The Issue The issue in this case is whether Respondent is guilty of misconduct in office.
Findings Of Fact Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]." The second note, which is dated May 29, 1990, mentions a dream that C. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis." At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes: . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . . During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade. A more serious incident took place the summer following seventh grade. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem. There is no evidence that Respondent had any significant contact with C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is Respondent'sson. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads: Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now! LOVE YA ALWAYS, [C.] [B.] Jarvis I wish! On the same day, C. B. wrote a note to a classmate. The note states in part: Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back! On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states: O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!! *Love ya Always & Never won't stop! [C.] [B.] Jarvis Oh, you want to hear a joke-- In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998. *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C. B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent. For the above-cited reasons, none of the above-cited testimony of C. against Respondent can be credited. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other." In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time). Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were B., C. Ba., and S.H. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges. Respondent also enjoys substantial support among students. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay. ENTERED on May 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 4, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2 (second sentence): adopted or adopted in substance. 2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence. 6-8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant. 11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two of the notes. 16 (first sentence): adopted or adopted in substance. 16 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence. 18-20: adopted or adopted in substance. 21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate. 25: rejected as unsupported by the appropriate weight of the evidence. 26-32: rejected as unsupported by the appropriate weight of the evidence. 33 (first and second sentences): adopted or adopted in substance. 33 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony. 35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room. (second sentence)-36 (first sentence): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. 37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant. 47: rejected as unsupported by the appropriate weight of the evidence and subordinate. 48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant. 53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors. 74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant. 75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos." 76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, repetitious, subordinate, and irrelevant. 150-58: rejected as irrelevant and subordinate. 159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities. 172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors. 191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5-17: adopted or adopted in substance. 18 (first three lines): rejected as unsupported by the appropriate weight of the evidence. 18 (remainder)-53 (second sentence): adopted or adopted in substance. 53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance. COPIES FURNISHED: James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870 Ronald G. Meyer Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Dr. Richard Farmer Superintendent Highlands County School District 426 School St. Sebring, FL 33870-4048
Conclusions After receiving notice from Petitioner that she no longer wished to pursue this cause, the Division of Administrative Hearings relinquished jurisdiction to the Department for the entry of a Final Order.
Other Judicial Opinions Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Final Order was filed in the official records of the Department of Management Services, and copies distributed by U.S. Mail to the parties below, on the g day of _\ Wy); Cem he ~~, 2011. fe : ebbie Shoup k Department of Management Services Copies furnished to: Judy A. Wright 1611 Second St. S.E. Winter Haven, Florida 33880 Jddge R. Bruce KcKibben ivision of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Thomas E. Wright Asst. General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, FL 32399-0950
The Issue Whether Respondent Whispering Oaks Estates Home Owners’ Association, Inc. (Whispering Oaks Estates HOA), failed to provide a reasonable accommodation for the late Charles A. Tipton’s disability in violation of Florida’s Fair Housing Act; and, if so, the relief that is appropriate.
Findings Of Fact Whispering Oaks Estates HOA governs Whispering Oaks Estates, a property located in Hernando County, Florida. Every owner of a lot in Whispering Oaks Estates is a member of Whispering Oaks Estates HOA. A document entitled “Amended Declaration of Covenants, Conditions and Restrictions” (the Covenants) sets forth several conditions governing lot owners’ use of their property and empowers Whispering Oaks Estates HOA to enforce those conditions. For example, the Covenants mandate that an “Architectural Control Committee shall be responsible for approving or rejecting house designs, size, elevation, color, and/or any other matters generally relating to protection of the overall aesthetic harmony of Whispering Oaks Estates.” Also, a lot owner cannot erect a fence, wall, antenna, or a cable television facility without prior approval from Whispering Oaks Estate HOA’s Board of Directors or the Architectural Control Committee. In addition, if a lot owner fails to care for his or her lawn, then the Board of Directors can hire a lawn-care service to cut and trim the lot owner’s lawn as necessary. Furthermore, the Covenants expressly prohibit garage sales, and lot owners’ ability to park boats, campers, trucks, pickups, trailers, or recreational vehicles in Whispering Oaks Estates is strictly regulated. The Covenants also provide that they can be amended by a two-thirds vote of the lot owners. Dr. Tipton holds a doctorate in management information systems from the University of Sarasota and has lived in Whispering Oaks Estates since August of 2005. Dr. Tipton resides in a section of Whispering Oaks Estates that consists of five townhomes, which are the property of the townhome owners. The five townhome owners jointly own a nearby parking lot, and each townhome owner has two spaces in the parking lot. Dr. Tipton’s townhome is approximately 130 feet from the parking lot. Dr. Tipton shared her townhome with her father, who suffered from Chronic Obstructive Pulmonary Disorder (COPD). As a result, Mr. Tipton needed supplemental oxygen and made use of a walker and a wheelchair. In addition, Dr. Tipton assisted her father with his daily activities as necessary. Because of Mr. Tipton’s condition, it was impossible for him to traverse the distance between the parking lot and his daughter’s townhome on foot. Therefore, Dr. Tipton would utilize a golf cart to transport her father between the parking lot and her townhome. Because of the golf cart’s size, Dr. Tipton needed five feet alongside the passenger’s side of her vehicle to remain unobstructed so that she could transfer her father between her vehicle and the golf cart. In October of 2013, Dr. Tipton wrote a letter to Nancy Frizelle, who was the president of Whispering Oaks Estates HOA at the time. Dr. Tipton’s letter had a subject line referring to “Disabled Access/Fair Housing Act,” and the body of the letter stated the following: Dear Mrs. Frizelle, The Homeowners Association has a valid purpose. It protects the homeowners so we can sell our properties located on a beautiful golf course. My goal is to attempt to obey all housing rules and deed restrictions to create a nice community. However, at no time, will I support any type of discrimination or harassment from other home owners over parking. That is what this letter is about as we wish to resolve this quickly without going to court. As you are aware, my house has shared designated parking. Each owner has 1/5 ownership of a parking lot that has two designated parking spaces per owner. My Dad resides with me as I am his caregiver. Under the law, the caregiver is considered the same as the disabled person. All of the owners have left the walkway open as some of the 5ft access is part of my actual parking space. The other footage is in Bonomo’s. None of us owners had a problem before keeping it open. The one lawsuit that would concern the Homeowners Association is under the Fair Housing Act. The attorney we consulted is a specialist in that area. Her name is Lynn Handshaw located in Tampa, Florida. She requested that this letter be written as the association is an indirect body that controls the parking lot. It was further explained to Lynn that our intent is not to file a lawsuit to the association because they do try to keep the community in good standing. However, we will if necessary. The private parking lot is owned by (5) five homeowners but it is required by the association that we park there. We are giving the association (10) ten days to notify Bonomo, Collazo, and Buckingham that Reeves will be painting the blue lines and white “no parking” on that five foot ADA access way. Each owner can give up (1) one foot to have that painted. According to my attorney, she does not care if the association or homeowners agree to this or not. She stated that if they don’t comply she will file a lawsuit against the association and only the homeowners, that don’t comply. She will do it on a percentage contingency. Please get with Mr. Murphy so that he fully understands that the 5 ft access is to remain unblocked and painted so the Sheriff’s Office can tow any vehicle that is blocking its’ path. If the association does not want to support my having ADA access then they can buy my house or place parking in front of my home like the other villas, at their expense. While this would ruin my view, it would give me quiet ownership without having to put up with the constant upheaval of parking. Please respond back to me within (10) ten days as to the associations [sic] intentions as we would like this to be resolved. Thanks for your attention to this matter. Respectfully, Dr. B.J. Tipton Ms. Frizelle responded to Dr. Tipton’s letter via a letter dated October 19, 2013, stating the following: Dear Ms. Tipton, Your letter entitled Disabled Access/Fair Housing Act was presented to the Whispering Oaks Estates Home Owners Association for consideration at its regular Board of Directors meeting on October 16, 2013. The Board’s position is quite simple: the Whispering Oaks Estates Home Owners Association has neither the jurisdiction nor the responsibility to police private property rights and or/disagreements. Therefore, we can initiate no action to help you solve the situation described in your letter. Very truly yours, Nancy Frizelle President Whispering Oaks Estates Home Owners Association On November 18, 2014, Dr. Tipton wrote a letter to Wayne Parlow, who was the president of Whispering Oaks HOA at the time. Dr. Tipton’s letter had a subject line referencing “Easement, Parking, Harassment” and stated the following: Dear Mr. Parlow and Board Members, As you are aware, The Department of Justice has the case concerning access to the parking lot under the disabilities and fair housing act. The department has a copious amount of pictures, documents, video recordings and the letter from Ms. Frizelle, past president. This is not a parking lot dispute as Ms. Frizelle and others had attempted to indicate. The case is simple. The Homeowners Association held themselves out to be an association but failed to perform. Reasonable accommodations were requested and denied. Harassment then started from various individuals. Discrimination is ugly. I am the youngest owner with a disabled father that is a permanent resident in the home that I have owned for ten (10) years. The Department of Justice has made it clear that my legal rights have been violated. All of these discussions are documented through e- mails. My case is in the queue. After the Department of Justice completes their job my civil attorney, in Tampa, will have the second lawsuit against the private owners, Arvin Franklin Marshall, Jr. (A.K.A. Lucky) and Michele Cerise Collazo Nelson Dorney that have denied access/blocked/ /verbally insulted/stalked and harassed me and/or my dad. Some of this has been documented with the Hernando County Sheriff [sic] Office. There are pictures and video recordings that have been forwarded. Lucky or Michele do not own any portion of that parking lot. Please remember, that my family or I have never known Lucky prior to him living with Michele. There has never been any conversations, initiated by me or my family, to Michele or Lucky. No one in my household has anything to do with the Collazo residence or Lucky or Michele. Lucky has sexually harassed me on several occasions and this has been reported. Recently, Lucky confronted me and my dad, on the golf cart, one day in the parking lot, when doing transfer. He stated he was going to put my dad “in the bottom of the Withlacoochee River with cement shoes.” We contacted the Hernando County Sheriff [sic] Office. Lucky or Michele are not allowed on any land that I own or partially own due to harassment. Kenneth and Rachael Reeves are the only 1/5th owners that will not be included as they know the law and have stated they have no intentions of breaking it. Roger Levesque, Jr. may possibly be included as well. Again, I do not know Roger and have never spoken to him. Roger bought 35000 Whispering Oaks Blvd and is Lorraine Collazo’s friend. He approached me one day, in the road in front of my home, threatening me over the parking lot. It is amazing that someone would threaten an owner that they have never spoken with concerning any issue. Furthermore, he never even tried to obtain facts prior to his threat. That also has been reported. The third lawsuit concerns the easement. In a previous letter this issue was mentioned. It has also been discussed verbally. This letter is to advise the association that I have retained Mr. Jacob I. Reiber of Wesley Chapel, Florida for the easement issue. He requested that this letter be sent. We will be seeking emergency mandatory injunctions to not have any further plantings in my secondary easement, if necessary. The homeowners association[] has been contacted on numerous occasions over the years that the easement needed to be cleared so that my mowers and golf cart could have access. The grapefruit/lemon tree and purple bush were all planted by the Bonomo[]s that own 35004 Whispering Oaks Blvd. The four wood slabs that create a planter box were installed by Collazo and Bonomo. Collazo owns 35002 Whispering Oaks Blvd. If these items were removed I probably would have access. These are all man made obstructions. This forces me to use the easement owned by the golf course, which is allowed, if an easement is obstructed, according to the restrictions. All legal cost for reimbursement will be included in this lawsuit. The association has thirty (30) days to get with Mr. Reiber concerning their intentions. Mr. Reiber will be in contact with Arvin and Michele to keep them from harassing and stalking me over the parking situation. Michele is Lorraine Collazo’s daughter that lived at 35002 Whispering Oaks Blvd. on and off throughout the ten (10) years that I have owned my home as a primary residence. It is dangerous for me to do my daily walks due to Lucky entering the neighborhood. Neither Arvin nor Michelle has a license to practice real estate or law but seem to dispense advice concerning ADA and the parking lot deed. Their opinion simply does not count as neither have legal ownership and are not a member of the association. This could be considered a felony. These cases are interrelated but will be kept separate. Please do not respond to me concerning this letter. Mr. Reiber has all the documents needed to discuss this situation. Please contact Mr. Reiber or have Mr. Murphy make contact concerning these issues. Our intention is to have all these issues resolved as quickly as possible. Have a Happy Thanksgiving! Respectfully, Dr. B.J. Tipton Mr. Tipton died in March of 2015. While his will nominates Dr. Tipton to act as the personal representative to dispose of his property if Mr. Tipton’s son is unable or unwilling to do so, Dr. Tipton testified during the final hearing in this matter that “an estate has not been opened.” Dr. Tipton asserted during the final hearing that she requested a “reasonable accommodation” (within the meaning of Florida’s Fair Housing Act) by asking the Whispering Oaks Estates HOA to keep the five feet alongside the passenger side of her truck unobstructed. Dr. Tipton also asserted during the hearing that she verbally communicated her reasonable accommodation request on multiple occasions to those in charge of Whispering Oaks Estates HOA. As a matter of ultimate fact, Mr. Tipton was handicapped/disabled and five feet of additional space adjacent to Dr. Tipton’s parking space was necessary in order for Mr. Tipton to use and enjoy Whispering Oaks Estates. As a matter of ultimate fact, Dr. Tipton proved by a preponderance of the evidence that she communicated a reasonable accommodation request via her October 2013, letter to Whispering Oaks Estates HOA. As a matter of ultimate fact, the Whispering Oaks Estates HOA had the authority to mandate that the five feet of space adjacent to Dr. Tipton’s parking space remain unobstructed. Dr. Tipton is seeking damages based on Whispering Oaks Estate HOA’s denial of her request for a reasonable accommodation. Specifically, she seeks to be reimbursed $53.50 for a camera that was used to monitor the parking lot that she and her neighbors jointly owned. Dr. Tipton also seeks to be reimbursed $125.00 for the cost of hiring a tow truck to remove a vehicle from her parking space. Finally, Dr. Tipton seeks $25,000 in punitive damages. As a matter of ultimate fact, Dr. Tipton failed to demonstrate that the costs associated with the camera and the towing service were related to the denial of a reasonable accommodation. Instead, it is more likely that those costs were associated with the alleged harassment described by Dr. Tipton. Indeed, Dr. Tipton testified at length during the final hearing about the alleged harassment and stated that the camera was intended to monitor whether anyone attempted to sabotage her vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. The Estate of Charles A. Tipton’s requests for damages and its Motion for Attorney’s Fees are DENIED. Whispering Oaks Estates HOA, Inc.’s Motion for Attorney’s Fees is DENIED. DONE AND ENTERED this 16th day of December, 2015, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 16th day of December, 2015. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) B. J. Tipton Estate of Charles A. Tipton 35006 Whispering Oaks Boulevard Ridge Manor, Florida 33523 (eServed) Michael Joseph Bayern, Esquire 570 East Long Beach Road St James, New York 11780 (eServed) David J. Murphy, Esquire Mander Law Group 14217 Third Street Dade City, Florida 33523 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Respondent, as a member of the City Commission of Oak Hill, Florida, committed a violation of Section 112.313(6), Florida Statutes, by allegedly threatening the police chief's employment status during a verbal altercation.
Findings Of Fact Charles Dean, the Respondent, was elected to the Oak Hill City Commission in the 2004 election and took office in January 2005. He is employed as a Senior Manager of Operations and Management for the Kennedy Space Center and also is a saddle and harness maker, owning C. Dean's Saddle Shop jointly with his wife, Carol Dean. As an elected public officer, the Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, which is the Code of Ethics for public officers and employees with regard to any acts or omissions committed during his tenure in office. The Petitioner, Ethics Commission, is an agency of the State of Florida charged with enforcing the provisions related to ethical standards for public officers and employees embodied in Part III, Chapter 112, Florida Statutes, and for imposing sanctions for violations thereof. The City Commissioners of Oak Hill, including the Respondent, are elected officials accountable to citizens at regular elections and are subject to recall as permitted by law and in accordance with the Oak Hill City Charter. The Commission also appoints heads of departments from among the sitting commissioners. The function of the department heads is to ensure that the department to which they are assigned is running efficiently in carrying out the Commission's directives. The Respondent was appointed as department head of the solid waste department. He had no authority over the police department. According to the Oak Hill City Charter, no individual commissioner, except the appointed department head for a particular department, is permitted to give directives or orders to any employee, except in cases of emergency. The Respondent, in his testimony, indicated his awareness of those limitations on his authority as a city commissioner in his contact with city employees. In his position at the Kennedy Space Center employed by NASA, the Respondent is a Senior Manager of utilities and supervises some 900 employees. He thus has professional awareness and experience in dealing with personnel matters such as employee suspensions, terminations and the like. The Complainant, Walter Zalisko, was hired by a majority vote of the City Commission to be Chief of Police for the City of Oak Hill. He was hired on July 29, 2004, before the Respondent's election to the City Commission. He was hired with the charge of elevating the professional standing and status of the City of Oak Hill Police Department. Soon after he took office in January 2005, the Respondent encountered difficulties in his relationship with Chief Zalisko. This occurred over the manner in which then Chief Zalisko handled the suspension and termination of Oak Hill City Police Department Officer Dee Williams. At a City Commission meeting on April 18, 2005, the Respondent took issue with the fact that Chief Zalisko had unilaterally suspended Officer Williams from her position, without pay, pending an internal audit, rather than bringing that decision before the City Commission for a vote. After the Respondent raised the issue at that meeting, the City Commission voted to reinstate Officer Williams's pay pending the internal audit results. In reality the Respondent objected to the procedure used by then Chief Zalisko against Officer Williams, rather than the actual decision to terminate the officer. In fact, the Respondent ultimately voted to terminate Officer Williams from the Oak Hill Police Department. In any event, after the April 18, 2005, City Commission meeting, then Chief Zalisko was angry that the Respondent had questioned his authority to suspend Officer Williams without pay in front of the City Commission. While walking back from the City Commission meeting Chief Zalisko called the Respondent a derogatory name and stated to other police officers that he was "going to get him." Apparently various members of the community communicated to the Respondent that Chief Zalisko was very upset with him and was "having him watched." Officer Winston of the police department came to the Respondent's shop and told the Respondent that the Chief was "out to get him and was watching his shop and having officers take photographs of cars parked at his shop." Sometime in June 2005 the Respondent received a telephone call from an anonymous caller advising him that Chief Zalisko was watching his saddle shop and having police officers take photos of cars parked there. This person was later revealed to be Sergeant Guy Grasso who replaced Zalisko as the current Chief of Police for Oak Hill and who testified in the hearing. Chief Grasso contacted the Respondent after Chief Zalisko ordered officers, including Grasso, to keep cameras in their police cars and photograph and ticket cars parked illegally at the Respondent's shop.1/ As shown by Advocate's Exhibit A-3 (A-F) a series of photographs (A-F) of cars parked at the Respondent's business, photographs indeed, were taken. Although Chief Zalisko initially denied that he had done so, or ordered it done, he also testified that he took some of the photographs, but thought that Officer Ihnkin or Officer Winston had taken the remainder of the photographs. In any event, both Officer Ihnkin's and Chief Grasso's testimony as well as that of Chief Zalisko, shows that photographs of cars parked in front of the Respondent's shop were taken, and implicitly would only have been taken upon then Chief Zalisko's order. Officer Ihnkin testified that Chief Zalisko told police officers prior to October 11, 2005, to write tickets for cars parked in front of Dean's Saddle Shop and to take photographs of the cars there. The current Chief of Police, Guy Grasso, also testified that before October 11, 2005, then Chief Zalisko had ordered all officers to take photographs of cars parked at the Respondent's saddle shop business and to give tickets to cars parked there. Chief Zalisko had discussions with members of the police department concerning the application of Section 316.945, Florida Statutes (the parking violation statute) as it pertained to the Respondent's shop and its location. An issue arose about the location of a stop sign at the corner of U.S. 1 and East Halifax Avenue, concerning the legality of cars parked in relation to the sign. Officer Ihnkin testified that he pointed out to Zalisko that the statute required that a car be parked 30 feet on the approach to the stop sign (presumably a minimum of 30 feet distance from the sign) and that cars parked on U.S. 1 in front of the saddle shop were actually behind the stop sign so they could not be on the approach to it and were therefore legally parked. Officer Ihnkin relates that Chief Zalisko opined that any car parked in front of the saddle shop was illegally parked and should be cited. Both Chief Grasso and Officer Ihnkin's testimony regarding the conversations they had with Chief Zalisko about the applicability of the above statute to parking in the vicinity of the saddle shop is corroborated by Chief Zalisko's opinion that it is not legal to park in front of Dean's Saddle Shop on U.S. 1 or on the East Halifax side of the shop. There were four or five incidents before October 11, 2005, while the Respondent was at his shop, when he was contacted by officers from the police department about cars parked in front of the shop. There was never an incident where the officer was rude to him, the contacts were friendly and the Respondent always voluntarily had the cars moved. Kelly's Bait and Tackle Shop and Shell Gas Station is a nearby business which has a stop sign on U.S. 1 next to the business. The Respondent observed cars parked around that stop sign and the gas station actually dispensing gas to cars which technically were on the right-of-way of U.S. 1. Neither the cars nor the business was ever cited or told to move the cars, according to the Respondent. Whether or not this was true the Respondent felt that he was being harassed by Chief Zalisko by having his business targeted and not other businesses. The fact that people were telling him, rightly or wrongly, that he was being watched by the police chief and that customers were having to move their cars from his shop, when other businesses were not being so closely watched, or supervised by the police department fed the Respondent's feelings of harassment on the part of then Chief Zalisko. On October 10, 2005, a City Commission meeting was held at which the Respondent once again took issue with the way Chief Zalisko handled the promotion of Sergeant Shaffer to lieutenant. The City of Oak Hill operates by resolution, and before anyone could be promoted to the position of lieutenant the city needed to pass a resolution creating that position. On October 7, 2005, before the City Commission had voted on whether to create the lieutenant's position, Chief Zalisko issued a press release announcing that Officer Shaffer had been promoted to lieutenant. The Respondent took issue with Chief Zalisko at the City Commission meeting for announcing to the newspaper that the promotion had been made, when in fact it had not. Chief Zalisko became angry with the Respondent and raised his voice on that occasion. The Respondent actually approved having Officer Shaffer promoted to lieutenant, but was at odds at Chief Zalisko over the procedure that Chief Zalisko had used. Chief Zalisko's anger at the Respondent from the events of the October 10th City Commission meeting is corroborated by Advocate's Exhibit 6, in which Zalisko describes the Respondent's conduct at the October 10th meeting as "ruining Lieutenant Shaffer's day" by unnecessary "show boating." On October 11, 2005, Officer Ihnkin observed a car parked in front of Dean's Saddle Shop. He thought it might be illegally parked, but rather than issue a citation he went into the shop and asked the owner of the car to move it, which the owner readily did. Officer Ihnkin stated that the sales lady, who actually was the Respondent's wife, stopped him while he was in the store and accused him and the police department of harassing them and interrupting her sale. Mrs. Dean and witness Charlie Haynes, a good friend of the Dean's niece and nephew, both testified that the officer behaved in a gruff rude manner toward Mrs. Dean. Officer Ihnkin denied being rude or unprofessional or that he raised his voice. Mrs. Dean testified that she primarily runs the shop, with some help from her husband. She had never encountered any problems with parking around the shop, according to her testimony, until the Respondent questioned Chief Zalisko about policy and procedures regarding the Williams suspension incident. After that she maintains police officers would come to the shop and tell customers to move their cars. The customers complied with it. Mrs. Dean maintains that during that same time period no other businesses in the vicinity were having parked cars moved. She also states that she observed Chief Zalisko sitting in his patrol car watching her business with binoculars. These incidents purportedly occurred between February and October of 2005. In any event, at the end of the October 11, 2005, incident in the store, Office Ihnkin left the saddle shop after the customer complied with his request to move the car without issuing a traffic citation or a written warning. Later that afternoon the Respondent came to the saddle shop after work. Mrs. Dean explained what had happened and told the Respondent that the officer had been rude. The Respondent told his wife that he would find out about the situation and went to the police station. Upon arriving at the Oak Hill Police Station, the Respondent confronted Chief Zalisko in his office regarding the incident at Dean's Saddle Shop earlier that day. The Respondent asked the chief why the officer had been rude to his wife and the chief responded by telling him that the officer had not been rude. During the conversation regarding the incident with Officer Ihnkin at the saddle shop, the Respondent told Chief Zalisko that "you work for me." Chief Zalisko maintains in his testimony that he responded that he did not work for the Respondent, but that he worked for the city commission as a whole. The Respondent went on to criticize the way the chief was running the police department and told the chief that he did not feel that he was following proper procedures. During the course of the heated conversation of about 10 minutes duration the subject of the promotion of Lieutenant Shaffer came up once again. The Respondent indicated his displeasure at the way Chief Zalisko had handled the matter of the promotion of Lieutenant Shaffer. The Respondent maintains that he did not raise the issue of Lieutenant Shaffer's promotion during this conversation because he did not want to upset Lieutenant Shaffer once again as had been done the night before at the city commission meeting. Lieutenant Shaffer was present during this conversation between the Respondent and Chief Zalisko in the police station. Regardless of who brought up the Lieutenant Shaffer promotion issue again, it is undisputed that in the conversation the Respondent made the comment, "I am coming after your job, and I am going to work hard to get rid of you." This comment was made near the end of the conversation when the Lieutenant Shaffer promotion was being discussed. The evidence does not reflect that the Respondent ever approached Officer Ihnkin concerning the way that he felt the officer had treated Mrs. Dean at the saddle shop on the day in question. The evidence does not indicate that he directed Chief Zalisko to do anything regarding parking citations or violations at his shop. He never issued any orders or directives to Chief Zalisko during that conversation at the police station. It is undisputed that both Chief Zalisko and the Respondent were speaking to each other with raised voices, arguing during this conversation. The conversation or argument lasted approximately 10 minutes whereupon the Respondent left the police station. The Respondent admitted in his testimony at final hearing that he made the comments to Chief Zalisko in both his official capacity as a city commissioner and in his capacity as a private citizen. Chief Zalisko in his testimony stated that he felt uncomfortable with the way the Respondent approached him during the argument in the police station. He testified that it was the second time the Respondent has threatened his job and he felt that he could go through with the threat and that he was misusing his position "for some personal gain to his saddle shop." Chief Zalisko further acknowledged that the Respondent never told him not to enforce the traffic laws at his shop, or that everybody should be ticketed, but the chief testified that the fact that the Respondent was complaining to him in his office and the fact that he was a commissioner sent him a signal that the Respondent was looking "for some preferential treatment." It is clear that during the conversation the Respondent told the chief that the chief "worked for him" in the context of the Ihnkin incident. It is also clear that the Respondent knew at the time of the confrontation that he should not use his official position to confront Chief Zalisko and threaten his job, regardless of whether it was about the parking situation or what the Respondent believed about the way the chief managed the police department, including the Lieutenant Shaffer promotion incident. The Respondent understood the limitations and restrictions of both the city charter and the code of ethics. City commissioners are accountable to the citizens and the Respondent was the appointed head of the Solid Waste Department therefore he had no authority to issue orders or directives concerning the police department. Parenthetically, there is no evidence that he actually did that. Under the city charter no individual commissioner, except the commissioner who is an appointed department head, may give directives to employees of a commissioner's assigned department. The Respondent sought to justify his behavior on October 11, 2005, by alleging that he felt that Chief Zalisko had been harassing him. The totality of the evidence of record indicates that there is some validity to the contention that Chief Zalisko was harassing the Respondent, even in the face of the fact that no actual tickets or warnings were issued for parking violations adjacent to the Respondent's saddle shop. The evidence, however, clearly and convincingly demonstrates that the Respondent, while a member of the Oak Hill City Commission, whet to the office of the police chief and threatened the police chief concerning his employment status, after a police officer had notified the Respondent's wife of a parking violation in front of their business, and his wife had conveyed to the Respondent the message that the officer had been rude to her. The Respondent, both as a private citizen and as a city commissioner, made direct threats of retaliation against Chief Zalisko concerning his employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order and public report be entered by the Florida Commission on Ethics finding that the Respondent Charles Dean, violated Section 112.313(6), Florida Statutes (2007), and imposing a civil penalty of two hundred dollars. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008.
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of December, 2010.
The Issue The issue presented is whether Petitioner timely terminated Respondent's employment, as set forth in the Administrative Complaint filed in this cause.
Findings Of Fact On July 22, 1997, Respondent completed his application for employment as a teacher for the school year 1997-98. He was hired to be the coordinator for the English for speakers of other languages (ESOL) program at Western Pines Community Middle School. That position is a teaching position. Western Pines is a new school, opening in time for the 1997-98 school year. Principal Peggy Campbell determined she needed extra assistance for the school to be ready in time for the students. As with any new school, floors needed to be mopped, windows needed to be washed, supplies needed to be unloaded and stored, desks needed to be placed in the classrooms, books needed to be stamped, and many other things needed to be done to get ready. She requested volunteers from the staff she had hired, and Respondent agreed to help prepare the school for the arrival of students. At the time that volunteers were obtained and began working, Campbell did not have approval to pay any of the volunteers. She subsequently obtained approval. Respondent began working as a volunteer on August 1, 1997. He labeled, stamped, and shelved books. He worked a total of 7 1/2 days. Afterward, he was given a one-time paycheck for those 7 1/2 days based upon a daily rate of pay. In computing the amount to pay him, Petitioner calculated a daily rate for Respondent by dividing his annual salary by 196, the number of duty days for teachers within Petitioner's school system. On August 13, 1997, all teachers reported for duty for the 1997-98 school year. August 13 began the five-day pre-school period for instructional employees, a time during which all teachers attend meetings and prepare for the arrival of students. On that date, Respondent began his professional duties as an instructional staff member of Petitioner's school system. That date was also the effective date for Respondent's instructional position. Starting on August 13, 1997, Respondent's duties were substantially different than they were prior to that date. Prior to August 13, 1997, Respondent's work was akin to that of an incidental day laborer. August 20, 1997, was the first day of classes for students within Petitioner's school system. On January 9, 1998, Principal Campbell met with Respondent and gave him a letter advising him that she was recommending to the superintendent the termination of Respondent's employment, effective January 15, 1998. She told him not to report to the school for those interim days but that he was assigned to his home for those additional days for which he would be paid. On February 21, 1998, the School Board ratified that termination, effective January 15, 1998, as part of its consent agenda at a regularly-scheduled Board meeting. At the time Respondent was notified he would be terminated and at the time of the School Board meeting, annual contracts for that school year had not yet been prepared. There is a normal delay with finalizing annual contracts due to extended negotiations with the teacher's union once the budget is final.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Respondent's employment was terminated within his probationary period. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of May, 1999. COPIES FURNISHED: Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Thomas E. Elfers, Esquire JenniLynn Lawrence, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent’s teaching certificate and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 484422, covering the areas of biology and mathematics, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a mathematics teacher at Oak Park. Respondent worked at Oak Park from September 25, 2013, to May 20, 2014. On May 21, 2014, Respondent was removed from her classroom as a result of the May 16, 2014, student-smoking incident (the “incident”) described herein and assigned to the school district office in a non-instructional position. Respondent was a first-year probationary teacher at Oak Park. Due to the incident, Respondent’s employment with the school district was not renewed for the following school year. Respondent is currently employed at Emerald High School in Greenwood County, South Carolina. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment. The first session of the Oak Park school day, extending from 9:04 to 9:34 a.m., is called Knights Unite (“KU”). KU is described as: 30 minute period where healthy relationships between the students, faculty and staff of OPMS can be built. It is a time set aside for mentoring, engaging students with interactive activities to build their character, interactive activities to review content and to give each student of Oak Park someone they can trust and confide in. Respondent described the KU period as one in which she could help students to make up work, help them with independent study, allow students to meet with other teachers for help or independent study, engage in certain mandated activities, e.g., bullying lessons, and perform student-related administrative tasks. Fridays were typically independent study days in which students were allowed to make up work from the week. On Friday, May 16, 2014, during the KU period, students were involved in independent study and with filling out required address forms. Students needing to go to the media center, the guidance office, the main office, or to meet with other teachers during the KU period are given passes. Allowing students to engage in those tasks, including issuing passes for students “to get assistance or additional paperwork from a different teacher” was not contrary to Oak Park policy, nor did it violate any standard. Except for the four students involved in the incident, there was no evidence that any student left Respondent’s classroom without a pass. Petitioner suggested that the tasks being performed (or that were supposed to be performed) in Respondent’s class on May 16, 2014, were inconsistent with Petitioner’s written KU guidelines. Since the activities being performed by students, with the exception of those related to the incident, were not alleged as violations in the Administrative Complaint, compliance with the KU guidelines is not at issue. Furthermore, the evidence demonstrates that activities, such as individual mentoring or tutoring and individual catch-up work, are an appropriate use of KU period time. According to Ms. Longo, there were 18 students in Respondent’s KU class on May 16, 2014. At the time of the incident, each student had an individual desk. Currently, as depicted in the photographs in evidence, the classroom has been reconfigured with tables that seat multiple students. At some point during the May 16, 2014, KU period, a group of four of Respondent’s less responsible students huddled furtively in the back of the classroom. The two male students involved, D.L. and J.G., lit the butt of a small “Tiparello”- style cigar, and took a few quick puffs. They had their backs to Respondent’s desk and ducked down to conceal their actions. One of the two female students, J.C., in order to preserve the foolhardy act for posterity, took a cell phone video of the incident. The length of the video was a total of one minute and 51 seconds. The cigar appeared to have been first lit at the 0:05 mark. The youthful miscreants did not intend to be discovered, as evidenced by one student’s hushed statement that “I swear to God if you show anybody that [unintelligible] snitch.” That their actions were not obvious is supported by the lack of attention that they drew from other more conscientious students in the class, who did not look up or react to the act of false bravado. At the 0:17 second mark, Respondent can be seen at her desk at the front of the room attending to H.E., another student who was not involved in the incident. H.E. was generally positioned between Respondent and the cigar-smoking students, shielding Respondent from their actions. Respondent was also in the process of taking attendance. Ms. Longo testified that it is appropriate for Respondent to be at her desk to perform those tasks. Although Respondent and H.E. are only glimpsed at the 0:17 mark, it is not reasonable to conclude that H.E. simply vanished at that point, exposing the four troublemakers to Respondent’s view. Rather, some seconds had to have passed before H.E. moved away. The student’s efforts to hide the cigar and fan away the smoke confirm their efforts to avoid detection. Although J.G. coughed, his proximity to the cell phone (one or two feet) makes it impossible to tell how noticeable the cough would be from a distance. At the 0:25 mark, D.L. eyed the recording cell phone and threw down with a devil-may-care “whazzup, whazzup.” From roughly the 0:33 mark to the 0:44 mark, the youthful miscreants hurriedly hid the evidence and assumed an attitude of casual insouciance. The video then went black from the 0:43 mark to the 0:55 mark and, although the picture returned, the cell phone was clearly being concealed from the 0:55 mark to the 1:03 mark. That thirty seconds of cover and concealment is consistent with Respondent’s testimony that she got up and went over to the students’ desk area. The video resumed at the 1:03 mark and, after a few furtive sweeps of the area, clearly taken from a low vantage point, again went black from the 1:11 to the 1:18 mark. At the 1:18 mark, the video resumed and, at the 1:22 mark, J.G. is seen lighting the half-inch butt with a Bic lighter. The behavior of J.G. and D.L. demonstrated a continued effort to conceal their actions. At the 1:30 mark, the video shows that the students had been “busted.” J.G., in a display of feigned innocence, loudly proclaimed “what is that smell?” By the 1:35 mark, Respondent had called J.G. and the owner of the phone to her desk, and they dutifully complied. An unidentified student mentioned the word “perfume,” and either J.G. or J.C. spoke of “cologne” in an obvious effort to explain the unusual aroma in the room. At the 1:48 mark, Respondent advised J.C. that Respondent would need her phone for the rest of the class. Though occurring after the 1:51 end of the video, Respondent successfully confiscated the phone, which Ms. Longo confirmed was the appropriate course of action. Respondent indicated that she could momentarily smell something unusual in the room, which she attributed variously to incense, cologne, or deodorant. Due to the pervasive musty and mildewy smell in the class caused by a water leak and chronically wet carpeting, along with her blocked sinuses, she could not tell what it was. As stated convincingly by Ms. Pickens, “there were different types of smells in there on one day to the next depending on whether or not they put the fan in the classroom to dry out the carpet.” There was no evidence that Ms. Warren could see what was occurring while taking attendance and consulting with the student at her desk.2/ Petitioner’s speculation that Respondent could have (or should have) seen exactly what was happening at the back of the room was just that - speculation. After J.C.’s cell phone was confiscated by Respondent, D.L. came up with several excuses as to why he should be allowed to leave the classroom. His requests were denied. Thereafter, as Respondent was calling the office to report the incident, D.L. and J.G., followed by the girls, J.C. and C.W., left the classroom without permission. Teachers are not allowed to physically restrain students attempting to leave the classroom. Rather, the teacher is to “push the call button that’s in every classroom immediately and say that so-and-so just walked out of my class.” Respondent complied with that expectation by calling the office, which is an acceptable option. Since no administrators were available, Respondent gave the information regarding the students’ escape from the classroom to Ms. Longo’s secretary. It took a while for anyone to respond to Respondent’s call. The students returned to the classroom after about five minutes. After their return, Mr. Justus, who was the school’s athletic director and “coach” for the social studies department, and a member of Ms. Longo’s “leadership team,” came to the room. Respondent wrote referrals on D.L. and J.G., and they left with Mr. Justus. After the boys were taken from the classroom, Respondent sent an email to Mr. Wade, the associate principal and dean of discipline, and Mr. Justus to inquire about the referral of the girls, J.C. and C.W., and to let them know that she had J.C.’s cell phone. Two periods later, Mr. Wade came to Respondent’s classroom, at which time Respondent turned over J.C.’s cell phone to him. By that time, she had retrieved a cigar wrapper from D.L.’s desk, which was also turned over to Mr. Wade.3/ Ms. Peterson concluded that “[n]o evidence exists to show that Ms. Warren was ever aware that students were actually smoking a cigar in her class.” She further testified that Respondent “wasn’t aware they were smoking. She thought something was wrong, but that doesn’t mean she knew that they were smoking. That could mean that someone’s with something like a piece of paper.” On May 20, 2014, Respondent was removed from the classroom and reassigned to the school district office. Respondent’s inability to see exactly what was occurring in the back of the classroom did not prevent her from suspecting improper conduct by the students and acting on that suspicion by appropriately requesting assistance from administration, confiscating the cellular telephone of a student, and investigating the matter herself to find the wrapper. The tone of the Administrative Complaint gives the impression that J.G. and D.L. put their feet up on their desks and enjoyed a fine Cuban Presidente while under Respondent’s approving gaze. Nothing could be further from the truth. The facts show that J.G. and D.L., in a manner that was as sneaky and surreptitious as possible, lit the small cigar and, over the course of approximately 28 seconds, took a few furtive puffs. After putting it out and hiding the evidence, the miscreants repeated the act for approximately 13 seconds before being nabbed. The suggestion that Respondent neglected her duties, failed to make reasonable effort to protect her students from conditions harmful to learning or to their mental or physical health or their safety, or engaged in personal conduct that seriously reduced her effectiveness as a teacher is simply not supported by the facts of this case.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 17th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 17th day of November, 2016.
The Issue Whether the Petitioner Donald Boatwright was properly transferred by Respondent.
Findings Of Fact The petitioner Donald Boatwright was a State Career Service employee employed as a Beverage Officer I by the Respondent Division of Alcoholic Beverages and Tobacco at the time he was transferred from his post of duty in Live Oak, Florida to a new post of duty in Gainesville. He was notified of his transfer by letter dated August 25, 1977. The Petitioner worked at his new post of duty in Gainesville for approximately six weeks, then resigned from State employment effective November 10, 1977. The transfer of Petitioner was part of a statewide reassignment of personnel within the Division of Alcoholic Beverages and Tobacco. To accomplish the reassignment the Respondent had a statewide staffing study prepared by one of their auditors. The study revealed that the Live Oak Beverage Office had an excess of three employees in relation to the statewide average for the amount of work their office was obligated to discharge. The staffing study found that the Live Oak office had the second highest surplus of employees for all the division's 18 offices statewide. To accomplish the directive of the Department of Administration, Division of Budget and to achieve the goal sought by the staffing study the Respondent transferred job positions and personnel from offices with a surplus to those offices the study revealed to have an insufficient number of persons for their respective workload. The rationale and technique employed in the preparation of the staffing study was explained by memorandum dated March 7, 1977 addressed to the District Supervisors of the division. The Respondent decided that those employees who had the least seniority in the offices to be affected would be the ones who would be transferred to those offices needing more personnel. Petitioner Donald Boatwright had less seniority than other employees in the Live Oak office, and he became subject to one of the transfers. Petitioner appealed to the Career Service Commission by memorandum dated October 4, 1977. The appeal was accepted by the Commission, and referred to the Division of Administrative Hearings for hearing. Shortly after the appeal of the transfer was filed and accepted, the Petitioner resigned his position. The parties, at the hearing, entered into a stipulation which was filed with the Hearing Officer on November 9, 1978 and which is attached hereto and made a part hereof. This stipulation details the methods by which the transfer of the Petitioner was accomplished. Mr. Lee Dorn, the personnel officer for the Department of Business Regulation at the time Petitioner was transferred, reviewed a Report of Personnel Action which was entered into evidence as Respondent's Exhibit 3, and stated that the form should have designated the type of action taken as "reassignment" rather than designating the personnel action as "original appointment continued". He testified that there would have been no difference in personal impact on the Petitioner, and Petitioner would have been transferred from the Live Oak office to the Gainesville office regardless of the designation of the report. The Report of Personnel Action reflects that Mr. Boatwright's transfer was in the same class. The form reflects that the position Mr. Boatwright had in Live Oak was different from the one he assumed in Gainesville, but it indicates that Mr. Boatwright moved from a position in one class to a different position in the same class. Petitioner contends: (a) that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, Florida Administrative Code, (b) that the transfer from Live Oak to Gainesville caused him irreparable financial harm and hardship, and for those reasons he was forced to resign after commuting to his new post in Gainesville for a six weeks period. Respondent contends: (a) that it followed the proper procedures, (b) that the Live Oak office was overstaffed prior to Mr. Boatwright's transfer, (c) a uniform system of selection was utilized by Respondent in determining who would be transferred statewide, (d) there is no evidence that the selection of Mr. Boatwright is based upon any other criteria than that of his being one of the junior men in the seniority system of the office to be affected.
Recommendation It is recommended that the reassignment appointment transfer of the Petitioner from live Oak to Gainesville be affirmed. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1978.
