Findings Of Fact Stipulated Facts Florida High is a charter school created pursuant to section 1002.33(5)(a)2. Florida High is a public school. Pursuant to section 1002.33(5), FSU is the sponsor of Florida High, has executed a charter agreement with FSUS, and performs the duties listed in the charter agreement. Florida High was originally created as a developmental research school and receives public funding for its operations as set forth in section 1002.32(9). Florida High?s student admissions are governed in part by sections 1002.21 and 1002.33(10)(a). FSUS employees are public employees and are part of the Florida Retirement System. The Public Employees Relations Commission has certified a unit of FSUS? instructional personnel for purposes of engaging in collective bargaining. FSUS teachers are subject to the same instructional certification requirements as those for all of Florida?s public school teachers. In establishing Florida High as a lab charter school, FSU and FSUS drafted a charter agreement. The charter agreement was executed by both parties after holding a public hearing. FSUS adopted the Student Code of Conduct after holding a public hearing. FSUS is subject to Florida?s public records laws as set out in chapter 119. All meetings of FSUS? Board of Directors, unless otherwise exempt, are subject to the requirements of Florida?s Sunshine Act and must be noticed and open to the public. FSUS is subject to the class size requirements of Florida?s public school system. FSUS is required to administer the Florida Comprehensive Assessment Test to all students, and the school is included in the state grading system for public schools and subject to specific repercussions by the Department of Education in the event of a failing grade. FSUS is required to report student assessment data to every parent of a student at the school, the school district, and its Board of Directors, and must maintain a website and post this data as well as follow the State Board of Education?s rules pertaining to public notice of school performance. Florida High?s Director files an annual financial disclosure of financial interest with the Florida Commission on Ethics. FSUS has the status of a “Local Education Agency” allowing it to receive federal funds. Jack Carswell was withdrawn from Florida High in part due to paragraph “k” of the Student Code of Conduct entitled “Withdrawal of Invitation”. Additional Facts Petitioner, Jack W. Carswell, was, until the 2013-2014 school year, a student at FSUS, having attended since 2002. Petitioners, Julie and Scott Carswell are Jack W. Carswell?s parents. Charter schools are public schools, and are part of the state?s program of public education. Charter schools may be sponsored by district school boards in the county over which the district school board has jurisdiction, or by a state university. Charter schools sponsored by a state university are in a separate category known as developmental research (laboratory) schools, or “lab schools.” With certain exceptions not applicable here, there is a limit of one charter lab school per state university. Respondent, FSUS, is a lab school created under the authority of sections 1002.32 and 1002.33. Respondent, FSU, is a state university, and is the sponsor of FSUS. The alleged unadopted rule at issue in this proceeding is found at section VI.K. of the Student Code of Conduct, which provides that: K. Withdrawal of Invitation/Expulsion When a student?s behavior is repeatedly inappropriate to others or continues to exhibit absolute disregard for the conditions of behavior set by the school, a meeting will be held and the Principal may recommend to the Director expulsion or permanent withdrawal of invitation of the student. The Principal/designee may recommend to the Director expulsion or withdrawal of invitation any student enrolled when his or her presence has or tends to substantially disrupt or interfere with the orderly educational process, destroys school property, endangers the health or safety of the student or others or infringes on the rights of others. (1) Withdrawal of Invitation FSUS is a school of choice that extends invitations on an annual or longer basis. The administration will decide the viability of a particular student?s invitation to attend FSUS at the end of each school year. Attendance and disciplinary issues will be considered when making these determinations. If it is decided that a particular student?s invitation should be withdrawn, then the Principal will make a written recommendation to the Director. Parents will be formally notified by the administration of a withdrawal of invitation for the next school year during the summer. Every attempt will be made to notify parents of the withdrawal of an invitation as early as possible in the summer so that arrangements for enrolling the student in their home school can be made. The Director may withdraw an invitation as prescribed in this Code or a parent or guardian may voluntarily withdraw the student. Documentation for withdrawal of invitation is a confidential record between the parents/guardian(s) and the school. Such documentation shall not be included in the student?s permanent record. A student cannot avoid expulsion by withdrawing from school. The only rulemaking authority granted by the Legislature in sections 1002.32 or 1002.33 is that conferred on the State Board of Education to adopt rules on how to form and operate a charter school and how to enroll in a charter school once it is created, which rules are to include a model application form, standard charter contract, standard evaluation instrument, and standard charter renewal contract. §§ 1002.33(21)(b)3.b. and 1002.33(27), Fla. Stat.1/ Charter school systems (see section 1002.33(20)(a)4., section 1002.33(20)(a)6., and section 1002.332) have been designated as “local educational agenc[ies]” for the limited purpose of receiving federal funds. § 1002.33(25), Fla. Stat. As further established in that section, however, “[s]uch designation does not apply to other provisions unless specifically provided in law.”
The Issue Whether the Agency for Health Care Administration (AHCA) should award Life Care Centers of America, Inc., Certificate of Need 8069 which would authorize both the transfer of an existing certificate of need and the combination of the transferred certificate with another certificate of need. The combination would allow Life Care to operate a 130-bed nursing facility to be built on Cypress Boulevard in Winter Haven within 1000 feet of a nursing home owned and operated by Florida Convalescent Center, Inc., a site on which Life Care intends and is authorized to build a 57-bed facility regardless of the outcome of this case.
Findings Of Fact The Parties Life Care Life Care of America, Inc., is a privately held company, the largest privately held nursing home company in the nation. Founded by Forest Preston in 1975, it currently operates in 27 states, with approximately 170 facilities. A Tennessee corporation authorized to do business in Florida, Life Care owns and/or operates six nursing homes in the state. Whether CON 8069 is awarded or not, Life Care will add a seventh nursing home to its Florida operations: a newly built facility on Cypress Boulevard in Winter Haven, Polk County. If CON 8069 is granted, the facility will be authorized to house 130 beds; if not, then only 57 will be built, these under the authority of another CON, discussed below. FCC FCC began operation in Florida in the mid-1980's and currently operates 16 nursing home facilities in the state. Florida Convalescent Centers, Inc., d/b/a Palm Garden of Winter Haven, operates the 120-bed skilled nursing facility which recently opened a 35-bed addition during 1995 on Cypress Boulevard in Polk County. Licensed by the state, the facility is superior rated. Most significantly, the facility's Cypress Boulevard location is less than 1000 feet from the proposed site of the nursing home facility Life Care hopes to build and operate under the authority of CON 8069. 3. AHCA The Agency for Health Care Administration (the "agency" or "AHCA") is the "single state agency [designated by statute] to issue, revoke, or deny certificates of need ... in accordance with the district plans, the statewide health plan, and present and future federal and state statutes." Section 408.034(1), F.S. Background 1. CON 7138 On March 10, 1994, Life Care, as the result of a settlement with FCC whereby both parties were given beds from a 92-bed fixed need pool, was awarded CON 7138. Fifty-seven of the 92 beds were apportioned to Life Care. In issuing the certificate, the agency authorized Life Care to construct a "freestanding ... community nursing home consisting of 34,025 GSF and involving $2,308,512 in construction costs." The only condition that appears on the face of the CON is that, "[a] minimum of 74 percent of the total annual patient days of care for the 57 bed facility shall be allocated to Medicaid patients." Of course, the terms of the CON are not limited to just the conditions expressed on the face of the Certificate of Need, itself. Indeed, the Applicant explicitly recognized that it would be subject to many other terms when, in support of the application, it filed the Certification of the Applicant dated March 9, 1995. There, Life Care certified that "if issued a Certificate of Need as a result of [the] application, [it would be] bound by the representations in it." Life Care's Ex. No. 1, Certification of the Applicant, p. 3. Although Life Care originally proposed to locate the facility authorized by CON 7138 somewhere within a triangle bounded by Lakeland, Bartow and Winter Haven, no specific site was selected. More pertinently, no condition or term of the CON restricted the facility's site within the triangle. Despite the absence of any condition or term of the CON limiting the site within the proposed triangle in the subdistrict, FCC believed it had an understanding with Life Care that Life Care would not build the 57 beds from CON 7138 in close proximity to FCC's existing nursing home on Cypress Boulevard in Winter Haven. Life Care acknowledges that, in fact, it discussed the location of the facility authorized by CON 7138. But beyond this discussion, there was no definitive evidence produced in this proceeding that the two had a meeting of the minds on the issue. No written contract exists reducing the ephemeral agreement to writing. And as stated above, AHCA was not persuaded by either of the parties, let alone both as the result of any agreement, that CON 7138 should have a limit on where within the subdistrict the 57 bed facility could be located. Life Care plans to build the facility authorized by CON 7138 on the Cypress Boulevard site (and there is no apparent impediment to this plan), the same site it proposes for the facility it hopes will be authorized by CON 8069. Whatever may be the origin of the dispute over the site of the facility authorized by CON 7138, (discussions between FCC and Life Care, or even some unwritten agreement if ever entered,) the appropriateness of the Cypress Boulevard site for CON 7138 is beyond dispute. Rather, the issue in this case centers on whether the Cypress Boulevard site may accommodate more than just the "CON 7138" facility. The issue, in short, is whether the Cypress Boulevard site may serve as the location for 73 beds authorized by a CON issued later than CON 7138 with which Life Care hopes to combine CON 7138. This later CON is CON 7354. 2. CON 7354 Certificate of Need 7354 was granted to SHCC Services, Inc., by Final Order rendered by AHCA on February 21, 1995. It authorized the addition of 42 beds to an existing 31-bed facility. It did more. It also authorized the replacement of the existing facility. The facility is found in Lake Alfred, a short drive north of Winter Haven. At the time CON 7354 was issued, the facility had long been known as the Lake Alfred Restorium. In the meantime, its name has been changed. It will be referred to in this order, for the most part, therefore, as the "Lake Alfred Facility." The Lake Alfred Facility Now known as the Lake Alfred Health Care Center, the Lake Alfred Facility, as one would expect from its name, is in Lake Alfred, Florida. Lake Alfred, approximately two miles north of the northern boundary of the City of Winter Haven, is unincorporated. The facility, itself is more than five miles from the proposed site on Cypress Boulevard where Life Care will build at least a 57-bed facility. With a history extending back for many decades to its inception as a "restorium," it is one of the oldest facilities of its kind in the state. There is no question that this physically declining facility needs to be replaced. Constructed initially as a residence, the Lake Alfred Facility, some time ago, was converted to a nursing home. It is presently owned and operated by Life Care, having been owned previously by SHCC Services, Inc. At the time of hearing, there were about 30 residents living at the Lake Alfred Facility. Of the thirty, six are from Lake Alfred. Most of the families of the Lake Alfred residents, however, now reside in Winter Haven. The residents of the facility receive the bulk of needed medical support from sources outside Lake Alfred, (primarily from Winter Haven), because there are neither hospitals nor physicians with offices in Lake Alfred. SHCC awarded CON 7354 In February of 1994, prior to Life Care's acquisition of the Lake Alfred Facility, SHCC was awarded CON 7354 by the agency. Prior to the final decision by the agency, SHCC had been in competition with Life Care for 42 beds based on a fixed need pool of like number. Indeed, Life Care had requested an administrative hearing on the agency's initial decision to award the 42 beds to SHCC. But, the hearing was never held. Life Care voluntarily dismissed its petition as part of a settlement agreement. Whatever the terms of the settlement agreement, the award was at least a partial, if not total, victory for SHCC in the battle for the 42 beds; SHCC was awarded all 42 while Life Care's application was denied. Certificate of Need 7354, however, did not just authorize 42 new beds. It authorized the construction of a 73- bed nursing home in AHCA District 6, Subdistrict 5, Polk County. The 73 beds were awarded based upon the fixed need pool of 42 beds and the applicant's desire to replace the aging 31-bed restorium. One of main reasons, if not the paramount reason, for awarding the 42 beds to SHCC rather than Life Care, was that the beds could be added to the 31 existing beds at the restorium. This expansion, in turn, would be the catalyst for the replacement of the 31 beds. The result of such an arrangement would be the continuation of a single replaced and expanded facility in Lake Alfred, as opposed to the scenario should Life Care prevail: a new 42-bed facility elsewhere, leaving in Lake Alfred an existing 31-bed restorium, badly in need of replacement but without the incentive to carry it out. A decision favoring SHCC over Life Care was appealing as well because it retained for the Lake Alfred Community a facility which the community had utilized for many years and over those years had come to depend on. Furthermore, these many years of the facility's service to the community had led to the firm establishment of the venerable restorium's reputation for high quality of care. Terms Relating to the Location of the 31-Bed Replacement Facility Authorized by CON 7354 Just as in the case of CON 7138, SHCC agreed when it submitted its Certification of the Applicant on AHCA Form 1455A, Oct 92, as part of its application for the CON that it would be "bound by the representations contained in [the] application." FCC Ex. No. 8, Omissions Response, CON Number 7354, p. 3. As part of the same application, again on AHCA Form 1455A, Oct 92, SHCC submitted a page entitled "Conditions Predicated Upon Award." See FCC Ex. No. 8, Omissions Response, CON Number 7354, p. 4. In the Omissions Response, in Paragraph C., of the "Conditions" page, the following is stated: I have checked and described the items which represent special features or address unique circumstances that shall appear as conditions on a certificate of need should one be issued. Id. Four items follow, the first of which reads, "Specific site within the subdistrict. The parcel or address is as follows". No address, however, is listed nor is the item checked. The State Agency Action Report ("SAAR") for CON 7354, which co- incidentally reports on CON 7455, lists Objective 5 of the eight objectives existing for the CON review criteria found in Section 408.035, Florida Statutes, as, "To Locate Nursing Homes in Market Areas Where They Become Integral Component[s] of the Local Health Care Delivery System Continuum (125 points)." FCC Ex. No. 2, p. 21. Three items comprise Objective 5: 5A-Community Linkages, Non-Nursing Home Services and Geographic Access; 5B-Geographic Area Served; 5C-Geographically Underserved Area. Id. The SAAR goes on to state with regard to "CON Number 7354:" SHCC Services, Inc. attained 100 points out of a maximum 125 points ... In addressing geographic access issues, the applicant stated, "the facility is planned to be located within 5 miles of Lake Alfred. By locating the facility close to the existing facility, the existing relationships with medical providers and social service agencies listed above will remain intact." Id. (e.s.) Indeed, a review of SHCC's application for CON 7354 proves that the quoted statement in the SAAR was made by SHCC as part of its application. In its Omissions Response, Part 2: Requirements, under Item 5A and the heading, "Geographic Access," at p. 27c, the following appears: The proposed facility location will maximize geographic access for residents and their families, facility staff, and other providers and agencies in Polk County. As discussed in question 5B, [the facility is planned to be located within 5 miles of Lake Alfred]. By relocating the replacement facility close to the existing facility the existing relation- ships with medical providers and social service agencies listed above will remain intact. Furthermore, the geographic access of these providers and agencies will remain undisturbed. (Emphasis added). The import of locating the expanded replacement facility within five miles of Lake Alfred is explained further elsewhere in the application. Under Item 5B in the Omissions Response, "Reasons for Selecting Particular Geographic Area to be Served," there are several references to the distance "5 miles." For example on p. 27e, the following appears: "... Lake Alfred is located approximately 5 miles from Winterhaven [sic] ...". On p. 27f, the following references are made, "Located just 5 miles north of Winterhaven [sic], Lake Alfred serves as a bedroom community for Winterhaven [sic]", and "Lake Alfred is also only 5 miles from Interstate 4 which connects Orlando and Tampa." As evidenced by SHCC's application, however, its intent was that the replacement nursing home be not just within 5 miles of Lake Alfred, but actually in Lake Alfred. The following unambiguous statement appears as the first sentence under Item 5B on p. 27e of the Part 2: Requirements, Omissions Response, FCC Ex. No. 8: "SHCC has chosen Lake Alfred in Polk County for the location of the replacement nursing home." In the main, the remainder of the discussion of Item 5b, "Reasons for Selecting Particular Geographic Area to be Served," is devoted to the basis for a "Lake Alfred" location for the replacement facility. Among the reasons are SHCC's desire to continue to operate the Lake Alfred Restorium because the restorium's "established presence and reputation in the area took years to build," id. p. 27e. In addition, "[w]ithin Polk County, Lake Alfred provides a favorable combination of geographic access and small town comforts for residents," id. p. 27f. Finally, in elaboration of these points, SHCC represented: Residents of Lake Alfred enjoy the small town atmosphere as well as access to larger towns. The elderly Lake Alfred Restorium residents are especially appreciative of the quietness and safety of this town. The crime rate is low, and the local police department and fire department are nearby and very responsive. The surrounding area has many lakes and parks which the nursing home residents visit on outings. Id. Of course, since Lake Alfred is unincorporated, it is difficult to state with certainty what is within the limits of Lake Alfred as opposed to what is not within it yet within 5 miles of it. Nonetheless, there is no doubt that any location within the city limits of Winter Haven cannot be, at the same time, in Lake Alfred. Other Issues 1. Construction and Other Matters Relating to Site The proposed 130-bed facility will have distinct units of 60, 50 and 20 beds, comprising approximately 66,000 square feet, for a cost of about $82.00 per square foot. With a reasonable construction schedule and using Type 5 construction, the project satisfies all state and federal requirements for a nursing home. Life Care chose the proposed site on Cypress Boulevard for many of the same reasons FCC chose its location less than 1,000 feet away. It is close to hospitals and has good access to roads and highways which promotes accessibility to most needed medical services. In contrast to the Lake Alfred Facility, the Cypress Boulevard site is much better in terms of medical services accessibility, one of the primary considerations in selecting a nursing home site. The site for the nursing home is a 5.8 acre parcel which is part of a larger (12.3) acre piece of property in Winter Haven. Life Care paid $1,387,000 for the entire 12.3 acres, but is allocating only $360,000 for the 130-bed project. The remainder of the property will be used for an assisted living facility and for a drainage pond via easement to the Department of Transportation. Life Care had not purchased the site at the time the application for CON 8069 was filed, but had begun negotiations for the site as a potential location for the facility. The negotiations resulted in a contract. Life Care did not make a final decision on the site until after the CON application had been filed. It was intended from the beginning of negotiations that only a part of the 12.3 acres would (if purchased) be used for the 130-bed project and that $360,000 would be allocated to the project at issue. Life Care projected land costs for the project based upon the combination of land costs from the CONs which it is attempting to combine. This combination of costs is an acceptable method for compiling figures for "combination" applications and was accepted as reasonable by the agency. The projections, based upon reasonable expectations, indicate the project will be financially feasible in the short term and long term. 2. Compliance with Health Plans Life Care's application complies with the three allocation factors in the District Health Plan. As for Allocation Factor 1, (the provision of services to Medicaid patients,) although the weighted average of all 130-beds in the newly proposed combined facility is 57.2 percent, well below the present district average of about 70 percent, it agreed to conditions for the newly- approved beds (those other than the 31 beds from the old Lake Alfred Restorium), in excess of 74 percent. The weighted average of all 130-beds is lower than the percentage for newly-authorized beds only because there is no condition, nor has there ever been one, relating to Medicaid allocation for the existing 31 beds at the Lake Alfred Facility. Life Care has also agreed to have specialized nursing home services at the facility (Allocation Factor 2) and not to discriminate against the provision of services and care to HIV infected residents, (Allocation Factor 3). Backing up its stance of non-discrimination against HIV infected residents is Life Care's history of serving "some HIV patients." (Tr. 176) There is no competing applicant against which Life Care's Medicaid average can be tested. But it is fair to point out that FCC's Cypress Boulevard facility has a condition that only 44 percent of its resident population be Medicaid patients. Granting CON 8069, therefore, will likely increase Medicaid patient access to nursing homes in Winter Haven. The need in Polk County for the beds Life Care wants to place at its Cypress Boulevard location has previously been determined and are not at issue. Since the issuance dates of the two underlying CONs, 7138 and 7354, the agency has projected need numbers for over 200 new beds in addition to the 130 beds Life Care hopes to house at the Cypress Boulevard facility. 3. Other Health Planning Concerns The five nursing homes in Winter Haven are currently operating at over 90 percent occupancy. Both the state and local health plans prefer beds to be located in areas with high occupancy. Winter Haven is the second largest city in Polk County and contains a high percentage of elderly persons, a population that is rapidly growing. The bed to population ratio is a health planning measurement used in determining need. Winter Haven has a lower ration of nursing home beds per 1,000 residents than Polk County as a whole. In contrast, Lake Alfred, with only 2500 or so residents, has a much smaller population than Winter Haven. As stated elsewhere, one of the main advantages of Winter Haven over Lake Alfred for placing a nursing home is the closer proximity to hospitals and medical services. 4. Operations and Programs Life Care is proposing a complete range of programs at its facility, including Alzheimer's Care, adult day care, subacute care, respite care and numerous non-nursing services. Relocation of the existing facility to Winter Haven would have a positive effect on services being provided. Staff necessary to provide the services and programs would come primarily from a 15-mile radius of the facility. Skilled personnel to perform those services would come, at least in part, from local nursing programs already existing in Winter Haven. The majority of the staff at Lake Alfred Care Center come from outside Lake Alfred. Many or most are from the City of Winter Haven. Life Care has obtained commitments from all staff at the Lake Alfred Facility to continue employment with Life Care upon completion of the new facility if authorized by CON 8069. There would be a broader range of services available at the 130-bed facility than at the two smaller facilities, the Lake Alfred Facility and a smaller 57-bed Cypress Boulevard facility. The construction and operation of the facility proposed under CON 8069 would have a positive impact on care in the area because it would force FCC to remain even more competitive in the provision of quality services in a quality work environment than if Life Care's new facility were to be limited to 57 beds. 5. Life Care's Service Record Life Care's facilities in Florida meet or exceed the Medicaid average in the subdistricts in which they are located. Of Life Care's six existing facilities in Florida, the three facilities eligible for Superior Rating are indeed rated Superior by the State. The other three facilities have the highest rating to which they are entitled. Life Care maintains affiliations with schools to provide scholarships for students pursuing professions in long term health care. The agency considers Life Care a major provider of care and a provider of quality health care services.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration deny CON 8069. DONE AND ENTERED this 2nd day of May, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY, 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 May, 1996.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of October, 2003.
The Issue The issues are as follows: (a) whether Respondent took "agency action" when it certified the Okaloosa-Walton College Foundation, Inc. as its direct support organization and endorsed the Foundation's decision to sell the Mattie Kelly property; and whether Petitioners have standing to request an administrative hearing on those issues.
Findings Of Fact The Foundation was incorporated and first certified as a direct support organization in 1988. The Mattie Kelly property is approximately 13 acres of waterfront property on Choctawhatchee Bay in Destin, Okaloosa County, Florida. It includes the former residence of Mattie Kelly and the real property surrounding the residence. Destin, Okaloosa County, Florida, is a municipality, bounded on the north and west by Choctawhatchee Bay, on the south by the Gulf of Mexico, and on the east by Walton County, Florida. On August 17, 1992, Mattie Kelly executed her Last Will and Testament (will). Article VIII of the will states as follows: I give, devise and bequeath my personal residence located a 1200 Indian Trail Road, Destin, Florida 32541, including all real property surrounding the residence and the sum of Five Hundred Thousand Dollars ($500,000,000) to Okaloosa-Walton Community College for the establishment of the "Mattie Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College." The purpose of the "Mattie M. Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College" shall be: To provide a meeting place for literary societies, fine arts groups, and small performing groups. To provide a location for conferences and seminars offered through Okaloosa-Walton Community College. To provide a location for biology studies and marine science studies associated with Choctawhatchee Bay and the Gulf of Mexico. To provide a location for displaying the coastal heritage of Northwest Florida. The Five Hundred Thousand Dollars ($500,000,000) endowment which forms part of this gift shall be used only for maintenance and operating costs in furtherance of the above purposes, including the perpetual care, maintenance and upkeep of my mausoleum. A Personal Representative's Warranty Deed dated March 6, 1997, conveyed the property to the Foundation. At some point in time, the Foundation decided to sell the property to a real estate developer and entered into a contract to do so. On March 15, 2004, Petitioner Hammet filed a Petition for Administrative Hearing with the Board. The petition questioned whether the Board should support, endorse, and/or not oppose the sale of the property for private real estate development purposes, accept the college president's recommendation about the sale, and certify the Foundation to be operating in the best interest of the state. The Board's March 16, 2004, minutes state as follows in relevant part: ACTION AGENDA DSO Certification/IRS 990 The District Board of Trustees certified that requirements of Direct Support Organization under FS 1004.70 have been met and that the OWCC Foundation is in compliance with the procedures as herein described and accepts Form IRS 990 as submitted. Further, the District Board of Trustees supports and endorses the Foundation Board of Directors in its endeavor to sell the Mattie Kelly Property (Motion: Henderson; Second Rainer. Vote: 6 yes; 2 no (Smith, Wells). Motion carried. On April 22, 2004, the Board referred Petitioner Hammet's petition to DOAH, together with the Board's Motion to Dismiss. DOAH assigned this case DOAH Case No. 04-2049. On June 15, 2004, the Board referred the following to DOAH: (a) Petitioner Coastkeepers' Petition for Administrative Hearing; (b) Petitioner's Motion and Suggestion for Disqualification of Joseph Henderson and James R. Richburg; and the Board's Motion to Dismiss Petition for Administrative Hearing. DOAH assigned the case DOAH Case No. 04-2141. On July 8, 2004, some of Ms. Kelly's relatives filed a suit against the Foundation in Circuit Court. In Count I of the complaint, the relatives sought a declaratory judgment that the Foundation's proposed sale violates Ms. Kelly's will and that the relatives had reversionary rights to the property. In Count II of the complaint, the relatives sought injunctive relief to restrain the Foundation from selling the property to a third party in accordance with a written contract of sale. On April 20, 2005, the Florida Attorney General issued an Advisory Legal Opinion, stating that the Foundation is subject to Florida's Sunshine Law. On May 5, 2005, the Foundation voted to ratify the contract to sell the property and to confirm the prior decision to sell the property. On June 3, 2005, the First Circuit Court entered a "Final Judgment for Defendant" in L. Bernarr Kelly, Carol Kelly and Lowell B. Kelly v. The Okaloosa-Walton Community College Foundation, Inc., No. 2004-CA-405 (Fla. 1st Cir. Ct. June 3, 2005), which states as follows in pertinent part: . . . The Court is convinced by the nature of the Will, and the testimony and evidence that Mattie Kelly had legal advice in her estate planning, that if Mattie Kelly intended for the subject property to be placed in a trust, and if she desired to put restrictions on the subject property to prevent Defendant Foundation from selling it, that she knew how to accomplish this, and that she chose not to do so. The Court finds . . . that Mattie Kelly did not intend to limit or restrict the sale of the subject property in the future to fulfill her desires for the creation of a cultural and environmental institute. . . . The Court finds that the deed dated March 6, 1997, . . . does not contain a reverter clause or language creating any right of reversion. . . . The Court finds that the deed conveyed a fee simple title to the OWCC Foundation with no right of reversion. The Court further finds that this deed was in accordance with the intent of Mattie Kelly at the time she executed her will. The Court finds that Article VIII of the Will which devised the subject property contains no language of trust and no language of reverter, and did not create a charitable trust . . . . The Court further finds that Defendant's proposed sale of the subject property does not include the "mausoleum property." . . . Since the mausoleum property is not being conveyed, the Court finds that the Plaintiffs no longer have standing as to the remaining property, and would deny Plaintiffs relief on this basis, in addition to the foregoing reasons. Therefore, the Court finds for the Defendant, The Okaloosa-Walton Community College Foundation, Inc. and against the Plaintiffs, and ORDERS and ADJUDGES as follows: Defendant Foundation's proposed sale of the subject property is not in derogation of Article VIII of the Last Will and Testament of Mattie Kelly, or the deed which conveyed the subject property to Defendant Foundation. Therefore, Defendant Foundation is not prohibited from selling the subject property, excluding the mausoleum property as described in Addendum #4 to the Contract for Sale and Purchase, in order to fulfill the intent of Mattie Kelly in creating the "Mattie M. Kelly Cultural and Environmental Institute;" however, all monies received from the sale of the subject property, including any matching funds, are to be used in the establishment and operation of the Mattie M. Kelly Cultural and Environmental Institute. [Emphasis added.] On June 8, 2005, Petitioners filed a Joint First Amended Petition for Administrative Hearing, stating as follows regarding standing: Petitioner Hammet's substantial interests will be affected by Respondent's determination because she and her family live within close proximity to the Mattie Kelly property and have often used and enjoyed the property for viewing the coastal heritage of Northwest Florida, and she wishes to continue to use and enjoy the property in the future. The Mattie Kelly property is a special place for Hammet and her family, where they have many pleasant memories and regularly have benefited from this public property being in their neighborhood. Hammet and her family will no longer be able to use and enjoy this accessible public resource if it is sold for private development. Petitioner Coastkeepers' substantial interest will be affected by Respondent's determination because it is a Florida non-profit corporation dedicated to protection of the environment in an area of the Gulf of Mexico Coast that includes Okaloosa and Walton Counties and Choctawhatchee Bay. Preservation of environmentally sensitive lands such as the Mattie Kelly property, and having the Mattie Kelly property as a location for biological studies, marine science studies, and studies of the coastal heritage of Northwest Florida, are vitally important to protecting Choctawhatchee Bay and the interest of Petitioner and its members, who include a substantial number of members who reside in Okaloosa and Walton Counties and have the present intention to use, visit, enjoy, and study biological, marine science and cultural heritage issues associated with Choctawhatchee Bay, the Gulf of Mexico, and the Mattie Kelly property at the Mattie Kelly property. The Mattie Kelly property is ideally suited to provide waterfront environmental education in an otherwise highly urbanized environment, including education of local residents, which is vital to controlling urban runoff, and for highlighting, encouraging, and educating the public of the need to protect Choctawhatchee Bay and the Gulf of Mexico. The Mattie Kelly property would no longer be available for such intended pursuits were the proposed sale of the Mattie Kelly property to private development interest go forward. Moreover, the proposed development of the very property set aside by Mattie Kelly would itself directly contribute to the urban runoff known to be causing problems in Choctawhatchee Bay. Choctawhatchee Bay has many examples of waterfront subdivision development and very little opportunity for environmental protection education in a local setting near where waterfront residential owners already live. These purposes will not be as well-served by educational efforts at OWC's main campus in Niceville, which is not waterfront and miles away from Choctawhatchee Bay. If properly managed, the Mattie Kelly property should be the field trip every school-age child in Okaloosa and Walton County takes, which would be a lasting legacy to Mattie Kelly that would truly be consistent with her express purposes. This opportunity will be forever destroyed if the property is developed as proposed. On June 24, 2005, Respondent filed a Motion to Dismiss Joint First Amended Petition for Administrative Hearing. On July 5, 2005, Petitioners filed a Response to Respondent's Motion to Dismiss Joint First Amended Petition for Administrative Hearing. Neither of the Petitioners holds any title interest in the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board enter a final order dismissing the Petitions for Administrative Hearing. DONE AND ENTERED this 22nd day of August, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 August, 2005. COPIES FURNISHED: James R. Richburg, President Okaloosa-Walton Community College 100 College Boulevard Niceville, Florida 32578-1295 Joseph D. Lorenz, Esquire 1270 North Elgin Parkway, Suite C-12 Shalimar, Florida 32579 Steven A. Medina, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan. RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively. Immaterial to the conclusion reached herein. Adopted in Finding of Fact 5. 5.-6. Subordinate to facts actually found in the Recommended Order. 7. Adopted in Finding of Fact 10. Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively. 7.-8. Subordinate to facts actually found in the Recommended Order. 9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein. 12. Rejected as being a conclusion of law rather that a finding of fact. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikins, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ronald G. Meyer, Esquire MEYER, BROOKS AND COOPER, P. A. P.O. Box 1547 Tallahassee, Florida 32302 William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the upholstery or reupholstery (upholstery) course/program offered by the college. In the 1986 school year, the upholstery program was given a formal evaluation as it had experienced a decline in student enrollment. Goals were established to encourage student participation in the program and additional development of the program. The evaluation or program review described in paragraph 6 was performed under the guidelines addressed in Appendix K, and resulted in the program being placed on probation for one year with the following condition: that the enrollment goal of an average of 16 full-time or full-time equivalent students per term be established. The probation term ran from April 1, 1986 through, presumably, March 30, 1987. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. On March 27, 1986, the president of the college issued a letter to Respondent advising him of the probation status of the upholstery program. The letter further provided that should the program be terminated, that the instructional position held by Respondent would be terminated. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease amount. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts for the planning for the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the reviews of their programs were completed by the directors under Dean Tesinsky, she reported findings to Dr. Samuels. Such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Concurrent with the planning incidental to the budget cuts options, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but which were in great demand by large numbers of students. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify and be reassigned. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Reupholstery program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Reupholstery program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 23, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the upholstery program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 7, 12, 14 through 22 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 23, 1991; otherwise rejected as a conclusion of law. It is concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. That portion of paragraph 8 which suggests that Director Satterlee's analysis was the first time the reupholstery program was identified as weak is rejected as contrary to the weight of the evidence. This program had a history of being "unproductive" and had, in fact, been on probation in the not-too- distant past. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 41. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $62,552. Paragraph 10 is rejected to the extent that it suggests the reupholstery program had been on probation in any year other than 1986. With the following clarifications, paragraph 11 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 13 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 264 day of June , 2014, in Tallahassee, Florida. Lhd ts ELIZABETH DUREK, SECRETARY Agency for Health Care Administration Filed July 1, 2014 12:17 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF . APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32303 (U.S. Mail) CERTIFICATE OF SERVICE I] HEREBY CERTIFY that a true and correct copy oft of the foregoing has been furnished to the above named addressees by U.S. Mail on this Dae a Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
