The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S 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 22nd day of December, 2006.
The Issue The issue for consideration in this case is whether Respondent’s license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department’s Division of Real Estate was the state agency in Florida responsible for the licensing of real estate salespersons and brokers in Florida and for the presentation of disciplinary cases regarding those individuals on behalf of and before the Florida Real Estate Commission. The Respondent was a licensed Florida real estate broker having been issued license number 0453845. Respondent was a broker at Quality Home Realty Inc., located at 8319 North 40th Street in Tampa. On or about June 10, 1996, Respondent, who was then licensed as a real estate salesperson in Florida, submitted an application for licensure as a real estate broker in this state. Respondent answered “no” to question 9 of the application, which reads, in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you intend to answer “NO” because you believe those records have been expunged or sealed by court, . . . you are responsible for verifying the expungement or sealing prior to answering “NO.” Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. As a result of this application and her passing the brokers’ examination, Respondent was licensed as a real estate broker in Florida. In fact, however, on January 13, 1992, Respondent had pleaded nolo contendere in County Court in Hillsborough County to a charge of obtaining property by worthless check. Respondent was licensed as a salesperson at the time. Adjudication was withheld and Respondent was ordered to make restitution and pay a fine and costs of $87.00, which she did. Respondent does not deny that she entered the plea as alleged. She contends, however, that at the time the check was issued, she was in the hospital receiving treatment for chemical damage to her lungs. She alleges that she had given several personal checks on her account, signed in blank, to her niece, Ms. Palmer, who was supposed to pay her bills with them after first depositing sufficient funds, which Respondent had also given her, to the bank to cover the checks. Respondent contends that her niece did not make the deposits on time and the check in issue, written to pay for automobile repairs, was dishonored. The repair man did not contact her to obtain reimbursement, but the check was, nonetheless, subsequently redeemed. Respondent’s factual allegations in this regard were confirmed by Ms. Palmer, and they are so found. Respondent also contends that several years later, by the time she filled out the application form for licensure as a broker, she had forgotten about the incident because, she claims, the judge had advised her the charge against her would be dismissed upon her making restitution and her payment of the fine and costs. She claims she did not believe she had a criminal conviction which had to be listed. She also contends that since the incident was a matter of public record, she had no reason to hide it, and that her failure to list it on the application was the result of a simple mistake. Her claim of mistake is rejected. Respondent has been a licensed real estate professional since being licensed as a salesperson in January 1995. To her knowledge, no complaints have ever been lodged against her, nor has any other disciplinary action ever been taken against her. The records of the Division reflect no complaints or any prior disciplinary action. However, Respondent admits that several years prior to her licensure as a salesperson, she was arrested for assault. That charge was dismissed. Respondent is presently active as a real estate broker and derives all her support from her practice. She claims to love the real estate business and contends she has a good reputation in the business community. In that regard, four individuals, including two real estate brokers, a deputy sheriff, and a long-standing friend and associate, submitted letters in support of Respondent’s continued licensure. The two brokers attest to her honesty, integrity, and professionalism, as did the deputy, who also works in the profession. The friend, an associate in community activities, attests to Respondent’s extensive involvement in youth reclamation activities and her church, and describes Respondent as a role model for the youth of the community. All support her maintaining her license and her continued participation in the profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Eulauia S. Harris guilty of a violation of Section 475.25(1)(m), Florida Statutes, and placing her license on probation for a period of two years. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire Gillis & Wilsen 1999 West Colonial Drive Suite 211 Orlando, Florida 32804 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700 James Kimbler Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged violations in the operations of two child care centers in Lakeland.
Findings Of Fact The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696. Late License Renewal The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee. The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year. Children Left in Van On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just 30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time. Employee Work History Not Checked The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found. Employee Not Screened On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required Level 2 screening until July 20, 2013. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Inadequate Supervision On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Safety Violation Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found. Selective Enforcement Defense The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Respondent guilty of the alleged violations and fining the Respondent a total of $475. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598 Bartow, Florida 33831-1598 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North Bartow, Florida 33830-7646
The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent in this proceeding is William M. Kenny. He was initially employed by Petitioner on an annual contract basis in a non-instructional capacity as a "trades helper" on July 16, 1985, for the 1985-86 school year. He was subsequently re-employed pursuant to an annual contract in this position for the 1986-87 school year. He was thereafter employed by Petitioner on an annual contract as a roofer in the maintenance department during the 1987-88 school year. Petitioner's employees who are roofers are required to travel to various school sites to perform repair services for roofs of the schools. These employees have access to equipment and supplies owned by Petitioner during duty hours. After hours, most of the equipment and supplies are secured by locking shops, vehicles and storage yards. However, Petitioner is unable to secure all areas where equipment is located. Thievery and the "walking off" of construction materials is a recurring problem for Petitioner's facilities department even though the area where such materials are stored is usually lighted and fenced. Three incidents in the last two years resulted in the removal of certain employees from Petitioner's facilities department as the result of thievery. Respondent's work performance as a "trades helper", an assistant to tradesmen such as carpenters and roofers, was satisfactory. His later performance as a roofer also met performance standards with the exception of deficiencies in his employment attendance. In conjunction with his attendance record, he was reprimanded in September of 1986 for abuse of Petitioner's employee sick leave policy and required to furnish a doctor's excuse for any further absences. Respondent was reprimanded again for his failure to call on January 25, 1988, prior to commencement of the work day and inform his supervisor that he would be unable to work aue to sickness. Employees are directed to call, in the event of illness, before the commencement of work. Petitioner's supervisory employees consider the attendance records of subordinate employees such as Respondent in determining whether to recommend that an annual contract be offered to the employee for the subsequent year. Respondent's unsatisfactory attendance record would have resulted in a recommendation from Petitioner's director of facilities that Respondent not be rehired for the 1988-89 school year; however, before that recommendation could be formally made, Respondent was suspended from his employment pending judicial disposition of criminal charges against him. The criminal charges against Respondent arose when he and three other individuals were arrested by law enforcement officers on February 12, 1988, and charged with burglary and grand theft. Respondent and the other persons were apprehended on that date at a construction site where several trailers, housing quantities of various construction materials, had been illegally entered. The other persons involved in the burglary had agreed to pay Respondent $100 to assist in the theft and use his expertise to determine the materials to be taken. At the time of his arrest, Respondent had entered the trailers and physically removed boxes of wire. When police officers arrived, Respondent fled to a nearby pond to escape the officers' police dogs. Respondent received a number of dog bites in the incident. A bandaged Respondent reported to his work supervisor on Monday, February 15, 1988, to explain his inability to work and the reason for his absence from work on February 12, 1988. Due to his injuries, Respondent did not work during the period February 15, 1988, to February 26, 1988. Respondent's physician release authorized his return to work effective February 25, 1988. Respondent returned to work a day later on February 26, 1988. Petitioner conducted an investigation of Respondent's arrest. In the course of that investigation, on March 4, 1988, Respondent admitted his guilt of the charged offenses to Petitioner's Assistant Superintendent for Personnel Relations. Respondent was suspended without pay, effective March 16, 1988, from his employment pending disposition of the criminal charges lodged against him. On August 8, 1988, an order was entered in Circuit Court Case Number 88-1901CFDO2 accepting Respondent's guilty plea to two counts of burglary and two counts of grand theft. The order withheld formal adjudication of guilt, but required Respondent to serve 10 days in the Palm Beach County jail and successfully complete a two year period of probation. Petitioner's supervisory personnel have impressed upon subordinate personnel in Respondent's category that there is an expectation that employees will refrain from stealing. To support this strong work ethic among employees, Petitioner has removed from employment in the past those employees involved in the theft of Petitioner's property. Increased supervision of Respondent would be required and morale of Respondent's coworkers would be adversely affected should Respondent be returned to employment in his position within the facilities department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing Respondent from employment pursuant to the annual contract for the 1987-88 school year, such dismissal to be effective March 16, 1988. DONE AND ENTERED this 6th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1441 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Conclusion of law, not fact. 2.-11. Addressed. Respondent's Proposed Findings Respondent's proposed findings were submitted in the form of a document entitled "Respondent's Brief." Numbered paragraphs containing proposed findings are not present. Respondent's representative seeks to make the point that failure of the sentencing court to formally adjudicate Respondent guilty of the charged offenses nullifies any action by Petitioner. This proposed legal conclusion is rejected as a finding of fact. COPIES FURNISHED: Thomas J. Mills Superintendent of Schools Post Office Box 24690 West Palm Beach, Florida 33416-4690 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Abbey G. Hairston, Esquire Attorney for Petitioner School Board of Palm Beach County, Florida 3323 Belvedere Road Building 503, Room 232 West Palm Beach, Florida 33402 Dawn Bonard Qualified Representative Post Office Box 449 Boynton Beach, Florida 33435 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Respondents' alleged violation of Section 477.02(6), Florida Statutes.
Findings Of Fact Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1) Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin) Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)
Recommendation That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser P.O. Box 1752 c/o Golden Touch Coiffeurs Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida
