The Issue Whether petitioner has standing to request consent of use of marine bottoms? Whether the site in question lies within the John Pennekamp Coral Reef State Park? Whether petitioner's application for consent to dredge in two places east of Angelfish Creek should be granted, under Chapters 253 and 258, Florida Statutes (1989) and Chapters 16D and 18-21, Florida Administrative Code?
Findings Of Fact Angelfish Creek in Monroe County runs virtually due east from Card Sound (which opens into Biscayne Bay just north of Angelfish Creek) to Hawk Channel, which hugs the upper Florida Keys at the edge of the Atlantic Ocean. The "creek" or strait separates Key Largo and Angelfish Key on the south from Palo Alto Key to the north. Three flashing red lights and other navigational aids mark a channel traversing the saltwater pass between sound and ocean. Petitioner South Florida Waterways Improvement Foundation, Inc. (SFWIF) is a non-profit corporation owing its existence chiefly to John A. Bott, a public spirited boater known in some circles as the "king of luggage racks." T.134. Mr. Bott, whose home at the Ocean Reef Club fronts on Card Sound, (T.145), owns "a 63 Ocean Sports fisherman, a 22 Mako and a 16-foot dinghy." Id. He once ran aground in his big boat in the Angelfish Creek channel. Respondents are state agencies charged with managing state lands in general, including submerged lands like those underlying Angelfish Creek and further east where petitioner proposes to dredge; and state parks in particular, including the John Pennekamp Coral Reef State Park, a pioneering and world- renowned "underwater park," about whose northern boundary the parties are in dispute. Petitioner Named for Predecessor Boats navigated Angelfish Creek as early as March 13, 1945, the date of an aerial photograph received as petitioner's Exhibit No. 8. But Angelfish Creek was first dredged (T.154) only after the Army Corps of Engineers issued a permit in the wake of approval by Trustees of the Internal Improvement Trust Fund (Trustees) on March 12, 1968, approval which is reflected on page 469 of Volume 36 of the official minutes. Petitioner's Exhibit No. 10. After expiration of the original permit, a non-profit corporation, South Florida Waterways Improvement Foundation, Inc. (proto-SFWIF) applied for and received permission to dredge "190 cubic yards of material from an area [in the mouth or slightly easterly of Angelfish Creek] 350 feet long by 60 feet wide." T.159. On December 30, 1975, DER issued a dredging permit to proto- SFWIF. Petitioner's Exhibit No. 11. On January 22, 1976, the Army Corps of Engineers issued a permit to proto-SFWIF for the same project. Petitioner's Exhibit No. 13. After dredging took place as authorized, proto-SFWIF "was allowed to dissolve for failure to pay or failure to file the corporate annual reports." T.164. Proto-SFWIF paid for spoil it removed to uplands (which, when deposited, ceased to belong to it) but "did not [ever otherwise] own any property." T.164. After Mr. Bott engaged Tallahassee counsel, another non-profit corporation, petitioner SFWIF, was formed, in 1990. SFWIF owns no property in Monroe County, either. Mr. Bott and twelve other members of Key Largo's Ocean Reef Club, some of whose boats draw several feet, are members of SFWIF. Two were also members of proto-SFWIF, and at least one, Mr. Bott, owns waterfront property within a few miles of the proposed site. William J. Roberts, the lawyer who formed SFWIF, together with others in his office, serve as SFWIF's corporate officers. Park Boundaries The overwhelming weight of evidence adduced at hearing establishes that the site SFWIF proposes to dredge lies within the John Pennekamp Coral Reef State Park. When the then newly formed DER issued a dredging permit to proto- SFWIF, Petitioner's Exhibit No. 11, it did so on the mistaken assumption "that the project was not in an aquatic preserve, and . . . not within the boundaries of John Pennekamp Coral Reef State Park." T.162. (At the time, SFWIF, the petitioner in the present case, was not in existence. Nor did respondents make any representations directly to proto-SFWIF.) DER may have relied on advice from Jack W. Pierce, then an attorney for DNR, in his letter of August 18, 1975, which stated: "In my opinion, these rules would not affect the maintenance dredging on Angel Fish Creek as that is not on Key Largo." Petitioner's Exhibit No. 17. But, when expressly addressing the question of park boundaries, Mr. Pierce's letter stated simply that "the boundaries . . . are those set out in the Presidential Proclamation of 1960 plus those described as set forth in the Dedication of the Trustees dated September 21, 1967, . . . ." Petitioner's Exhibit No. 17. Successive Dedications On December 3, 1959, the Trustees dedicated "for park, recreational and preservation purposes, . . . [a] portion of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo." Petitioner's Exhibit No. 23. The Presidential Proclamation of 1960 stated similar federal intentions with respect to the same "portion of the outer Continental Shelf." Known as the Key Largo Coral Reef, this offshore tract has a perimeter of some 21 miles. The northern end of its landward edge lies slightly north (and three miles east) of the northernmost point of Key Largo. In describing the offshore dedication by metes and bounds, the Trustees put the northwesternmost point at "Can Buoy '21' (approximate Latitude 25o20'06" N., Longitude 80o12'36" W.) southeast of Old Rhodes Key." Id. Can Buoy "21" has since been lost. A new day marker, No. 23, has replaced it, although possibly at a slightly different point, viz.: Latitude 25o 20' 08.58967" N., Longitude 80o 12' 34.5983" W. T.419; Petitioner's Exhibit No. 22. The current marker is 2.58967 seconds (approximately 260 feet) north and 1.4017 seconds (less than 140 feet) east of what was described as the approximate location of Can Buoy "21" in 1959. If, as a witness testified is likely, the 1959 coordinates were rounded to the nearest tenth of a minute, the apparent discrepancy may be attributable to rounding. In any event, under no analysis advanced, would a difference of 295 feet (to take the hypotenuse) prove significant, for present purposes. T.336. In the dedication of 1959, the Trustees described the southern, as well as the northern, end of the western or landward edge of the original, offshore tract with some specificity. The southern end of the landward edge of the original offshore tract, also some three miles east of the island, lies south of the northern tip of Key Largo, but well north of the island's southern tip. The southern boundary of the original, offshore tract runs approximately east-west, while its northern boundary runs more or less southeast-northwest, as it reaches the northwestern corner. By the time the Trustees dedicated additional sovereignty lands on September 21, 1967, Key Largo Coral Reef had come to be known as John Pennekamp Coral Reef State Park. On that day, the Trustees added: Those submerged tidal bottom lands in the Atlantic Ocean lying between [what was then] the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo. Petitioner's Exhibit No. 24. While preserving to their owners "any riparian rights and interest," the Trustees extended the park landward from the original offshore tract to the shore of Key Largo, without, however, listing coordinates of latitude and longitude for the northernmost and southernmost points on shore. Lying Between The southern boundary of the original, offshore tract is on a line approximately perpendicular to Key Largo's Atlantic shoreline. Surveyors who have considered the problem apparently agree that extending the southern boundary of the original tract to the shore of Key Largo appropriately defines the southern edge of submerged lands lying "between" the island and the original, offshore tract. But the northern boundary of the offshore tract, if extended landward, would proceed northwesterly and come ashore somewhere on Rhodes Key, well north of the northernmost point of the offshore tract, and still further north of the northern tip of Key Largo. T.532. Before the present controversy arose, DNR engaged James Weidener, a professional land surveyor "to survey basically the Pennekamp Park and to provide boundary maps . . . and then as part of that to locate and monument both the north and south boundaries." T. 528. As part of this project, Mr. Weidener and others working with him conducted mean high water surveys at points along the eastern shore of Key Largo and extrapolated a boundary between state-owned bottom lands and uplands in private ownership. In locating the northernmost point on Key Largo, however, Mr. Weidener did not rely on a mean high water study. Instead he chose the northern edge of tidally washed mangroves or "the apparent edge of vegetation" (T.537) that extended probably 40 to 60 feet north of the mean high water line. Nothing in the record raised the possibility that the point he chose was more than 100 feet north of the mean high water line. By joining this point with marker No. 23, he defined the northern boundary of the submerged lands "between" Key Largo and the original tract. Even before the Weidener survey, a sign had been erected "only 30 or 40 feet off the line," (T.533) which the surveyors ultimately decided on. The piling holding the sign stands 34.45 feet off the line. Respondent's Exhibit No. 1. The north side of the sign "says entering Pennekamp State Park. On the south side it says entering Biscayne National Park." T.530-531. The line between the northernmost point on Key Largo and marker No. 23 is depicted as (A) in Appendix B to the recommended order. The site at which petitioner proposes to dredge lies south of the northerly boundary described in the Weidener survey and depicted as (A) in Appendix B. If a point 100 feet further south than the one Mr. Weidener identified as the northernmost point on Key Largo is connected to the marker, the resulting line lies well north of the proposed site. T.565. If a point 260 feet south of marker No. 23 is connected to a point 100 feet further south than the one identified by Mr. Weidener as the northern tip of Key Largo, the resulting line still lies north of the proposed site. The scaled drawing attached as Appendix B requires these inferences, although these variants of line (A) are not depicted there. Forensic Surveying In preparing for litigation in the present case, petitioner engaged a surveyor, George Cole, who assembled Petitioner's Exhibit No. 22. Citing "Hayes v. Bowman, Fla., 91 So.2d 795 and Bliss v. Kinsey, Fla. 233 So.2d 191," Petitioner's Exhibit No. 22, p. 2, Mr. Cole testified that "these cases suggest the best courses [sic] of action is one that's perpendicular to the channel out here if this indeed was a riparian rights case." T.344. But, since the Trustees took care, in expanding the park, to preserve to their owners "any riparian rights and interest," the location of the northerly boundary of the tract dedicated in 1967 has nothing to do with riparian rights; and lines (C) and (D) depicted in Appendix B have no support in the record, aside from Mr. Cole's unfounded speculation. Line (B) depicted in Appendix B, also proposed by Mr. Cole, reflects the same methodology Mr. Weidener employed (in the sense of joining a point on Key Largo to marker No.23), but proceeds on the assumption that the northernmost point on Key Largo of relevance is at the mouth of an inlet known as Pumpkin Creek. Mr. Cole conceded that "Key Largo does indeed go further to the north, but . . . [testified that] this portion up here is obscured and shielded from the Atlantic Ocean by Angelfish Key and this is Pumpkin Creek and various other creeks. These are distinct, discrete islands. They have their own land mass. They are not Key Largo." T.342-3. But Angelfish Key (and Little Angelfish Key) resemble El Radabob Key in this regard. El Radabob Key is the largest of the small islands lying alongside Key Largo in the Atlantic Ocean. All witnesses testifying on the point agreed that submerged land lying between Key Largo and El Radabob Key fell within the Trustees' 1967 dedication of "submerged land in . . . [the Atlantic Ocean including] the various inlets along the easterly coast of Key Largo." Similarly, as Key Largo tapers to a northern point, Angelfish Key and Little Angelfish Key lie on its Atlantic side, separated from it (and each other) by narrow, elongated inlets of the ocean. T. 535, 537. The submerged bottoms of these elongated inlets, no less than the submerged bottom lands in Key Largo Sound, comprise part of John Pennekamp Coral Reef State Park. Poorly Marked Although charts overstate the controlling depth, the channel in Angelfish Creek is already the best channel connecting the Atlantic Ocean to inland waters north of Snake Creek and south of Government Cut. Tavernier Creek to the south and Broad and Caesar Creeks to the north are also navigable by small craft. Of course, weather and low tides make navigation more difficult everywhere they have an effect. Depicting depths at mean low water, Respondents' Exhibit No. 2B maps the ocean bottom in the vicinity of markers Nos. 2A and 3A, including the eastern end of the channel petitioner seeks to widen. The two formations petitioner proposes to dredge aside, depths within the channel vary from 4.9 to 13 or 14 feet, at mean low water. The topographical survey features one-foot contours (between five and fifteen feet below mean low water) and reports hundreds of soundings. Respondents' Exhibit No. 2B. A shoal lies inside the channel about 15 feet from the southerly edge, some 30 feet easterly of green day marker No. 3A. In the worst spot, fossilized coral lies under only 3.5 feet of water at mean low tide. Boats run aground there as well as on another ledge of fossil coral on the other side of the channel, near marker No. 2A. At the latter site, Mr. H. R. Pender once measured the depth at five feet (T.125); and mean low water is shown at 5.4 feet. Whether dredging would actually increase boat traffic was not established, although dredging would permit the channel to handle more traffic. The narrower and more serpentine a channel becomes, the smaller the vessels it can accommodate. But traffic could be routed around these shoals by repositioning markers Nos. 2A and 3A, or by adding markers. Outside the channel opposite marker No. 2A is a deep hole; there is ample water into which to shift the channel. Opposite marker No. 3A outside the channel, depths at mean low water are as low as 5.6 feet. Although that is deeper than places in the mouth of the channel, it might be preferable simply to narrow the channel by moving marker No. 3A the few feet necessary to locate it channelward of the out-cropping of "fossil coral [or] calcium carbonate rock," (T.382) petitioner proposes to dredge. Environmental Effects The DER permit conditions specify turbidity screens, limit dredging to slack and incoming tides, and require deposition of spoil upland. Biota in the vicinity can withstand "spurts of turbidity," in any event. Tidal currents have scoured the channel, removing most fine particles, but intermittent northwesters flush slugs of particulate matter from Card Sound through Angelfish Creek. The project site is on the order of a mile from the nearest active coral reef in the park, but a few small colonies of coral, both hard and soft (gorgonian) grow where petitioner proposes to dredge, as do algae, marine grasses, and perhaps other alcyonarians. Dredging would displace these individuals but create a new and deeper hard substrate for colonization by like organisms. A representative of DER is to help pick which fossil coral to remove. Marine life, if established at a greater depth, would less likely suffer interference from boats' 60- to 100-feet long running aground. Petitioner's Exhibit No. 14. Groundings entail the risk of fuel spills. Traces of presumably toxic bottom paint have been found on fossil coral near the surface. But these hazards would also be greatly reduced if markers Nos. 2A and 3A were repositioned, or additional markers placed, to mark the outcroppings, so boaters could avoid them.
Recommendation It is, accordingly recommended: That respondents deny petitioner's application for consent to dredge. That respondents specifically initiate relocation of markers Nos. 2A and 3A or take other steps to mark the channel appropriately. RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 90-4285 Petitioner's proposed findings of fact Nos. 1, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 34, 35, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 56, 57, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 97 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 58, 59, 60 and 71 are immaterial. With respect to petitioner's proposed finding of fact No. 12, no causal connection between the letter and the permit was proven. With respect to petitioner's proposed finding of fact No. 18, the owner's testimony was largely hearsay. With respect to petitioner's proposed finding of fact No. 21, the shallows are a hazard on account of the markers' location. With respect to petitioner's proposed finding of fact No. 27, the adequacy of the width would depend on the vessel. With respect to petitioner's proposed finding of fact No. 28, no fatality occurred from grounding. With respect to petitioner's proposed finding of fact Nos. 30 and 32, see finding of fact No. 24. With respect to petitioner's proposed finding of fact No. 33, such an event blocked the channel for "another large vessel." T.38. With respect to petitioner's proposed finding of fact No. 36, Mr. Bott had only one grounding. Petitioner's proposed finding of fact No. 37 has been adopted, in substance, but proto-SWFIF is now defunct. With respect to petitioner's proposed finding of fact No. 38, a new corporation was organized. With respect to petitioner's proposed finding of fact No. 39, at least one nonprofit corporation obtained such permits. Petitioner's proposed findings of fact Nos. 40, 50, 70, 74 and 76 have been rejected. With respect to petitioner's proposed finding of fact No. 41, while apparently accurate, the proposed finding is not supported by the citation to the record. With respect to petitioner's proposed findings of fact Nos. 53 and 73, the evidence showed that the new marker was likely at the same spot as the old. Petitioner's proposed findings of fact Nos. 54, 55, 72, 75 and 77 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 79, the effect of possibly increased traffic in larger vessels was not considered. With respect to petitioner's proposed finding of fact No. 81, the testimony was "on the order of" a mile. Petitioner's proposed finding of fact No. 96 so-called is actually a proposed conclusion of law. With respect to petitioner's proposed findings of fact Nos. 98 and 99, the proposed dredging is contrary to administrative rules which, at least in the absence of a rule challenge, express public policy definitively. Respondents' proposed findings of fact were not separately numbered, but have been addressed, in substance, in the findings of fact. APPENDIX B TO RECOMMENDED ORDER, CASE NO. 90-4285 (From Petitioner's Exhibit No. 22) COPIES FURNISHED: Robert A. Routa, Esquire P.O. Drawer 6506 Tallahassee, FL 32314-6506 Brian F. McGrail, Esquire John W. Corrigan, Esquire 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000 Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300 Tom Gardner, Exec. Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300
Findings Of Fact The Coral Reef Yacht Club is a non-profit Florida corporation with an active membership of over five hundred (500) families. The purpose of the club is to encourage water sports such as boating, fishing and skindiving. The club presently has a waiting list of approximately forty to fifty members wanting wet slips for their boats. Historically the boats berthed in Coral Reef's docks have been a fifty- fifty mixture of sail and power craft with a length between 22 to 45 feet. It is anticipated by the club that similar craft will use the new slips if constructed. Since the club's beginning 25 years ago it has leased submerged land for all of its docking facilities from the City of Miami, the fee simple owner. In June 1979, the lease agreement was renegotiated to add the submerged land over which the proposed project would be constructed. In consideration for that addition the club deeded an 18 foot strip of its property to Miami for a bicycle path parallel to South Bayshore Drive. The site of the proposed project is in that part of Biscayne Bay known colloquially as Dinner Key. Dinner Key is well suited to marina development. It had been a Pan American Clipper base in the 1930's. It is close to population centers and provides direct access to the Atlantic Ocean without passing through drawbridges. The Dinner Key area is delineated by a crescent of spoil banks which were created by dredging of channels out toward the deep water of Biscayne Bay, a navigable state water. These banks create a sheltered area for the mooring and berthing of small craft. Other marina facilities in the Dinner Key include Biscayne Yacht Club (56 slips), Dinner Key Marina (330 slips), Monty Trainer's (40 slips), Merrill-Stevens (56 slips), and the City of Miami Docks (50 slips). Coral Reef's dredge and fill application was filed with DER on July 10, 1979. It was denied on November 21, 1979 for the following reasons: The project would eliminate a productive and diverse seagrass bed in a 1.8 acre area. The removal of the seagrasses would result in a degradation of water quality contrary to Section 17-3.061 and 17-1.121, Florida Administrative Code. The project would interfere with the conservation of fish and wildlife contrary to Chapter 253, Florida Statutes. The proposal would conflict with the intent of the Biscayne Bay Aquatic Preserve Act [Section 258.165(3), Florida Statutes] to preserve the bay in its natural condition. The project as proposed in Coral Reef's application is to expand its present marina facility of 72 slips by adding 4,290 square feet of docking to accommodate 27 additional wet slips. In order for there to be an adequate draft of 7 feet, 6,400 cubic yards of submerged bottom would be dredged from an area of approximately 1.8 acres (200 ft. by 400 ft.). The spoil resulting from the dredging would be piped to an existing spoil bank 600 feet to the southeast of the site. Coral Reef proposes to stabilize the spoil by planting salt resistant grasses and shrubs on it. At present the Club's docks extend 460 feet out into Biscayne Bay. The proposed addition would add another 213 feet. At the final hearing Coral Reef amended its application by proposing to add rip-rap in piles 3 feet high and 12 feet center-to-center to be placed only under the main walkway of the new proposed dock area. DER was given the opportunity to request a continuance of the final hearing to have time to evaluate the amendment, but no continuance was necessary. The site of the proposed dock expansion has two distinct biological regimes. Under tic existing dock where there has already been dredging there is little bottom life but a considerable population of fish. The number of marine organisms is limited. There are no larger plants and there is approximately 1 inch of silt on the bottom. In the area of the proposed dredging the bottom is covered by a great number of invertebrates--mollusks and crustaceans. There are thick seagrass beds giving approximately 55 percent coverage over a sandy bottom. Turtle grass (thalassia testudinum) and cuban shoal weed (halodule wrighti) predominate there. The sea grasses ace important to the environment because (a) they are the base of the detrital food chain; (b) they provide erosion and turbidity control; and (c) they serve as a nursery ground and refuge for numerous marine organisms and small fish. The spoil island on which Coral Reef proposes depositing the new spoil has a stand of Australian pines and a fringe of red, white, and black mangroves, primarily on the west side of the island. The fauna over the grass beds in the proposed dredging area consist of fish such as french grunts, snappers, great barracuda, and the commercially valuable pink shrimp. If the proposed dredging takes place, the grass beds will be destroyed. They will not re-establish themselves because at the new bottom depth of 7 feet there will be insufficient light for repropogation. To prevent damages to the sea grasses which surround the spoil island measures must be taken to prevent the new spoil from washing off the island and smothering the grass. Coral Reef proposes retaining the spoil on the island by a 1.5 foot high sand bag dike on the east side of the island where most of the 6,400 cubic yards of spoil will be deposited. At no point would the slope of the spoil exceed 1 to 20. Turbidity curtains are proposed to be used during the time the spoil is deposited. No significant environmental damage is expected to result from this placement of the spoil. It is possible that the placing of rip-rap under the newly constructed docks as proposed would create a habitat for the small and medium size fish in the Dinner Key area. The surface of the rip-rap would provide a suitable substrate for marine fouling organisms such as barnacles to grow on, and if the interstices of the rubble are large enough, fish could find shelter there. The rip-rap proposal is offered to mitigate the admitted environmental damage which would result from the dredging. There is however, no way to determine either qualitatively or quantitatively if the benefit of the rip-rap would compensate for the harm of dredging. The importance of the seagrasses is well established while the environmental benefits provided by the rip-rap is only speculative at this time. The Miami Area has an acute shortage of boat slips. It is estimated by the Comprehensive Marina Development Study (February 1979) prepared by the Greenleaf/Telesca firm for the City of Miami that by 1985 there will be a shortage of 3,350 wet and dry boat slips. The City of Miami supports the proposed expansion of Coral Reef facilities as an aid in ameliorating the slip shortage. If the Coral Reef Marina were expanded, it is likely that some of the Coral Reef members who presently have their craft in public marina facilities would move them to the new Coral Reef slips, but no reliable estimate of the number of public slips which would thus be vacated has been made.
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the State of Florida, Department of Environmental Regulation enter an order denying Coral Reef's application in File No. DF12-21762 to expand its marina facilities by dredging and filling in Biscayne Bay. DONE and RECOMMENDED this 31st day of October, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Robert J. Paterno, Esquire TAYLOR BRION BUKER & GREEN 1451 Brickel Avenue Miami, Florida 33131 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Respondent's teaching certificate should be revoked or otherwise disciplined on charges that he violated Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 234479 issued by the Florida Department of Education and covering the area of Physical Education. (Request for Admissions, dated December 10, 1985.) At all times pertinent to this proceeding, Respondent 1 was employed as a teacher and basketball coach at Vero Beach Senior High School in Vero Beach, Florida. (Request for Admissions, dated December 10, 1985.) During the 1984-85 school year, Respondent was assigned an early morning duty station on the grounds of Vero Beach Senior High School. P.K., a senior at the school, became acquainted with him by passing him each morning as she rode her bicycle to school. (Petitioner's Exhibit 1, p. ll) P.K. attended Vero Beach High School for the eleventh and twelfth grades. She participated in various extra curricular school activities such as the Spanish Club, French Club, Latin Club, Junior Classical League and Future Business Leaders of America. She was a member of the Track and Soccer Teams, and captained the Cross-Country Team. She also worked at various part-time jobs after school. In June 1985, she graduated with a "B" average. (Petitioner's Exhibit 1, p.7) During her attendance at Vero Beach High School, P.K. did not attend any courses taught by the Respondent or participate in any sports which he coached. She became acquainted with him in December 1984. During lunch time she helped him keep statistics for the high school basketball team, which he coached. In January 1985, she would routinely spend her lunch hour in his office, visiting with him and keeping basketball statistics. (Petitioner's Exhibit 1, p. l3) By the first week of February 1985, her relationship with the Respondent had changed and become more intimate. In lieu of her attending track practice after school, the Respondent picked her up at school and drove her to his apartment, where they had sexual intercourse. Respondent then drove her back to school where she retrieved her bicycle. (Petitioner's Exhibit 1, p. 15 ) During February and March 1985, Respondent and P.K. engaged in sexual intercourse at his apartment on 10 to 15 different occasions. (Petitioner's Exhibit 1, p. l6) On most of these occasions, Respondent drove P.K. from the high school to his apartment, had sexual intercourse with her, then returned her to school to retrieve her bicycle. When this occurred, she would skip track or cross country practice. On one or two occasions he picked her up at her place of part- time after-school employment, took her to his apartment and had sexual intercourse. (Petitioner's Exhibit 1, p.l6) On Valentines Day in 1985, Respondent sent her an arrangement of roses which were delivered to the office at Vero Beach High School. (Request for Admissions, dated December 10, 1985: Petitioner's Exhibit 1, p. 19) Toward the end of March 1985, P.K. told her mother about her relationship with Respondent. During the two months in which Respondent repeatedly engaged in sexual intercourse with P.K., he told her that he loved her. During the Summer of 1985, he asked her if she would marry him, and she agreed. (Petitioner's Exhibit 1, p. 22) During the period of time in which they were sexually intimate, Respondent told her that she should find a method of birth control and use it. (Petitioner's Exhibit 1, p. 22) On one occasion in February 1985, Respondent and P.K. visited the local beach after school. There were other students from the high school present on the beach at the time. (Petitioner's Exhibit 1, p.24: Tr. p.ll) After P.K. told her mother about her sexual relations with Respondent, school officials were contacted and advised of the situation. The Superintendent of Schools for the Indian River County School District immediately initiated an investigation into the matter. During the course of the investigation, school officials interviewed P.K. and questioned her extensively concerning the contents, furnishings and physical layout of Respondent's apartment in an attempt to either confirm or disprove her allegations. After obtaining from her a detailed description of Respondent's apartment and furnishings, Assistant Principal Gregory Smith and Personnel Director Douglas King visited Respondent's apartment. They found that her description was accurate, including her description of quilts located on the floor in Respondent's bedroom closet and a bag of frozen clams in his freezer. (Tr. pp. 36-39) When school officials interviewed Respondent, he told them that during the evening of March 22, 1985--when P.K. had indicated that she and the Respondent were together--he was with John Wyatt, a friend, until approximately 11 or 12 o'clock. Although he and Mr. Wyatt were together on the evening of March 22, 1985, watching an NCAA basketball game, Respondent drove Mr. Wyatt home at approximately 9 p.m., at which time he told Mr. Wyatt that he was going to pick up P.K. at Gringo's Restaurant, where she worked after school. (Tr. p. 14,40) During the course of the School Board's investigation, the local news media learned of the matter and began providing extensive coverage of the allegations and investigation. The three newspapers serving the Vero Beach area, as well as local radio and television stations, provided extensive coverage of the incident. (Petitioner's Exhibit 2 Tr. pp. l9,28) As a result of the extensive coverage by the news media, allegations against Respondent became well known among students, faculty and staff at Vero Beach High School. As a result of the notoriety, P.K. suffered embarrassment and disparagement. Her friends avoided her for several weeks. A member of the school basketball team confronted her on more than one occasion because he was upset over Respondent's resignation. (The basketball player felt that this ruined his chance of going to college Respondent had been helping him in that effort.) On another occasion, a student pointed out P.K. to a reporter who was on campus gathering information about the incident. P.K. was so upset and embarrassed that the Principal recommended that she leave school for a day or so. (Petitioner's Exhibit 1, pp. 40, 41 Tr. pp.l7, 28, 30) In addition to the embarrassment and disparagement which P.K. suffered as a result of the notoriety surrounding the incident, her grades suffered. (Tr. pp.23,24) P.K. had a good reputation for truth and veracity at Vero Beach Senior High School. (Tr. pp.24,28) P.K. received mental health counseling to help her deal with mental and emotional problems resulting from her relationship with Respondent and the notoriety surrounding the incident. (Tr. pp.43,44) Prior to her involvement with Respondent, P.K. planned to attend college. Her relationship with Respondent and its after effects contributed, at least in part, to her subsequent decision to forego college. (Petitioner's Exhibit 1, pp. 45,46) Respondent's sexual involvement with a female high school student, recognized by administrators, teachers and students as improper conduct, has seriously diminished his effectiveness as a teacher.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), Florida Statutes, and rules of the State Board of Education. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986.
Findings Of Fact Respondent Eloisa Sacerio has been employed by Petitioner as a classroom teacher for approximately 20 years pursuant to a continuing contract. Respondent is certified to teach Spanish in kindergarten through 12th grade, elementary education, English for Speakers of Other Languages, English, and middle school. Respondent has primarily taught Spanish. During that 20 years of service, she has been assigned to approximately 11 different work sites due to Respondent being "surplused" from site to site. Surplusing is a contractual procedure that arises when there are not enough students to fill a class for an elective subject. Spanish is an elective subject. Respondent's first five years of service were at the elementary school level. During these first five years, her performance was satisfactory. During the following 13 years, Respondent taught at three different middle schools. Her performance at the middle school level was "mixed" in that she had some performance problems at two of those schools. Respondent experienced some difficulties in her teaching performance during the 1987-88 school year and a portion of the 1988-89 school year when she was teaching at McMillan Middle School. Although she brought her teaching skills up to an acceptable level thereafter, she was surplused from McMillan at the end of the 1991-92 school year because not enough students signed up for her classes. She was assigned to the elementary school level for the 1992-93 school year since she was trained and certified to teach at the elementary school level and had taught at that level without difficulty. For the next two years, Respondent was assigned to Coral Reef Elementary School and Howard Drive Elementary School as a teacher of Spanish as a Second Language (Spanish SL) and Spanish for Spanish Speakers (Spanish S). A teacher assigned to two schools is an itinerant teacher. One of those schools is designated as the teacher's home school, the one primarily responsible for evaluating the teaching performance of an itinerant teacher such as Respondent. Coral Reef was the home school for Respondent. It is not unusual for a Spanish teacher to be an itinerant teacher. At the beginning of the 1992-93 school year, Respondent attended a faculty meeting at Coral Reef. At that meeting, she received a faculty handbook which contained School Board rules, policies, procedures and labor contract provisions. Howard Drive also gave Respondent its faculty handbook at the beginning of the school year. Just prior to the 1992-93 school year, Hurricane Andrew struck Dade County. Its aftermath impacted both Coral Reef and Howard Drive, affecting scheduling for the schools and the teachers. Coral Reef started the school year operating on double shifts paired with Perrine Elementary School. Many schedule adjustments were made until well into the school year. Respondent was given half as much planning time as the other Spanish teachers at Coral Reef since she taught there only half of the school day. Respondent filed a grievance alleging insufficient planning time. The grievance was resolved during a meeting between the administration of Coral Reef and members of the teacher's union to which Respondent belongs. The schedule Respondent had grieved was no longer in place and had been revised prior to that meeting. Respondent's performance in the classroom during the 1992-93 and 1993- 94 school years was evaluated utilizing the Teacher Assessment and Development System (TADS). TADS is an objective instrument used to observe minimal teaching behaviors. The categories of teaching behaviors evaluated by TADS are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relations, and assessment techniques. These six categories are evaluated during a formal class observation of the classroom teacher. A seventh category, professional responsibility, reflects the duties and responsibilities of a teacher in complying with School Board rules, contractual provisions, statutes and regulations, site directives and the policies and procedures that deal with record keeping and attendance. The union filed grievances on behalf of Respondent with the TADS Monitoring Committee (TMC) for ten or eleven formal observations of Respondent's teaching during the 1992-93 and 1993-94 school years. The TMC was established by contractual stipulation between the union and the School Board. The committee was set up to monitor the TADS process for procedural irregularities, by reviewing only the records and the paper process resulting from a formal observation. It does not review the judgment of the observers who conducted the formal observation. Even after Respondent utilized the TMC process to scrutinize the formal observations of her, she was still found to be unacceptable in classroom management and techniques of instruction for both the 1992-93 and 1993-94 school years. On October 27, 1992, Respondent was formally observed in the classroom and rated unsatisfactory in techniques of instruction by Joe Carbia, principal of Coral Reef. The students in the class did not appear to possess the preliminary skills or background to be successful in the lesson being taught and did not understand the material. The lesson observed had no beginning and no closure. It ended simply by Respondent telling the students to do their homework. The entire class period was spent trying to elicit answers to questions taken from the workbook although none of the students were able to answer the questions presented by Respondent. Respondent was prescribed activities to help her overcome her deficiencies in her techniques of instruction. She was to observe two other Spanish SL teachers as scheduled by the assistant principal Valerie Swanson in order to give Respondent an opportunity to observe good instructional techniques. She was to read, discuss and implement guidelines from the TADS Prescription Manual. She was to meet with Swanson to receive assistance on the materials that dealt with teaching techniques. Carbia held a post-observation conference with Respondent and discussed the deficiencies observed and the prescribed activities. Prescriptive activities are directives. Swanson met with Respondent to offer support and to discuss the various prescriptive activities assigned to Respondent as a result of the October 27, 1992, observation. Specifically, Swanson met with Respondent on November 1, 10, 16, 18 and 25, 1992. Swanson answered any questions posed by Respondent. On November 14, 1992, Respondent was present at Coral Reef but failed to appear to teach one of her regularly-scheduled classes. Principal Carbia taught the class in Respondent's place. Elective teachers are required to check in with the classroom teacher at the beginning of the class period. Respondent did not check in as she was required to do. Respondent's explanation was that when she went to her prior class, she was told by that classroom teacher that the students were watching a closed circuit television program so Respondent did not have to teach that class that day. Respondent concluded that her next class would also be watching the program. Respondent never asked anyone if that were the case. Respondent's assumption was incorrect. Carbia informed Respondent that the class rules she sent home to students' parents were inappropriate for elementary school students. These rules were the same class rules Respondent used when she taught middle school. Respondent was directed not to send the parents any communication without prior administrative approval. Respondent sent subsequent communications to parents without prior approval. Parents complained to the administrators at Coral Reef about Respondent's teaching, both orally and in writing. Some children did not like Respondent's Spanish class and did not want to go to school because they were in Respondent's class. Those children were crying, getting stomachaches and going home upset. When advised by administrators of these complaints, Respondent replied that the students were spoiled and not used to studying. She accepted no responsibility for the problems the children experienced. Conferences were held with complaining parents, Respondent, and the administration at Coral Reef concerning Respondent's grading policy. In these conferences, Respondent was unable to explain the grades she had given students. Carbia changed some students' grades because Respondent's gradebook did not justify the grades she had given the students. On November 12, 1992, Carbia held a conference-for-the-record with Respondent to address the parental complaints received by the Coral Reef administration regarding Respondent. Carbia gave Respondent copies of several written complaints he had received. The parents complained about Respondent's instruction, inappropriate grade level homework, and the manner in which Respondent dealt with the children. Respondent admitted that she screamed at the children. On November 25, 1992, Swanson held an informal conference with Respondent. She gave Respondent suggestions on how to organize her gradebook in a manner that would substantiate the grades Respondent gave her students. Conduct, class work, homework, and tests were to be specifically and clearly labeled in the gradebook for each student. On December 4, 1992, Respondent was absent. Respondent failed to comply with the directive contained in the Coral Reef Faculty Handbook to have emergency lesson plans on file in the main office at Coral Reef. Respondent is required by Petitioner and state law to have emergency lesson plans on hand. On December 10, 1992, Respondent was again formally observed in the classroom by Carbia and was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because the lesson was taught at one cognitive level, i.e., the students were merely involved in recall activities. Respondent was rated unacceptable in techniques of instruction because twenty-five minutes of the thirty-minute class time was devoted to Respondent attempting to elicit responses from the students. The students could not give Respondent the correct answers, and she made no attempt to give feedback to the students. Respondent made no provision for closure to the lesson. The students exhibited a great deal of confusion regarding the activity and repeatedly requested clarification. Respondent offered no clarification. She only gave reprimands. Respondent was prescribed activities to help her in overcoming her deficiencies in knowledge of subject matter and techniques of instruction. She was directed to read, discuss and implement guidelines for improvement found in the TADS Prescription Manual. She was directed to observe two other classroom teachers' techniques of instruction. She was to meet with Swanson to receive assistance in understanding the reading materials and to discuss any questions she had regarding her observations of the other teachers. On or about December 17, 1992, a conference-for-the-record was held. Respondent was placed on prescription for Category VII of TADS, professional responsibilities. There was also a review of her performance on the formal observations of October 27 and December 10, 1992. Respondent was rated unacceptable in Category VII, because she failed to obey the directive to observe Ms. Navarro's Spanish SL class (she observed only part of the class), failed to attend her regularly-scheduled Spanish S class, sent home communications without prior administrative approval, did not maintain gradebooks which could be used to substantiate the grades she gave students, and did not have emergency lesson plans available in the office. Respondent was prescribed activities to help her overcome these professional responsibility deficiencies. Respondent was to read and review the Code of Ethics of the Educational Profession in Florida. Swanson continued to assist Respondent with her gradebook and emergency substitute folder. Respondent was to observe a master Spanish teacher, Rebecca Sosa at Kendale Elementary School. On February 8, 1993, Respondent was again formally observed by Carbia and was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the lesson plan objective was not an instructional objective for Spanish SL but was only a listing of activities. No attempt was made by the teacher to make the lesson meaningful to the students. The only involvement of the students in the activity was limited to filling in blank items on two xeroxed worksheets. Respondent was prescribed activities to help her overcome her deficiencies in preparation and planning. Under the direction of Swanson, Respondent was to read and discuss the preparation and planning unit in the TADS Prescription Manual. Respondent was to review samples of other teachers' lesson plans. Respondent was rated unacceptable in knowledge of subject matter because the entire instruction was at one cognitive level, i.e., recall and responses. Respondent was prescribed activities to help her overcome her deficiencies in knowledge of subject matter. She was to read, discuss and implement the guidelines for improvement found in the TADS Prescription Manual. Respondent was also to observe other Spanish SL teachers and regular classroom teachers, as scheduled by Swanson. Respondent was rated unacceptable in techniques of instruction because there was no variety in her instruction. The materials used in the lesson were merely two xeroxed sheets with fill-in-the-blank recall items. The activities were not related to the instructional objectives. Several students in the class were confused by Respondent's instructions, but Respondent made no attempt to clarify. Respondent was prescribed activities to help her overcome her deficiencies in techniques of instruction. Respondent was to read and discuss the guidelines for improvement found in the TADS Prescription Manual. Swanson assisted Respondent in those prescriptive activities and was available for conferences regarding those activities. Carbia held a post-observation conference with Respondent to go over the prescription. Respondent was still exhibiting the same deficiencies as before. At the conference, Respondent gave no explanation for her failure to improve her performance. Respondent was told that she had not incorporated in her teaching the prescriptions previously given to her. On March 15, 1993, a conference-for-the-record was held with Respondent. Although Respondent had been provided assistance to help her overcome the deficiencies in her gradebook, her gradebook remained unacceptable. Respondent was placed on prescription for Category VII and was prescribed activities to assist her. Respondent was to submit her gradebooks to Swanson on a weekly basis for review. She was also provided with samples of good gradebooks. On March 16, 1993, Respondent was formally observed by Swanson and Wally Lyshkov, a foreign language supervisor. That formal observation was an external review. In an external review, there are two certified observers: one from the school site and the other from outside the school site. The observers complete the TADS observation forms independently. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because there was no logical sequencing of the material presented in the observed lesson. The lesson was based on furniture vocabulary. There was no attempt made by Respondent to contextualize the vocabulary. The lesson was at one cognitive level, i.e., simple choral repetition. Respondent was rated unacceptable in techniques of instruction and assessment techniques because the lesson lacked sequence and was inappropriate for that grade level. Although the students were confused by Respondent's instruction, she provided no clarification to the confused students. Further, there was no evidence of formal assessment of the students in her gradebook or work folders. Respondent was prescribed activities. She was directed to read and discuss certain materials. A post-observation conference was held with Respondent to discuss the prescriptive activities. Thereafter, Swanson met with Respondent on numerous occasions to assist her with these prescriptive activities. On May 4, 1993, Respondent was formally observed by Florine Curtis, the principal of Howard Drive, and Diana Urbizu, an outside observer. Respondent was rated unacceptable in classroom management during that external review because the class was chaotic. Respondent appeared unaware that several students were off-task while she taught the lesson. The students were not properly instructed because of the lack of classroom management. After the observation, Urbizu and Curtis discussed the types of activities that would assist Respondent to improve her performance. Curtis wrote the prescription to help Respondent overcome her deficiencies. Respondent was directed to read certain materials, to complete a specified activity and submit the activity to Curtis, to observe the other Spanish teacher at Howard Drive conduct a Spanish SL class, to write a brief summary of her observation, and to develop a plan for effective classroom management with suitable consequences and submit the plan to Curtis for review. Curtis held a post-observation conference with Respondent and discussed with her all of the prescribed activities and areas of deficiency. Respondent was given the opportunity to explain her performance. Curtis submitted the rough draft of the TADS observation form to Dr. Joyce Annunziata to review. Annunziata reviewed the form to assure that all the deficiencies were procedurally correct and faxed it back to Curtis with her notations. Annunziata did not make any substantive changes to the evaluation. Curtis worked informally with Respondent at Howard Drive to help Respondent improve her performance. Respondent could not be placed on a second formal prescription at Howard Drive since she was on prescription at Coral Reef, Respondent's home school. Spanish teachers at both schools are not assigned a classroom. Since elementary school students remain in the same classroom, these teachers travel from classroom to classroom and conduct a thirty-minute lesson. Respondent wanted the classroom teachers to manage the classroom while she conducted the Spanish lesson. Classroom management is always the responsibility of the teacher conducting the lesson. It does not matter whether the teacher travels to the classroom to conduct the lesson or whether the students travel to the teacher. On May 28, 1993, a conference-for-the-record was held to notify Respondent of her unacceptable annual evaluation for the 1992-93 school year and to remind Respondent of the negative implications for her future employment with Petitioner if she failed to remediate her deficiencies. Respondent indicated in the conference that the prescriptions had been a waste of time. She indicated that her only motivation for getting off prescription was to transfer to another school since she never wanted to teach at Coral Reef. During the 1992-93 school year, Swanson, while performing her routine duties, informally observed Respondent in the classroom. During these occasions, Respondent was observed yelling at the students and using a negative approach to teaching. Respondent would demean children, make derogatory remarks, and call them stupid. Curtis informally observed Respondent in the classroom during the 1992-93 school year. During these occasions, Respondent was observed to lack classroom management skills and to use inappropriate methods of instruction. Respondent's classroom was always noisy. Her method of instruction was to "teach to a test" rather than to teach the objective of the lesson. Respondent spent the week going over material that would be on the Friday test. Curtis held numerous informal conferences with Respondent to help Respondent improve her performance. Curtis suggested specific classroom management skills and techniques of instruction. She also suggested that Respondent properly maintain her gradebook by labeling the entries. Aida Helbig, the Bilingual Supervisor for Foreign Language Skills, visited Respondent at Coral Reef and Howard Drive in order to help Respondent improve her performance. During the 1992-93 and 1993-94 school years she met with Respondent nine times. Helbig informally observed Respondent to be unsatisfactory in classroom management and techniques of instruction. Audrey Dillaman taught third grade at Coral Reef during the 1992-93 school year. Respondent taught Spanish SL to Dillaman's class. Respondent's instruction was composed of primarily worksheets and conjugating verbs which was inappropriate for the grade level. The students and parents became frustrated, and the parents withdrew their children from Respondent's class. Only seven of Dillaman's students remained in Respondent's class at the end of the second grading period although 18 had started out at the beginning of the year. Respondent wrote in cursive on the blackboard for third grade students who had not yet learned to read or write cursive. Respondent expected first grade students who had not learned to read English, to read Spanish words from the blackboard and charts. The goal of teaching Spanish to elementary school students is to expose them to a foreign language. The emphasis is on an oral program. The sequence of learning a language is oral, reading, and then writing. Respondent's emphasis was on a written program. Respondent required second- grade students to have a Spanish/English dictionary although the district curriculum does not. In September of 1993, Swanson had a discussion with Respondent concerning written communications sent home to parents. Swanson suggested methods Respondent could use to communicate with parents. Swanson even typed a sample letter for Respondent which explained Respondent's classwork to parents. On October 1, 1993, Respondent was formally observed in the classroom by Carbia and rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because more than fifty percent of the class period was spent passing out and collecting an assignment, with much confusion and disorder. Sixty to seventy percent of the students were off-task, and Respondent did not redirect those off-task students. Instead, Respondent used verbal threats to address inappropriate behavior. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet. The only instructional methodology used was a game of questions and answers among students. During the game, the students were not clear about what team they were on. There was a great deal of inattention, stumbling, and wrong answers during the game. Respondent did not attempt to clarify the students' confusion. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. Respondent was to visit other Spanish SL classes at Coral Reef and Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Coral Reef and Howard Drive continued to receive parental complaints about Respondent's performance. At Coral Reef students dropped Respondent's classes, and parents requested that their children be switched to another Spanish teacher. Respondent's gradebook continued to be a problem. These concerns were discussed at a November 1, 1993, conference-for-the-record. On November 2, 1993, Respondent was formally observed in the classroom by Swanson and rated unacceptable in classroom management and techniques of instruction. She failed to obey the directive to post her classroom behavior rules during the class time and failed to refer to her classroom rules until just prior to the end of the class time. Students were off-task and Respondent failed to redirect them. The students attended to Respondent only when individually asked a specific question. During the lesson Respondent did not mention the strengths and weaknesses of the students. The majority of the lesson was devoted to one-on-one teacher-to-student dialogue while the rest of the students were inattentive. There were no opportunities for the students to contribute ideas, make comments, or ask questions of the Respondent. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. She was to visit other Spanish SL classes at Coral Reef and at Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Swanson provided Respondent with the Competency Based Curriculum (CBC). During the 1993-94 school year, Petitioner began phasing in its CBC. The phasing in of this curriculum is not a factor that would effect the evaluation and assessment of teaching competency under TADS. In November 1993, Swanson discussed with her Respondent's gradebook. Swanson gave Respondent written instructions on how to set up her gradebook and class rules. However, Respondent's gradebook remained unacceptable throughout the 1993-94 school year. On December 2, 1993, Respondent was formally observed by Jean Moeller, assistant principal at Howard Drive, and was rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because she did not use non-verbal techniques to obtain the students' attention from the beginning of the lesson. During the first fifteen minutes of the lesson, i.e., half of the class period, students were off-task. Several of the students were involved in activities other than Spanish. There was no attempt by Respondent to redirect off-task behavior. Respondent was unacceptable in techniques of instruction because she used inappropriate teaching materials. Respondent had two xeroxed sheets in Spanish that were incorrectly utilized. She wrote English on the chalkboard and the students were required to copy English responses to some of the Spanish phrases on the xeroxed papers. The Spanish SL objectives avoid English translation activities. This is stated in the teacher's guide. At this level, children should be responding primarily in Spanish. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was required to read the TADS Prescription Manual on classroom management. She was to make a list of non-verbal techniques that could be implemented in her class to effectively increase on-task behavior and submit the list to Moeller. She was to discuss her reading with Moeller. Respondent was to turn in her daily lesson plans to Moeller a week in advance from December 8, 1993, to January 12, 1994, on Wednesdays. Moeller recommended both Spanish teacher Grijalva and Spanish SL specialist Helbig as resources to assist Respondent in overcoming her deficiencies. Respondent was to observe Grijalva in the classroom. Grijalva is an excellent Spanish teacher who has good classroom management skills and techniques of instruction. Grijalva also knows the curriculum and utilizes appropriate assessment techniques. Grijalva is a specialist in CBC and has trained teachers in CBC. Grijalva provided assistance to help Respondent improve her performance. Respondent observed Grijalva playing a tic-tac-toe game with her students. Respondent attempted to play the same game with her students. However, the game as Respondent structured it resulted in the brighter students repeatedly asking difficult questions of the same student that was least likely to know the answers to the questions. When that student did not know the answers, Respondent made demeaning comments to the student. The student put her head down and cried. On December 8, 1993, a conference-for-the-record was held with Respondent to address her performance, the continuing parental complaints about her performance, and her future employment with Petitioner. Respondent was reminded that she had been on prescription since October 1992 and continued to be unacceptable in classroom management and techniques of instruction. Respondent was given an opportunity to address all the concerns noted. Respondent's written explanation was not responsive to any of the concerns that came up at the conference. On January 27, 1994, Respondent was formally observed at Howard Drive by Principal Curtis and Mercedes Toural, an outside observer. Respondent was rated unacceptable in classroom management and techniques of instruction. Respondent did not have control of the classroom. The children appeared to be in control, and Respondent did not use strategies to prevent, identify, or redirect off-task behavior. Further, the lesson involved having an answer to a test item as opposed to being a lesson with an objective, an activity, and a means of assessment. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was to read the TADS manual, complete written activities, and observe Grijalva. That external review was the second formal observation by Curtis. It occurred almost a year after the first formal observation done by Curtis. Respondent's performance continued to be deficient despite the guidance and assistance provided during that time. At Howard Drive, Respondent used food to reward and punish students in her class. The use of food to reward good behavior and/or to punish inappropriate behavior is a poor teaching technique. After the observation of January 27, 1994, Curtis met with Respondent informally on numerous occasions. Respondent remained deficient in classroom management and techniques of instruction for the 1993-94 school year. There was no improvement in her performance at Howard Drive. On April 29, 1994, there was an external review observation done by Margarita Alemany and by Carbia at Coral Reef Elementary. Carbia rated Respondent unacceptable in classroom management and techniques of instruction. Alemany rated Respondent unacceptable in knowledge of subject matter, classroom management, and techniques of instruction. Respondent was unacceptable in classroom management because a substantial number of students were off-task at different times, and students were inattentive. Respondent used no verbal techniques to redirect the students who were off-task and no techniques to maintain the attention of the students. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet entitled "First Grade Vocabulary of April 25." None of the students were able to read the sheet and provide correct responses. Respondent was prescribed activities to assist her in overcoming her deficiencies. Respondent, under the direction of Swanson, was to read, discuss, and implement guidelines for improvement found in the TADS Prescription Manual. On June 6, 1994, a conference-for-the-record was held at Coral Reef to review the annual evaluation and its consequences. Respondent over the two school years, 1992-93 and 1993-94, had numerous classroom observations and four external reviews. Respondent had been provided assistance to improve her performance by both the administration of Howard Drive and that of Coral Reef. Yet, Respondent remained unacceptable in classroom management and techniques of instruction for the 1993-94 annual evaluation. Respondent failed to turn in her gradebooks for the 1992-93 and the 1993-94 school years. Respondent was required to turn in her gradebooks from both school locations to the individual school at the end of each school year. This is required by School Board policy and was addressed in the end-of-the-year directives. Respondent kept the gradebooks in her possession until they were given to Petitioner on February 16, 1995. By that date, the gradebooks had been altered to include labeling and more grades which were not in the gradebooks when they were formally evaluated. During the 1992-93 and 1993-94 school years, many students withdrew from the Respondent's Spanish classes. Classroom teachers complained to the administrators of Howard Drive and Coral Reef concerning Respondent's rapport with the students, her classroom management techniques, and her methods of instruction. Respondent exhibited a negative approach to teaching that did not change over the two-year period. Her approach negatively impacted the Spanish program at both schools because students chose not to take Spanish if Respondent was their teacher. Respondent did not accept responsibility for any problems and deficiencies she had in the classroom. She always blamed others. Although Respondent completed all the prescribed activities, she did not incorporate what she learned into her performance. Petitioner provided substantial assistance to Respondent to help her improve her performance. She received assistance from the administrators of two schools and from other teachers and district personnel. For 1993-94 Respondent was assigned to teach the same grade levels as the prior year to allow her to build on her experiences from 1992-93. All the Spanish teachers at Coral Reef had the same planning time during 1993-94 in order to make it convenient for Respondent to get assistance from them. Yet, Respondent failed to communicate with and relate to her students to such an extent that she deprived them of a minimum educational experience. She also taught inefficiently and ineffectively and failed to comply with Petitioner's prescribed course of study using appropriate materials and methods.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in Petitioner's Amended Notice of Specific Charges as Corrected, sustaining Respondent's suspension without pay, and dismissing her from her employment. DONE and ENTERED this 2nd day of October, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4316 Petitioner's proposed findings of fact numbered 2, 4-23, and 25-117 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 3 and 24 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 13 and 17 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 5, 8-12, 15, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 4, 6, 7, 14, and 19-22 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Twila Hargrove Payne, Esquire Patricia D. Bass, Esquire Madelyn P. Schere, Esquire 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Ronald S. Lieberman, Esquire NationsBank Building, Penthouse 2 9350 South Dixie Highway Miami, Florida 33156 Mr. Octavio J. Visiedo Superintendent of Dade County School Board Suite 403 1450 Northeast Second Avenue Miami, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The basic issue in Case No. 90-2403 is whether the application of the Petitioner, Ian G. Koblick, for a lease of sovereign submerged lands and an easement for an appurtenant previously filled area should be granted or denied. The Board of Trustees of the Internal Improvement Trust Fund propose to deny the application. The Intervenor, Izaak Walton League, opposes the application and supports the proposed denial. The basic issue in Case No. 91-0258 is whether certain action proposed by the Board of Trustees of the Internal Improvement Trust Fund regarding filled areas in John Pennekamp Coral Reef State Park affects the substantial interests of the Petitioner, Marine Resources Development Foundation.
Findings Of Fact Petitioner Ian G. Koblick is the record title holder of certain real property in Key Largo, Monroe County, Florida, located at 51 Shoreland Drive, where he owns and operates a for profit corporation known as "Koblick Marine Center" and a nonprofit corporation known as "Marine Resources Development Foundation." (MRDF) Petitioner purchased the property in the spring of 1985. Petitioner Koblick's attorney contacted the Division of State Lands on behalf of Petitioner for a sovereignty submerged land lease for two docks and an easement for an appurtenant filled area, the subject of DNR lease file #44001275, in the fall of 1984. As part of the application process, Petitioner's attorney submitted to Respondent's staff a survey of the proposed submerged lands lease area, which contained water depth information. The fill parcels known as "F-7" and "F-8," which are the subjects of the second petition, are not owned by either of the Petitioners. Petitioner has no deeds or conveyances to the lands in the proposed lease and easement area. Petitioner has been using the lands in the proposed lease and easement area continuously since 1985, without consent from the Respondents. At no time has there been any written assurance made by Respondent or its staff that a lease would be issued to Petitioner. The lands within the proposed lease and easement area lie within the boundaries of John Pennekamp Coral Reef State Park. On September 21, 1967, the Respondent Board of Trustees dedicated certain sovereignty submerged lands to the Florida Board of Parks and Historical Memorials. The effect of this dedication was to extend the boundaries of John Pennekamp Coral Reef State Park to the shoreline. The Florida Park Service, part of the Division of Recreation and Parks in the Department of Natural Resources, has continuously managed the Park since then. The Respondent Board of Trustees has not conveyed, alienated, or modified its interest in the lands within the proposed lease and easement area, except for one submerged land lease, #44-39-0784-5E, to Tahiti Village (a predecessor in interest to Petitioner) for a period of five years from August 1, 1978, through July 31, 1983. That lease was for a much smaller parcel of land than Petitioner's proposed lease area and was never renewed. When Petitioner Koblick purchased his property, the two docks and the filled parcel, "F-9", in the proposed lease easement area were already in place. The then existing docks were not those previously consented to by Respondent. After he purchased the property, Petitioner constructed catwalks on the docks and upgraded the electrical system on the fill area without permission from either the Board of Trustees or the Division of Recreation and Parks. Petitioner Koblick is not in possession of any permits giving consent to fill the filled area "F-9" in the proposed lease and easement area. The fill material at filled area "F-9" was placed there between 1964 and 1969, without the consent of the Respondents. Filled area "F-9" has riprap all along its outer edge and tip. This riprap area is currently habitat for a variety of marine plants and animals. Removal of all of the fill material at "F-9" would, of course, destroy that habitat and leave a barren area that might take many years to revegetate. A benthic community eventually would be created in the area from which the fill was removed. Filled area "F-9" also provides protection to the existing shoreline, which includes a seawall, and to a basin that is landward of "F-9." Removal of all of the fill material at "F-9" would reduce the protection to the shoreline and expose the seawall and other shore structures to erosion. Removal of the fill material at "F-9" down to the mean high waterline would not have any demonstrated environmental benefits, but would be a hazard to navigation because at high tide the remaining fill would be difficult to see. The majority of boats docked in the 18 slips in the proposed lease area pay slip rent to Koblick Marine Center. Only three MRDF boats are docked at the docks. A charter boat business, which leases out boats to the public, is also operated at the docks on the proposed lease area. The Intervenor, Izaak Walton League, Mangrove Chapter, is a not for profit Florida corporation which has as its purpose the protection of the state's soil, water, woods, and wildlife. A substantial number of Intervenor's members live near Pennekamp Park and use the park for recreational and educational purposes. Any activity which detracts from, or has a potential for detracting from, the purposes to which the Pennekamp Park is dedicated also detracts from or has a potential for detracting from the recreational and educational interests of the Intervenor's members who live near and use the park. Largo Sound is a manatee habitat. Manatees have been sighted in or near the proposed lease area. Activities in the proposed lease area, which include the discharge of pollutants and boat traffic to and from the docks, have a potential adverse impact on manatees, which are an endangered species. There are benthic communities in the proposed lease area under the mooring areas and where pilings are located. There is no way Petitioner can relocate the docks out of the benthic communities in the proposed lease area. The docks in the proposed lease area shade the benthic communities beneath them. Shading from boats at the docks in the proposed lease area, especially from boats used as residences that rarely leave the docks and from large vessels, damages the benthic communities. Boats docking in the slips in the proposed lease area have caused bare, scoured, concave spots beneath their bottoms. This is due to shading, propeller activity, and grounding of the vessels. Sea grasses and corals have been killed as a result. Boats docking in the proposed lease area have caused prop dredging or grounding damage to benthic communities and corals in Largo Sound, in the slips, just outside the slips, and in the canal adjacent to the proposed lease area. Petitioner Koblick has taken various steps to prevent or minimize the possibility of water pollution from the activities at the proposed lease area. These steps include discontinuing the sale of fuel at the subject docks and adopting strict rules prohibiting the discharge of any pollutants from boats docked at his facility, and prohibiting various activities that might be a source of pollution. These efforts notwithstanding, boats docking in the proposed lease area have discharged oil, pollutants, and bilge water overboard. Further, while water quality samples taken from the proposed lease area show good levels of dissolved oxygen and good levels of nitrates, water quality samples taken from the proposed lease area also reveal the presence of ammonia and pesticides, including endrinosulfan, endrin, and lindane, together with its isomers, at levels which exceed state water quality standards. 3/ Pollutants pose a threat of harm to benthic communities, corals, manatees, and other wildlife. Water depths in the slips and turning basin of the docks in the proposed lease area are shallower than minus four feet in some areas, ranging from minus 1.5 feet to minus 5.3 feet. Boats in those slips for the past five years have had drafts of more than 1.5 feet, some of them having drafts of 3 feet to 3 feet 8 inches. Boating related activities in the proposed lease area contribute to cumulative adverse impacts on Pennekamp Park. If boats were eliminated from the docks in the proposed lease area, the benthic communities would be likely to recolonize in approximately two years.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order to the following effect: Dismissing the petition in Case No. 91-0258 as moot; Denying Petitioner Koblick's application for a lease and easement; Ordering Petitioner Koblick to remove all docking structures located on the Respondent's lands; Ordering Petitioner Koblick to pay lease fees in arrears in the amount of $10,202.24; and Ordering that the fill material at filled area "F-9" not be removed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1992.
