The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 697227. The Certificate covers the areas of Social Science and Educational Leadership and was valid through June 30, 1999.2 At all times material hereto, Respondent was employed by Petitioner as an Assistant Principal at Crystal Lake Middle School (Crystal Lake).3 Respondent was employed at Crystal Lake pursuant to an annual contract. On or about January 3, 1999, Respondent arranged for someone other than himself to take the Florida Department of Education's Florida Educational Leadership Examination (FELE) and for that person to submit the answers to the FELE as if Respondent wrote them. Respondent engaged in a fraudulent scheme to receive a passing score on the FELE in order to receive a Florida Educator's Certificate for which he did not qualify.4 The fraudulent conduct was discovered. The Florida Department of Education invalidated all scores assigned to Respondent and, therefore, no score was assigned to Respondent for the FELE. Respondent was not issued a certificate. Prior to January 3, 1999, Respondent had taken the FELE approximately 10 or 12 times without receiving a passing score. If he had not received a passing score on the FELE in January, Respondent would have lost his Certificate and would have been ineligible to remain an assistant principal. He "panicked" and obtained the services of the individual to take the FELE for him. The local community became aware of Respondent's incident. The local news media printed articles regarding the incident. Petitioner received three or four telephone calls from concerned parents regarding the image that was being portrayed to students if Respondent was not punished. Respondent subsequently hired tutors, took the FELE, and received a passing score. He was issued a certificate which expires June 30, 2004. The EPC filed an administrative complaint against Respondent for the misconduct. Respondent did not contest the allegations of fact and requested an informal hearing. The EPC issued a Final Order on April 17, 2001, imposing the following penalty: a reprimand; suspension of Respondent's certificate from the end of Petitioner's 2000-2001 school year to the day before the beginning of Petitioner's 2001-2002 school year; and probation, with conditions, for three employment years upon obtaining employment which required a certificate. Having been notified by EPC regarding Respondent's conduct as to the FELE, Petitioner launched an investigation. As part of the investigation, Respondent was notified by Petitioner's Executive Director of Professional Standards and Special Investigative Unit that he was required to provide a statement to Petitioner's Investigative Unit and Respondent was given a date and time certain to provide an oral statement. Respondent was represented by counsel and several meetings for Respondent to provide the oral statement were scheduled to accommodate Respondent's counsel. Respondent failed to provide an oral statement due to the inability of his then counsel to attend the meetings. Respondent was also provided an opportunity to provide a written statement but Respondent's then counsel was unable to advise Respondent on the statement due to trial commitments. Respondent failed to provide a written statement. It is not disputed that Respondent was required to provide a statement, which is considered a direct order. Furthermore, it is not disputed that the direct order was reasonable and that it was given by and with proper authority. However, it is reasonable for Respondent to follow the advice of his lawyer and to not provide an oral statement without the presence of his lawyer. Likewise, it is reasonable for Respondent to not act on submitting a written statement without his counsel advising him on the written statement. Respondent's failure to provide the oral or written statement was justifiably excused. Respondent was also provided an opportunity to attend a pre-disciplinary meeting on two or three different occasions. Respondent failed to attend the pre-disciplinary meetings due to the inability of his then counsel to attend. Respondent obtained new counsel and provided a statement to Petitioner, albeit during discovery in the instant case. Petitioner suspended Respondent, without pay, beginning March 20, 2001 and ending June 30, 2001. Respondent's annual contract was not renewed by Petitioner for the 2001-2002 school year.5 Petitioner seeks termination of Respondent's 1999-2000 annual contract. Respondent is a highly regarded educator and several character witnesses testified on his behalf. Each witness was aware of Respondent's conduct regarding the FELE. Respondent began his teaching career in 1992 in Tallahassee, Florida, at Fairview Middle School. He was promoted in 1994 to the position of Dean at Fairview Middle School. In 1995, Respondent was hired as assistant principal by John Civettini who was the principal at Crystal Lake. Respondent was recommended to Mr. Civettini by Petitioner's former Superintendent of Schools and Respondent was recommended to the former Superintendent by Florida's then Governor Lawton Chiles. Crystal Lake had serious disciplinary problems and was in a "disruptive chaotic" state. Within two months of Respondent's arrival at Crystal Lake, he had implemented a program that had changed Crystal Lake for the better. Mr. Civettini retired in the third year of Respondent's tenure at Crystal Lake but Respondent's program continued under the new principal and Crystal Lake became one of the top middle schools in Broward County. Respondent had done an "excellent" job at Crystal Lake with the school children and had the admiration of the parents. Mr. Civettini would again hire Respondent without reservation even knowing the circumstances of the conduct with which Respondent is charged. Furthermore, Mr. Civettini is not against punishing Respondent for his conduct but he believes that termination of Respondent's annual contract is too severe. If Respondent is terminated by Petitioner, according to Mr. Civettini, Respondent will not be hired by another school district. Respondent's Associate Superintendent, Everette Abney, Sr., Ph.D., has "a great deal of admiration" for what Respondent accomplished at Crystal Lake. Respondent made a "difference in the lives" of the children at Crystal Lake. Dr. Abney would welcome the return of Respondent to Petitioner's employ and would return Respondent to working with children. Dr. Abney does not view the conduct with which Respondent is charged as lessening Respondent's effectiveness with the children. Dr. Abney is aware of principals and other assistant principals who had engaged in more serious misconduct but who were not terminated by Petitioner. However, he was not able to give specifics regarding the incidents. Respondent worked with a South Florida Pizza Hut franchise owner, Alfredo Salas, in helping minority children. Mr. Salas has great respect for the way Respondent worked with and mentored the children. Mr. Salas has no hesitation in supporting the return of Respondent to Petitioner's employ and would continue to work with Respondent with children. Petitioner has imposed less severe punishment for conduct committed which was equally or more serious. One principal was arrested in the year 2000 for marijuana possession in a foreign state while on a recruiting trip for Petitioner. The incident received local publicity. Petitioner removed the principal from his position, re-assigned him to administrative procedures from August 31, 2000 to August 21, 2001, and, after the re-assignment, imposed a three-month suspension, without pay, and a reduction to an annual contract. In another incident, a principal solicited business at her school in order for her father to become a vendor at her school. Her conduct was determined to be a conflict of interest.6 Petitioner suspended the principal for two weeks. Also, the EPC reprimanded her and placed her on probation for one year; and Florida's Ethics Commission reprimanded her and imposed a $500 fine. Taking into consideration the totality of the circumstances presented, the punishment sought by Petitioner, termination of employment, is too severe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Sustaining the suspension, without pay, of Oscar Harris, Jr., beginning March 20, 2001 and ending June 30, 2001. Imposing other terms and conditions deemed appropriate. Not terminating the annual contract of Oscar Harris, Jr. for the 1999-2000 school year. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of October, 2001.
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a staff augmentation contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The parties' Joint Pre-Hearing Stipulation2 and the evidence presented at final hearing established the facts that follow. The Request for Proposals On July 26, 2001, the District issued Request for Proposals C-11940 (the "RFP"). The purpose of the RFP, as set forth on page one thereof, was to solicit technical and cost proposals from qualified respondents [for a staff augmentation contract.3] The South Florida Water Management District (District) is interested in establishing a single qualified information systems/technology contracting firm to provide the services defined herein on an as-needed basis. Contingent upon the responses received as a result of this Request for Proposals (RFP), the District will determine which respondent meets the required standards and qualifications through an evaluation process. The Vendor meeting the required standards and qualifications will be determined to be “pre-qualified” to provide information systems/technology services to the District. The deadline for submission of proposals in response to the RFP was Monday, August 27, 2001 at 2:30 p.m. Section 1.12 of the RFP, which is relevant to this protest, stated as follows: REJECTION OF RESPONSES The District reserves the right to reject any and all responses when such rejection is in the District's interests. Minor irregularities contained in a response may be waived by the District. A minor irregularity is a variation from the solicitation that does not affect the price of the contract or does not give a respondent an advantage or benefit not enjoyed by other respondents, or does not adversely impact the interests of the District. The District further reserves the right to cancel this solicitation at any time if it is in the best interest of the District to do so. Section 1.13 of the RFP stated, in pertinent part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a Final Order that declares DUA’s proposal to be materially non-responsive and, accordingly, rescinds the proposed award to DUA. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency’s discretion, it is nevertheless recommended that, rather than reevaluate or reject all responsive proposals, the District award the contract to the highest-ranked responsive proposer, Syslogic. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 January, 2002.
Findings Of Fact Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board. A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order. Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty (80) or more families residing in Tyrone Mobile Home Park. On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor. Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the license of Robert C. Channell until he has reestablished himself as a licensed pool contractor in Hillsborough County, Florida. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Bearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box L386 Tallahassee, Florida 32302 Mr. Robert C. Channell 309 Jennal Place Tampa, Florida 33612 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issue in this case is whether rule 6A-4.0021(6)(c)1. is invalid because Respondent exceeded its grant of rulemaking authority, as alleged by Petitioner.
Findings Of Fact Section II of the Revised Consolidated Petition is the portion of the pleading directed to the Rule Challenge. The entire Rule Challenge section is set forth verbatim here: The Department's Adoption of a Rule Broadly Limiting Time to Complete an Exam Exceeds its Grant of Legislative Authority Section 120.52(8)(b) provides that a rule is an invalid exercise of delegated legislative authority if "the agency has exceeded its grant of rulemaking authority." An agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute. Rules are required to identify the specific authority for adopting a rule, and the specific law being implemented. Rule 6A-4.0021, FAC identifies §§1012.55(1) and 1012.56, Fla. Stat. as its rulemaking authority and as the law being implemented. Both statutes relate to the issuance of teacher certifications, not to the criteria for admission to upper-level teaching programs leading to a bachelor's degree. To the extent that the rule applies to students taking the general knowledge portion of the FCTE to obtain admission to a bachelor's degree program, the rule would be implementing §1007.265, Fla. Stat., regarding alternative standards for admission to upper-division classes for students with disabilities. In order to meet the criteria established in that section, the rule would need to allow alternative admission requirements if the failure to meet the initial requirement is related to a disability and the revised requirement would not constitute a fundamental alteration in the nature of the program. §1007.265, Fla. Stat. The Department of Education, by adopting a rule that limits all test takers, regardless of the extent or type of their disability, to double the normal amount of time to complete an exam, has exceeded the authority granted by the legislature. The DOE has not and cannot show that allowing an applicant with a severe vision deficit additional time (beyond double the normal amount of time) would fundamentally alter the admissions criteria for upper-level education classes. By setting such a limited rule, a rule that allows no consideration of an applicant's type or degree of disability, the DOE has established an arbitrary rule that contravenes the very law it is attempting to implement - the law requiring alternative standards for disabled students. As noted in the Preliminary Statement, the initial Rule Challenge Petition filed with DOAH alleged only that the challenged rule, either facially or as interpreted and applied by Respondent, was inconsistent with the ADA. Petitioner was, thereafter, afforded an opportunity to amend the Petition in response to the Show Cause Order suggesting that the initial Petition did not meet the pleading requirements for a section 120.56 rule challenge. In response, Petitioner filed the Revised Consolidated Petition that removed the contention that the rule was being challenged based on its inconsistency with the ADA and added the Rule Challenge allegations that are set out verbatim in Finding of Fact 1 above. As Finding of Fact 1 demonstrates, the new premise of Petitioner's Rule Challenge in the Revised Consolidated Petition is that rule 6A-4.0021(6)(c)1. is invalid because it exceeds the grant of legislative rulemaking authority in section 1007.265, Florida Statutes, a statute that was neither cited as authority for the challenged rule nor cited as the law implemented by the challenged rule.
