Findings Of Fact At all times pertinent to this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire District Commission. He was elected to his office in the Deltona Fire District in November, 1992. At all times pertinent to this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire District. She served as dispatcher for approximately eight years, leaving in January, 1995. On April 30, 1993, Ms. Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics, alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and on March 20, 1993. Ms. Cresswell also alleges that in March, 1993, after she had spilled water on her blouse while drinking from the water fountain that Mr. Hoffman said that he liked watching her brush the water off her blouse. JANUARY 20, 1993 INCIDENT In December, 1992, Ms. Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy canes and build the workshop for the event. He failed to keep his promise. As a result, Ms. Cresswell had to purchase the candy. On January 20, 1993, Ms. Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some papers relating to her schoolwork. She was not on duty. Mr. Hoffman was at the fire station when she arrived. Ms. Cresswell was upset with Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception area while he was talking to Robert Bell and told Hoffman that she was "pissed off at him." Mr. Hoffman acknowledged that he knew that she was upset and that he was sorry that he did not do what he had promised. Ms. Cresswell alleges that during the conversation Mr. Hoffman came to her, put his hand on her shoulder, leaned against her, kissed her on her cheek and whispered in her ear, "I'm sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or kissed Ms. Cresswell on January 20, 1993. Robert Bell, the dispatcher who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms. Cresswell on the evening of January 20, 1993. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not make a complaint to anyone about the January 20 incident until March, 1993. Fire Chief Holland had been keeping notes about Mr. Hoffman's activities and he sent those notes to the attorney for the fire district. In those notes, he details a conversation that he had with Ms. Cresswell concerning the January 20, 1993 incident. There is no mention that Mr. Hoffman kissed Ms. Cresswell. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993. THE WATER FOUNTAIN INCIDENT On March 20, 1993, Mr. Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the 8:00 a.m. to 4 p.m. shift on that day. Ms. Cresswell alleges that she was drinking at the water fountain located in the hall of the fire station down from the room in which the CPR class was being conducted. She spilled water on her blouse and was brushing the water from her blouse when Mr. Hoffman came up to her and said, "Can I watch you do that? I like to watch you do that." Mr. Hoffman contends that the incident never occurred. There were no witnesses to the alleged incident. Timothy Brown was teaching the CPR class. He remembered Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several times during the day while he used a nearby copy machine and when he drank from the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the water fountain. When Ms. Cresswell complained to Assistant Chief Rogers on March 22, 1993 about the alleged incident of kissing which occurred either on the evening of March 20 or early morning of March 21, she did not mention the water fountain incident which allegedly occurred on March 20, 1993. When Ms. Cresswell's deposition was taken on April 12, 1993, three weeks after the alleged incident, Ms. Cresswell could not recall when the water fountain incident took place. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that the water fountain incident did not occur and that Mr. Hoffman did not say, "Can I watch you do that? I like to watch you do that." THE MARCH 20-21, 1993 INCIDENT On the evening of March 20, 1993, Ms. Cresswell traded shifts with another dispatcher and reported to work at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when she arrived. Mr. Hoffman was also at the fire station. Ms. Cresswell put away her purse and made coffee. As part of her duties on the midnight shift, she was responsible for erasing and rewinding the 911 dictaphone tapes. She went to the communications center, which is located adjacent to the reception area, and began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr. Bell, and Mr. Hoffman began talking about a storm that evening which caused a fire, destroying a local funeral home. During the discussion about the fire, they started to talk about cremation. Ms. Cresswell stated that she did not want to be cremated. Ms. Cresswell alleges that after she made the remark about cremation that Mr. Hoffman came over to her, put his hand on her shoulder, laughed, kissed her on the cheek, and said, "I hear you." At the formal hearing she could not recall whether Mr. Hoffman allegedly kissed her before or after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms. Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman stayed for approximately one and one half hours. Mr. Hoffman contends that he never touched or kissed Ms. Cresswell as she alleged and that he left the fire station the same time as Mr. Bell. During the conversation concerning the funeral home, Mr. Bell was in and out of the communications center. Mr. Bell did not see Mr. Hoffman kiss Ms. Cresswell as she alleged. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not confront Mr. Hoffman concerning the alleged kiss. Donald Allen Helberg, a firefighter/EMT was present in the dispatch side of the fire station during the late evening and early morning hours of March 20 and 21, 1993, respectively. He saw Ms. Cresswell pull into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg and asked him if he remembered being present at the fire station on the night of the alleged incident. Mr. Bell left the fire station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the door. Mr. Hoffman was driving a red Jimmy vehicle that night. As Mr. Bell was driving out of the fire station parking lot, he observed a reddish vehicle behind him. The reddish vehicle left the parking lot after Mr. Bell, headed in the opposite direction. Mr. Hoffman lived approximately a mile and a half from the fire station. He arrived home at approximately fifteen minutes after midnight. His wife was up waiting for him when he got home. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of March 20, 1993 or the morning of March 21, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Complaint No. 93-56 against Robert Hoffman. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5835EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-2: Accepted. Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 5: Accepted in substance. Paragraphs 6-7: Rejected as not supported by the evidence. Paragraph 8: Accepted in substance except as to the occurrence of the water fountain incident. Paragraph 9: Accepted in substance. Paragraph 10: The last sentence is rejected as not supported by credible evidence. The remainder is accepted in substance. Paragraph 11: Accepted that it is what Ms. Cresswell alleges but rejected as to that is what happened based on the credible evidence. Paragraph 12: The first part of the first sentence is accepted in substance. The last part of the first sentence is rejected as not supported by the evidence. Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the entire time but that does not mean that he wasn't paying attention to them during the time that he did see them. The remainder is rejected as unnecessary. Paragraph 13: Rejected as not supported by credible evidence. Paragraphs 14-15: Rejected as subordinate to the facts found. Paragraph 16: Rejected as subordinate to the facts found as to what Ms. Cresswell believed. Rejected as not supported by the evidence as to what Mr. Hoffman believed. Paragraph 17: The first two sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraphs 3-5: Rejected as unnecessary. Paragraphs 6-7: Accepted in substance. Paragraph 8: Accepted in substance as that is what Ms. Cresswell contended. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as unnecessary. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 15-17: Accepted in substance. Paragraphs 18-19: Accepted that it was what Ms. Cresswell contended but rejected as not supported by credible evidence that it was what happened. Paragraph 20: Accepted in substance. Paragraph 21: Accepted to the extent that it is Ms. Cresswell's testimony. Paragraphs 22-25: Rejected as subordinate to the facts found. Paragraph 26: Accepted in substance. Paragraph 27: Rejected as unnecessary. Paragraphs 28-30: Accepted in substance. Paragraphs 31-33: Rejected as subordinate to the facts found. Paragraphs 34-37: Accepted in substance. Paragraph 38: The first sentence is rejected as unnecessary. The last sentence is accepted in substance. Paragraph 39: The first sentence is accepted in substance as that was what was alleged. The second sentence is accepted in substance. Paragraphs 40-43: Accepted in substance as that is what was alleged. Paragraph 44: Accepted in substance. Paragraph 45: Accepted in substance as that is what was alleged. Paragraphs 46-47: Accepted in substance. Paragraphs 48-49: Rejected as subordinate to the facts found. Paragraphs 50-51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraphs 53-56: Accepted in substance. Paragraph 57: Rejected as unnecessary. Paragraph 58-60: Accepted in substance. Paragraph 61: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 62: Rejected as unnecessary. Paragraph 63: Accepted in substance. Paragraph 64: Accepted in substance as that was what was alleged. Paragraph 65: Rejected as constituting argument. Paragraphs 66-67: Accepted in substance. Paragraph 68: Accepted in substance. Paragraphs 69-7O: Accepted in substance that the dictaphone equipment is located in the communications center. The remainder is rejected as unnecessary. Paragraph 71: Accepted in substance that she made those allegations. Paragraphs 72-74: Accepted in substance. Paragraphs 75-76: Rejected as not supported by credible evidence as that was what happened. Paragraph 77: Accepted in substance to the extent that Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell the entire time of the conversation. Paragraphs 78-79: Rejected as unnecessary. Paragraphs 80-81: Accepted in substance. Paragraph 82: Accepted to the extent that she did not tell Mr. Bell of the kissing incident; otherwise rejected as not supported by the greater weight of the evidence or unnecessary. Paragraphs 83-84: Rejected as unnecessary. Paragraph 85: The first sentence is accepted to the extent that it is Ms. Cresswell's testimony. The last sentence is rejected as subordinate to the facts found. Paragraph 86: Accepted in substance that it was her testimony. Paragraph 87: Rejected as unnecessary. Paragraph 88: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 89: Accepted in substance. Paragraphs 90-99: Rejected as unnecessary. Paragraph 100: Accepted to the extent that he saw Bell heading toward the outside door, followed by Hoffman as Helberg was leaving to go to the firefighter side of the building. Paragraphs 101-104: Accepted in substance. Paragraph 105: Rejected as subordinate to the facts found. Paragraphs 106-107: Accepted in substance. Paragraph 108: Rejected as unnecessary. Paragraphs 109-111: Accepted in substance. Paragraphs 112-116: Rejected as unnecessary. Paragraph 117: Rejected as constituting argument. Paragraphs 118-125: Accepted in substance. Paragraphs 126-127: Rejected as unnecessary. Paragraphs 128-130: Rejected as constituting argument. Paragraphs 131-133: Rejected as unnecessary. Paragraph 134: Rejected as constituting argument. Paragraphs 135-137: Rejected as unnecessary. Paragraphs 138-155: Rejected as constituting argument. Paragraphs 156-262: Rejected as unnecessary. Paragraph 263: Rejected to the extent that it implies that there was a conspiracy. The evidence does not support a conclusion of conspiracy among Mr. Holland, Mr. Rogers, and Ms. Cresswell. Paragraphs 264-288: Rejected as unnecessary. Paragraphs 289-290: Rejected as not supported by the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Stephen D. Milbrath, Esquire Alan, Dyer, Doppelt, Franjola & Milbrath Post Office Box 3791 Orlando, Florida 32802-3791 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues in this proceeding concern whether the Petitioners named above should be placed on the Convicted Vendors List described in Section 287.133(3)(d), Florida Statutes.
Findings Of Fact Petitioner, Anthony Liuzzo, is owner of the above-named Petitioner hotel. On March 10, 1992, he was convicted of a public entity crime as defined in Section 287.133(1)(g), Florida Statutes. That adjudication was rendered in Chautauqua County, New York. The University Centre Hotel, Inc., is a Florida corporation. It owns and operates the University Centre Hotel, which is located at 1535 Southwest Archer Road, in Gainesville, Florida. The hotel is located in close proximity to the University of Florida, directly across from Shands Hospital. The hotel has one hundred eighty (180) rooms with accompanying restaurant facilities, meeting rooms, banquet halls, a car rental agency and other hotel-related services. The hotel regularly provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital and the University of Florida. Mr. Anthony Liuzzo is owner of the hotel and it is an affiliated entity within the meaning of Section 287.133(1)(a)2, Florida Statutes. Although Mr. Liuzzo is the sole owner of the hotel, the hotel employs a general manager to handle day to day management. The hotel has, at various times, conducted business with public entities in the State of Florida. On August 31, 1989, Mr. Liuzzo was indicted by the State of New York in an eleven (11) count indictment against him, five (5) other persons and two (2) corporations. He was indicted on three (3) counts of grand larceny in the second degree, one count of grand larceny in the third degree, five counts of offering a false instrument for filing in the first degree, and one count of conspiracy in the fourth degree (Counts I through IX and XI of the indictment). The court subsequently dismissed two (2) of the five (5) counts, involving offering a false instrument for filing (Counts V and VI). All of the counts of the indictments were the result of allegedly inappropriate documentation of the operating costs for the Greenhurst Health Care Center, which was owned by Mr. Liuzzo and is located in Jamestown, Chautauqua County, New York. The copy of the indictment is attached to the Joint Stipulation and incorporated therein and in these Findings of Fact as Exhibit "C." In March 1992 Mr. Liuzzo withdrew his previously entered plea of not guilty and entered an "Alford plea of guilty" to the remaining counts of the indictment (Counts 1 through IV, XII through IX, and XI), pursuant to the case of North Carolina v. Alford, 400 U.S. 25(1969), which permits the defendant to maintain his innocence and otherwise enter a valid plea of guilty. The presiding Judge in that criminal proceeding accepted the Alford plea of guilty with a commitment that Mr. Liuzzo would receive a non-custodial sentence of probation. A transcript of the hearing where the plea was entered, a Certificate of Conviction, and the Order and Condition of Probation are attached to the Joint Stipulation and adopted therein and herein, by reference, as Exhibit "D." Anthony Liuzzo and the hotel notified the Department of Management Services of the convictions and provided the details, as shown in Exhibit "E," incorporated by reference in the Joint Stipulation and in this Final Order. Mr. Liuzzo also provided Exhibit "M," incorporated in the stipulation, notifying the Department of Management Services of the nature of the public entity crime. He provided a copy of the indictment as well as other documentation. Furthermore, Mr. Liuzzo's attorneys made themselves available for any further inquiry prior to a Notice of Intent being issued. On December 2, 1997, the Department of Management Services issued its Notice of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, to Mr. Liuzzo and hotel, notifying them of its intent to place them on the Convicted Vendors List. On December 18, 1997, pursuant to Subsection 287.133(3)(e)2, Florida Statutes, Mr. Liuzzo and the hotel timely filed a Petition for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest that Mr. Liuzzo and the hotel be placed on the State of Florida Convicted Vendors List. Subsection 287.133(3)(e)3, Florida Statutes, establishes certain factors which, if applicable to a convicted vendor, will mitigate against the placement of that vendor on the Convicted Vendors List. Subsection 287.133(3)(e)3.b, Florida Statutes, establishes "the nature and details of the public entity crime," as a mitigating factor. The indictment and conviction were for alleged submission by Mr. Liuzzo of false documentation concerning the operating costs of his New York nursing home, for a period from September of 1983 through August 1989. The convictions did not involve the hotel. The convictions were for alleged acts that occurred during a reporting period over ten (10) years ago. Subsection 287.133(3)(e)3.c, Florida Statutes, established "the degree of culpability of the person or affiliate proposed to be placed on the Convicted Vendors List" as a mitigation factor. As detailed above, the hotel was not involved in any of the alleged acts at issue in this matter. Mr. Liuzzo's degree of culpability was that of an absentee owner, who lived in Florida and allowed others to manage and run the day-to-day operations of his New York nursing home. Subsection 287.133(3)(e)3.d, Florida Statutes, established "prompt or voluntary payment of any damages or penalties as a result of the conviction" as a factor mitigating against placement on the Convicted Vendors List. As part of the disposition of those charges, Mr. Liuzzo agreed to make a monetary restitution in the amount of five hundred thousand dollars ($500,000), half of which is to be paid over the five (5) year term of his probation. He made his first restitution payment in the amount of two hundred fifty thousand dollars ($250,000), on April 28, 1992, and, though the balance was due in annual payments of fifty thousand dollars ($50,000) through 1997, he paid the full amount of the balance, two hundred fifty thousand dollars ($250,000), on April 21, 1993, four (4) years ahead of schedule. Mr. Liuzzo and the State of New York, in December of 1992, entered a Settlement Agreement regarding any and all disputed matters involving his New York nursing home. See Exhibit "H" attached and incorporated in the Joint Stipulation, which evidences full payment of the five hundred thousand dollar ($500,000) Order of Restitution. Subsection 287.133(3)(e)3.e, Florida Statutes, establishes "cooperation with state or federal investigation or prosecution of any public entity crime . . . "; as a factor mitigating against placement on the Convicted Vendors List. Anthony Liuzzo and the hotel fully cooperated with the Department of Management Services in its investigation initiated pursuant to Section 287.133, Florida Statutes. Section 287.133(3)(e)3.f, Florida Statutes, establishes "[d]isassociation from any person or affiliates convicted of the public entity crime" as a mitigating factor. Mr. Liuzzo has disassociated himself and ceased all business relationships with the individuals and entities that were indicted with him, with the exception of his father, Joseph Liuzzo and his nephew, Frederick J. Landy, both of whom were dismissed from the indictment. Subsection 287.133(3)(e)3.h, Florida Statutes, established "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. On May 14, 1992, the State of New York discharged Mr. Liuzzo from probation and with the approval and support of the assistant attorney general with the office of Medicaid Fraud Control, the court ordered the issuance to Mr. Liuzzo of a Certificate of Relief from disabilities. This acts to restore the loss of any civil rights occasioned by the conviction at issue. On July 23, 1993, the Governor of the State of Florida, in concurrence with Cabinet of the State of Florida, filed its executive Order which granted to Mr. Liuzzo the restoration of civil rights in the State of Florida. The State of Florida Department of Business and Regulation, Division of Alcoholic Beverages and Tobacco, had preliminarily revoked the hotel's alcoholic beverage license because of the convictions. Subsequently, that revocation was set aside because of the restoration of Mr. Liuzzo's civil rights and because his adjudication had nothing to do with the hotel and its operations. Subsection 287.133(3)(e)3.j, Florida Statutes, establishes "the needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. The hotel provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital, the University of Florida, and other related public entities. A listing of such public entities is attached to the Joint Stipulation and incorporated therein as Exhibit "A." The hotel's facilities and proximity to University of Florida facilities provide unique services to that public entity. Any restriction of the University of Florida's abilities to procure such services from the hotel would negatively impact the market in the Gainesville area by limiting the competition for the provision of such services, thereby increasing the cost to the University of Florida and other public entities for obtaining their services. Further, due to the fact that there are few facilities in the area equipped to provide the type, size and quality of services provided by the hotel, elimination of the hotel as a source to obtain such services results in a corresponding reduction in the quality of services that can be provided to the University of Florida and other state institutions. Subsection 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Mr. Anthony Liuzzo, graduated from Riverside Military Academy, located in Fort Lauderdale, Florida, in 1952 and received his BSBA Degree from the University of Florida in 1956. Mr. Liuzzo excelled for four (4) years as a member of the University of Florida Track Team, which included two (2) years as Southeastern Conference Champions. After graduation, Mr. Liuzzo founded a construction and real estate development company. He eventually expanded his real estate holdings to include nursing homes, shopping malls, condominium apartments, a hotel and banking institutions. Among his Florida projects, are the Gainesville Vizcaya Apartments, located on Southwest 34th Avenue and the University Nursing Care Center. Mr. Liuzzo has been very active in the community. He was appointed by Governor Bob Graham as the member of the Gainesville Regional Airport Authority. He is active on several boards including the March of Dimes, Florida's Future, Inc., and the Hippodrome State Theater. Additionally he has served as a Florida State Chairman for Special Olympics, and has worked with the Stop Children's Cancer and the Children's Miracle Network Telethon. Mr. Liuzzo is a member of the President's Council at the University of Florida, a large contributor to the University of Florida Foundation and Athletic Association. He is also a member of the Florida Blue Key and a "Bull Gator." Most recently, Mr. Liuzzo assisted the Hervy and Sandra Daniel family, and provided them free room and board for several weeks, while their young daughter, Ashley Daniel, became the youngest double lung transplant patient treated by the Shands Hospital at the University of Florida. In addition, employees of the University Centre Hotel raised approximately one thousand dollars ($1,000) which Mr. Liuzzo matched dollar-for-dollar, giving the family a check in the amount of two thousand dollars ($2,000). A copy of a newspaper article, as well as a letter from the Daniel family, is attached to the stipulation as Exhibit "N." Mr. Liuzzo recently came to the assistance of the Miss Florida Pageant, which was in danger of being cancelled. The University Centre Hotel agreed to become a major sponsor of the event, ensuring that its most recent televised event would go on. A copy of a letter from the Miss Florida Scholarship Organization as well as a newspaper article are attached to the stipulation as Exhibit "O." A partial list of awards and recognitions is set forth below: 1984- Special Thanks from Governor Bob Graham for assistance in fund-raiser for Florida's Future, Inc. 1985- Appointed to Gainesville-Alachua County Regional Airport Authority by Governor Bob Graham. 1985- Awards of Appreciation for services from Gainesville-Alachua. 1988- County Regional Airport. 1986- Key to the City of Gainesville presented by Mayor David Flagg. 1985- Award of Appreciation for continuing dedication to and support of the University of Florida Track Department. 1987- Award of Appreciation for support of Stop Children's Cancer, Inc. 1988- Award of Appreciation for support provided to children served by Shands Hospital at the University of Florida Miracle Network Telethon. 1989- Distinguished Sponsor Award presented by the Gainesville Writer's Workshop in appreciation for his support of the Writer's Art. 1989- Award of Appreciation for Outstanding Contributions for serving as Grand Host for the Stop Children's Cancer, Inc., Mercedes Benefit. 1989- Award of Thanks for providing assistance in fund raising in fund raiser for Sid Martin's Ridge House. 1991- Award of Appreciation from Florida Special Olympics Game Committee. 1991- Bull Gator Award in recognition of highest levels of contribution and dedication to the University of Florida and Gator Athletics. 1991- Outstanding Jailee, American Cancer Society Jail and Bail program. 1991- Board Member, Alachua County Tourists Development Council; instrumental in laying the foundation of the Alachua County bed tax that allowed for the construction of the $10,000,000 Performing Arts Center. p. by 1992-93- Hospice). Junior Women's Club of Gainesville (sponsored q. 1992-93- American Cancer Society. r. 1992-93- Red Cross City of Gainesville. s. 1992-93- "Putting on the Ritz" Benefit for Children's Society. 1993- Major Contributor to the State of Florida Museum of Natural History, Gainesville, Florida. 1992-94- Major contributor to Children's Miracle Network (Multiple Sclerosis). 1992-94- Chris Collingsworth Golf Tournament-Mental Health. 1991-94- Alachua County Board of County Commissioners Tourist Development Council - Distinguished Service Award presented for year of dedication to the County. The parties stipulated that the Joint Stipulation provides a full and complete factual basis for determining whether Anthony Liuzzo and University Centre Hotel, Inc., should be placed on the Convicted Vendors List. In light of the facts and the criteria set forth in Subsection 287.133(3)(e)3.a. through k., Florida Statutes, there has been established to be no disputed issue of material fact between the Department of Management Services and Mr. Liuzzo and University Centre Hotel, Inc. The parties also entered into a Joint Stipulation and agreed-upon Settlement, filed with the Division of Administrative Hearings on December 22, 1997, incorporating the Joint Stipulation of Fact and attachments referenced above as Exhibit "A," and containing the Stipulation that there is no material issue of fact requiring a formal hearing, thus waiving formal hearing. The Joint Stipulation of Fact, according to the parties' Stipulation and agreed-upon Settlement, established that the Petitioners have satisfied mitigating elements contained in Section 287.133(3), Florida Statutes. They stipulate that the Joint Stipulation of Facts includes elements that raise a rebuttable presumption in favor of the Petitioners that it would not be in the public interest to place the Petitioners on the Florida Convicted Vendors List and that there are no stipulated facts that would overcome that rebuttable presumption. Therefore, the parties agreed to disposition of this matter by issuance of a Final Order adopting the Settlement Agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2.f and 120.57(3), Florida Statutes, with a finding that it is not in the public interest to place the Petitioners on the Florida Convicted Vendors List.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The respondent George Raymond Rhoad holds Florida Teacher's Certificate Number 191715 in the areas of bookkeeping, mathematics and administration and supervision. At all times relevant to this proceeding, respondent was employed as a mathematics teacher at Meadowlawn Middle School in Pinellas County and taught summer school at Northeast High School. The average number of teacher absent days per year in Pinellas County is seven (7) days. During the 1984-85 school year, respondent was absent twenty-four (24) days. These absences necessitated the use of numerous substitute teachers and were disruptive and detrimental to the classroom learning process. The school administration received many requests from parents that their children be transferred from respondent's classes. The respondent's supervisors repeatedly expressed their concerns regarding respondent's numerous absences and offered to assist him in any way possible. During the summer of 1985, respondent taught summer school at Northeast High School. The Principal and Assistant Principal received a number of complaints from students, parents and other teachers regarding the smell of alcohol on respondent's breath. The Assistant Principal smelled alcohol on respondent's breath. When confronted by the Assistant Principal, respondent admitted that he had reported to work with the odor of alcohol on his breath, but stated that he intended to bring the situation under control. The respondent did not attend a mandatory staff development meeting on August 21, 1985. He first claimed to have been present, but later admitted that he had been untruthful. On August 26, 1985, the Personnel Services Director with the Pinellas County School Board met with the respondent and his Principal and Assistant Principal. Respondent's absentee problems from the prior school year were discussed, and the need for students to have their teachers present was stressed. Respondent acknowledged having a drinking problem but stated that he did not need a medical leave of absence. Respondent expressed his commitment to perform his duties consistently well during the upcoming school year. On September 3, 1985, at approximately 10:15 a.m., respondent was arrested in the Meadowlawn Middle School parking lot and charged with driving while impaired by alcoholic beverages. At the time of his arrest, respondent's appearance was disheveled and he was wearing house slippers. The arresting officer smelled the odor of alcohol on respondent's breath. The respondent was unable to perform or complete any of the field sobriety tests and had difficulty standing without support. Intoxilizer tests administered to respondent at the police station about one hour later resulted in blood alcohol levels of .30. The presumed intoxicated level in Florida is .10. On September 17, 1985, the respondent pled and was found guilty as charged. The Court sentenced the respondent to jail for sixty days but suspended the imposition of that sentence, and imposed a fine of $1,129.50, costs of $118.50, placed respondent on probation for one year and revoked or suspended his driver's license for one year. Respondent missed fourteen (14) days of work between September 3 and September 23, 1985. On October 13, 1985, respondent was again arrested and charged with driving while impaired and with an unlawful blood alcohol level. He entered a plea of nolo contendere, was found guilty, and was sentenced to twenty (20) days in jail. In addition, the Court imposed a fine of $1,130.50, costs of $120.50, placed him on probation for one year and suspended or revoked his driver's license for one year. After learning of respondent's September arrest in the school parking lot, the Personnel Services Director recommended to the Pinellas County School Board Superintendent that some definitive action be taken with regard to the respondent. Thereafter, in late October, 1985, the respondent entered into a "Stipulation of Agreement" with the Pinellas County School Board. In that stipulation, respondent acknowledged that he has a problem with alcohol and gave his commitment to attend work regularly in the future and to conduct himself in a profession manner. To demonstrate this commitment, respondent agreed to surrender his continuing contract, effective the second semester of the 1985-86 school year, and to teach on one-semester contracts until the end of the 1987-88 school year, upon the recommendation of his Principal. The parties agreed that these stipulations were in the best interests of Pinellas County students. The respondent was offered another one-semester contract to begin the 1986-87 school year. He resigned toward the end of that first semester.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 231.28(1)(b), (e) and (f), Florida Statutes; that his teaching certificate be suspended for a period of three (3) years; and that, if the certificate is reinstated after three years, respondent be placed on probation for a period of one additional year. Respectfully submitted and entered this 20th day of November, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1987. APPENDIX The petitioner's proposed findings of fact are accepted and incorporated herein, with the following exceptions: 24. Last portion of sentence rejected as hearsay. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 George Raymond Rhoad 3900 60th Way North St. Petersburg, Florida 33709 Betty Castor, Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield, Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301
The Issue Whether Ms. Rokos' teaching certificate should be revoked or otherwise disciplined for gross immorality or moral turpitude in violation of Section 231.28(1)(c), and (f), Florida Statutes (1987), of Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, and Section 231.28(1)(h), Florida Statutes (1987).
Findings Of Fact Nicole D. Rokos holds Florida Teaching Certificate 542378, in the areas of mental retardation and specific learning disabilities. She is 35 years old and has taught at exceptional student education programs for 11 1/2 years. At the time of the incident involved, Ms. Rokos was employed as a special education teacher at Ely High School by the School Board of Broward County. Ms. Rokos teaches students who are learning disabled, mentally handicapped, and emotionally disturbed. Learning-disabled students are typically of average or above average intelligence who do not learn in the same way as regular students, but require different teaching strategies and methods to succeed academically. Ms. Rokos often had contact with her students in addition to her regular class periods. She attempted to involve students in activities relating to areas in which they were insecure in order to improve their self-concept. As a teacher for 8 1/2 years at Ely High school, Ms. Rokos received very good evaluations of her performance which noted not only her teaching skills, but also her involvement in extra-curricular activities, see, e.g., the evaluations of December, 1982 and February, 1985. None of her evaluations contained any entries in the portion of the form used to describe areas needing improvement. Other teachers at Ely High School regard Ms. Rokos as an excellent teacher. Former students also regard her as an inspiring teacher. One of Ms. Rokos' students at Ely High School in 1988-89 school year was Earl Thomas Williams, Jr. He has learning disabilities in the areas of oral and written communication and mathematics and is of average intelligence. During December of 1988-89 school year he was 18 years of age, 6'3" tall and weighed 226 pounds. During evenings Earl Williams often would call Ms. Rokos for help with homework. Earl's father has high regard for Ms. Rokos, and believes that due to her work with Earl, Earl has stayed in school, and now attends community college. During the 1988-89 school year Marla Henderson, a cousin of Nicole Rokos by marriage, also attended Ely High School. She met Earl Williams through Ms. Rokos. Marla and Earl went out together from mid-September to mid-November, 1988. On December 3, 1988, at Earl's suggestion Ms. Rokos and another teacher accompanied Marla Henderson and Earl Williams to an Ely High School football game. That night Ms. Rokos dressed in socks and sneakers, white jogging shorts, white sweatpants which said "Tigers" down the side in orange letters, white tank top under a gray T-shirt with "Ely" written in orange letters across the front and a green "Ely" windbreaker. Earl Williams wore a yellow shirt, white jeans, and under them black cotton shorts that reach to the mid- thigh, which are similar to spandex bicycle shorts, but which fit somewhat more loosely. Those shorts had large white lettering horizontally at the elastic waist, as well as large white lettering vertically on the outside thigh area. After the game, at approximately 10:00 p.m., all four returned to the other teacher's home, where Ms. Rokos picked up her car, and left with Marla and Earl. Ms. Rokos' car has tinted windows. Marla was in the front seat and Earl in the back. Earl was sulking due to the recent break-up of his relationship with Marla. Ms. Rokos first dropped off Marla at approximately 11:00 p.m. Before returning to Earl's home, Earl ostensibly asked Ms. Rokos if they could go to a park and talk. Ms. Rokos drove to Kester Park in Pompano Beach, a park of approximately one square block. She pulled into the park between tall trees which line the perimeter of the park. The tree canopy obscured the light from near-by street lights in the car. A home invasion robbery had been reported to the Pompano Beach Police Department at a home near the park at about 11:00 p.m. At approximately 11:30 p.m. Officer William Weir of the Pompano Beach Police Department was in the area. He found Ms. Rokos' vehicle pulled between the trees at the park, which was then closed. Because the park was closed, and the car was partially concealed from view by the trees, he was alarmed, because the car could have been involved in the nearby robbery. Officer Weir was in a marked police car. Officer Weir drew near Ms. Rokos' car, and parked behind it so that the car could not back on to the street, nor go forward because of the trees and foliage in the park. He activated the spot lights on the top of his car, and could clearly identify a female figure inside the car. The driver side window was partially opened. As Officer Weir approached the car on foot, the driver attempted to back out, and although the car lurched back, its path was obstructed by the police car. As Office Weir reached the side of the car, a back-up officer arrived on the scene and also approached the vehicle. Officer Weir shined his police flashlight into the automobile where he could see Ms. Rokos and, for the first time, a man who was sitting in the passenger seat, who had not been visible before because the passenger seat was fully reclined. Officer Weir saw that Ms. Rokos was dressed only in a shirt, and was nude from the waist down. He could clearly see her thighs, pubic hair and genital area. Earl Williams was completely nude, and attempting to hide his genitals with the cloth of his yellow shirt. Officer Weir saw the student's penis protruding from beneath the material and his pubic hair. All facts taken together have led the Hearing Officer to infer that sexual contact between Ms. Rokos and the student had occurred or was imminent but interrupted by Officer Weir. In order to investigate further, Officer Weir directed both Ms. Rokos and Earl Williams to dress and exit the vehicle. After seeing Ms. Rokos' clothing with the Ely High School logo and noting the youth of her passenger, he asked whether she was a teacher. Initially, she denied it but later admitted to Officer Weir that Earl Williams was one of her students. Earl Williams readily admitted he was a student at Ely and Ms. Rokos was his teacher. She asked the officer not to report the incident, and was obviously distraught. Officer Weir then determined that Earl Williams was not a minor, and then warned Respondent about her conduct and allowed both of them to leave. Although no arrests were made, Officer Weir did file a uniform offense report about his contact with Ms. Rokos and Earl Williams at the end of his shift. Ms. Rokos testified that she was not nude, but had removed her socks, shoes, and sweatpants to be more comfortable, but was still wearing her shorts, and that Earl Williams had removed his shirt, which was in his lap, and had taken off his jeans, but he was not nude because he was wearing the black shorts. The testimony of Officer Weir is more credible. He saw the student completely nude and Ms. Rokos nude from the waist down. His testimony was emphatic and specific. Moreover, it was quite cool during the early morning hours of the night of December 3-4, 1988. There is no reasonable explanation for a teacher to have been parked in a car in a closed city park late at night with a student who had, according to her testimony, removed both his shirt and jeans, and for her to have removed her running shoes, socks, and sweatpants. Moreover, due to the bold white lettering horizontally across the waistband of the student's black shorts, and the bold white lettering vertically down the outside thigh of the shorts, the police officer would not have mistaken the shorts for flesh, even though the student is black. After receiving the incident report completed by Officer Weir, Lieutenant DeFuria of the Pompano Beach Police Department forwarded the report to the Director of Special Investigations at the School Board of Broward County, Howard J. Stearns. After reviewing the report on December 5, 1988, the first school day following the incident, Mr. Stearns had the administrators of Ely High School notify Ms. Rokos to meet with him at his office concerning the incident. At the interview, Ms. Rokos told Stearns that she was wearing underpants and the student was not nude. Having heard her denial, Mr. Stearns suggested that if she were being truthful, then Officer Weir must be lying, and the Pompano Beach Police Department should be requested to investigate the false report made by Officer Weir. Mr. Stearns began to dial the number of the Police Department, when Ms. Rokos relented and said that she did not think that any investigation of Officer Weir should be made. Ms. Rokos then broke into tears and asked to see her union representative. After meeting with that representative, Ms. Rokos resigned her position with the School Board of Broward County. One of the reasons she did so was to avoid the publicity incident to an investigation into the incident by the School Board. As the result of being discovered in such a compromising situation with one of her own students, Ms. Rokos has lost her effectiveness as a teacher in Broward County and would not be reemployed by the School Board of Broward County as an educator.
Recommendation It is recommended that the teaching certificate of Nicole D. Rokos be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3947 Rulings on findings proposed by the Commissioner of Education: 1. Adopted in finding of fact 1. 2. Covered in finding of fact 1. 3. Adopted in finding of fact 6. 4. Adopted in finding of fact 6. 5. Adopted in finding of fact 11. 6. Adopted in finding of fact 12. 7. Adopted in finding of fact 12. 8. Adopted in finding of fact 12. 9. Adopted in finding of fact 13. 10. Incorporated in finding of fact 13. Considered in finding of fact 15. Considered in finding of fact 16. Considered in findings of fact 6 and 12. The remaining portions of the proposal are rejected as argument. It is true, however, that it would have been impossible for Earl Williams to have disrobed without Ms. Rokos being aware of it. Discussed in finding of fact 15. Rejected as unnecessary. Discussed in finding of fact 16. Rejected as unnecessary. Rejected as unnecessary. Discussed in finding of fact 17. Rulings on findings proposed by Ms. Rokos: Adopted in finding of fact 1. Adopted in finding of fact 2. Generally adopted in finding of fact 3. To the extent appropriate, the evaluations are discussed in finding of fact 4. To the extent appropriate, discussed in finding of fact 5. Rejected as subordinate to the findings of fact made in findings 3-5. Rejected as unnecessary. To the extent appropriate, discussed in finding of fact 5. Discussed in finding of fact 6. Discussed in finding of fact 7. To the extent appropriate, discussed in finding of fact 8. Rejected as unnecessary. Adopted as modified in finding of fact 8. Discussed in finding of fact 9. Discussed in finding of fact 10. Rejected, see the findings made in finding of fact 10. Rejected; even if Ms. Rokos and Earl Williams discussed any matters relating to school, such discussions were not the focus of their activities in the car. See, the final sentence of finding of fact 12. Discussed in finding of fact 12. Discussed in finding of fact 12. How far the window was open is not significant; the officer had an adequate view of the scene. Adopted in finding of fact 12. Rejected for the reasons stated in finding of fact 15. Adopted in finding of fact 13. Rejected as subordinate to finding of fact 13. Rejected as unnecessary. 25 and 26. Discussed in finding of fact 16. To the extent appropriate, discussed in finding of fact 16. It is not clear whether Mr. Stearns said anything which would have led Ms. Rokos to believe than the school board would not report the matter to the Department of Education. The school board had no choice, and the matter was reported and investigated by the Department, which led to this proceeding. COPIES FURNISHED: Carolyn LeBoeuf, Esquire Brooks & LeBoeuf, P.A. 836 East Park Avenue Tallahassee, Florida 32301 Thomas W. Young, III, Esquire FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Department of Education Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in its proposed rejection of all bids received in response to Request for Proposals, Lease No. 700:0819.
Findings Of Fact On May 10, 1999, the Respondent, Department of Corrections (Department), issued Request for Proposal, Lease No. 700:0819 (the RFP) for office space in Dade County for the Office for Probation and Parole Supervision. Petitioner, 7952 West 2nd Corporation, and Intervenor, Capital Group of Miami, Inc. (Capital), submitted the only responses to the RFP. Upon receipt of the proposals, Mr. Audwyn Francis, the Department's employee in charge of the RFP, believing the bids to be nonresponsive, contacted the Department's legal section for advice and for a determination of responsiveness. While waiting for the legal section to research and make a recommendation on the responsiveness of the proposals, because of time constraints, Department staff decided to proceed with the site visits and evaluation of the proposals but not to make an award until they received a decision from legal counsel concerning the responsiveness of the proposals. A site visit was conducted at the two proposed sites. The responses were evaluated according to the criteria in the RFP. Capital received a score of 98. 7925 West 2nd Corporation received a score of 92. The evaluation committee recommended that an award be made to Capital. Upon further review of the proposals by the Department's attorneys, it was determined that all of the bids were nonresponsive. Based on this determination, the Department rejected all bids. On page four, section A, paragraph seven, the RFP provides the following requirements relating to parking: A minimum of 50 on-site spaces for the exclusive use of the employees and clients at no additional charge to the leasee. Parking spaces must be under the control of the bidder and be suitably paved, lined, bumper pads installed, and labeled D.C. parking. At least two spaces must meet the requirements of the Accessibility Requirements Manual published by the Department of Community Affairs, latest edition. Parking area shall be well lighted and secure. Bidder shall provide a site plan identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces requested in this RFP can be achieved without infringing on or combining with the parking requirements of other tenants. At the preproposal conference, Mr. Francis, advised the attendees that all attachments as indicated on pages 29 through 31 of the bid package must be included with the bid submittal. On page 30 the RFP requires the proposers to show proof of structures and parking control and directs the proposers to page 4, section A, paragraph 7 and page 23, section D, paragraph 7. Capital proposed to provide 43 parking spaces on-site and 7 parking spaces across the street. Capital's proposal was not responsive to the requirement of providing 50 parking spaces on-site. Petitioner included a document entitled "As-Built Survey" with its proposal. The survey showed the outline of the building on the site, but did not show any parking spaces. Petitioner stated in its proposal that it would provide 50 parking spaces. When Department staff arrived at Petitioner's site to conduct a site visit, they could not find a place to park. During the site visit, Robert Harrison, a representative of Petitioner, advised Department staff that Petitioner leased office space to another agency in the same building that was being offered to the Department. Mr. Harrison advised that he did not know the number of parking spaces to which the other agency was entitled to use. None of the parking spaces at the site were marked as being assigned to any tenant. As of the date of the Department's letter advising that it was rejecting all bids, Department staff were unaware of the total number of spaces available on the site and the number of spaces to which the other agency had exclusive use. After all the bids were rejected, Petitioner disclosed that it had a lease with the Department of Health and Rehabilitative Services (HRS) for space in the building in which it proposed to lease space to the Department. The lease provided that HRS had exclusive use of 150 parking spaces on- site. Petitioner further disclosed that it had a total of 250 parking spaces on-site. Petitioner failed to comply with the requirement that the proposer provide a site plan showing the number of spaces assigned for the use of the current tenant at the building. The Department utilizes a manual entitled "Competitive Proposals," which establishes the procedures to solicit and evaluate proposals. Section Seven of the manual pertains to the procedures to be followed by the Department when evaluating proposals and provides: All proposals will first be reviewed for conformance with the provisions specified in the RFP. Any proposal not in compliance with the terms of the proposal specifications shall not receive further consideration. The evaluation committee will analyze each responsive proposal to determine which proposal is the lowest and best in accordance with established provisions and award factors. . . . To be considered for award, a proposal must comply in all material respects with the RFP so that all proposers may stand on equal footing, with respect to the method and time frame of submission, and to the substance of any resulting lease. The proposal must result in a binding contract. Non-responsive proposals. Any proposal which fails to substantially conform to the requirements of the Request for Proposal. A proposal may not be considered if the proposer imposes conditions which would modify requirements of the Request for Proposal, or limit their liability to the State of Florida, giving them an advantage over other proposers. When a question of responsiveness is unclear the agency's legal counsel should be consulted. In the event no acceptable proposals are received, all proposal should be formally rejected by letter, sent by certified mail, return receipt requested. * * * F. Proposals which technically conform to the requirements of the Request for Proposal are considered to be responsive and may be accepted for consideration by the evaluation committee for determination of an award recommendation. The evaluation committee can seek clarifications as needed from any proposer. However, clarifications received from the proposer which change what was originally proposed cannot be considered in the evaluation. * * * Each committee member is to personally inspect the proposed facility, and evaluate the location and facility on the basis of the evaluation criteria contained in the specifications. When all committee members have individually assessed award factor points for each proposal, the entire evaluation committee will meet to review the individual evaluations and jointly develop a committee determination of the best proposal based on the overall factor ratings. * * * L. The agency has the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection cannot be arbitrary, but must be based on strong justification. Each person with a rejected proposal should be notified by certified mail return receipt requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered dismissing Petitioner's protest. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 Hearings Filed with the Clerk of the Division of Administrative this 29th day of February, 2000. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432-3911 David A. Anthony, Esquire Law Offices of David A. Anthony 916 Catalonia Avenue Coral Gables, Florida 33134
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 13, 2002.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Mark D. Swanson (Coach Swanson), holds Florida Educator Certificate No. 585952, covering the areas of mathematics and business education, which was valid through June 30, 2003. At the hearing, Respondent testified that it was his intention to maintain his certification beyond June 30, 2003. At all times relevant to this proceeding, Coach Swanson was employed by the Collier County School District (the "District") and was assigned to Lely High School ("Lely") as a teacher and as head football coach. In 1995, Coach Swanson took over a Lely program that had fielded poor teams for several years. Within three years, Coach Swanson had guided the team to a district championship. In the 1999 season, despite a rash of injuries and discipline problems, Lely made the playoffs, though the team's performance declined after a 5-1 start. At the conclusion of the 1999 season, Lely's principal Roy Terry, himself a former high school football coach, sent Coach Swanson a memorandum expressing "concerns with the turn we took the last half of this past season." After reciting a list of the positive aspects of Coach Swanson's performance, Mr. Terry noted nine areas of concern, including "Continue to monitor language of staff with students." Coach Swanson's expectations for the 2000 season were not as high as in recent years past. He believed that a record of 6-4 would constitute a successful season. Summer practices had gone well. However, the team lost its first game to Barron Collier High School by a score of 24-0. To Coach Swanson, the manner of losing the Barron Collier game was more important than the loss itself. The game was a scoreless tie at half time, and Lely trailed only by 7-0 at the start of the fourth quarter. However, in Coach Swanson's view, the team quit in the fourth quarter and allowed Barron Collier to win the game going away. Lely's second game, on September 8, 2000, would be against Fort Myers High School. Fort Myers was one of the best teams in the area, and Coach Swanson did not seriously believe that Lely could win the game. Nonetheless, he believed that his team's effort in this game would determine the fate of the season. If his team played hard and did not give up against a clearly superior team, Coach Swanson could use that effort to motivate Lely in subsequent winnable games. Throughout the week's practices, the Lely coaching staff emphasized maximum effort and not quitting against Fort Myers. The Fort Myers game began relatively well for Lely. The team was behind only 14-0 near the end of the first half. Then, Fort Myers took over the ball on its own nine yard line and drove 91 yards to a touchdown in a little over one minute. Coach Swanson believed that his team "just laid down and quit" on that touchdown drive. On the touchdown play, Lely's defensive coordinator Steve Sapere called for a linebacker blitz. Linebacker Brandon Tyler, one of the best players on the Lely team, made a halfhearted effort on the play. As the defense came off the field, Coach Sapere told Brandon Tyler that he would not call any more blitzes unless Brandon's effort improved. Coach Sapere then walked away. William Sparacio, then the running backs coach at Lely, witnessed the scene between Coach Sapere and Brandon Tyler. After Coach Sapere walked away, Brandon told Coach Sparacio, "You better get that guy out of my face."2 After the ensuing kickoff, Coach Sparacio shouted to Brandon Tyler in an effort to get his attention, but Brandon ignored him. Coaches Sparacio and Sapere consulted and agreed that if Brandon would not accept coaching, he would not be put back into the game. Coach Sparacio reported the incident to Coach Swanson at the commencement of half time. Coach Swanson told Coach Sparacio that the decision whether to play Brandon Tyler in the second half would be left to Coaches Sapere and Sparacio, but that he would deal with Brandon during half time. Coach Swanson testified that, as the first half came to a close, he wondered what he could do to motivate his listless team. When apprised of the situation with Brandon Tyler, his first thought was that Brandon's insubordination would provide a perfect subject for a half time talk to the team. Coach Swanson thought that Brandon Tyler was the perfect person to criticize in front of the team because Brandon was one of his best players, and "calling out" a team leader would have more impact than picking on a lesser player. Brandon was a tough player, "very intense," and had always liked the fact that Coach Swanson was himself "fiery" and intense. Coach Swanson believed that Brandon would understand being used as an example in a half time speech and that Brandon would respond positively. Coach Swanson walked to the locker room with Heidi Roderick, the Lely team trainer. Ms. Roderick asked him what he was going to do about the team's performance. Coach Swanson responded that he was going to make a fool of himself and create a "spectacle" that might make the team mad enough to play hard. He told Ms. Roderick, "Maybe they'll picture my face on a guy across the line . . . and want to beat the crap out of him." He believed that the second half of this game was essential to the team's entire season and that he had to try something drastic to break the team out of its lethargy. The Lely locker room was not an open football locker room, but a typical high school locker room with rows of benches separated by rows of lockers. Thus, there was no central area where the team could gather during half time. The players would scatter throughout the locker room at half time. Coach Swanson decided that the only way to get the attention of all the players was to make a big noise and that the best way to do that was to bounce a football helmet off a metal locker. Coach Swanson took a helmet from a player and glanced down a row of lockers to make sure no one was in the line of fire, then skipped the helmet "off the floor so it'd go 'bing, bing, bing, bing,'" down the row of lockers. At the moment he let go of the helmet, Coach Swanson looked farther down the row of lockers and saw Fenwick Paul, a Lely player, sitting on a bench at the far end of the row. The helmet traveled about 40 feet down the row of lockers and struck Mr. Paul in the back. Mr. Paul was unharmed by the helmet glancing off his back. Coach Swanson apologized to Mr. Paul for hitting him with the helmet. Another player, Jim Muth, demanded to know who was throwing helmets. Coach Swanson said, "It's me. You got a problem with that?" Jim Muth, cowed, said, "No, coach." The weight of the evidence established that Coach Swanson did not push Jim Muth into a locker. Coach Swanson then loudly called for Brandon Tyler. When he found Brandon, Coach Swanson grabbed him by the shoulder pads and said, "Brandon, who the hell do you think you are talking to Coach Sapere like that?" Coach Swanson walked Brandon around the locker room by the shoulder pads, all the while shouting at the player. The weight of the evidence established that Coach Swanson did not throw Brandon Tyler into the bathroom, into walls, or down to the floor. Coach Swanson credibly testified that he held Brandon tightly by the shoulder pads both for the visual effect and to keep Brandon from slipping in his cleats on the tile floor of the locker room. He intended to intimidate the player while making an example of him in front of the team, but Coach Swanson had no intention of causing physical injury to Brandon Tyler. Coach Swanson admitted that he swore as he walked Brandon Tyler around the locker room. He admitted that he repeatedly used the word "fuck." When Coach Swanson accosted him, Brandon began shouting, "I didn't do it. Coach Sparacio, you better fix this, you better tell him," apparently meaning that Coach Sparacio should intervene on Brandon's behalf. In response, Coach Swanson told Brandon to "be a fucking man and own up to it, because that's what this game is about, is being honest and reasonable and owning up to when you make a mistake." At that point, Coach Swanson released Brandon Tyler. Coach Sparacio and Ms. Roderick heard Brandon Tyler say he was quitting the team during the altercation. Coach Swanson did not recall Brandon's saying he was quitting, but testified that "I could see myself" taking Brandon's statement to make the point to the team that its problem was quitting when the going gets tough. Coach Swanson testified that such a statement by Brandon would not have concerned him because "I knew Brandon wasn't going to quit." In fact, Brandon Tyler did not quit the football team. He played the entire second half of the Fort Myers game and played the rest of the season. After releasing Brandon, Coach Swanson spoke to the team as a whole, urging the players to fight to the end and give their best effort. He asked them, "Aren't you tired of this shit?" Some of the players chimed in their agreement. After completing his speech to the team, Coach Swanson walked into the coaches' office adjacent to the locker room. Several assistant coaches, but no players, were in the office. Coach Swanson saw two of his assistants, Kim Butts and Steven Pricer, drawing up blocking schemes on a hand-held dry-erase board. Coach Swanson took the board away from Coach Pricer, saying that the team's problem was not "X's and O's" but a lack of heart and will to win. He threw the board against a wall. The board bounced off the wall and nicked the hand of assistant coach Brian Wallace. Ms. Roderick testified that before the team left the locker room, Coach Wallace asked her to look at his hand. She stated that there was a small scratch on Coach Wallace's hand. It was not bleeding. Ms. Roderick testified that she would not have seen the mark on Coach Wallace's hand had he not shown her where it was. She gave Coach Wallace a band-aid in case the cut started bleeding during the second half. No players or students testified at the hearing. Coach Wallace did not testify. Assistant coaches Kim Butts, Steve Pricer, Jason Woodward, Steve Sapere, William Sparacio, and Mario Doria all testified as witnesses to some or all of the events in the locker room at half time of the Fort Myers game. Aside from Coach Doria, all the assistants generally agreed with the facts as set forth above. Coach Doria testified that Coach Swanson shoved Brandon Tyler into a locker and down to the ground. While Brandon lay on the ground, Coach Swanson told him to quit being "a fucking pussy," to get up and be a man. Brandon was crying and begging for help, but Coach Doria did not intervene for fear of creating a confrontation between himself and Coach Swanson. Coach Doria testified that when Coach Swanson took the dry-erase board from his assistants, he snapped it in half and threw one-half of the board across the room. Coach Doria's singular version of events cannot be credited. He was the sole testifying witness to claim that Coach Swanson shoved Brandon or called him names. His witness statement of October 24, 2000, did not mention Coach Swanson's calling Brandon a "fucking pussy." No other witness claimed to have seen Coach Swanson snap the dry-erase board in half. The board belonged to Coach Pricer, who testified that he still uses it, though it did receive a crack from Coach Swanson's toss. Whether they approved or disapproved of his actions, the assistant coaches agreed that Coach Swanson was engaged in an effort to motivate the team and that he was not out of control or acting in a blind rage. Coach Swanson himself testified that, while not scripted, his actions were a conscious effort to spark his team into giving a better effort in the second half of the Fort Myers game, which he believed key to the remainder of the season. All of the witnesses agreed that Coach Swanson's tirade began and ended in the locker room at half time. His behavior on the field during the second half indicated nothing out of the ordinary. Lely lost the game by a score of 35-0. In summary, the Department demonstrated by clear and convincing evidence that Coach Swanson threw a football helmet that struck Fenwick Paul; that Coach Swanson placed his hands on Brandon Tyler and cursed at the player while reprimanding him for his disrespectful comments to an assistant coach; and that Coach Swanson threw a dry-erase board that struck a fellow coach on the hand, causing a small cut. There were no allegations that Coach Swanson committed any improper act in his role as a classroom teacher. Roy Terry, the principal of Lely, described him as a "fine person," who did a "fine job" as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e), but did not violate Section 231.2615(1)(c) or (i), Florida Statutes (2001). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in his certification file and placing him on a one-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active teacher and/or football coach in the State of Florida. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of December, 2003.
The Issue The issues for determination are: (1) Whether Respondent, as Director of the Florida State Athletic Commission ("Athletic Commission") violated Subsection 112.313(2), Florida Statutes, by soliciting a $100,000 donation from Don King and/or Don King Productions, Inc., on behalf of the Florida State Boxing Foundation ("Foundation") which was established in part by Respondent; (2) Whether Respondent violated Subsection 112.313(4), Florida Statutes, by (a) accepting the $100,000 donation from Don King or Don King Productions, Inc., on behalf of the Foundation, when he knew or should have known that the donation may have been given to influence his official actions relative to his advocating for the acceptance of long-term promotional contracts in Florida by the Athletic Commission and/or the licensing of Don King and/or Don King Productions, Inc., as a promoter despite the existence of a pending indictment in violation of the Athletic Commission rules; (b) soliciting boxing officials for political contributions and donations to the Foundation, and soliciting a boxing official for a loan to Ms. Cathy Reed and travel expenses for Ms. Reed; (3) Whether Respondent violated Subsection 112.313(6), Florida Statutes, by (a) soliciting funds for the Foundation from persons or entities regulated by the Athletic Commission; (b) soliciting political contributions from persons regulated by the Athletic Commission; (c) signing a letter prepared by boxing promoter Don King's attorney on Athletic Commission stationery, which indicated the Athletic Commission's interpretation of Section 548.056, Florida Statutes, as stated in letters written by the former Executive Secretary, was the former Executive Secretary's personal opinion rather than the opinion or policy of the Athletic Commission, in order to benefit Don King or Don King Productions, Inc; (d) preparing and reading a position paper opposed to the position taken by the former Executive Secretary of the Athletic Commission relative to the interpretation of Section 548.056, Florida Statutes, and denying that the earlier position was, in fact, the position of the Athletic Commission in order to strengthen the arguments of Don King or Don King Productions, Inc., for the use of exclusive long-term promotional contracts in Florida, when he knew the contrary to be true, or as a reward for the $100,000 contribution to the Foundation; (e) lying to the members of the Athletic Commission who relied on his representations at its November 5, 1998, meeting regarding the preparation of the position paper he read to the commission at its August 13, 1998, meeting; (f) soliciting tickets or complimentary admissions to boxing matches for his or other Athletic Commission members' guests from promoters; (g) soliciting a loan and travel expense payments from Boxing Judge Peter Trematerra; (h) rewarding Mr. Trematerra with an assignment to judge a World Title fight for telling the Athletic Commission what Respondent wanted him to say, despite Mr. Trematerra's allegedly not having the requisite experience to warrant such an assignment; (i) not giving Boxing Judge Paul Herman boxing assignments that his experience may have warranted after he refused to appear and testify as to what Respondent wanted him to say before the Athletic Commission; (j) making judging assignments based on personal considerations of perceived loyalty or disloyalty to Respondent, rather than on the experience levels of judges; directing Athletic Commission staff to remove Mr. Trematerra's and Mr. Herman's names from fight assignments after they provided affidavits concerning Respondent's misconduct to Department of Business and Professional Regulation's Inspector General; (l) representing falsely to the Salvation Army and the public on Athletic Commission stationery that David Walker had completed 16 hours of his obligatory community service; and (4) Whether Respondent violated Subsections 112.3148(3) and (4), Florida Statutes, by soliciting and accepting tickets and free admissions from promoters, and, if Respondent is guilty of any of these alleged offenses, what penalty is appropriate.
Findings Of Fact Respondent, Morris Michael "Mike" Scionti, was Executive Director of the Athletic Commission from May 6, 1996 through March 11, 1999. During his pre-employment interview with Commissioners of the Athletic Commission, Respondent advanced his vision to establish a foundation to assist boxers in obtaining job training, education, and other benefits. The Athletic Commission, through its Commissioners, gave conceptual approval to the creation of a foundation but did not want the Athletic Commission or Respondent to be directly involved with the foundation. Respondent initiated the formal creation of the Florida State Boxing Foundation, Inc. ("Foundation"), in June 1997. The Foundation obtained 501(c)(3) tax-exempt status in December 1997. Respondent was never an employee, officer or trustee of the Foundation. After the formation of the Foundation, there is no evidence of formal involvement of either Respondent or the Athletic Commission in its affairs. Respondent advocated the Foundation to individuals interested in boxing and advised the Athletic Commission of the status of the Foundation at Athletic Commission meetings. Early in 1997, at the request of Don King ("King"), a successful and controversial boxing promoter, he and Respondent met at King's office in South Florida. Prior to this meeting the parties had not known each other. During the discussion of their common interest, boxing, King advised that he was moving his entire boxing operation to Florida. In the discussion, Respondent mentioned his vision of a foundation to assist boxers. King indicated that he thought the foundation was a wonderful idea and offered to donate $100,000 to get the foundation started. The evidence presented clearly demonstrates that Respondent did not solicit the donation from King. Knowing that the Athletic Commission had instructed him to "stay at arms length from the Foundation," Respondent did not initially accept King's offer; he reported the offer at the next Athletic Commission meeting where a cautious, tacit approval was received. Respondent testified that he would have refused the donation had the Athletic Commission voiced disapproval. It was not inappropriate for Respondent, as Executive Director of the Athletic Commission, to advocate and publicly support a foundation chartered to provide job training, education and other benefits to boxers. On January 12, 1998, shortly after the Foundation received 501(c)(3) status, Don King Productions, Inc., tendered a $100,000 check to the Florida State Boxing Foundation, Inc. No evidence was presented indicating that Respondent directly or indirectly benefited from King's $100,000 donation to the Foundation or that the donation was made based upon any understanding that Respondent's judgement or any official action would be influenced by the donation. Nor is there any evidence that Respondent should have known that the donation was given to influence any official action by Respondent. Boxing promoters, who do business in Florida, must apply for an annual license. Don King and/or Don King Productions, Inc., had been licensed in Florida in 1993, 1994, 1995, 1996, and 1997. The license application dated January 13, 1998, fails to reveal a Federal indictment for insurance fraud in March 1997, although it improperly lists a license suspension for wire fraud in New Jersey. Relying on the 1998 license application (which did not reveal the March 1997 insurance fraud indictment), the Athletic Commission staff in the Tallahassee office issued Don King Productions, Inc., a 1998 promoter's license. In August 1998, after the discrepancy was discovered, the Athletic Commission issued King a Rule to Show Cause as to why his 1998 license should not be suspended or revoked for failure to report the 1997 insurance fraud indictment. The 1998 license renewal was handled through the Athletic Commission's Tallahassee office. Respondent's office was in Tampa; he was not directly involved in issuing the 1998 license. At the Rule to Show Cause hearing, Respondent blamed the Tallahassee office staff for not finding King's omission. "Exclusive" or "long-term" promotional contracts between boxers and promoters, although a standard in the boxing industry and widely accepted, have been a source of controversy in Florida. Apparently, there was a division of opinion among Commissioners of the Athletic Commission as to the appropriateness of such contracts. Although the Athletic Commission had not taken a formal position on the subject, Respondent's predecessor, who was personally opposed to such contracts, authored several letters indicating that such contracts were not enforceable under Florida law. Respondent did not share his predecessor's negative opinion of "exclusive" or "long-term" promotional contracts, to the contrary, he believed such contracts to be beneficial to boxing. Respondent sought the advice of individuals involved in boxing, including employees of King, on the subject. Don King Productions, Inc., and other promoters would benefit if "exclusive" or "long-term" promotional contracts were recognized and enforceable in Florida. On June 19, 1998, Respondent sent a letter on official state stationery to Charles Lomax, attorney for Don King Productions, Inc., advising him that the prohibition on "exclusive" or "long-term" promotional contracts in Florida was merely his predecessor's personal opinion. He stated he would keep Mr. Lomax updated on the progress of this matter. During the August 8, 1998, meeting of the Athletic Commission, Respondent presented a memo which advocated promotional contracts, clearly indicated his disagreement with the position taken by his predecessor on the subject and recommended that the Athletic Commission permit such contracts subject to reasonable regulation. Subsequent to the meeting, Commissioner Terry James had occasion to examine the Athletic Commission's file on promotional contracts. When Commissioner James reviewed the file, he noticed the computer tags on the documents in the file were the same as the tags he had seen on Sonny Holtzman's documents. Mr. Holtzman represented King on matters before the Commission. Although Don King Productions, Inc., and other promoters benefited from Respondent's support of "exclusive" or "long-term" promotional contracts, no evidence was presented that demonstrated that Respondent's support was a result of King's donation to the Foundation. The advocate presented three witnesses, Peter Tremetera, Paul Herman, and Shelly Bradshaw, who through their actions during Respondent's tenure as Executive Director of the Athletic Commission and their demeanor while giving testimony at the final hearing, demonstrated such a negative bias toward Respondent that much of their testimony is not credible. The solicitation and acceptance of free tickets and misuse of "pass lists" to boxing events by Commissioners and staff of the Athletic Commission has historically been a problem. This is evidenced by a 1991 Ethics Commission case involving a former chairman of the Athletic Commission [In re: James Resnick, 14 F.L.A.R. 1001 (1991)], a March 26, 1997, inquiry response from a Ethics Commission staff attorney on the subject, and specific direction on the subject from the Athletic Commission staff attorney. It is clearly appropriate for Commissioners and staff who have a legitimate function associated with a boxing event to be admitted to the event without paying an admission fee. It is similarly clear that it is inappropriate for relatives, friends, political associates, and other individuals who have no legitimate Athletic Commission function to gain free admission to a boxing event as a result of an association with the Athletic Commission. Respondent gave Peter Trematerra free tickets to several boxing events. Respondent placed an attorney who had no Athletic Commission involvement on the pass list "all the time." Respondent solicited free tickets from a promoter in the Lou Duva organization. Respondent signed a receipt for twenty 75-dollar tickets and thirty 50-dollar tickets for a January 31, 1998, boxing event at the Ice Palace in Tampa. During his tenure as Executive Director, Respondent solicited and accepted free tickets to boxing events from event promoters, or caused the names of individuals who had no legitimate function related to the Athletic Commission to be placed on "pass lists" which allowed free admissions to boxing events. Evidence was presented that indicated that not only Respondent but others associated with the Athletic Commission solicited and accepted tickets or passes for individuals who had no legitimate function with particular boxing events. In September 1997, David Walker performed 16 hours of community service at the Tampa office of the Athletic Commission Two documents were signed by Respondent, one, a letter dated September 21, 1997, indicating that David Walker had performed 16 hours of community service; the second, a memo indicating that David walker had completed the 16 hours of community service on two Saturdays, September 6 and 13, 1997. David walker testified that he had completed the community service on weekdays.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Morris Michael "Mike" Scionti, violated Subsection 112.313(6), Florida Statutes, to the extent that Respondent solicited and accepted tickets or complimentary admissions to boxing matches as represented in the Order Finding Probable Cause; imposing a civil penalty of $1,000; and issuing a public censure and reprimand; and that the remainder of the violations alleged in the Order Finding Probable Cause be dismissed. DONE AND ENTERED this 4th day of January, 2002, in Tallahassee, Leon County, Florida. 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 4th day of January, 2002. COPIES FURNISHED: Joseph Donnelly, Esquire Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julie A. Reynolds, Esquire 4612 North 56th Street Tampa, Florida 33610 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards. The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment. The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB. The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized. The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received. At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were: Blountstown - September 18, 1981 Jefferson County - October 2, 1981 F.A.M.U. - October 9, 1981 Rickards - October 23, 1981 Port St. Joe - November 13, 1981 There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season. During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted. During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors. There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom. Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs. A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit. In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit. In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further, RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1982.
