The Issue The issue is whether Petitioner’s large family day care home license should be renewed.
Findings Of Fact Petitioner is a large family day care home owned and operated by Clarissa Roberts since 2000. Petitioner’s license number is L05LA001. The license was issued on June 7, 2007, and expired on June 6, 2008. Petitioner timely submitted an application for a renewal license, and after the Department gave notice of its intent to deny the renewal license, Petitioner was issued a provisional license pending the outcome of this proceeding. Petitioner’s licensed capacity is 12 children. The maximum number of children that can be present at the facility at any given time depends upon the children’s ages and the number of staff present, but in no event can there ever be more than 12 children at the facility. Ms. Roberts or her designated substitute, and one other staff person are required to be present at the facility during all hours of operation. Additional staff may be required to maintain the staff-to-child ratio, which varies based upon the ages of the children present. If only one staff person is present at a large family day care home, it must be the owner or her designated substitute, and the facility is limited to 10 children. The Department conducted a routine inspection of Petitioner on November 20, 2007. A number of areas of “noncompliance” were observed during the inspection. First, Ms. Roberts was not present at the facility, nor was her designated substitute, Kathleen Smith-Belton. Ms. Roberts had left town on an emergency that morning, and the only staff person present at the facility was Ms. Roberts’ adult daughter, Christy Troupe. Second, Petitioner was “over capacity” since there were 11 children and only one staff person at the facility. Third, Petitioner did not have documentation of any fire drills having been conducted since April 2007. Monthly fire drills are required. Fourth, almost half of the children’s files were missing current immunization records and/or current physical records. The Department’s inspector required Ms. Troupe to contact parents to arrange for children to be picked up. Two children were picked up while the inspector was present, which resolved the capacity issue. The Department issued a “warning letter” to Petitioner based upon the violations documented during the November 20, 2007, inspection. The letter, dated December 14, 2007, advised Petitioner that further violations “will result in the imposition of an administrative fine.” Childhood Development Services, Inc. (CDS) conducted a routine inspection of Petitioner on January 30, 2008. CDS administers a federal-state program through which Petitioner receives money for providing meals to eligible children at the facility. Petitioner was over its licensed capacity at the time of the CDS inspection. There were 13 children at the facility. CDS conducted a follow-up inspection on February 25, 2008. Petitioner was again over its licensed capacity at the time of the follow-up inspection. There were 17 children at the facility. CDS reported these findings to the Department as it was required to do. The Department treated the report as a “complaint.” The Department conducted an inspection of Petitioner on February 28, 2008, in response to the complaint from CDS. Petitioner was found to be over its licensed capacity at this inspection. There were 15 children at the facility. The Department issued an Administrative Complaint for this violation. Petitioner did not contest the violation, and paid a $100 fine. The Department conducted another inspection of Petitioner on March 19, 2008. This inspection was conducted as a result of a complaint received by the Department alleging that Petitioner was routinely over capacity and that some of the children were being kept at a nearby house owned by Ms. Roberts. Petitioner was found to be over its licensed capacity at this inspection. There were 17 children at the facility, including an infant in a stroller. There were also four other “attempted drop-offs” of children during the time that the Department’s inspectors were present. A number of other areas of “noncompliance” were also observed during this inspection. First, one staff person, Lorna Susan Rominger, had not undergone the required background screening even though she had been working at the facility for well over a year. Second, there were cleaning supplies on a counter that the children could reach. Third, the house “reaked” of smoke and Ms. Roberts admitted to smoking in the house when the children were not present, but the children’s files did not include the required documentation showing that the parents had been notified that someone living in the home smokes. Fourth, the immunization records of one of the children had expired. Fifth, Petitioner did not have the required transportation log for the van used to transport the children. Five of the children were in the van when the Department’s inspectors arrived, and none were in appropriate child restraint seats. Petitioner was also cited for keeping children at an unlicensed facility, even though no children were observed during the inspection at the nearby home owned by Ms. Roberts. Petitioner fired Ms. Rominger on March 19, 2008, the day of the Department’s inspection. Ms. Rominger claimed that she was fired for reporting Petitioner to the Department. Ms. Roberts claimed that Ms. Rominger was fired for her continuing failure to submit the documentation necessary for the background screening. Ms. Rominger’s testimony was more persuasive on this issue, even taking into account the ongoing dispute between her and Petitioner concerning unemployment compensation. Ms. Roberts acknowledged in her testimony that it was her responsibility as Petitioner’s owner-operator to ensure that all employees were screened. She also acknowledged that she allowed Ms. Rominger to work for Petitioner for well over a year without being screened even though she understood that the law required employees who were not timely screened to be fired. Ms. Roberts denied the allegations that she kept children at the home that she owned near the licensed facility, and no persuasive evidence was presented to corroborate Ms. Rominger’s testimony on this issue.2/ The Department conducted an inspection of Petitioner on April 30, 2008, as part of the license renewal process. Petitioner was within its licensed capacity at the time of this inspection, and except for the notice to the parents concerning smoking in the home, the areas of “noncompliance” documented during the prior inspections had been corrected. Ms. Roberts credibly testified that she prepared a form and provided written notice to the parents about the smoking in the home subsequent to the re-licensure inspection. Ms. Roberts acknowledged in her testimony that Petitioner was over its licensed capacity on those occasions where more than 12 children were present at the facility. Ms. Roberts testified that the over capacity issues only occurred during “transition periods” involving the voluntary pre-kindergarten program that she operated out of her home and/or the school age kids that she took to school in the mornings. This testimony was not persuasive. The “transition periods” described by Ms. Roberts were around 8:30 a.m. and around 11:30 a.m., but contrary to her testimony, all of the inspections did not occur during those periods. For example, the November 20, 2007, inspection occurred between 1:27 p.m. and 3:02 p.m., and the February 28, 2008, inspection occurred between 12:10 p.m. and 12:57 p.m. Ms. Roberts acknowledged in her testimony that it was her responsibility as Petitioner’s owner-operator to be familiar with the statutes and rules governing the operation of large family day care homes. The Department considers capacity and background screening violations to be “serious” because they involve issues of safety and supervision of the children at the facility. Violations of these requirements put the children at risk of harm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s application for a renewal license. DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2008.
Findings Of Fact 1. All findings of fact in the ALJ’s RO are adopted and incorporated herein by reference.
Conclusions THIS CAUSE is before me upon the attached Recommended Order (RO) that was issued by the Administrative Law Judge (ALJ) assigned to hear the case by the Division of Administrative Hearings. A Transcript of the hearing was not filed with the Agency Clerk. No exceptions to the Recommended Order were filed. The Recommended Order recommends that the department enter a Final Order denying the petitioner's application for a license to operate a group home for disabled adults.
Appeal For This Case A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. The Notices must be filed within thirty (30) days of the rendition of this final order.’ The date of the “rendition” of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the persons named above on this 77% day of , 2004. al PAUL FLOUNLACKER, Agency Clerk Department of Children and Family Services 1317 Winewood Blvd. Bldg. 2 Room 204 Tallahassee, FL 32399-0700
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 8th day of October, 2015.
The Issue Whether Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on July 9, 2007.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a single, widowed mother of two minor sons. She belongs to a protected class under the Florida Fair Housing Act because of her sex and familial status. During the times material to these proceedings, Petitioner owned and resided at 1779 Cambridge Village Court, Ocoee, Florida, within the Villages of West Oaks. As a fee interest owner of a lot within the Villages of West Oaks, she is a member of Respondent homeowners' association. Respondent, a not-for-profit corporation, is managed by a Board of Directors drawn from the homeowners' association members elected by members of the homeowners' association as dictated by its Articles of Incorporation and By-Laws. The Board of Directors employed Southwest Property Management to assist the Board of Directors in the management of the homeowners' association, to carry out the instructions of the Board of Directors in the management of the homeowners' association, and to ensure that the homeowners' association's rules were enforced. During the times material to this proceeding, Gary Comstock, an employee of Southwest Property Management, inspected the residences of the Villages of West Oaks to insure compliance with the Covenants, Conditions, and Restrictions of the Villages of West Oaks and Villages of West Oaks Architectural Standards. The above-mentioned Covenants, Conditions, Restrictions and Architectural Standards contain "general restrictions" that address the appearance of the residential lots within the Villages of West Oaks. For example, Article IV, Section 1(f), of the Covenants, Conditions, and Restrictions reads, in pertinent part, "All lots shall be maintained and landscaped to a standard suitable for this type development." The Architectural Standards Manual further defines landscaping standards by dictating the minimum and maximum height and type of lawn grass and provides additional, more specific, landscaping guidelines. However, these landscaping guidelines include the following: "All lots shall be landscaped and in keeping with the general conformity and harmony of the Villages of West Oaks." As a result, the landscaping rules and guidelines are vague. Petitioner was a member of the Board of Directors and Architectural Review Board that created the referenced Villages of West Oaks Architectural Standards Manual in September 2004. Between February 29, 2004, and January 10, 2006, Southwest Property Management sent Petitioner nine letters that addressed purported "disrepair of your home," "covenant violations," "need for lawn replacement," "miscellaneous items on porch," and "miscellaneous items in driveway." During the same general period of time, a significant number of homeowners' association members, female and male (Mr. or Mrs.), apparent single female (Ms.), and apparent married couples (Mr. and Mrs.), received similar letters addressing purported violations similar to those of Petitioner. Petitioner urges that she was discriminated against because of her sex and the fact the she had two teenage boys. Petitioner alleges that this discrimination was manifest in her receipt of the complaints regarding the maintenance of her home and yard. The sheer volume of similar letters to other homeowners and visual evidence received does not support this contention. Admittedly, the "landscape rules and guidelines" require subjective assessment, but there isn't any evidence of discrimination based on sex or familial status. In 2006, the Board of Directors sought volunteers to offer themselves as candidates for board positions. Petitioner offered herself as a candidate at a meeting. Apparently, there was then a discussion among Petitioner, board members and other meeting attendees that Petitioner was not qualified to serve on the board because of her extensive history of violations of the homeowners' association rules. The testimony is conflicting as to whether Petitioner withdrew her name from consideration. The homeowners' association's controlling documents do not contemplate the selection process undertaken at this meeting, nor is there a basis in these documents for disqualification based on a history of violation of homeowners' association rules, except for failure to pay assessments. If this prohibition from candidacy for the Board of Directors reflects discrimination, the discrimination is based on Petitioner's purported failure to comply with homeowners' association rules, not because of her sex or familial status. There is no persuasive evidence that the homeowners' association, either by a member of the Board of Directors or an employee of the property management, threatened to place a lien on Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Catherine Hall. DONE AND ENTERED this 18th day of October, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Catherine Hall 584 Neuman Village Court Ocoee, Florida 34761 Ron M. Campbell, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401-2204
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue is whether just cause exists for Petitioner, Lee County School Board (School Board), to terminate Respondent's employment as a classroom teacher on the ground she is incompetent and did not satisfactorily correct performance deficiencies.
Findings Of Fact The Parties The School Board is charged with the duty to operate, control, and supervise public schools in Lee County. This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). Respondent began her teaching career in Dunnellon, Florida, and has been certified as an educator since 1997. She has been employed by the School Board as a classroom teacher since 2001 and is certified in five areas, including exceptional student education (ESE). She currently holds a professional service contract, which is governed by the Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County (TALC Agreement). Beginning in school year 2014-2015, Respondent was assigned as a classroom teacher at Cypress Lake Middle School (Cypress Lake) where she remained for three years. In school year 2017-2018, Respondent was reassigned to Royal Palm Exceptional Center (Royal Palm) as an ESE teacher. The Intensive Assistance Program (IAP) Process A performance evaluation must be conducted for each employee at least once each year. § 1012.34(3)(a), Fla. Stat. The annual evaluation is found in the Annual Performance Evaluation Form, which identifies the evaluation areas and assigns to each area a "grade" of unsatisfactory, needs improvement/developing, effective, or highly effective. Sch. Bd. Ex. 17. A final performance rating also is given the employee. If an employee is not performing his or her duties in a satisfactory manner, section 1012.34(4) establishes a process for addressing the performance deficiencies. Under this process, the evaluator first must notify the employee in writing that the employee is not performing her duties in a satisfactory manner. The notice must include a description of the unsatisfactory performance areas, make recommendations with respect to the specific areas of unsatisfactory performance, and offer assistance to the employee to correct those deficiencies within a prescribed period of time. The employee then is placed on "performance probation" for 90 calendar days (excluding school holidays and vacation periods) following the receipt of the notice, during which time the employee is "evaluated periodically and apprised of progress achieved." Also, the employee is provided assistance and in- service training opportunities to help correct the noted performance deficiencies. Within 14 days after the close of the 90-day period, the evaluator must decide whether the performance deficiencies have been corrected and forward a recommendation to the superintendent. Within 14 days after receiving the recommendation, the superintendent must decide whether to continue or terminate the employment contract. To implement the foregoing statute, and to ensure that employees who are not meeting professional standards are given an opportunity to be successful, the School Board has created a process known as the IAP, which provides more detail than the statute itself. Sch. Bd. Ex. 26. The IAP is the School Board's version of "performance probation." According to the School Board's IAP Manual (Manual), the assistance program is designed to "provide intensive direction and support to employees who seem to be experiencing serious difficulty in meeting professional performance standards." Id. The School Board also has created a two-page outline of the IAP process, which reiterates the steps to be followed when using the process. Resp. Ex. 2. Notably, the goal of the process is not to get rid of a teacher, but rather to make him or her successful, especially at a time when the Lee County School District is facing a teacher shortage. Once a decision is made to initiate the IAP process for a teacher, an IAP team is picked by the superintendent or his designee. The team consists of a "team coordinator," the "immediate supervisor" of the employee being reviewed, another "site administrator or manager," a "job-related coordinator or supervisor," and "others, as may be appointed by the Superintendent." Sch. Bd. Ex. 26. The teacher's union representative also is invited to attend the meetings on behalf of the teacher. And, of course, the affected employee attends all meetings. The Manual (but not the statute) calls for "not more than eight meetings" of the IAP team, "typically scheduled biweekly," during a 90-day period. Id. An initial team meeting, also known as an "orientation meeting," is conducted at the school site to review the areas of concern, identify the areas needing improvement, and outline the IAP process. A binder is given to each participant, which contains the IAP Manual and outline. Written minutes of each meeting are prepared, typically by the principal's secretary. The process is intended to be confidential, with discussions of the observations to occur only in team meetings. However, other persons may be called to a meeting to "share information that might be relevant, or if the teacher in question wants to bring somebody in." During the IAP process, the teacher meets with team members individually and as a group and receives feedback, coaching, and suggestions. In addition, formal classroom observations are made by team members so that they can address any perceived deficiencies. The focus of the observations is in the areas noted as "needs improvement" or "unsatisfactory." In Respondent's case, the process was concerned not only with classroom skills, but also with the preparation of individualized education plans (IEPs) and how to properly conduct teacher/parent IEP meetings, all deficient areas. After the last meeting, the "[a]ssistance team meets with [the] Executive Director of Human Resources to determine [a] recommendation to [the] Superintendent." Sch. Bd. Ex. 26. The Manual provides that after receiving the recommendation, the superintendent shall take one of the following steps: Performance meets standards - plan follow-up review; Performance below standards - continued assistance; Reassignment to more appropriate position; Withhold recommendation for reappointment; Performance unacceptable file charges for dismissal; or Recommend employee's resignation be accepted. The establishment of an IAP team is not a regular occurrence, and, in this case, was the first and only time that the principals (and team members) at Cypress Lake and Royal Palm participated in such a process. Although Respondent denies that her performance warrants termination, and she presented extenuating circumstances to justify her lack of progress, the focus of her challenge is a contention that in numerous respects, the Royal Palm IAP team and school administrators (and to a lesser degree the Cypress Lake team) did not follow strictly to the letter the process described by the statute, Manual, and IAP outline. Cypress Lake Performance Issues Respondent began teaching at Cypress Lake during school year 2014-2015. Besides teaching language arts/reading, she also was a support facilitator and a self-contained ESE teacher for the sixth grade. Ms. Maniscalco was the principal. Following her first year, Respondent received an overall "Needs Improvement" on her annual performance evaluation. In her year- end conference with the principal, Respondent did not object or otherwise complain that the evaluation was incorrect. Ms. Maniscalco's evaluation noted a variety of areas where Respondent needed to improve or was unsatisfactory, including: Demonstrating Knowledge of Resources and Technology; Creating an Environment of Respect; Establishes a Culture for Learning; Stops Misconduct by Using Effective Appropriate Techniques; Using Questioning and Discussion Techniques; Engaging Students in Learning; Showing Professionalism; Maintaining Accurate Records; and Participating in a Professional Community. Sch. Bd. Ex. 17. Following her second year, school year 2015-2016, Respondent again received a "Needs Improvement" on her annual evaluation. Ms. Maniscalco cited numerous areas where Respondent needed to improve or was unsatisfactory, including: Designing Student Assessment; Setting Instructional Outcomes; Demonstrating Knowledge of Resources and Technology; Establishes and Manages Classroom Procedures; Stops Misconduct by Using Effective Appropriate Techniques; Communicating with Students; Using Questioning and Discussion Techniques; Engaging Students in Learning; Using Assessment in Instruction; Demonstrating Flexibility and Responsiveness; Showing Professionalism; and Maintaining Accurate Records. Sch. Bd. Ex. 17. Based on formal observations of Respondent that year, Ms. Maniscalco noted that Respondent failed to do "individualized assessments" or "modified assessments" for her ESE students. Also, after a year of working at Cypress Lake, Respondent still did not know how to utilize the interactive SMART board in her classroom or the District's Outlook email system, even though training in both programs was provided. She observed that none of the classroom guidance that Respondent received was being utilized, and none of the children in Respondent's classroom were "working." Rather, they were simply sitting there "playing when [Ms. Maniscalco] would come in." On days when Respondent was scheduled to have IEP meetings with students and parents, Respondent sometimes would call in sick, and her IEP plans either were not written or were completely wrong. Ms. Maniscalco then would have to call in a substitute ESE teacher who would be forced to write a new plan in front of the parents. During school year 2015-2016, Respondent had numerous meetings with the principal; the head of the ESE department worked with Respondent "on paperwork"; she was sent to "quality writing IEP" with another teacher; and Ms. Maniscalco conducted a number of formal observations and provided feedback after those observations. At the year-end conference with the principal, except for stating that she was under a great deal of pressure, Respondent did not provide a satisfactory response for her continued deficiencies. On May 18, 2016, Ms. Maniscalco wrote a letter to the superintendent recommending that Respondent be placed in an IAP program for the following school year. Sch. Bd. Ex. 27. The letter reads as follows: During her two years at Cypress Lake Middle School she has received additional support from administration, reading coach, select faculty members and the staffing specialist. Her struggles with correct completion of ESE documentation, instructional strategies, and classroom management have prevented her from being an effective teacher. She was cooperative and always attempted to implement what she learned. However, she was unable to sustain and implement this knowledge in ESE required documents, future lessons and her teaching lacked depth and vigor. Mrs. Miller's classes during the 2016/2017 school year was [sic] of great concern. As evident by the documentation on PeopleSoft and my personal notes, her classroom management and lack of vigor was [sic] of particular concern. Despite having classes of no more than 13 students, Mrs. Miller was unable to maintain classroom control throughout the entire school year even with the added support of an ESE paraprofessional. Students were up and out of their seats, off task, talking over her or simply ignoring her. Often she was [missing text from exhibit] interventions or she would make comments such as "Please do your work. Stop bothering the other students. I asked you to sit down[,]" without follow through when students did not change their behavior. Mrs. Miller has struggled with the proper completion of IEP paperwork, manifestation processes and parent contact for the documentation needed on ESE paperwork. This is of great concern due to the legal implications that could result. Throughout the school year, Mrs. Miller was always cooperative and understanding of our concerns regarding her ineffectiveness as a classroom teacher, continued errors on ESE students' paperwork, and ESE processes. She was receptive to our suggestions and assistance. However, in May of 2016, when I notified her I was going to refer her to the Intensive Assistance Program, she became upset and stated I had no idea what pressure was put on her. For the sake of our students and their learning, I respectfully request immediate intervention with Mrs. Miller. She needs additional help learning the pedagogical processes of effective teaching. Pleading with middle school age students is highly ineffective. Students need an orderly, safe environment, where skills and concepts are scaffold, differentiated, and rigorous. Proper completion of ESE paperwork is imperative as it relates to individual students['] IEPs. I would like to discuss my concerns further with you and answer any questions you may have pertaining to this request. On August 2, 2016, the superintendent informed Respondent by letter that he was accepting Ms. Maniscalco's recommendation that she be placed in a Plan of Assistance. He added that an IAP team would be formed immediately, and her union representative was invited to accompany her to the meetings. Sch. Bd. Ex. 1. The IAP Process Used by Cypress Lake A Cypress Lake IAP team was established consisting of the principal, the TALC representative, the district administrator, the assistant principal, and the chief human resources officer, Dr. Pruitt. An initial meeting was held on September 12, 2016. At that meeting, the team reviewed Respondent's areas of concern, identified areas requiring improvement, and reviewed the IAP outline. The deficient areas identified by the team included preparation of IEPs, classroom teaching methods, and student engagement. The team was "extremely specific" and "very, very detailed" in identifying the specific areas that would be addressed. The team agreed that each member would formally observe Respondent two times during the IAP process. No written minutes of the orientation meeting were prepared, as Ms. Maniscalco did not know at that time that written minutes were required. Respondent contends that without written minutes, there is no way to prove that she was told which performance areas would be reviewed during the IAP process, or even if the team members understood the areas of concern. On this issue, the undersigned has accepted the testimony of Ms. Maniscalco and Dr. Pruitt that these areas were discussed in detail at the orientation meeting. In fact, Ms. Maniscalco testified that she could "guarantee 100 percent that we talked about IEPs and classroom management, and I would swear to that." Additional team meetings were conducted on September 26, October 17, October 31, November 14, and December 12, 2016, and March 30, 2017. Respondent and her representative attended all meetings. At no time during the process did Respondent or her representative object to the process, file a grievance with respect to a misapplication of the process, or complain that she was not getting enough support. The team provided Respondent with the opportunity to observe other teachers, shared best practices, recommended behavioral management techniques, gave advice on student engagement strategies, and offered advice on managing and completing IEPs. At each meeting, the team reviewed Respondent's strengths, opportunities for growth, and suggestions for improvement. The results of each member's observations also were discussed. Although Respondent testified that during the process she encountered a number of problems which prevented her from adequately resolving her performance issues, she never raised that subject with any team member. In fact, only once during the entire IAP process did Respondent ask for assistance (through a colleague, and not the principal), and after doing so, she was assigned a paraprofessional. After the final team meeting on March 30, 2017, on April 17, 2017, Dr. Pruitt informed Respondent by certified mail that the IAP team "had determined that her performance was not at an acceptable level." Sch. Bd. Ex. 8. The letter noted that the areas requiring improvement were planning; human development and learning; learning environments; critical thinking; student achievement and continuous improvement; and state, school, and district requirements. Dr. Pruitt believed that a new location and a new administration could raise Respondent's level of proficiency. Therefore, she recommended that Respondent "be placed at another work location for the 2017/2018 school year and continue to receive assistance." Id. This course of action is authorized by the IAP Manual, which allows "continued assistance" for an employee when deficiencies are not remediated during the IAP process. Otherwise, given her lack of progress, Respondent's termination would be the only logical outcome. The letter added that the second IAP process would begin approximately three weeks after the beginning of the new school year. The recommendation was accepted by the superintendent. Royal Palm On July 13, 2017, Respondent was notified by certified mail that she was being reassigned to Royal Palm, a much smaller school than Cypress Lake. Sch. Bd. Ex. 9. Unlike Cypress Lake, which had a mix of mainstream students and ESE students, Royal Palm's enrollment was 100 percent exceptional students, none of whom could function in a "gen ed setting." However, Dr. Pruitt believed that Respondent would be a good match for the school because it had no more than eight students in a classroom, and she had an ESE background. Dr. Pruitt testified that it was the "easiest teaching assignment [she] could find to help [Respondent] be successful." Respondent was told that a new period of performance probation would commence after the beginning of the school year 2017-2018. When Respondent reported to duty in August 2017, the principal, Mr. Moretti, welcomed her and told her, "You'll have a ton of support here," which turned out to be true. He especially was glad to have her on the faculty because he had no reading teachers with ESE certification. i. The Royal Palm IAP Process On October 2, 2017, Dr. Pruitt assembled a new Royal Palm IAP team comprised of the facilitator, Ms. Freeman; principal, Mr. Moretti; assistant principal, Ms. Wilson; and district administrator, Ms. Taylor. None had ever been involved in the IAP process. Mr. Moretti acknowledged that he did not familiarize himself with the IAP process and instead relied on Dr. Pruitt (a non-member) and Ms. Freeman, the facilitator, to provide advice on how the process would work. Respondent and her union representative, Dr. Fazzone, also attended the meetings, which were overseen by Ms. Freeman. An initial team meeting was conducted the same day. Dr. Pruitt, who attended the first meeting only, told the team that the focus areas for improvement consisted of completing IEPs, progress reports, and interims; classroom management issues; and active engagement of students. Sch. Bd. Ex. 28. The areas of concern were the same as those identified in her April 19, 2017, letter and tracked the performance areas that were addressed unsuccessfully at Cypress Lake. During the meeting, the team was introduced to the IAP process and given a binder with the IAP outline. Dates for formal observations were also set, including one the following day by Ms. Taylor, the district administrator. Notably, Ms. Taylor pointed out that the team knew that this was Respondent's second time in the process, and they "wanted to provide all the resources that we could for her, ensuring that she had the tools that she needed to, also looking at how she was utilizing the information, based on the daily teaching in her classroom, and how that was going to be best used outside of administrative assistance, through the IAP process." After the orientation meeting, Mr. Moretti decided to include Ms. Allbritten, the instructional coach for the school district, in the IAP process. He chose her because she would be performing formal observations on Respondent in lesson development, and she could give Respondent first-hand feedback. Respondent contends the inclusion of Ms. Allbritten at team meetings "contaminat[ed] the clearly defined process" and violated the "confidential nature of the process." This contention is rejected. Additional IAP team meetings were conducted on October 30, November 20, and December 5, 2017, and January 22, February 5, February 26, and April 9, 2018. During the first few months of the process, the team noticed "a great deal of improvement" on the part of Respondent. Mr. Moretti was "very pleased" with her progress. By that time, the team had helped her prepare lesson plans, restructured the physical classroom, reviewed IEPs, allowed her to visit other classrooms, and assisted her in revising her teaching strategies for different students. When asked at the December 5, 2017, meeting if her caseload was manageable, Respondent answered "yes." Despite the early improvement, a formal observation by Ms. Taylor on January 22, 2018, showed otherwise. Only one student was in the classroom on time and two more came in late. Their behavior was "terrible," and one student was not engaged the entire period. During the process, Ms. Taylor attempted to provide Respondent with additional training on the Language Live Academic Plan (Language Live), a reader intervention program for struggling students. The program was utilized as the primary teaching tool in Respondent's classroom. Although the program was used at other schools in the district, this was the first year that it was used at Royal Palm. In an effort to improve Respondent's use of the tool, Ms. Taylor arranged for her to visit Gulf Middle School to observe the program being utilized by another teacher. Ms. Taylor reported that Respondent was not engaged and appeared to be disinterested in learning how to utilize the program. Also, even though Language Live was Respondent's primary teaching tool, the team learned that Respondent was not even logging into the program and had gone a significant time period without utilizing and/or accessing it as an instructional tool. Sch. Bd. Ex. 14. At the team meeting on February 5, 2018, it was noted that Respondent's students were well below the district expectations of three activities and 100 minutes per week online; the most time spent online by any student was 78 minutes by one and the student was a self-motivated gifted student; there were numerous students who had not logged into the program; and Respondent did not log into the program for the week of January 29 through February 2, 2018. Sch. Bd. Ex. 14. According to Ms. Allbritten, who provided Respondent with extensive assistance and training, Respondent's failure to utilize the Language Live program had a detrimental effect on the students at Royal Palm who were transitioning back into general education classes. She added that Respondent was not always receptive to her assistance and training. The reading coach, Ms. Meltzer, was asked to attend the February 5, 2018, meeting so she could present the results of the Language Live data for the team to examine. The data showed "very little to no progress for the majority of the kids" in Respondent's classes. The undersigned has rejected Respondent's contention that the inclusion of Ms. Meltzer for the meeting tainted the process. For a teacher to actively engage the students, lesson plans are required. This is a basic requirement for a teacher. At the February 5, 2018, meeting, the team learned that no lesson plans had been turned in by Respondent since November 13, 2017. In fact, she had prepared only four out of 16 to 18 that were due. In response, Respondent contended that all were prepared, but she needed to "adjust" them. However, later on, she turned in one lesson plan, with multiple dates on that plan, which was intended to satisfy the requirement for the next six or seven weeks. During the February 26, 2018, meeting, the team noted that the following interventions on behalf of Respondent had been performed: (a) she visited Gulf Middle School to observe a reading class using the Language Live program; (b) steps were taken to ensure Respondent's classroom had all necessary materials; (c) Respondent's lesson plans and template were designed; (d) she was provided with the Language Live Academic Plan and all necessary material; (e) she was given assistance in preparing IEPs and attending IEP meetings; (f) a team member sat with her during the first IEP meeting so she would be familiar with the process; (g) a Language Live training session was established every other week for Royal Palm reading teachers; and (h) data was examined to ascertain student success and areas of improvement. Sch. Bd. Ex. 14. At the meeting on February 26, 2018, Respondent was directed to have all lesson plans for the last half of November, December, January, February, and March prepared and submitted before the next meeting. Also, it was noted that Respondent's IEPs were not always prepared for parent meetings, and this placed the school's receipt of federal funds in jeopardy. During the meeting, Dr. Fazzone, Respondent's union representative, questioned why the reading coach was in the room. He was told that Ms. Meltzer is Respondent's immediate supervisor and an instructional coach in reading, and she could provide feedback regarding how effective Respondent was in using the Language Live program to teach reading. This was one of the very few criticisms made by Respondent during the entire process. Dr. Fazzone testified that he did not know he could grieve a part of the process, or otherwise object, but never inquired if he had such a right. A final team meeting was conducted on April 9, 2018. Principal Moretti was unable to physically attend due to medical issues, but he spoke with Ms. Freeman regarding the team's concerns. Also, he discussed Respondent's progress in numerous conversations with team members throughout the school year. The team reviewed the minutes of the prior meeting and the performance deficiencies that were to be corrected. Although Respondent had made progress in some areas during the early part of the process, the members noted that her lesson plans were still incomplete, a "behavior" plan was inadequate, and based on a number of formal observations, there was a "lack of instruction" in her classroom. Respondent was told that the intervention program would be ended. Mr. Moretti testified that even though it would "make [his] life a whole lot easier" if he could keep a certified ESE reading teacher, it was in the school's best interest to find another teacher. At the end of the meeting, when asked if she had been given support during the preceding months, Respondent answered, "Absolutely," and said the school had a "wonderful support system." The team consensus was that Respondent had not corrected her deficiencies. However, the final recommendation was made by Dr. Pruitt. On May 1, 2018, Dr. Pruitt informed Respondent by certified mail that the team had recommended that her contract not be renewed at the close of the school year. Resp. Ex. 4. On May 7, 2018, Dr. Pruitt sent a second letter, correcting the first letter, in which she advised Respondent that her performance was not at an acceptable standard and that she (Dr. Pruitt) would be recommending that the superintendent terminate her employment. Sch. Bd. Ex. 12. Respondent contends that the IAP Manual was violated because Dr. Pruitt made her recommendation without input from the team. But the team discussed the results of the process amongst themselves and with Mr. Moretti, who then conveyed his thoughts to Dr. Pruitt. Dr. Pruitt's recommendation was accepted by the superintendent. On May 29, 2018, a Petition for Termination informed Respondent that the matter of her termination would be taken up by the School Board on June 26, 2018. As grounds for termination, the Petition for Termination alleged that Respondent was incompetent within the meaning of section 1012.33, as further defined by Florida Administrative Code Rule 6A-5.056(3), and she failed to adequately perform her educational duties. Respondent has been suspended without pay since that date. Other Procedural Objections Raised by Respondent Beside the procedural issues addressed in the prior findings, Respondent contends that the School Board's failure to strictly follow the statute and IAP process resulted in "multiple errors" that render the process void. Notably, during the process itself, neither Respondent nor her union representative filed a grievance or otherwise contended that the teams had violated, misapplied, or misinterpreted any provision. And they have not complained that either school failed to provide adequate assistance to Respondent to correct the deficiencies. Respondent points out that even though the Manual (but not the statute) provides that team meetings be held "biweekly," and the process be completed within 90 days, the Cypress Lake process began in September 2016 and ended in March 2017, while the Royal Palm process stretched out from October 2017 until April 2018. Also, meetings were staggered and not conducted on a biweekly basis. Ms. Pruitt responded that the requirement for biweekly meetings and a 90-day probation period is only a guide, and the primary goal of the process is to assist the employee, rather than meet hard and fast deadlines. She testified that many factors cause these requirements to be adjusted. For example, Respondent had "attendance issues" and was not available at all times, a disciplinary issue required that she be reassigned to a different department for several weeks, there are intervening school holidays and statewide testing, team members may be absent or tied up with other school duties, and there are days when formal observations cannot be conducted. The overall goal is to help the teacher, rather than forcing a meeting every two weeks and ending the process based on an arbitrary deadline, regardless of other circumstances. For the same reasons, a final evaluation cannot always be made within 14 days after the final meeting. In the same vein, Respondent contends that the lengthy process, especially by the spring of 2018, wore her down to the point she gave up. But here the whole purpose of allowing the process to continue as it did was to give Respondent more assistance and time to show progress. Respondent contends that no evidence was presented regarding the performance of the students during the IAP process, as required by section 1012.34(3). At the meeting on February 5, 2018, however, Language Live data reviewed by the team showed that Respondent's students were well below the district expectations of three activities and 100 minutes per week online. Formal observations reflected also that "numerous" students did not log into Language Live, which tracks data to measure a student's progress. Ms. Allbritten testified that Respondent's failure to use the program had a "detrimental effect" on her students who were transitioning back into general education classes. Finally, at the last Royal Palm meeting, it was noted that the students simply were not receiving "instruction." Respondent contends she was never fully informed at the outset regarding which performance areas would be reviewed, and they changed throughout the Royal Palm IAP process leaving her to chase a moving target. The only mention of this concern was at the February 26, 2018, meeting, when her union representative, Dr. Fazzone, asked what the goals of the team were, the initial reason for the IAP, and the plan of action that was given to the team at the beginning of the process. In response to those questions, Ms. Freeman reviewed again the process and the expectations with the team and reaffirmed that these were exactly what the team was doing. At no other time during the year did Respondent or her representative raise the issue. The accepted testimony of School Board witnesses confirms that Respondent was apprised of performance issues at every step in the process. Admittedly, there were minor deviations from the Manual. However, the two teams substantially conformed to the process. To the extent there were deviations, they did not affect the overriding goal of making Respondent a better teacher and correcting the performance deficiencies noted by the evaluators. While Respondent suggests otherwise, the overwhelming evidence shows that both schools devoted extensive manpower and resources in an effort to make her successful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 22nd day of March, 2019. COPIES FURNISHED: Brian Anthony Williams, Esquire The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Gregory Adkins, Superintendent Lee County School Board 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
