable in his presence. On June 3, 2008, Respondent was in the parking lot area when Ms. Durden walked by to retrieve an object from her car. Respondent was talking to someone in a parked vehicle. The identity of the person in the parked vehicle could not be established and there was no evidence as to the subject of the conversation between Respondent and the unidentified person in the vehicle. As Ms. Durden walked by, Respondent tried to get her attention by yelling out to her “Hey baby.” Ms. Durden did not respond. When she was on her way back into the school, Respondent told her, “Ms. Williams, I know you heard me speaking to you.” Ms. Durden (Williams) then told Respondent, “My name is not ‘hey baby.’ My name is Ms. Williams, and you address me as such.” There was no evidence that Respondent continued to address Ms. Durden inappropriately. On June 5, 2008, Ms. Durden walked into the after care office to speak to Ms. Staples, who was working as an After Care Specialist. Respondent was in the after care office with several other employees, both male and female. When Ms. Durden walked into the after care office, Respondent blurted out “my dick is hard.” Ms. Durden immediately left the room feeling disgusted by Respondent’s remark. Ms. Staples testified that Respondent made the statement “my dick is on hard.” Ms. Staples and the other employees who had been meeting in the after care office also immediately left the office after Respondent’s statement. Ms. Staples and her colleagues were shocked by Respondent’s statement.2 On June 6, 2008, Ms. Durden and Ms. Santos passed out paychecks or pay stubs to employees. Respondent appeared at the threshold of Ms. Durden’s office, which is part of the main office, and asked for his paycheck. Ms. Durden asked Respondent to leave while she sorted through the paychecks. Ms. Durden was uncertain whether Rich was Respondent’s first name or last name. There was a verbal exchange between Respondent and Ms. Durden as to that issue. Respondent remained outside of Ms. Durden’s office, but in a position where he could observe her. Ms. Durden testified, credibly, that Respondent was leering at her. Ms. Durden became so uncomfortable that she started shaking. Prior to June 6, 2008, Ms. Durden had told Ms. Santos that she did not like Respondent and felt uncomfortable around him. Ms. Santos attempted to keep Respondent away from Ms. Durden by offering to get anything he might need from the main office and bringing it to Respondent’s duty station. On one occasion, Ms. Santos observed Respondent staring at Ms. Durden’s rear end. On June 6, 2008, Ms. Santos observed that Ms. Durden was very uncomfortable being in Respondent’s presence. She intervened by finding Respondent’s paycheck and bringing it to him. Ms. Durden reported these incidents first to Ms. Johnson-Brinson (an assistant principal) and then to Mr. Osborne (the principal). Thereafter the School Board followed all relevant procedures leading up to its vote to discipline Respondent by terminating his employment. Ms. Johnson-Brinson is not aware of any complaints from any Lawrence Center employees other than Ms. Durden pertaining to inappropriate behavior by Respondent. Mr. Osborn testified as to the reasons he recommended the termination of Respondent’s employment. Part of those reasons related to behavior by Respondent during his tenure at the Lawrence Center that was not alleged in the Notice of Specific Charges. That non-alleged behavior is irrelevant and has not been considered by the undersigned in reaching the findings and conclusions set forth in this Recommended Order.3
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 2009.
Findings Of Fact On September 1, 1980, H.B.A. Corporation purchased Ocean View Nursing Home in New Smyrna Beach, Florida. On September 2, 1980, in accordance with HIM 15, an appraisal was made of the nursing home property to determine the market value of the fee simple interest purchased. A copy of that appraisal may be found in Respondent's exhibit No. 1. The basis for the appraisal was primarily related to the desire by the provider to participations in federal reimbursement programs. In particular the appraisal was in furtherance of the appraisal guidelines announced in Section 134, HIM 15. This appraisal took into account any improvements which had been made to the basic facility and reflected the attendant equipment within the facility. One part of the findings of the appraiser was to the effect, "Remaining useful life of existing building - 32 years." The appraisal report was mailed to Barton D. Weisman, president of H.B.A. Corporation. Ocean View Nursing Home as a participant in the Medicaid program in Florida, a reimbursement program, submitted a cost report for fiscal year February 1, 1981 through January 31, 1982. A copy of that cost report may be found as Petitioner's exhibit No. 1. In the cost report Ocean View Nursing Home claimed reimbursement costs in the amount of $54,828.00 pertaining to older buildings within the facility, which were in existence when the facility was purchased. An unrelated depreciation was claimed for an addition which had been constructed after the purchase by Petitioner. Petitioner's accountant had arrived at the $54,828.00 figure related to the older portions of the facility by reference to the AHA guidelines which are part of Section 104.17,HIM 15. That section deals with the estimation of useful life of of an asset based upon the expected useful life to the provider. This may or may not coincide with the inherent useful or physical life of the plant. By referring to the AHA guidelines, the accountant determined that section one of the facility was of wood frame type construction which per the guidelines carried a 25 year base life; section two was constructed of block and wood which was estimated at 40 years base life, per AHA; section three was block construction which again was estimated at 40 years base life per AHA and section four was concrete and steel which was determined to have a 40 year base life pursuant to the AHA. From this information the accountant weighted the average life of the overall building, excluding the new section which had been constructed after purchase. The weighting was done by multiplying the number of beds in the wood frame section by 25 years, that is 38 beds times 25 years and adding that to the multiplication of 49 total beds in the other three sections times the 40 year expected or base life and dividing that sum by 87 beds which gave an average life in the aggregate of 33 years. The accountant then took the expended years in each of the four sections, section one having expended 17 years; section two having expended 15 years; section three having expended 13 years; and section four having expended 7 years and subtracted those numbers from the 33 year weighted life. He in turn divided the remaining years for each section into the value of those sections as it related to the number of beds per section, i.e. allocation of purchase price based upon the number of beds per section. The allocation against which the division was made was $222,735.00 for section one; $187,600.00 for section two; $375,200.00 for section three; and $304,850.00 for section four. By such division it was found that $13,920.00 for section one; $10,423.00 for section two; $18,760.00 for section three; and $11,725.00 for section four for a total of $54,828.00 should be claimed as depreciation for the old section in the fiscal year at issue, per the accountant for petitioner. Following the preparation of this claim of depreciation, it was ascertained that 32 beds were in fact located in the wood frame section, or section one, and 55 beds were in the remaining three sections within the older construction. By using the same formula, to arrive at the weighted average life of the building, based upon the location of the beds in the given sections, it was determined that a 34 1/2 years aggregate average life weighted would have application, per the calculations made by Petitioner's accountant. By applying the same mathematical process related to the allocation of purchase price based upon the number of beds in a given section, following a calculation of the remaining useful life, a figure of $50,881.00 is now claimed by the Petitioner related to those portions of the facility which were constructed prior to purchase. In both instances the overall value of the older portion of the facility was based upon the purchase price of $1,090,385.00. As reflected in Petitioner's exhibit 3, determination of depreciation related to the new wing of the facility which was constructed after the purchase was based upon an estimate of depreciation of a 25 year composite useful life. This number was arrived at by the accountant for the Respondent based upon the experience in dealing with componentizing, to the extent that this type of calculation usually showed a useful life of 23 to 27 years. This estimation was done based upon the lack of documentation to arrive at a more exact figure for the componentization. Use of componentization for determination of useful life was based on reference to Section 104, HIM 15. This estimate of 25 years was later adjusted to 24 years based upon the review of data that had been gathered on the question of componentization. With the 24 year estimate this would allow depreciation in the subject period in the amount of $14,042.00, following this form of depreciation. At hearing, Respondent did not dispute this method or adjustment related to the new wing. An audit was done by Respondent and the Petitioner's idea of depreciation related to Sections one through four in the old part of the facility was put to question. This is reflected in the Petitioner's exhibit No. 5, which is a copy of the audit report by the Respondent. Respondent chose to consider the question of depreciation on the basis of the 32 years useful life opinion expressed by the appraiser in his analysis made September 2, 1980, which is Respondent's exhibit No. 1. This figure of 32 years was applied against the overall purchase price of the facility effective September 1, 1980, accounting for a difference of $26,364.00 which was disallowed as a cost item. Respondent did not feel that the depreciation method selected by the Petitioner was authorized by HIM 15, being an ongoing facility at time of purchase and did not feel the information submitted in support of the Petitioner's calculations related to depreciation for the old portion of the facility was adequate, even if the method was acceptable. This continued to be the position of the Respondent at the time of the exit conference related to the audit. No further information was provided by the Petitioner following the exit review conference prior to the issuance of the audit report, as to its basis for claimed depreciation from the old portion of the facility. As demonstrated by the accountants who testified for the Petitioner, its methods of determining useful life and calculating depreciation for the old and new sections of the facility were in keeping with generally acceptable accounting principles. The position of the Respondent, as expressed by its accountant, on the question of the use of historical appraisal to establish years of useful life, is also an acceptable accounting practice related to the determination of depreciation for the old section of the facility. Respondent's accountant, in his expert opinion, did not take issue with determination of useful life related to the new addition to the facility that was built following the purchase. There is evidence that improvements have been made to the old portion of the facility. By contrast there is evidence showing inherent problems in the construction and with the weather environment. These pro and con conditions tend to offset each other to the extent that average conditions are found to exist as to the quality of the buildings at issue.
Findings Of Fact On August 10, 1990, Petitioner filed an application for licensure with the Respondent as a Class "CC" Private Investigator Intern and as a Class "EE" Repossessor Intern. On January 8, 1991, Respondent notified Petitioner, in an amended denial letter, that his application for licensure had been denied. The grounds for the denial were based on Petitioner's alleged violations of Section 493.6118(1)(j), Florida Statutes, on two separate occasions. On June 11, 1982, the Petitioner and Donald Olkewicz became engaged in an altercation in Pompano Beach, Florida. Petitioner fired a 12 gauge flare gun through the screened apartment window of Mr. Olkewicz and later, in the parking lot of the apartment complex, Petitioner again discharged the flare gun which resulted in injuries to the face of Mr. Olkewicz. Petitioner was not acting in self-defense. Petitioner was arrested by Officer R. D. Cracraft who detected the odor of alcohol on the Petitioner and on Mr. Olkewicz. On July 1, 1982, an Information was filed against Petitioner in the Circuit Court in and for Broward County, Florida, for the felony charges of (1) Discharging a firearm into an occupied dwelling and of (2) aggravated battery. The charges contained in this Information were assigned Case No. 82-6213 CF10. On April 15, 1983, Petitioner entered a plea of nolo contendere in Case No. 82-6213 CF10 to the charge of aggravated battery. 1/ On June 3, 1982, an order was entered by the Circuit Court in and for Broward County, Florida, withholding adjudication of guilt on the charge of aggravated battery and placing Petitioner on probation for a period of four years. Petitioner's term of probation was terminated early due to his good behavior. On July 30, 1988, in Palm Beach County, Florida, Officer Edward T. Sileo of the Boca Raton Police Department was dispatched to Petitioner's apartment to supervise the removal of personal items by Petitioner's ex- girlfriend, Marie Rochay. Officer Sileo escorted Ms. Rochay from the parking lot to the apartment, and upon opening the door saw Petitioner standing in the hallway with a spear gun pointed at the door. Petitioner dropped the spear gun upon seeing Officer Sileo. Petitioner and Ms. Rochay began to argue and at some point Petitioner accidentally hit Officer Sileo in the chest and indicated in a profane manner that he wanted Officer Sileo to leave the premises. When Ms. Rochay began removing her clothes from a walk-in closet, Petitioner began to argue with her and attempted to keep her from leaving by physically restraining her. When Officer Sileo stepped in to separate Petitioner and Ms. Rochay Petitioner began to wrestle with Officer Sileo. Petitioner physically resisted Officer Sileo after being advised that he was under arrest. Petitioner was not acting in self-defense. There was no evidence that Petitioner was criminally prosecuted based on this incident. At the time of the formal hearing, Petitioner was employed by Marine Recovery International. Mr. Joe Dinardo, the owner, testified that he considered Petitioner to be a valuable employee, and of good moral character. Marine Recovery International is willing to sponsor Petitioner's application and to supervise him during his internship. Petitioner was honorably discharged from the U.S. Army on June 11, 1982. Petitioner is licensed by the United States Coast Guard as a Merchant Marine Officer with the designation "Master of Near Coastal Steam or Motor Vessels of Not More Than 100 Gross Tons" and is a member in good standing of the American Professional Captains Association, an organization for U.S. Coast Guard Licensed Captains. Petitioner presented several letters from individuals who know him and who consider him to be responsible, professional, and of good moral character. These letters recommend licensure for Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's application for licensure as a Class "CC" Private Investigator Intern and as a Class "EE" Repossessor Intern. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of June, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1991.
