Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue The issue is whether Respondent (“the Department of Health” or “the Department”) committed an unlawful employment practice by not providing Petitioner (“Xianshu Zhang”) with a licensure application in Mandarin Chinese or by continuing with its prosecution of her.
Findings Of Fact Ms. Zhang was born in Chongqing, China in 1970, and speaks Mandarin Chinese. Her comprehension of spoken and written English is very limited. Ms. Zhang moved to the United States in December of 2003 and stayed in the United States until she returned to China in December of 2005. Ms. Zhang returned to the United States in November of 2009. Ms. Zhang elected to pursue a career as a massage therapist and graduated from VIP Beauty School on February 24, 2012. On approximately May 15, 2012, Ms. Zhang filed an initial application for licensure as a massage therapist. At the time of Ms. Zhang’s application, the Department1/ did not offer an application written in Mandarin Chinese, and Ms. Zhang did not ask the Department to provide such an application. With the assistance of others, Ms. Zhang was able to complete the application.2/ The application completed by Ms. Zhang had a section entitled “Criminal History” that asked if the applicant had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense.” Ms. Zhang responded to the aforementioned question by answering “no.” Ms. Zhang acknowledged marking a box on the application that I have carefully read the questions on the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein and in support of this application are true and correct. Should I furnish any false information on or in support of this application, I understand that such action shall constitute cause for denial, suspension, or revocation of any license to practice in the State of Florida in the profession for which I am applying. On July 21, 2012, the Department issued a massage therapist license to Ms. Zhang. The Department renewed Ms. Zhang’s license on July 26, 2013, and June 11, 2015. Ms. Zhang currently works for a spa in Miami. On April 2, 2015, the Department received information indicating that Ms. Zhang had been arrested for two counts of misdemeanor prostitution on April 5, 2005, in Suffolk County, New York. According to the information received by the Department, Ms. Zhang entered a guilty plea to one count of disorderly conduct on May 18, 2005, and was sentenced to pay $295 in fines and/or court costs. After conducting an investigation, the Department issued an Administrative Complaint on November 24, 2015, alleging that Ms. Zhang violated section 480.046(1)(a), Florida Statutes (2011). The aforementioned statute subjected massage therapist licensees to discipline for “[a]ttempting to procure a license to practice massage by bribery or fraudulent misrepresentation.” On March 4, 2016, the Department issued a “First Amended Administrative Complaint” which did not contain the allegation that Ms. Zhang violated section 480.046(1)(a). Instead, the Department alleged that Ms. Zhang violated section 480.046(1)(o), Florida Statutes (2011), by violating section 456.072(1)(w), Florida Statutes (2011). Section 480.046(1)(o) subjects massage therapist licensees to discipline for “[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.” Section 456.072(1)(w), prohibits licensees in health professions and occupations from [f]ailing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application. As of the final hearing date, the Department’s prosecution of Ms. Zhang was ongoing. Ms. Zhang argues that the Department has discriminated against her based on her national origin and thus violated section 760.10(5), Florida Statutes (2016), by: (a) failing to provide her with a licensure application written in Mandarin Chinese; and by (b) failing to dismiss its Administrative Complaint after receiving notice that it had unlawfully discriminated against her. As explained below, Ms. Zhang has: (a) failed to present any direct evidence that the Department intentionally discriminated against her; and (b) failed to establish a prima facie case of discrimination via circumstantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Xianshu Zhang’s Petition for Relief. DONE AND ENTERED this 9th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2017.
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO 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 19th day of March 1996.
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has suffered an injury protected by the provisions of Chapter 120, Florida Statutes, when the Respondent, the superintendent of education of Escambia County, acting pursuant to his statutory authority, Section 1012.22(1)(a)(3), Florida Statutes, refused to re-nominate the Petitioner for employment.1/
Findings Of Fact At all times material hereto, Jim Paul served as the superintendent of Schools for Escambia County. Joe Bernard was the director of risk management for Escambia County Schools, supervised by Superintendent Paul. Mr. Bernard began working for the school district in 1986. In January 2000, he began serving as the risk manager. AON Consulting is a firm involved in arranging for and inaugurating employee benefit plans, such as medical and dental benefits. It consulted in such an effort for the School Board and had a contract with the Escambia County School District designed to help the district contract with various health care insurers concerning medical and dental benefits for district employees. Under its arrangement with the Escambia County School District, AON Consulting (AON) would bill the school district by the hour for its consulting services and additionally would charge for costs involved for travel, food, and lodging. The bills were submitted in total amounts without being itemized. When Mr. Bernard became the risk manager for the School Board and the superintendent, the AON contract was under his budgetary supervision. He was the administrator of that contract and was charged with ensuring that bills were authorized when submitted by AON and that services performed by AON and paid for by the school district were within budgetary requirements and guidelines. Mr. Bernard did not request or require that AON bills be itemized. When Mr. Bernard became the director of risk management, AON already had the consulting contract with the school district. For the fiscal year 2002-2003, the contract was awarded through a bidding process. Several vendors bid on securing the contract. Mr. Bernard served on the evaluation committee that reviewed all bids. Other members of the committee were Dr. Garber, Barbara Luker, and Gary Moyer. The evaluation committee interviewed the final two vendors/bidders and then recommended that the superintendent award the contract to AON. Mr. Bernard was the superintendent's expert with regard to insurance matters and the superintendent relied on him a great deal in determining who would be awarded the contract. Mr. Bernard recommended AON and the contract was awarded to AON. Thereafter, in February 2003, at a School Board meeting, Mr. Bernard arranged for an agenda item for the Board to consider regarding an increase he proposed to AON's "purchase order" so as to provide AON an additional $25,000. Ms. Stidham, an Escambia County School Board member had questions and concerns about the non-itemized billing received from AON. She wanted a detailed itemization on all AON invoices. Because of her concern, the issue she raised was referred to Sam Scallan, the Board's Director of Internal Auditing. Mr. Scallan conducted an analysis of invoices for AON Consulting and sent his findings to Superintendent Paul. The Scallan analysis indicated that AON was not billing for reimbursements in accordance with Florida Statutes. It indicated that expenses reimbursed by the district included some exorbitant meal expenses for district employees and their guests. It also indicated that the director of risk management (Mr. Bernard) and his guest, had been furnished with substantial meals on three different occasions and that other expenses reimbursed by the district to AON, included business dinners, a retirement gift, and cigars. Superintendent Paul ordered an investigation of the matter because of Mr. Scallan's analysis. Dr. Doug Garber, the assistant superintendent of Human Resources was appointed to conduct the investigation. Dr. Garber interviewed Mr. Bernard and took a recorded statement from him during his investigation. Mr. Bernard stated that he was familiar with the Florida Statute regarding gifts and gratuities, as well as the School Board policy and knew that "[Y]ou're not supposed to [accept gifts]." Mr. Bernard had developed a business and personal relationship with Chris Clark, the AON consultant, whereby each would purportedly take turns paying for each other's meals. When Mr. Clark was in town, he and Mr. Bernard would sometimes have breakfast, lunch or dinner together. They would take turns buying meals at McGuire's Restaurant and the Pensacola Yacht Club. They had a $400.00 meal expense at Sandor's Restaurant in South Walton County (for four people). Mr. Bernard maintains that he paid his share of that bill by giving Mr. Clark $200.00 in cash on that occasion. They also attended Atlanta Braves baseball games in Atlanta and three NASCAR races. Mr. Bernard maintains he paid Mr. Clark for the NASCAR racing tickets in cash. When on the Atlanta trips, they would have dinner at Bones Steakhouse in Atlanta. Mr. Clark would typically pick up the tab for the meal and Mr. Bernard and his guest would pay the tab for the remainder of the weekend (lodging, cab fare, drinks, etc.). Mr. Bernard stated that he did not know that Mr. Clark was billing improperly because the bills were never itemized. Mr. Bernard contends that Mr. Clark charged the school district for bills that Mr. Bernard had already paid for himself. Mr. Bernard testified that he always reciprocated when dealing with vendors. The reason he states he reciprocated or took turns in paying the restaurant and other bills is that he did not want to create the appearance of an impropriety. Cynthia Craig is an Escambia County school district vendor. She testified that she and Mr. Bernard would take turns buying lunches for each other but they would occasionally lose track of who's turn it was to pay. She also stated that she and Mr. Bernard would sometimes consume alcohol during business lunches. Dr. Garber provided Mr. Bernard with a number of opportunities to clear the matter up concerning the allegations. Mr. Bernard provided Dr. Garber with the names of two witnesses that he wanted to be contacted and interviewed who he felt had information favorable to him. Dr. Garber attempted multiple times to contact those witnesses but was unable to reach them. Dr. Garber told Mr. Bernard on two or three occasions that he had not been able to reach the witnesses and requested that Mr. Bernard get verification from his witnesses so their information could be included in Dr. Garber's report. Dr. Garber was prepared to give credence to the witnesses identified by Mr. Bernard and attempted to contact them, but was unable to subpoena them or otherwise force them to testify. Dr. Garber completed his investigation and issued a report on April 30, 2003. The report to the superintendent concluded that Mr. Bernard had not violated the Code of Ethics provided in Section 112.314(h), Florida Statutes, but that he did violate School Board Rule 3.08, which essentially prohibits employees from taking anything of value from vendors of the school district. As a result of the investigation AON reimbursed the school district $5,700.00, for expenses improperly billed by Mr. Clark. Mr. Bernard only provided receipts for $900.00 of such expenses. Mr. Bernard had not provided any additional receipts as of the time of the hearing, although he possibly could have obtained receipts from his credit card company or through cancelled checks obtained from his bank. Dr. Garber stated that he was prepared to consider any additional information shedding light on the subject matter of the investigation that Mr. Bernard could have provided, and gave him an opportunity to do so. Before taking any action regarding Mr. Bernard's future with the School Board and the superintendent's office, Superintendent Paul waited for the investigation to be completed. After the investigation was completed the superintendent decided not to re-new Mr. Bernard's contract. Superintendent Paul decided not to renew the contract because he believed that Mr. Bernard's effectiveness in negotiating future health insurance rates and plans for 10,000 employees, dependents, and retirees had been damaged. The superintendent had lost confidence in Mr. Bernard's judgment. On May 9, 2003, the superintendent sent Mr. Bernard a letter advising him that his employment contract would not be re-newed. He was allowed to serve-out the end of his existing contract, however, and then left the school district in May 2003 on administrative leave. His contract actually expired June 30, 2003. It was an annual employment contract. He had received all the pay he was entitled to under the contract and according to the terms of the contract, Mr. Bernard did not possess any expectancy of continued employment beyond the end of the 12- month term of the contract. Paragraph 9 of Mr. Bernard's contract of employment provided as follows: "It is expressly understood and agreed by and between the parties hereto that neither the Employee nor the School Board owes any further contractual obligation to the other after June 30, 2003, and that no expectancy of re-employment may be derived from the execution or performance of this agreement."
Recommendation Having consideration the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the petition of Joseph Bernard be denied. DONE AND ENTERED this 9th day of June, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2004.
Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988.
