The Issue Whether Respondent violated sections 1012.795(1)(f), (1)(g), and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 1128573, covering the areas of Elementary Education, English, English for Speakers of Other Languages (ESOL) and Middle Grades Integrated Curriculum, which is valid through June 30, 2021. During the 2013-2014 school year, until her voluntary resignation effective June 3, 2015, Respondent was employed as a language arts teacher at Gulf Breeze High School. Since that time, Respondent has been employed as a third-grade teacher at a private Christian academy in Pensacola, Florida. Material Allegations The material allegations upon which the alleged violations are predicated are, in their entirety, as follows: On or about July 19, 2008, Respondent illegally operated a boat while under the influence of alcohol. As a result of conduct, she was arrested and charged with Boating Under the Influence. On or about February 18, 2009, Respondent was adjudicated guilty of Boating Under the Influence. In or around January 2015 through March 2015, Respondent provided a forum where underage students illegally consumed alcohol and/or consumed alcohol in the presence of students. This conduct includes, but is not limited to, instances: in or around February 2015, wherein Respondent provided alcohol to underage students; and on or about March 20, 2015, when Respondent drove to J.H.'s, a student's, home, while under the influence of alcohol, and thereafter, attempted to drive J.H. while so inebriated. On or about April 24, 2015, Respondent illegally operated a motor vehicle while under the influence of alcohol. On or about May 26, 2015, as a result of the aforementioned conduct, Respondent was arrested and charged with DUI-Second Conviction More Than Five (5) Years After Prior Conviction. On or about April 7, 2016, Respondent pled nolo contendere to an amended charge of Reckless Driving; adjudication was withheld. Count 1 Count 1 alleged a violation based upon Respondent having “been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.” The Count was based on the two incidents described in paragraphs 3 and 5 of the Amended Administrative Complaint as follows: Boating Under the Influence -- 2008 On or about July 19, 2008, Respondent was maneuvering a boat onto a trailer at the Navarre Beach boat ramp. Her husband was driving their vehicle, and had backed their trailer into the water. As a result of actions at that time, Respondent was placed under arrest for Boating Under the Influence (BUI), a misdemeanor (her husband was arrested for Driving Under the Influence). Respondent entered a plea of no contest to the BUI offense and, on February 18, 2008, was adjudicated guilty. Subsequent to the final hearing, counsel for Petitioner researched the issue and discovered that the incident occurred prior to Respondent’s initial certification as a teacher. As a result, Petitioner correctly concluded and stipulated “that no disciplinary action should be taken as a result of this conviction.” Driving Under the Influence -- 2015 On April 24, 2015, Respondent and a friend drove, in the friend’s car, to Pensacola Beach for drinks. Respondent left her car in a Publix parking lot. Upon their return, Respondent correctly perceived that she was not fit to drive home. Her phone was dead, so she got into her car and started it in order to charge the phone. She called her son and asked that he come pick her up. At some point after calling her son, Respondent called her soon-to-be ex-husband, from whom she was in the process of a bitter divorce, and engaged in a heated and animated discussion with him. A complaint was called in, and Officer Kidd was dispatched to the scene. Upon his arrival, Officer Kidd observed Respondent in her car, with the engine running, “yelling at someone on the phone.” He noticed a bottle of Crown Royal in the center console. Respondent refused to perform field sobriety tasks. Office Kidd’s observations of Respondent while she was in the car and upon her exiting the car led him to believe that she was impaired. Respondent had been in the car, with the engine running, and was clearly in control of the vehicle regardless of her intent to drive. Although Respondent’s son arrived on the scene to take her home, Respondent was arrested and transported to jail.2/ Respondent was charged with DUI. The charges were reduced, and she entered a nolo plea to reckless driving. The trial judge withheld adjudication. Count 2 Count 2 alleged a violation based upon Respondent having “been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.” The Count was based on the incidents described in paragraph 4 of the Amended Administrative Complaint. March 20, 2015 -- The Garage On or about March 20, 2015, over spring break, Joshua Hartley was at Pensacola Beach with friends, including Respondent’s son. He had his father’s car. Apparently, Joshua’s father, Jon Hartley had been trying for some time to reach Joshua and have him return the car. Joshua and his group of friends had plans to stay at the beach into the evening. Respondent’s son suggested that Respondent, who he knew to be at the beach, could follow Joshua home, and then return him to his friends at the beach. Respondent was called, and she followed Joshua from the beach to his house, a drive of perhaps 15 minutes. When Joshua and Respondent arrived at the house, Mr. Hartley, Ms. Barrett, and a third man were sitting and drinking in the open garage. Other than agreement that Respondent and Joshua showed up at the house at the same time, the description of the events by Joshua Hartley, Mr. Hartley, and Ms. Barrett were so divergent that the three might well have been in different places. Ms. Barnett described the incident as occurring between 8:00 and 8:30 p.m., when it was dark. She testified that Joshua and Respondent pulled up in separate vehicles, and that Mr. Hartley initially approved of Joshua returning to the beach with Respondent as a good deed, since Joshua purportedly indicated that “she’s really drunk.” She indicated that Joshua got into the passenger seat of Respondent’s vehicle, whereupon Respondent put the vehicle in gear, and lurched forward, almost hitting Mr. Hartley’s vehicle. At that time, Ms. Barrett indicated that Mr. Hartley ran down, startled by the driving error, told Joshua that he could not go with her, and offered to let Respondent stay with them until she sobered up. Ms. Barrett further described Respondent as essentially falling out of her bathing suit, barefoot, staggering, with slurred and vulgar speech, and highly intoxicated. After about an hour, and as Respondent was preparing to leave, Ms. Barnett testified that Joshua, who had remained with the adults in the garage since his arrival, went to his room. Ms. Barnett testified that Respondent then excused herself to use the restroom. Ms. Barnett testified that after 15 minutes or so, she went inside, and found Respondent “exiting Joshua’s bedroom.” Her description of the event is not accepted, and her veiled insinuation that something improper occurred -- for which no evidence exists -- did not go unnoticed. Mr. Hartley described the incident as occurring between 6:00 and 7:00 p.m. He testified that Joshua and Respondent arrived at the house in Respondent’s car with Joshua as the passenger. He was “positive” that Joshua was not driving because he was 15 years old and did not have a driver’s license. When they pulled into the driveway, Mr. Hartley testified that he walked down to the vehicle and that Joshua got out of the car. Mr. Hartley was unsure if Joshua stayed in the garage at all, but at most went to his room after a matter of minutes. Respondent joined the adults in the garage. Mr. Hartley indicated that Respondent “looked like she had been at the beach” and, though her speech was not slurred, he could tell she had been drinking because he could smell alcohol and by “the way she was speaking.” His description of Respondent was far from the florid state of intoxication as described by Ms. Barnett. Mr. Hartley offered no description of Respondent’s vehicle lurching forward, Respondent staggering, or of Joshua asserting that Respondent was really drunk. Finally, his concern that “the grown, intoxicated woman [as described by counsel in his question] was in your 15 year old son’s bedroom” was based solely on Ms. Barnett’s description of what she claimed to have seen. Joshua testified that he drove to his house in his father’s black Lincoln Aviator, and that Respondent followed in her white Ford Expedition. It was daylight, around 4:00 in the afternoon. Upon their arrival, Respondent pulled onto the grass next to the driveway. Mr. Hartley was mad, possibly about Joshua having the car, would not let him return to the beach, and sent him to his room within a minute of his arrival. Joshua testified that Respondent was in typical beach attire. He had no complaint as to Respondent’s actions either at the beach or at his house, and did not see her drinking. He did, however, indicate that “they” told him that “she might have been drunk or something.” He testified that after Respondent spent some time with the adults in the garage, she then went inside to use the restroom. Joshua’s door was open, and Respondent stood at the door and apologized if she had gotten him into trouble. She then left. Given the dramatic divergence in the stories of the witnesses, the evidence is not clear and convincing that anything untoward occurred when Respondent agreed to give Joshua a ride to his house to return his father’s car, and offered to return him to his friends at the beach. Though credible evidence suggests that Respondent had alcohol on her breath, there was no evidence that she was “under the influence of alcohol,” that she was not able to lawfully drive a vehicle, or that Joshua suspected that she had been drinking. Ms. Barrett’s more dramatic testimony that Respondent was drunk and staggering, falling out of her clothes, with her speech slurred and profane, and the intimation that she was in Joshua’s bedroom in that condition, is not accepted. The evidence adduced at the hearing was not clear and convincing that, on March 20, 2017, Respondent engaged in personal conduct that seriously reduced her effectiveness as an employee of the district school board. February 15, 2015 -- Mardi Gras There was a good bit of evidence and testimony taken that Petitioner was seen drunk and staggering down the street at the 2015 Pensacola Mardi Gras, and was seen and assisted by students in that condition. However, the basis for the Amended Administrative Complaint was not that Respondent was publically intoxicated, but that she “provided alcohol to underage students.” Pensacola has a Mardi Gras event with a parade and floats. In 2015, “Fat Tuesday” was on February 17. The big 2015 Mardi Gras parade was on Sunday, February 15. Respondent had a group of friends that were in a Mardi Gras Krewe and she had been helping them with the float. She apparently drank a good bit. By the time her friends were ready to join the parade, around noon to 1:00 p.m., Respondent determined that she was drunk enough that she should go to the hotel room the group had rented. Unlike the evidence for the “Garage” incident, the evidence was convincing that Respondent was very intoxicated. Ms. Smith testified that Respondent joined a group of alumni and students at a Subway parking lot where they had gathered to watch the parade. The evidence is persuasive that Respondent came upon the scene by happenstance, and that the parking lot was not her destination. While there, Respondent very likely consumed one or more “Jello-shots.” However, the suggestion that Respondent was in any condition to have brought the Jello-shots with her to the parking lot is rejected. Rather, the evidence supports that the shots were there, and that she partook. It would not have been out of character for Respondent to have taken them and handed them around. Furthermore, the testimony that Respondent was distributing beers to students is, for the same reason, simply not plausible. After a while, Ms. Smith, followed but not assisted by Mr. Brayton, assisted Respondent to her hotel. Respondent was, by this time, in a state colloquially known as “falling-down drunk.” She could not walk unassisted, and at one point laid down on a picnic table. It was at this time that Respondent and Ms. Smith were photographed, a picture that received some circulation. Ms. Smith finally delivered Respondent to her hotel, where Respondent’s son saw them and relieved Ms. Smith of any further duties. Mr. Brayton’s testimony that he thereafter entered Respondent’s hotel room was not supported by Ms. Smith or others. His testimony regarding Respondent’s son and his friends at the hotel was not clear and convincing. January 2015 -- The House Party Amelia Smith testified to an alleged incident in the fall of 2014 in which she was at Respondent’s house and students were having a party in the garage at which students were drinking. There was no allegation in the Amended Administrative Complaint as to any event in the fall of 2014. Ms. Klisart testified to an incident involving students drinking at Respondent’s house around the Martin Luther King holiday, which in 2015 was on January 19. That corresponds to Petitioner’s statement that she returned to her house after an evening celebrating her birthday,3/ to find her son and his friends having a party in the garage at which students were drinking. The allegation in the Amended Administrative Complaint that Respondent provided a forum where underage students illegally consumed alcohol in January 2015 was adequately pled. The evidence supports a finding that Respondent had been drinking when she arrived at her house. The evidence is not clear and convincing that she joined the students in the garage, but she clearly knew the party was ongoing, that it involved high school students, that the students were drinking, and that she made no effort to put a halt to the party. Notoriety of the Incidents The evidence is clear and convincing that the incidents described herein were widely known by students at Gulf Breeze High School, by other teachers, and by the school administration. Counts 3 and 4 Count 3 alleges that “Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” Count 4 alleges “that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to student's mental health and/or physical health and/or safety.” Rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [a student’s] health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, by allowing, if not condoning, student drinking at her home in January 2015, failed to make reasonable effort to protect students from harm.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated sections 1012.795(1)(g) and (1)(j), and rule 6A- 10.081(3)(a). It is further recommended that Respondent be placed on probation for a period of five years, and be required to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 7th day of June, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2017.
The Issue Whether just cause exists to terminate Respondent from his employment with the Pinellas County School Board.
Findings Of Fact On January 23, 2006, Respondent was hired by Petitioner to work as a school bus driver. The position of bus driver is covered by the 2008-2011 Collective Bargaining Agreement between The School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). Respondent's employment disciplinary history with Petitioner is as follows: 12/07/06 Respondent received a "Conference Summary" for uncorrected job deficiencies and for making inappropriate remarks to students; 05/06/08 Respondent received a "Caution" for making inappropriate remarks to students; 05/22/08 Respondent received a "Reprimand" for failing to comply with board policy, State law, or the appropriate contractual agreement; 01/25/10 Respondent received a "Caution" for excessive absenteeism; 03/26/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus; 10/04/10 Respondent received a "Conference Summary" for insubordination; 12/02/10 Respondent received a "Caution" for making inappropriate and disparaging remarks to a student; and 12/14/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus. During Respondent's term of employment with Petitioner, his performance appraisals have been satisfactory with the exception that on January 20, 2009, Respondent was advised that he needed to improve his punctuality; and on January 25, 2010, he was told that his work attendance was unsatisfactory. The passenger compartment of the school bus operated by Respondent during all times relevant hereto is typical of most school buses. There are two columns of seats separated by an aisle for ingress and egress that runs the length of the bus. Each column of seats is composed of approximately nine bench seats. The bus operated by Respondent was equipped with an operable audio/video camera. The audio/video camera was mounted at the front of the bus' passenger compartment and was positioned such that it simultaneously recorded audio and images of the passengers and of Respondent while he operated the bus. The bus also has a mirror mounted forward of the driver and above his head. When viewed from the seat of the driver of the bus, the overhead mirror allows the driver to monitor some of the activities of the passengers. During all times relevant hereto, Respondent was operating his assigned bus on the roads of Pinellas County, Florida. On February 8, 2011, student A.D. was a passenger on the bus operated by Respondent. School had been released for the day, and Respondent was transporting the students to their appointed stops. A.D. was enrolled as a middle school student and the other 30 or so students that were on the bus on February 8 and 9, 2011, appear from the audio/video recording to be of an age similar to that of A.D. On February 8, 2011, A.D. was seated in the third row nearest Respondent and was, for the most part, positioned such that his upper torso was angled towards the rear of the bus. At approximately 4:22 p.m., A.D. is seen on the video making a throwing motion with his right arm. Within a second of A.D. completing the throwing motion, Respondent removed the sunglasses from his face and in an agitated voice said, "(student's name) what did I say?" Simultaneous to making the statement, Respondent also spread his arms as an added gesture of frustration. Respondent's facial expression further reflected his feelings of frustration and exasperation. Approximately 14 seconds after calling out to A.D., Respondent picked up the microphone to the bus' public address system and announced the following: Respondent: Hey! (1 second pause) Respondent: If anybody sees (A.D.) throwing paper, you have my permission to knock him out! According to Mr. Thomas Hagewood, who works for Petitioner as manager of the transportation department, a student's assigned school determines appropriate disciplinary action when a student commits an infraction while riding on a bus operated by Petitioner. Employees, like Respondent, that are assigned to Petitioner's transportation department are not responsible for disciplining students. Respondent testified as follows regarding his rationale for authorizing the students on the bus to strike A.D.: Respondent: Well, I felt like I had to just bring A.D. down a peg because, like I said before, in the beginning of the year--this has been an ongoing problem. I've written him up, I've gone to the school, you know, I've gone to my FOS (Field Operations Supervisor) and I couldn't get anybody to help me get this child under control. It came to a point where we had a sixth grader bullying 50 kids on the bus by throwing pencils, crayons, paper, you name it, snot rags. It was just that particular day where even after I told him before the bus pulled out of the bus circle--I asked him not to throw anything, you know, and he did not listen to me. He got on the bus. He continued to throw stuff. I could hear the girls in the back asking A.D. to stop, you know. I just thought that if I embarrassed him a little bit that it would work, you know, that he would just stop for that moment, you know, just to leave everybody alone. Counsel: So you intended to embarrass him? Respondent: I intended to get his attention. Counsel: Okay. You just said "I thought if I embarrassed him." Respondent: Well, okay. Yeah. I just thought if I brought the attention on him that, you know, he would stop doing what he was doing. Although Respondent testified that he had previously "written A.D. up" for misconduct and complained repeatedly to school officials about A.D.'s behavior, Respondent did not produce any evidence to corroborate this testimony. Additionally, Petitioner reviewed its files and did not locate any documentation to substantiate Respondent's claim that he complained about A.D.'s behavior prior to February 8, 2011. Respondent's testimony regarding his complaints about A.D. is not credible. Immediately after Respondent finished announcing to the students that it was permissible to "knock out" A.D., several girls can be heard screaming in response to Respondent's statement, and a male student in a grey jacket is seen rising from his seat and moving towards A.D. in a provocative manner while stating something to A.D. that is inaudible. The student in the grey jacket returned to his seat without incident. A few moments later, a male student in a white hat, who was initially positioned a few seats behind A.D., is seen on the video making his way towards A.D. The student in the white hat eventually positions himself in the seat diagonal from A.D. At approximately 4:24 p.m., the student in the white hat is seen on the video standing over A.D. and throwing a punch at A.D. that appears not to have been intended to strike A.D. After throwing the counterfeit punch, the student in the white hat returned to his seat and pointed his right index finger at A.D. It is not decipherable from the audio what, if anything, the student in the white hat said to A.D. while gesturing with his finger. Over the next 30 seconds or so, the student in the white hat is seen on the video poking A.D. Both students are seated while this is occurring. At approximately 4:25 p.m., the student in the white hat rises from his seat, positions himself in a fighting stance while standing over A.D., and throws a right hand punch that strikes A.D.'s head. Immediately after being punched, A.D. sinks into his seat and disappears from the view of the camera. Approximately 15 seconds after A.D. was punched, a female student in a grey jacket makes her way from the back of the bus and leans over A.D. After leaning over A.D. for approximately three seconds, the female student walks back to her seat. It is not known what, if anything, the female student said to A.D. Approximately ten seconds later, a female student in a cream-colored jacket rises from her seat near the rear of the bus, walks down the aisle, and positions herself in the seat across from A.D. The student leans over A.D. and can be seen patting A.D. in such a way as to suggest that she was providing A.D. with comfort and support. After several seconds, the female student in the cream-colored jacket rises and returns to her seat at the back of the bus. Throughout the remaining portion of the video from February 8, 2011, A.D. remains crouched down in his seat and hidden from the video, except for a momentary instance when he rises from his seat and throws a punch at the student seated behind him. Respondent did not react to A.D. having thrown a punch at another student because Respondent, at the time the punch was thrown, was driving the bus while using his cell phone. Additionally, at other times on February 8, 2011, students on the bus were leaving their seats, walking up and down the aisle, and throwing objects about the bus. These activities went unnoticed by Respondent because he was distracted by talking on his cellular phone while operating the bus. The following morning, Respondent, while transporting the students to school, made the following announcement over the public announcement system: Respondent: Hey, real quick. Who would ya'll say the main person is that is always throwing stuff on this bus? Students: (Students yell out A.D.'s name) Respondent: Okay. They are probably going to question ya'll since he isn't on the bus. He probably told his parents about something trying to get me fired or something, you know whatever. Student: We got your back Mr. Thomas! Respondent: Alright. A.D. sustained physical injuries and sought medical treatment as a consequence of receiving the punch to his head. A.D. reported the incident to his mom who was extremely upset by the fact that Respondent, as a school board employee, would encourage students to engage in acts of violence. At 5:05 p.m., on February 8, 2011, A.D.'s mom called Respondent to report the incident. After the incident of February 8, 2011, A.D. was afraid to ride the bus operated by Respondent. A.D.'s mother moved her place of residency and transferred A.D. to another school because she wanted to "get away from that area" where she and A.D. lived at the time. The student that struck A.D. was arrested and charged with battery. The offending student successfully completed the juvenile diversion program. The mother of the student that struck A.D. was also outraged by Respondent's conduct of encouraging students on the bus to engage in acts of violence. Around February 8, 2011, Respondent was going through a stressful domestic situation related to him gaining custody of his son. As a consequence of his domestic instability, Respondent was experiencing a great deal of subjective emotional distress to the extent that he felt like a "bottle about to pop." As previously noted, Respondent, on December 2, 2010, was issued a letter of caution for using inappropriate language while on the bus with middle school students. As a part of the process for addressing the incident of December 2, 2010, Respondent agreed to voluntarily attend a student management class that is tailored towards bus drivers. A confluence of factors contributed to Respondent not taking the student management class. First, Respondent missed work for a period of time due to a workers' compensation injury. Second, the school district was closed several weeks for winter break. Third, due to a rotation of managerial personnel by Petitioner, the individuals that were aware of Respondent's request to take the student management class were given new assignments such that they no longer supervised Respondent. Finally, and most importantly, Respondent showed no initiative upon his return to work in taking the steps necessary to inform his new superiors about his desire to enroll in the student management training course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, dismiss the charge against Respondent, Eric F. Thomas, Jr., which alleges that Respondent violated Board Policy 4140 A.7. Petitioner terminate Respondent's employment as a school bus driver as a consequence of Respondent's violation of Board Policy 4140 A.9a., A.13., A.19., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Respondent's termination from employment as a school bus driver. Petitioner dismiss the charge against Respondent which alleges that Respondent violated Board Policy 4140 A.21. (If Petitioner disagrees with the recommendation that Respondent should be terminated, then it is RECOMMENDED that Respondent, consistent with Petitioner's system of progressive discipline, be issued a letter of caution for operating his bus while using his cellular phone.) DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of May, 2012.
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED
Findings Of Fact Respondent was initially licensed as a commercial driving instructor in November, 1980, for Autosa International, Inc., a driving school in Miami, Florida. His current license, which is due to expire in November, 1982, is with Fajardo Driving School. As a commercial driving instructor, Respondent's responsibilities include teaching applicants how to drive in order to become licensed drivers in Florida. Florida drivers are not required to speak English. The Petitioner's Florida Driver's Handbook, which contains all of the rules and driving procedures, is, accordingly, issued in both English and in Spanish. In order to ensure knowledge of the Handbook, applicants are required, among other things, to take a written, multiple-choice, rules- of-the-road and road-sign test for licensure. The written examination is given both in English and in Spanish. Petitioner uses four different examinations on a random basis. The clientele of Autosa International are primarily Spanish speaking. The Florida Driver's Handbook contains many questions for the reader's benefit in verifying his or her understanding of the contents of that handbook. The questions are general in nature, and no answers are provided. On Page 77 of the Handbook, one sample question is given with multiple-choice answers and the correct answer being checked. This sample question is provided in order to illustrate the form of question given on the written examination. When Respondent began his employment with Autosa International, Inc., driving school, he was assigned a 1980 Spirit automobile. When an instructor at Autosa is assigned an automobile, he is permitted to take that automobile home, but is required to assume responsibility for having the automobile maintained and serviced. Acting upon information given to him, Ardo Mesa, president of Autosa International, searched the automobile assigned to Respondent when Respondent was not present. In the trunk of that automobile, in the space between the spare tire and the cover for the spare tire, Mesa found a copy of one of the Petitioner's Spanish examinations and a second set of papers which is a composite of questions from the four Spanish examinations given by the Petitioner. The questions on both sets of documents are followed by multiple- choice answers with the correct answer being marked. When Mesa realized that these documents were the actual Spanish examinations given by the Petitioner, he returned the documents to the space under the spare-tire cover and began watching the Respondent for the next several days in order to determine why Respondent possessed those documents. After seeing Respondent take the papers out of his trunk and give them to students, Mesa confronted Respondent on March 5, 1982. With Respondent present, Mesa opened the trunk, took out the documents, and ripped them into several pieces. Respondent acknowledged to Mesa that the documents were his. Mesa threw the torn documents into the trunk of Respondent's car and terminated Respondent's employment with Autosa driving school. Mesa later retrieved the torn documents from the trunk of the car, taped them back together, placed them in an envelope in his office, and contacted Petitioner to report Respondent's possession of copies of Petitioner's examinations. Respondent had been employed by Autosa International and had possession of the 1980 Spirit for approximately three months before his employment was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate of Respondent, Juan Crespo. RECOMMENDED this 26th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 26th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue The issues in these consolidated cases are as follows: (1) whether Respondents employed Lorene Walker, who had contact with scholarship students and who did not meet the requisite criteria to pass the Level 2 background screening as required by section 1002.421(1)(m) and (p), Florida Statutes (2019), and if so, what is the appropriate remedy; and (2) whether Respondents engaged in fraud in violation of section 1002.421(3)(d) and, if so, whether Petitioner should revoke Respondents' participation in several Florida Scholarship Programs.1
Findings Of Fact Parties, People, and Programs The Department is the government agency charged with administering numerous state scholarship programs pursuant to section 1002.421, Florida Statutes. The Department operates or has administrative responsibilities for the Gardiner Scholarship Program, the John M. McKay Scholarships for Students with Disabilities Program, the Florida Tax Credit (FTC) Scholarship Program, and the Family Empowerment Scholarship Program. See §§ 1002.385, 1002.39, 1002.394, and 1002.395, Fla. Stat. The Gardiner, McKay, FTC, and Family Empowerment scholarships defray tuition and other qualified educational expenses for eligible students who attend charter, private, or other eligible schools in the state of Florida. The Department also operates or administers the Hope Scholarship Program, which provides tuition assistance to victims of school bullying so that they can enroll in another school. See § 1002.40, Fla. Stat. The scholarship funds are awarded to eligible students to be used at eligible schools. The Commissioner is the agency head of the Department and has the authority to revoke or suspend a school's eligibility to receive scholarship monies on behalf of eligible students. The Independent Education and Parental Choice Office, also referred to as the School Choice Office (Office), is a section of the Department which oversees several school choice options outside Florida's public school system. The Office also oversees the administration of various scholarships programs under chapter 1002. The Office is in regular contact with schools that participate in these scholarship programs. Respondents have been operating as private schools for approximately six years. Since the 2013/2014 school year, they have been found eligible and participated in numerous scholarship programs pursuant to section 1002.421. Respondents operate two campuses: (1) School Code No. 4015 located at 1056 North Pine Hills Road, Orlando, Florida (Pine Hills Campus); and (2) School Code No. 8827 located at 5308 Silver Star Road, Orlando, Florida (Silver Star Campus). The Schools serve 40 to 50 scholarship students and receive approximately $200,000 per year in scholarship funds. Judith Shealey is the owner of the Schools. She carries the title of Executive Director, Principal, Headmistress, and/or Owner. Ms. Shealey has family members who are students and teachers at the Schools. Compliance Requirements As explained by RaShawn Williams, the Office, parents, and eligible schools work closely together to access the scholarship funds. The parents apply for the scholarships through the designated agency and enroll their students directly with an eligible school. The school is responsible for enrolling the student in the scholarship program awarded to that student. Essentially, the student must be deemed eligible to receive scholarship funds, and the school must be eligible to receive those scholarship funds. If a private school is deemed ineligible by the Office for participation in a scholarship program, the students at that school do not lose their eligibility for scholarship funds. Rather, they simply cannot use those funds to enroll in the ineligible school. As private school participants in the Florida Scholarship Programs, the Schools were required to register with the State through the submission of a Private School Annual Survey; and then apply for eligibility through the submission of a yearly Scholarship Compliance Form (Compliance Form). The Compliance Form specifies numerous governing statutory requirements including: (1) submitting background screenings for officers, directors, or other controlling persons; (2) certifying all staff with direct student contact have passed an FDLE Level 2 background screening; and (3) terminating or denying employment to all persons who cannot meet this requirement. The Compliance Form is completed by applicant schools online, and then a signed and notarized hard copy is mailed to the Office. The relevant portions of the Compliance Form are found in "Section 4," and involve background checks: * Has each Owner, Operator, and Chief Administrative Officer undergone a Level 2 background screening through the Florida Department of Law Enforcement and submitted the results to the Florida Department of Education in accordance with section 1002.421(1)(m), Florida Statutes? (Reports must be filed with the private school and made available for public inspection). * * * * Have all employees and contracted personnel with direct student contact submitted their fingerprints to the Florida Department of Law Enforcement for state and national background screening in accordance with section 1002.421(1)(m), Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school deny employment to or terminate an employee or contracted personnel with direct student contact if he or she fails to meet the background screening standards under section 435.04, Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school disqualify instructional personnel and school administrators from employment in any position that allows direct contact with students if the personnel or administrators are ineligible under section 435.40, Florida Statutes? A "No" answer on any of the above questions would, if unresolved, result in a private school's ineligibility for scholarship funds. The evidence establishes that the Schools answered "Yes" for sections 4A, 4C, 4D, and 4E on the notarized Compliance Forms that were submitted on December 18, 2018, and December 11, 2019. In addition to certifying the information above on the Compliance Forms every year, an eligible school must submit to the Office screening documentation for directors, principals, board members, administrators, and officers as part of the renewal of participation in the scholarship programs. Screening documentation related to other employees must be maintained by the schools and is usually only reviewed by the Office during an audit or a site visit of the school. There is no dispute that the Schools never listed Lorene Walker as an administrator for the Schools. There is no dispute the Schools never submitted any background screening information for Ms. Walker until specifically requested by the Office in November 2019. Employment of Lorene Walker Lorene Walker was hired by the Schools in 2013.3 She had children and/or grandchildren who attend the Schools. The Schools claim Ms. Walker was hired from an entity known as "Career Source." Although Ms. Walker believed that she had been cleared to work at the Schools, there is no employment file or documentation that she had undergone the Level 2 background screening required by law before being employed at the Schools. Originally, Ms. Walker worked as a "floater." As a floater, Ms. Walker cooked, cleaned, and did whatever the school needed at the time. It is unclear whether she had direct contact with students in this position. 3 Ms. Walker testified she began working there in 2015, but later stated she started in 2013. Ms. Shealey indicated by 2014, Ms. Walker had transitioned into the current position. Regardless, in 2014, Ms. Walker transitioned into a more active role at the Schools. Although the Schools claim in response to the Complaints that she was simply an administrative assistant to Ms. Shealey, the evidence establishes that Ms. Walker was the Administrator for the Schools during the time relevant to the Complaints. She reminded teachers to send out grades, attended meetings, oversaw the lunch program, and prepared school-related and financial documentation. Ms. Walker was also responsible for the Schools' students' enrollment into the scholarship programs. As Administrator, Ms. Walker also had authority, either explicit or implicit, from the Schools' owner, Ms. Shealey, to represent the Schools when dealing with the Office. She worked directly with Ms. Williams on compliance issues, including fire safety, health inspections, and completion of the Annual Survey and Compliance Form for the Schools. Ms. Walker also responded to requests for information from Ms. Williams and others in the Department. It was clear Ms. Walker was integral to the operation of the Schools. Ms. Shealey and Ms. Walker were the only two individuals with access to the Schools' email accounts that were used to correspond with the Department. The emails from one of the email addresses usually contained Ms. Shealey's signature block indicating either the title of "Principal" or "Headmistress." Ms. Walker's signature line identified her title as "Administrator." Before being hired by the Schools, Ms. Walker had been arrested for numerous offenses between 1978 and 2001 in Florida. Although most of these offenses were dismissed, dropped, and/or abandoned, she pled nolo contendere to and was found guilty of a 1994 charge for unlawful purchase of a controlled substance, a second-degree felony in violation of section 893.13, Florida Statutes (1993). The 1994 charge is a disqualifying offense which rendered Ms. Walker ineligible to be a school employee.4 There was no evidence that Ms. Walker had obtained an exemption for this qualification. As noted above, the Schools never disclosed Ms. Walker's importance in their operations in their Compliance Forms. Prior to November 2019, the Schools had never provided any screening documentation for Ms. Walker to the Office as part of the yearly compliance process. Investigation and Complaints On or around October 14, 2019, the Department received a complaint from another state agency concerning possible abuse by an employee of the School at the Pine Hills campus. Although the abuse investigation was handled outside of the Office, the Office opened an inquiry into the Schools' compliance with background check requirements and other issues. Whitney Blake conducted the investigation on behalf of the Office. The first step in this inquiry was a letter from Ms. Blake's supervisor, dated October 25, 2019, requesting (among other things) a list of all employees (including both teachers and other personnel) and results of current FDLE Level 2 background screenings for all employees. 4 Section 435.04, Florida Statutes, provides the following in relevant part: (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction: * * * (ss) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor. On November 4, 2020, Ms. Walker sent the Department a list of all the Schools' staff, including herself as "Administrator," along with the results of her background screening, revealing her previous disqualifying offense. On November 15, 2019, Ms. Blake attempted to contact Ms. Shealey by phone because she was concerned that Ms. Walker, who was the disqualified employee, was the person sending the information from the School. When she called the Schools and requested to speak with the owner (Ms. Shealey), the person who answered purportedly claiming to be the Schools' owner did not have a distinguishable accent. Ms. Shealey was known to have a strong accent, whereas Ms. Walker did not. Regardless, on this call, Ms. Blake instructed the person on the other end of the phone line that the Schools would need to terminate Ms. Walker immediately because of her disqualifying offense. On that same day, Ms. Blake then sent a follow-up email to the Schools (at both email addresses utilized by the Schools) indicating there were outstanding items that had not been provided as requested in the October 25 letter. She also specifically requested proof Ms. Walker was no longer at the Schools. Specifically, the Department stated: Upon review of the Level 2 background screenings, it was determined Lorene Walker has disqualifying offenses pursuant to section 435.04, F.S. An employee or contracted personnel with direct student contact means any employee or contracted personnel who has unsupervised access to a scholarship student for whom the private school is responsible. To certify compliance with this requirement, please submit a signed statement indicating Lorene Walker's employment at your school has been terminated or that individual's role with your school no longer puts he/she in proximity to scholarship students. Your attention to this in the next five days will preempt any further action on our part. (emphasis added). That same date, November 15, 2019, the Schools emailed one of the items requested by Ms. Blake, an abuse poster, to the Office. Although Ms. Walker testified she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. On November 18, 2019, the Schools sent another item previously requested by Ms. Blake, the teaching qualifications for a teacher, to the Office. Again, although Ms. Walker claimed she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. Ms. Blake did not receive any proof that the Schools had removed Ms. Walker from her position within five days as requested in the November 15 email to the Schools. As a result, on November 22, 2019, Ms. Blake emailed the Schools reiterating the requirements of section 1002.421, and repeating her request for a signed statement that Ms. Walker had been terminated or had no contact with scholarship students. Ms. Blake also added: "Failure to turn in the requested documentation could impact your school's ongoing participation in the Scholarship Program." During this time, Ms. Blake spoke to Ms. Shealey numerous times on the phone regarding the outstanding requests related to another teacher and the signed documentation that Ms. Walker had been removed from her position. Ms. Shealey indicated it would be difficult to remove Ms. Walker due to Ms. Walker's oversight of the school and her familiarity with the scholarship student information. After Ms. Blake did not receive the requested proof of Ms. Walker's removal from the Schools and two other items related to a teacher, the Office issued a Notice of Noncompliance on December 5, 2019. On December 19, 2019, Ms. Shealey sent to Ms. Blake one of the outstanding items related to the teacher by email. There was no mention of Ms. Walker and no signed proof that Ms. Walker had been removed from her position. The next day, Ms. Blake wrote an email to Ms. Shealey indicating that she did not have authority to exempt Ms. Walker from the background screening requirements. She again asked for the outstanding information related to the other teacher and a signed statement indicating Ms. Walker had been removed and no longer had proximity to scholarship students. On December 23, 2019, Ms. Shealey emailed Ms. Blake that the teacher for which there was an outstanding request had resigned and no longer worked for one of the Schools. Ms. Blake responded with yet another request for the signed statement indicating Ms. Walker had been terminated or was no longer in proximity to scholarship students. In response, Ms. Shealey sent an email to Ms. Blake with an attached letter. The letter titled "Termination of your employment" and dated December 9, 2019, indicates that Ms. Shealey terminated Ms. Walker during a meeting held on December 9, 2019. The letter is unsigned. Ms. Shealey indicated in the text of the email that it was the hardest letter she had to write. Being concerned that they had not received a signed statement, Ms. Blake and Ms. Williams requested that a site visit be conducted at the Pine Hills Campus. A visit was scheduled for February 5, 2020, and the Schools were provided notice of the site visit by certified mail, email, and telephone. Additionally, the Schools were provided a checklist of the documents that should be provided to the inspector during the site visit. On February 5, 2020, Scott Earley from the Office conducted the site visit at the Pine Hills Campus. When he arrived, Ms. Shealey was not there and none of the documentation previously requested had been prepared for review. Mr. Earley testified that once Ms. Shealey arrived, she did not know where all the requested documents were, nor could she produce all of them. For example, when asked about a necessary health form, Ms. Shealey indicated that Ms. Walker would know where the document was, but she could not locate it. Mr. Earley did not recall Ms. Shealey stating during the inspection that Ms. Walker was working from home, but she gave Mr. Earley the impression that Ms. Walker's background screening issue had been resolved. Regardless, the Site Visit Staff/Consultant Worksheet filled out for the February 5 site visit does not disclose Ms. Walker as a member of staff or contracted personnel with the Pine Hills Campus. Although Ms. Walker was not at the Pine Hills Campus during the site visit, Mr. Earley believed based on his observations and conversations with Ms. Shealey that Ms. Walker was still employed by the Schools as a director or principal. Almost two weeks later on February 20, 2020, Petitioner filed the Complaints against the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. Even after the Complaints had been served on the Schools, however, it was unclear what Ms. Walker's involvement was with the Schools. There may have been some confusion because Ms. Walker had been seen after her purported termination on campus. Ms. Walker claimed she was on campus only to pick up her children and grandchildren. Testimony from two of the Schools' teachers indicated that they noticed Ms. Walker was no longer at the Schools, but knew she was taking care of the Schools' paperwork from her home. Neither teacher could establish a date certain for when Ms. Walker stopped working on campus and/or when she began working at home. Prior to the filing of the Complaints in these proceedings, there was no evidence that the Schools ever reported to the Office that Ms. Walker had been working from home. Nothing in the Petition filed on March 4, 2020, indicates Ms. Walker was still employed at the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. As part of the March 11 submission, Ms. Shealey sent a signed statement indicating she had not terminated Ms. Walker, but rather "had her work from home." This was the first time Ms. Shealey indicated to the Office that Ms. Walker was still working for the Schools. In the Motion filed April 10, 2020, the Schools indicated they were unaware of the specifics of the Level 2 background screening requirement, and that, once aware, "we took action immediately and terminated the employee in question." There was no indication in the body of the Motion the Schools continued to employ Ms. Walker to work at her home. Attached to the Motion, however, was the same letter submitted on March 11 indicating Ms. Walker was working from home. In the Amended Petition filed on May 15, 2020, the Schools state Ms. Walker was terminated: "I terminated Ms. Lorene Walker due to the Department's information in order to come into compliance with the Florida Department of Education." "I rectified this deficiency by terminating Ms. Walker." "Ms. Lorene Walker was terminated on December 9, 2019, as advised by Whitney Blake." Although the Amended Petition does not explicitly state Ms. Walker continued to work for the Schools at home, it does leave room for this interpretation: "As of December 9, 2019, Ms. Lorene Walker no longer works in the Lion of Judah facility." It is unclear on what date Ms. Walker stopped working from home for the Schools. What is clear is that at the time of the final hearing she was no longer working at the Schools in any location or in any capacity. ULTIMATE FACTUAL DETERMINATIONS The greater weight of the evidence establishes Ms. Walker, in her role as Administrator, should have been disclosed to the Office as an "operator" or "a person with equivalent decision making authority." The Schools were required to send her background screening documentation to the Office as required by the Compliance Form and section 1002.421(1)(p), and they did not. The Schools employed a person with a disqualifying offense in violation of sections 1002.421(1)(m) and 435.04(2)(ss). Specifically, the Schools employed Ms. Walker from 2014 (if not earlier) through December 2019 (if not later) in a position in which she was in the vicinity of scholarship students, knowing that she had been found guilty of a felony and without obtaining or providing documentation related to a Level 2 background clearance. The Schools continued to allow Ms. Walker to remain in a position that placed her in the vicinity of scholarship students after receiving notification of her ineligibility for almost a month (if not more). The greater weight of the evidence establishes the Schools engaged in fraudulent activity, to wit: (1) Ms. Shealey falsely represented to the Office that the Schools complied with Section 4 of the Compliance Form for 2018 and 2019; (2) the Schools falsely obscured Ms. Walker's role at the School and her criminal background; and (3) the Schools failed to honestly disclose Ms. Walker's employment status when they claimed to terminate her on December 9, 2020, but failed to inform the Office that they had retained (or rehired) her to work at home. The Schools made these statements of material fact either knowing they were false or in reckless disregard of the truth or falsity of the representations, which were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (1) upholding the suspension; and (2) revoking the eligibility of Lion of Judah Academy (4015) and Lion Of Judah Academy (8827) to participate in the following Florida Scholarship Programs: John M. McKay Scholarships for Students with Disabilities Program, Florida Tax Credit Scholarship Program, Gardiner Scholarship Program, Hope Scholarship Program, and/or Family Empowerment Scholarship Program. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 3rd day of November, 2020. COPIES FURNISHED: Jason Douglas Borntreger, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32310 (eServed) Judith Shealey Lion of Judah Academy 1056 North Pine Hills Road Orlando, Florida 32808 Shawn R. H. Smith, Esquire Law Office of Shawn R. H. Smith, P.A. Post Office Box 547752 Orlando, Florida 32854 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated. DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of September, 1986.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
The Issue Whether Petitioner proved, by clear and convincing evidence, that Respondent violated section 1012.795(1)(d), (g), and (j), Florida Statutes (2014),1 and Florida Administrative Code Rules 6A-10.081(2)(a)1., 6A-10.081(2)(a)5., and 6A-10.081(2)(a)8.2; and, if so, the penalty that should be imposed against Respondent's Florida Educator's Certificate.
Findings Of Fact The Parties Petitioner, Richard Corcoran, the Commissioner of Education for the State of Florida, is responsible for determining whether there is probable 3 Because Petitioner corrected the error by filing a corrected Proposed Recommended Order, the undersigned denied the motion to strike as moot. cause to warrant disciplinary action against an educator's certificate, and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent held Florida Educator's Certificate No. 1153464, which was valid through June 30, 2020, covering the certification area of Music. He was employed as a high school band teacher in the Palm Beach County School District ("District") from 2010 to 2016, and he was employed at Jupiter High School at all times relevant to this proceeding. He was not reappointed to his employment position on June 3, 2016.4 Respondent no longer teaches in Florida. He currently resides, and is employed as a teacher, in Texas. Charges Stated in Amended Administrative Complaint At its core, the Amended Administrative Complaint (hereafter, "Amended Complaint") charges Respondent with having engaged in conduct during the 2014-2015 and 2015-2016 school years that is alleged to violate section 1012.795, rule 6A-10.081, and Palm Beach County School Board Policy 3.29. Paragraph 3 of the Amended Complaint alleges that a female student, H.C.,5 reported to the Jupiter Police Department that Respondent was engaged in sexual relations with male and female students, in his office at Jupiter High School, and at his residence, in Tequesta, Florida. Paragraph 3 also alleges that student H.C. stated that student D.S. had contacted Respondent on the Grindr application ("app"), and that D.S. told other students that he had a relationship with Respondent. 4 Respondent was not terminated from his employment with the District. As discussed below, the letter notifying him that he was not reappointed stated that he was eligible to apply for other positions in the District for which he was qualified. 5 All students are identified in this Recommended Order using their initials because they were minors at the time that the matters giving rise to this proceeding are alleged to have occurred. Paragraph 4 alleges that in March 2015, Respondent approached B.M., a 12th-grade student who was 18 years old at the time, through Grindr. Paragraph 5 alleges that Respondent sent D.S. sexually-graphic communications and nude photographs through the Grindr app. Paragraph 6 alleges that on March 17, 2015, Respondent "exchanged sexually-explicit messages with one [Grindr] User (#47281451), who first stated that he was 19 years old, before claiming to be 18 years of age"; that the following day, "Respondent texted the User[,] who first states that he's only 17 years old, then claims to be 18, before finally stating he was only 16 years of age"; that "[d]espite this admission, Respondent later requests a 'threesome' with a third party and sends a sexually-explicit image and message before announcing the other User was 16 years old who [sic] he had 'hooked up' [with] previously"; and that Respondent then sent photos of himself and the 16[-]year[-]old to the third party." Paragraph 7, quoted below, alleges that in a Grindr chat exchange that took place on April 13, 2015, with another user: Respondent asked the user if he was in high school. When the user responded 'Yes', Respondent asked, "Cool, what grade?" The user stated '11th['.] Respondent failed to confirm the user[']s age and continued with sexually[-]explicit communications that included exchange of explicit photographs with D[.]S[.], a 16-year-old student at Respondent's school. Paragraph 8 alleges that: During the 2014/2015 school year, Respondent accessed an internet application that, while technically restricted to males 18 years of age and older, had no effective process to guard against access by underage individuals or by individuals who were 18 years old, but attended high school. Respondent knew or should have known that underage individuals, including students, could have access to the application. Respondent's actions described herein failed to properly protect the health and welfare of students when he posted sexually explicit comments and pictures on an internet application that was accessible to underage or current high school students, including D[.]S. Paragraph 9 alleges that on April 27, 2016, school detectives obtained a video that was stored on Respondent's school district Google Drive account; that the video depicted a male of unknown identity posing nude and masturbating; that the video had no educational purpose; and that the video was stored "on the premises accessible to students, in violation of school board policy." Evidence Adduced at the Final Hearing This case arose as a result of rumors circulating at Jupiter High School in the 2014-2015 and 2015-2016 school years, to the effect that Respondent was having sex with students in his office; as well as a rumor started by student D.S., then a junior at Jupiter High School, that he was having, or had had, an online sexual relationship with Respondent. Student H.C. heard these rumors. She did not have any personal knowledge of any of the events that were the subject of the rumors, but out of concern, reported them to School Police Officer Carla Irons. H.C. told Irons that she heard rumors that Respondent was having sex with students, both in his school office and outside of school, and that she also had heard a rumor that Respondent was having a sexual relationship with student D.S. As a result of these rumors, in April 2016, Palm Beach County School District Police Department Detectives Eulises Munoz and Anna Sloan were directed to investigate whether Respondent had engaged in the conduct that was the subject of the rumors. Evidence Regarding Charge that Respondent had Sex with Students As part of the investigation, Respondent's office at Jupiter High School was examined for evidence of him having had sex in the office. This examination did not reveal any evidence that Respondent had had sex with anyone in his office. Additionally, Munoz and Sloan investigated whether Respondent had, or was having, sexual relationships with students in other locations, such as in his home. The investigation yielded absolutely no evidence that Respondent was, or ever had been, engaged in sexual relationships with students—whether at his home, in his car, or at any other location. To the contrary, all of the evidence presented at the final hearing showed that there was absolutely no factual basis to the rumors that Respondent was having, or ever had, sexual relationships with students. Evidence Regarding Allegation that Respondent had Sex with D.S. To investigate H.C.'s statements that Respondent had, or was having, a sexual relationship with D.S., Munoz and Sloan went to D.S.'s house, interviewed him, and searched his cell phone and home computer. Munoz testified that during his interview of D.S., D.S. denied ever having a physical sexual relationship with Respondent. D.S. testified at the final hearing, and also attested in his affidavit,6 that he never had a sexual relationship with Respondent; that Respondent had never spoken to him or vice-versa; and that he did not think Respondent knew who he was. Evidence Regarding Charge that Respondent Sent Sexually-Explicit Communications to D.S. through the Grindr App 6 D.S.'s affidavit is hearsay. Hearsay evidence is admissible in administrative proceedings, and may be used to supplement or explain other evidence, but is not sufficient in itself to support a finding of fact unless, pursuant to sections 90.802 through 90.805, Florida Statutes (2020), it falls within an exception to the hearsay exclusionary rule in section 90.802. §§ 120.569(2)(g), 120.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.213(3). The Grindr App Grindr is a popular adult mobile dating/social networking application (hereafter, Grindr or "app"). To open and maintain a Grindr profile for purposes of using the Grindr app, Grindr's terms and conditions of service expressly require that the user must be at least 18 years old. As part of the process of creating a Grindr profile, the person seeking to create the profile must state, in response to a question, that he or she is 18 years of age or older. Thus, the only way for a person below the age of 18 to create a Grindr profile is for the person to respond untruthfully to the question—i.e., lie—about his or her age. The competent, credible evidence established that more than one Grindr profile can be created using the same phone number, so that a telephone number is not necessarily tied to one specific Grindr profile.7 The competent, credible evidence also established that a person can create a Grindr profile using any name and any photograph, including one taken from another Grindr user's profile, and that Grindr does not take any measures to verify a user's actual name or other indicia of identity, such as the profile photograph.8 Interview of D.S. and Recovery of Photographs from Computer and Phone As stated above, as part of the investigation into whether Respondent engaged in sexual relationships with students, Munoz and Sloan interviewed D.S. at his home, and searched his cell phone and home computer. In the course of the interview, D.S. told Munoz and Sloan that he had opened a Grindr profile using his yahoo.com email account. 7 Miller testified as a fact witness regarding his own investigation into how a Grindr profile is created and how the profile is confirmed by Grindr through the user's provided phone number. Miller did not testify as an expert witness, and he did not render opinion testimony. Rather, he testified about his own personal experience in investigating, and determining, how files could come to be stored on a Google Drive. 8 Refer to note 7. D.S. admitted that he had lied about his age when he created his Grindr profile. D.S. initially told Munoz that he could not remember what Respondent's Grindr profile name was, but then subsequently told Munoz that he believed that a Grindr user having the profile name "Grindr Guy, 28," with whom he had communicated, was Respondent. D.S. claimed that he "knew" he was communicating with Respondent because Grindr Guy, 28 sent him photographs of Respondent's face. The profile photograph for the Grindr Guy, 28 profile consisted of a person in a spacesuit. Nowhere on the profile photograph for Grindr Guy, 28 is there any information about, or indication of, the identity of the person to whom the "Grindr Guy, 28" profile belonged. To that point, there is no information whatsoever on the profile photograph of Grindr Guy, 28 indicating that Respondent is Grindr Guy, 28. D.S. told Munoz and Sloan that he communicated with Grindr Guy, 28, who he assumed was Respondent, for a short period of time in March and April 2015. D.S. admitted to Munoz that through Grindr, he had sent body and "butt" photographs to Grindr Guy, 28, who he assumed was Respondent. He claimed that through Grindr, he had received body and penis photographs from Grindr Guy, 28. Munoz and Sloan searched D.S.'s computer and cell phone and found numerous photographs of many different people. Many of these photographs depicted what Munoz characterized as "a substantial amount of nudity and things of that nature." Among the photographs D.S. had stored on his computer and phone were images of Respondent's face. Although D.S. initially told Munoz that Respondent had sent him these photographs via the Grindr app, he later told Munoz that he had downloaded those images off of Facebook or the internet. Another photograph stored on D.S.'s computer/phone depicted a male torso unclothed from shoulders to waist. D.S. told Munoz it was a photograph of Respondent. The photograph does not show the face of the person whose torso is depicted, nor does it contain, or provide, any other information indicating the identity of the person depicted in the photograph. To that point, there is no information whatsoever on the photograph indicating that the person depicted in the photograph is Respondent. Munoz testified that D.S. kept an encrypted Keepsafe file on his computer. Contained in the file were, in Munoz's estimation, between 100 and 200 photographs of penises. Of these photographs, D.S. identified two photographs, each depicting a penis, which he claimed were sent to him by Respondent through the Grindr app. Of all of those images, D.S. claimed that he knew which photographs were from Respondent because he (D.S.) "could remember which penis was sent to him by a teacher." Respondent's face was not depicted on any of the photographs of penises that were stored on D.S.'s computer or cell phone. Stated another way, there were no photographs stored on D.S.'s computer or cell phone, or otherwise in D.S.'s possession, that showed both Respondent's face and his penis. Further, there is no information whatsoever on or in the photographs showing that Respondent sent the photographs to D.S. Also stored on D.S.'s computer and phone were photographs of what appeared to be two text message conversations that D.S. claimed were text messages, through Grindr, between him and Respondent. None of these photographs contained or depicted any information whatsoever—such as name, phone number, or email address—regarding the identities or locations of the persons sending and receiving the text messages. In the course of the interview, D.S. initially denied, then admitted, that he and some friends had gone to Respondent's residence. D.S. told him that he thought Respondent was a good-looking man and that he (D.S.) thought it would be "fun" to go to Respondent's residence. D.S. told Munoz that he left a cookie with a note consisting of a drawing of an eyelash and the words "kiss me" outside of the door to Respondent's apartment. D.S. told Munoz that Respondent did not know that he (D.S.) had gone to his apartment and left the cookie and note. After interviewing D.S. and obtaining photographs from his computer and phone, Munoz sent a subpoena to Grindr on April 15, 2016. The subpoena requested information for "user name: Grindr Guy, 28; and/or name: Michael Shawn Larkin; and/or phone number: 561-351-4286; and/or email address: mlarkin19990@yahoo.com." The subpoena requested, for accounts having the above-listed user(s), information regarding the Grindr subscriber name and address; types of services used; instrument number of subscriber or identity; means and source of payment for a subscription to Grindr; records of session times and duration; IP logs and IP history; and length of service, including start date of service. Munoz also subpoenaed records from Grindr for D.S.'s Grindr account, but did not receive any records in response to the subpoena. On April 19, 2016, Munoz received electronic documents from Grindr in response to the subpoena. These documents consisted of what appeared to be several photographed screenshots of information for Grindr profile number 287427, and "chat logs" for three separate Grindr account profile numbers: 287427, 47281451, and 48665082. The "chat logs" actually consist of documentary logs of individual text messages between two individual users, rather than simultaneous communications between multiple users. A Grindr user selects another individual user with whom he or she will communicate, and sends a text message. That test message is seen only by the individual user to whom it was sent, rather than appearing in a "chat" forum that can be seen by others besides the specific user to whom the message was sent. One screenshot photograph of information for Grindr profile number 287427 included a photograph depicting Respondent's face. This photograph is the same as, or very similar to, one of the photographs of Respondent that D.S. had stored on his computer. The chat logs for the three Grindr account profile numbers do not contain any information identifying any of the persons participating in any of the communications. Nor is there any evidence linking any of the documents received from Grindr, including the chat logs and the screenshot information for Grindr profile number 287427, with "Grindr Guy, 28." Moreover, because the subpoena request was structured in the disjunctive "or," the documents produced by Grindr may have been for any of the individual persons, all of the persons, or any combination of the persons who were described in the subpoena. It is not possible to determine from the documents themselves which person or persons described in the subpoena for which the records were provided by Grindr,9 and Petitioner did not present any competent or persuasive evidence regarding the identity of the individual or individuals to which the documents provided by Grindr pertained. As extensively discussed below, the documents obtained from Grindr do not fall within the business records exception to the hearsay rule. The documents are not business records of the District (which conducted the investigation), nor are they business records of Petitioner.10 Further, Petitioner did not present any competent evidence establishing the predicate foundation for the admission of the documents under a hearsay exception.11 9 This information is crucial to definitively determining whether any of the documents pertain to Respondent, and, if so, which ones. 10 See Knight v. GTE Fed. Credit Union, 310 So. 3d 959, 962-63 (Fla. 2d DCA 2018)(employee of one entity not qualified to establish foundational elements of business records exception for records of another entity). 11 See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(the evidentiary proponent has the burden of establishing a proper predicate for applicability of an exception to the hearsay rule). Petitioner did not present evidence establishing a proper predicate for the admission of the records under any exception to the hearsay rule. Accordingly, pursuant to section 120.57(1)(c), the records cannot be afforded weight. Additionally, although Petitioner presented Munoz's testimony for purposes of having the documents admitted into the evidentiary record, Munoz did not have any personal knowledge of the matters asserted in the documents, and Petitioner did not present competent or persuasive evidence, such as the testimony of persons having personal knowledge, regarding the truth of the matters asserted in the documents.12 Accordingly, the documents cannot be assigned any weight for purposes of proving the truth of the matters—such as the age of the persons engaging in the communications— asserted in them.13 Furthermore, although Munoz was able to verify that the documents constituting Petitioner's Exhibits 1, 2, and 3 were received from Grindr in response to the subpoena he served on Grindr, Munoz did not—and was unqualified to—attest that the photographs and chat logs were a fair and accurate representation of what they purported to be—i.e., records regarding the Grindr accounts for Grindr Guy, 28; Michael Shawn Larkin; the subscriber having phone number 561-351-4286; or the holder of email address mlarkin19990@yahoo.com.14 Testimony by a person, such as a Grindr employee, having personal knowledge regarding the creation and storage of the documents is required to authenticate the documents. Petitioner did not present such testimony, or any other competent evidence, to authenticate the documents. Thus, the 12 Hunter v. Aurora Loan Servs, LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014)(a person who was not an employee of the entity creating records and who lacked personal knowledge regarding the entity's record-keeping procedures was not qualified to authenticate records or testify regarding the elements of the business records exception to the hearsay rule). 13 As discussed above, under sections 120.569(2)(g) and 120.57(1)(c), hearsay evidence is admissible in administrative proceedings to supplement or explain other, competent, evidence in the record. However, it cannot constitute the sole basis for a finding of fact unless it falls within an exception to the hearsay rule. 14 See Aurora Loan Servs., 137 So. 3d at 573. documents received from Grindr, which constitute Petitioner's Exhibits 1, 2, and 3, were not authenticated, and, therefore, cannot be assigned weight.15 In sum, none of the documents received from Grindr pursuant to Munoz's subpoena constitutes competent evidence for purposes of substantiating the allegation in paragraph 7 of the Amended Complaint that Respondent engaged in sexually-explicit communications with D.S. To determine whether Respondent had engaged in sexually-explicit text messaging with D.S., Munoz also subpoenaed text records from AT&T for D.S.'s phone and from Verizon for Respondent's phone. The records Munoz obtained from AT&T and Verizon did not show that D.S. and Respondent had ever engaged in any text messaging with each other by phone. Ultimately, the investigation by the Palm Beach County School District Police Department revealed no evidence whatsoever showing that Respondent had ever had sexual relations with minors in his office or at his residence, or that he had otherwise engaged in sexual activity involving students, including D.S., at Jupiter High School. No criminal charges were filed against Respondent. D.S.'s Testimony at the Final Hearing D.S. testified that he never met or spoke to Respondent in person. He confirmed that he never socialized, dated, or had any physical interaction with Respondent. He testified that he never had a physical sexual encounter with Respondent. D.S. would see Respondent at school because he took a chorus class, the room for which was next door to the band room, where Respondent taught his courses. 15 Authentication of evidence is required as a condition precedent to its admissibility. § 90.901, Fla. Stat. To this point, documentary and electronic evidence must be authenticated in order to be admissible. See Channell v. Deutsche Bank Nat'l Tr. Co., 173 So. 3d 1017, 1019 (Fla 2d DCA 2015). D.S. testified that he became interested in Respondent because he (Respondent) was a good-looking teacher. He acknowledged that he "probably" went on social media applications to search for Respondent. As noted above, D.S. was approximately 16 years old when he created a Grindr profile. D.S. acknowledged that he had lied about his age when he created a Grindr profile. D.S. said that he had a photograph of his face on his Grindr profile, and "probably" had his "stats," such as height, body type, and ethnicity, as information stated on his Grindr profile. He did not recall if he used a profile name. He did not recall his profile number, and never saw a chat log bearing or containing his profile number. D.S. testified regarding the communications through Grindr that he had with Grindr Guy, 28, who he believed was Respondent. D.S. thought that Grindr Guy, 28 was Respondent based on having received photographs of Respondent's face from Grindr Guy, 28, and because on one occasion, the Grindr app showed Grindr Guy, 28 as being approximately 160 feet16 away from him. However, D.S. subsequently acknowledged that "there's no proof, like hard core evidence" that Grindr Guy, 28 was Respondent, and that he had "connected the dots" because he guessed Respondent's age was 28. D.S. admitted that "the only thing I have to go off are the pictures he sent to me. And the distance." D.S. further acknowledged that the proximity of Grindr Guy, 28 did not reveal or otherwise indicated the identity of Grindr Guy, 28, and that "it could be anybody." D.S. testified that when he was bored in class, he would open the Grindr app, although he "tried to keep [his Grindr activity] more off campus." 16 The profile photograph of Grindr Guy, 28 showing the distance between him and D.S. is of poor quality and does not clearly depict the precise distance. The distance appears to be "160 feet," rather than the "150 feet" to which the parties' counsel referred in direct and cross-examination of D.S. This discrepancy is noted for accuracy purposes. The exact distance is immaterial; the point is that on one occasion, the Grindr app showed Grindr Guy, 28 in close proximity to D.S. He also testified that he did not recall where he was when the Grindr app showed Grindr Guy, 28 as being nearby, but that he "probably" was at school when this occurred. D.S. acknowledged that many other persons at Jupiter High School— including the approximately 3,000 students, teachers, school staff, and parents on campus—could have Grindr profiles, and that he did not know who, or how many others, at the school had Grindr profiles. He also acknowledged that other students "probably" had Grindr accounts. The evidence did not definitively establish that D.S. was in the chorus room, or otherwise was in close proximity to Respondent at the time the Grindr app showed the location information for Grindr Guy, 28. Furthermore, no competent, credible evidence was presented that Respondent ever used the Grindr app while he was on campus at Jupiter High School—much less that he used it while he was supposed to be teaching, or that he used it at the same time that D.S. was nearby. D.S. verified that the photographs consisting of Respondent's face; the spacesuit profile of "Grindr Guy, 28," the unclothed male torso that did not depict a face; two photographs of penises, and the photographs of Grindr text conversations had been stored on his computer and phone. He initially characterized the photographs as having been sent, through Grindr, by Respondent. However, on questioning, he acknowledged that on Grindr, anyone could send a photograph taken from anyone's profile. He also acknowledged that many people on social media platforms, including Grindr, use photographs taken from other users' Grindr profiles. D.S. further acknowledged that he did not know the person in the spacesuit depicted on the profile of Grindr Guy, 28, that he did not believe it was an actual photograph of Respondent, and that he thought it was a photograph taken off of the internet. He also acknowledged that the sources of the numerous photographs of penises he had stored on his computer were "probably me, internet, probably Grindr." D.S. acknowledged that he received some photographs of Respondent's face and some photographs of bodies, but he never received a photograph of Respondent unclothed that also depicted his face such that he (D.S.) could be sure it was the same person. He stated: "I was sent some face pictures and some body pictures. I have no way of knowing if they were Michael Larkin's body." D.S. never asked Grindr Guy, 28 if he was Respondent, and the person whose Grindr user name was Grindr Guy, 28 never told D.S. that he was Respondent. D.S. never asked Grindr Guy, 28 if he was a teacher, whether he played the trumpet, or any other questions that may have given him (D.S.) more solid information on which to base his assumption that Grindr Guy, 28 was Respondent. In short, D.S. did nothing to verify or confirm his guess that Grindr Guy, 28 was Respondent. Nonetheless, D.S. told his friends that he had sent photographs to Respondent and received photographs from Respondent through Grindr, and he sent some photographs he had received depicting Respondent's face to his friends through the Snapchat app. He acknowledged that he placed the caption "Grindr messages with Larkin" on a screenshot of a Grindr text conversation between him and an unidentified Grindr user, and that the caption had not been placed on the screenshot by the Grindr app. D.S. testified that when he opened a Grindr profile, he did not have any idea that Respondent was on Grindr. However, this testimony was directly contradicted by his sworn statement made during the April 2016 investigation to the effect that during the 2014-2015 school year, students were trying to locate Respondent on Grindr. D.S. testified that during the time he was communicating with the Grindr user he assumed was Respondent, he never got the impression that the Grindr user knew or thought he was a student. In fact, D.S. acknowledged that he had gone to some length to make sure that he did not divulge to the Grindr user that he was a student. D.S. further testified that when he told this Grindr user that he was "underage"—i.e., younger than 18 years old—the user blocked him and had no further communication with him. D.S. admitted that he thought it would be "fun" to go Respondent's residence. He "Googled" Respondent's home address and went to Respondent's home. He acknowledged that Respondent did not invite him to his home, and that Respondent did not know that he had gone to his home. D.S. admitted having left a cookie for Respondent at his home, along with a note that said "kiss me" and contained his phone number. He testified that Respondent never called or texted him at his phone number. D.S. also admitted to having taken photographs of Respondent at school without his (Respondent's) knowledge or permission, and having sent them to his (D.S.'s) friends via the Snapchat app. D.S. acknowledged, when he spoke with Munoz during the April 2016 investigation, that he had stalked Respondent on social media. On questioning at the final hearing, D.S. admitted that he had stalked Respondent on social media. Testimony of Other Student Witnesses S.P. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was, and still is, a friend of D.S.'s. She testified that she did not have any personal, independent knowledge about the alleged online relationship between D.S. and Respondent, and that she only "knew" what D.S. had told her. To this point, she testified that she was certain that Respondent did not knowingly engage in any communication with D.S. She also testified that she was not aware of Respondent ever having engaged in inappropriate conduct with any students. S.P. was with D.S. the day that D.S. went to Respondent's home. She did not recall the specific details of that event. H.C. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She had heard a rumor from other students that D.S. and Respondent were having a sexual relationship on Grindr, and she told a police officer about what she had heard. She knew that D.S. was going around telling people at Jupiter High School that he was in an online relationship with Respondent. She did not personally know of any relationship between Respondent and D.S. Respondent's Testimony at Final Hearing Respondent taught in the Palm Beach County School District for six years before his contract was not renewed for the 2016-2017 school year as a result of the allegations giving rise to this proceeding. The evidence establishes that Respondent had not previously been subjected to discipline. Although his teaching position at Jupiter High School was not renewed due to the allegations giving rise to this proceeding, the evidence establishes that he was not terminated or otherwise disciplined by the Palm Beach County School Board under its progressive discipline policy in connection with the allegations giving rise to this proceeding. In fact, the letter notifying Respondent that he was not being reappointed to the band director position at Jupiter High School states that "you may apply for vacant positions for which you qualify," and directs Respondent to a link on the Palm Beach County School District's website. Respondent has been a teacher for eleven years, and he presently is teaching in Texas. He has been employed as a band teacher in Texas for four years. His employer in Texas was made aware of the investigation into the matters giving rise to this proceeding, and obtained information from the District. The State of Texas conducted its own investigation and determined that Respondent should remain employed there. Respondent has not been subjected to any disciplinary or other adverse employment action during his tenure as a teacher in Texas. While Respondent taught in the District, the band program at Jupiter High School substantially grew in size and prominence. The marching band, which had been mediocre prior to Respondent becoming band director, finished in the top five at the state level competition every year while Respondent was employed at Jupiter High School. During Respondent's last two years as band director at Jupiter High School, the band won back-to-back state championships for the first time in its history. Also under Respondent's leadership, the band engaged in community service projects and performed at community events. Respondent testified, credibly, that he never had sex with students. He occasionally spoke to students in his office regarding disciplinary matters. He would call students into his office because he did not want to discipline them in front of others and subject them to embarrassment. Respondent testified, credibly, that while he was on campus at Jupiter High School, he did not go onto his computer or phone to access social media platforms or sites. To that point, the evidence showed that the District's internet system restricts persons from connecting to social media sites while on school campuses. Respondent testified, credibly, that until the day of the final hearing in this proceeding, he had never seen D.S., and that he has never met D.S. He testified, credibly, that he has never had a personal or a professional relationship with D.S. He also testified, credibly, that he never sent text messages to D.S. or any other student, and that he never received text messages from D.S. or any other student. He testified, credibly, that he never gave his phone number to students and that, to the best of his knowledge, no students had his phone number. To the extent Respondent communicated with students or parents, he sent and received emails through his school Gmail account, which was part of the Google Educator software to which teachers had access. Jupiter High School published a list of all faculty Gmail addresses, which was accessible to all students and parents of students attending Jupiter High School. Respondent did give his phone number to a very select group of parents who were band boosters, for purposes of communicating with them on chaperoned band trips. Respondent testified that he was on certain social media platforms, such as Facebook. He testified, credibly, that he never shared his social media accounts with students because he wanted to keep his professional life separate from his private life. He testified that he did previously have a Grindr profile. He testified, credibly and persuasively, that he joined Grindr because people his age engage in online dating. As he put it, "I was brought up in the social media era [O]nline dating is a big thing. So you know, in my era, of my age, you know, that's a very common thing to happen." He noted that other teachers at the school also used social media dating platforms, and credibly testified that he never told students or his colleagues that he used social media dating platforms. He credibly denied that "Grindr Guy, 28" was his Grindr profile name, and, as discussed above, there is no competent or persuasive evidence establishing that Respondent was Grindr Guy, 28. Respondent also credibly denied that he had joined Grindr to interact with students. He noted that when a person creates a Grindr profile, he or she must verify that he or she is over 18 years of age. Due to this requirement for a person to be able to use Grindr, Respondent knew—or, at least, reasonably assumed and felt assured—that he would not "run into" students on Grindr. Respondent credibly denied ever having communicated with D.S., or with any other minors, on Grindr. To that point, Respondent credibly testified that he was not looking for younger people on the internet and would not misrepresent his age to persons with whom he was communicating. As he put it, being untruthful about one's age is "not appropriate to do." He credibly testified that while on Grindr, he communicated with people in their 20s and 30s, around his age. Respondent credibly denied that he sent, to D.S., any of the photographs of penises that were stored on D.S.'s computer. He also credibly denied that those photographs were of him. Respondent testified, credibly, that all of the photographs of his face that D.S. had stored on his phone and computer were photographs that he (Respondent) had posted on his Facebook page, so that they were available to be seen—and used—by anyone using the Facebook platform. Respondent also credibly denied that any of the chat logs provided by Grindr in response to Munoz's subpoena involved, or consisted of, communications from him to others, and vice versa. Respondent testified, credibly, that he never gave his address to students; never had invited students to his home; and never socialized with students outside of school. Respondent testified, credibly, that when Munoz interviewed him in April 2016 as part of the District's investigation, Munoz requested to forensically examine Respondent's phone. At the time Munoz made the request, Respondent turned over his phone to Munoz; however, Munoz wished to examine the phone the following day. Respondent did not leave his phone with Munoz and contacted his attorney, who advised against consenting to a search of his phone. Thus, Respondent's refusal to consent to an examination of his phone was specifically on the advice of his attorney. With respect to D.S. having gone to Respondent's home, Respondent recalled that one day, a cookie with a note containing a phone number was left outside the door of his apartment. He assumed the cookie and note were left by a neighbor who appeared to be romantically interested in him, and threw the cookie and note away. He testified, credibly, that he did not call the phone number on the note. Evidence Regarding Allegation that Respondent Engaged in Sexually- Explicit Communications on Grindr with Persons He Knew Were, or May Be, Younger than 18 Years Old As discussed above, no competent evidence was presented showing that Respondent engaged in sexually-explicit communications with persons whom he knew were, or may be, younger than 18 years old. With respect to D.S., the evidence overwhelmingly establishes that even if Respondent engaged in communications with D.S. on Grindr—and, as further discussed herein, the evidence does not clearly and convincing establish that Respondent engaged in such conduct—he did not know that he was communicating with D.S.; that he was communicating with a student; or that he was communicating with a person younger than 18 years old. To this point, D.S. admitted that not only had he lied about his age to open a Grindr profile, but that he also went to lengths to hide, from the Grindr user he assumed was Respondent, his age and the fact that he was a student. In short, even if it were shown that Respondent communicated with D.S., there is absolutely no evidence showing that Respondent knew the identity or age of the person with whom he was communicating. Furthermore, to the extent that Petitioner attempts to rely on Grindr chat logs as evidence that Respondent knew he was communicating with persons younger than 18 years old, that reliance is misplaced. As discussed above, the Grindr chat logs are hearsay evidence that does not fall within an exception to the hearsay rule, and there is no independent, competent substantial evidence establishing that any of the statements in the chat logs are true. Accordingly, any statements in the chat logs regarding the ages of those participating in the communications do not constitute competent substantial evidence, so are not afforded evidentiary weight in this proceeding. Additionally, there is no competent substantial evidence linking Respondent to any Grindr user profile or profile number. To the extent Petitioner attempts to rely on the documents the District received from Grindr, those documents were not authenticated by a witness competent to testify that they constituted a fair and accurate representation of what they purport to be. Accordingly, they do not constitute competent substantial evidence.17 Evidence Regarding Allegation that Respondent "Knew or Should Have Known" that Underage Persons "Could Have Access" to the Grindr Application Respondent acknowledged that he likely had sent sexually-explicit photographs to other users with whom he had communicated on Grindr. He testified, credibly, that he never sought out, or communicated with, underage persons or students on Grindr. As discussed above, Petitioner did not present any competent or persuasive evidence showing that Respondent communicated with underage persons or students, including D.S., through Grindr, or any other internet platform or application. 17 Authentication is a component of evidentiary relevancy. Mullens v. State, 197 So. 3d 16, 42-43 (Fla. 2016)(concurring opinion). Competent substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Because unauthenticated evidence has not been shown to be what it purports to be, it is irrelevant, and, therefore, does not constitute competent substantial evidence. Additionally, there was no competent substantial evidence presented showing that Respondent knew that underage persons "could have access" to the Grindr application. To the contrary, Respondent testified that when he created a Grindr profile and used the Grindr app, he knew that persons using the app had to be at least 18 years old. Absolutely no evidence was presented showing that Respondent knew that, notwithstanding the Grindr profile creation age requirement, persons younger than 18 lied, or would lie, about their age in order to use Grindr. Moreover, to the extent Petitioner attempts to rely on the Grindr chat logs as establishing actual or imputed knowledge on Respondent's part of any Grindr users' ages, those chat logs constitute unauthenticated hearsay evidence that does not fall within any exception to the hearsay rule. As noted above and more fully discussed below, the chat logs do not constitute competent substantial evidence, and, thus, cannot be afforded evidentiary weight in this proceeding. Petitioner also failed to present any competent or persuasive evidence showing that Respondent "should have known" that persons younger than 18 years old "could have access" to the Grindr app. Again, the evidence showed that Respondent—presumably just like every other Grindr user—reasonably relied on Grindr's age-screening process to ensure that minors would not use the app. Further to this point, the competent, persuasive evidence established that Respondent never sought out, or communicated with, underage persons or students on Grindr, so he had no reason to know, or even suspect, that underage persons would lie about their age in order to use Grindr. Petitioner did not present any competent or persuasive evidence showing that Respondent "should have known" that underage persons used the Grindr app, notwithstanding the requirement that users be at least 18 years old. Thus, the evidence does not establish that, by his mere use of the Grindr app to communicate with non-student adults, Respondent failed to protect the health and safety of underage persons or students, including D.S. Evidence Regarding Allegation that Respondent "Approached" Male Student B.M. The Amended Complaint alleges that Respondent "approached" a 12th-grade student, B.M., who was 18 years old at the time, through the Grindr app. Notably, the Amended Complaint does not allege that Respondent engaged in any sexually-explicit or otherwise inappropriate communications with B.M., or that Respondent knew B.M. was a student. In any event, Petitioner did not present any evidence showing that Respondent had any interaction whatsoever with B.M.—whether in person, through the Grindr app, or through any other social media platform or electronic medium. Evidence Regarding Video Stored on Respondent's School Google Drive The District uses the Google G Suite for Education software product. It consists of a set of tools and services specifically provided for education institutions. Among the tools and services provided through G Suite are Gmail electronic mail, calendar, video software, document software, and Google Drive, which is a cloud-based file storage service. Every employee of the District has a Google account, with access to all of the G Suite tools and services, including the Google Drive. According to Richard Saturnini, an information technologist for the District, employees should not share their Google credentials or share the same email account. Saturnini explained that under the School Board's Acceptable Use of Technology policy, Policy No. 3.29, each employee must maintain the confidentiality of his or her Google account, so that he or she is the only person who has access to that account. To that end, each employee has his or her own password. That password is specific to that employee, so that only he or she can access his or her own Google account. The only instances in which an employee's Google account can be accessed by anyone other than the employee is if he or she shares the account password, or if the account is accessed by the limited group of school administrators authorized to access employees' accounts through the Google Vault tool.18 In connection with the April 2016 investigation into whether Respondent engaged in inappropriate sexual relationships and communications with students, Michael Rakis, a senior technical analyst for the Palm Beach County School District, searched the Google Drive associated with Respondent's District Google account. Rakis found stored on Respondent's Google Drive a video of a nude person masturbating. Rakis testified that the video appeared to have been downloaded onto Respondent's Google Drive in approximately April 2015. There was no evidence presented that any students had access to, or accessed, Respondent's Google Drive, or that they saw, or could see, the video. Respondent denied that he ever had seen the video. He testified that he did not know it was stored on his Google Drive, or how it came to be stored there. Respondent testified, credibly, that when he was employed at Jupiter High School, he used his own personal computer to work from home, so that he had both work-related and personal items stored on his computer. He also used his personal computer to access social media sites. When using his personal computer, Respondent accessed his school Google account, including his Google Drive, on which he stored lesson plans, 18 Google Vault is an email and document archiving system in G Suite used to access and download documents located in a Google user's account. A small number of school administrators are authorized to use the Google Vault for specific purposes, such as responding to public records requests or assisting in a school district investigation of an employee. This mode of third-party access only allows files to be downloaded from the employee's Google Drive; it does not allow a third party to upload files to an employee's Google Drive. recordings of the band's ensembles, music to be handed out to students, and similar work-related items. He credibly denied ever having downloaded pornography to his District Google Drive. Keith Oswald, Deputy Superintendent for the Palm Beach County School District, testified regarding the video that was found stored on Respondent's Google Drive. He stated that there is no justification for a District employee to store anything of that nature on his or her Google Drive. He testified that under the circumstances, the District would not rehire Respondent. As previously noted, William Miller testified on behalf of Respondent.19 Miller, who is employed as a paralegal by Respondent's counsel's law firm, has a 40-plus year career in conducting investigations, through having been employed as a detective by the Lake Worth Police Department; an investigator for the Palm Beach County Medical Examiner, the Palm Beach County Public Defender's Office, and the Federal Public Defender's Office; and a private investigator in his own investigation firm. Among other things related to this proceeding, Miller determined and testified about how a file on a computer could inadvertently be stored to a Google Drive. Specifically, when a person has his or her Google Drive open and then uses another program or file without closing the Google Drive, the Google Drive becomes the default "save" location for all programs and files in use at the time, including non-Google files. Miller also testified, credibly, that the Google Drive has a file-share process, through which a file sent to a Gmail account will automatically be saved to the Google Drive of the person to whom the email was sent. The only 19 Miller testified as a fact witness regarding the investigation that he personally performed to determine how various application programs and files could come to be stored on a Google Drive. He did not testify as an expert witness, and he did not render opinion testimony. Rather, he testified about his own experience in investigating, and determining how, files could come to be stored on a Google Drive. information that the Gmail user receives is a link to the file imbedded in the email. Importantly, it is not necessary to open the link in order for the file to automatically be saved to the Google Drive. Thus, by merely having received the email, the file automatically is saved to the Gmail recipient's Google Drive. Miller verified this by emailing an innocuous photograph and video to a District employee's Gmail account. Miller testified, credibly, that even though the employee did not open the email containing the photograph and video, those files were downloaded to, and stored on, the employee's Google Drive. Petitioner did not present any evidence to rebut Miller's credible, persuasive testimony. Testimony Regarding Respondent's Effectiveness as a Teacher As discussed above, the evidence showed that while Respondent was the band director at Jupiter High School, the band enjoyed unprecedented success. The credible, persuasive evidence establishes that Respondent was regularly evaluated by his supervisors at Jupiter High School, and that other than in his first year (when he received a "satisfactory" rating), he received a "highly effective" rating in each of the subsequent years he taught at Jupiter High School. Former students and parents of students also testified regarding Respondent's effectiveness as a teacher. S.W. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was in the band, and Respondent was her band director in her freshman and sophomore years. She heard rumors that Respondent had a dating app account and that a student, who was using a fake account and represented that he was older than he was, was communicating with Respondent through the dating app. She testified that she believed that Respondent would not intentionally engage in inappropriate conduct with a student. She testified that Respondent was a good, extremely dedicated teacher who worked very hard. K.M. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was in the band, and Respondent was her band director in her freshman and sophomore years. She testified that she had heard rumors that a student in choir had "catfished" Respondent on an online dating site by lying about himself, and that Respondent did not know that he was communicating with a student. She described Respondent as a wonderful teacher, and testified that "we were a very successful band under him and very much like a family." She testified that becoming aware of the rumors and the information brought out in the course of this proceeding did not change her opinion of Respondent and that, in her view, he could still be a very effective teacher. Debra Wasserman, the parent of a student formerly in the Jupiter High School band and in Respondent's class, testified on Respondent's behalf. She characterized Respondent as "probably one of the greatest teachers my son has ever had and, as a band director, he was just as fantastic." She testified that she had heard the rumor that a young man started an online relationship and that it ended once they found out they were at the same school. She testified that when Respondent left Jupiter High School, the band students and the parents of band students were very distraught. She characterized the feeling as "general gloom and doom." She testified that in her view, and the view held by other band parents, Respondent was a very effective teacher. Sharon Warwick, also a parent of a student formerly in the Jupiter High School Band and in Respondent's classes, testified on Respondent's behalf. Her son was in multiple ensembles with the band, and she volunteered on behalf of the band. She characterized Respondent as "a wonderful teacher." She described him as "very inspiring to the kids. He commanded their respect as well as their participation. He inspired them to set goals. He's a very good teacher." She testified that she heard rumors that Respondent had contacted, on social media, a child who was not a band student. She did not give credence to the rumors. She stated that she would not have any concerns with Respondent teaching her son again, and that she believed that, notwithstanding the rumors, Respondent still could be an effective teacher. Paul Destito, a retired band director previously employed with the Palm Beach County School District, also testified on Respondent's behalf. When Respondent first started as the band director at Jupiter High School, Destito was the band director at Jupiter Middle School, and served as Respondent's mentor in getting him "off to a good start in Jupiter." He described Respondent as a wonderful teacher and an "amazing" marching band director. According to Destito, Respondent's visual designs for the marching band were extraordinary and beautiful. Destito testified that he heard rumors that Respondent had inappropriate contact with a minor, but that "nobody really knew much of ... really what happened." He characterized the adults with whom Respondent had worked as "shocked and upset because he was very well-loved and very well-liked in our district." He characterized Respondent as a "phenomenal teacher, as far as I could see." As noted above, Keith Oswald, Deputy Superintendent for the District, testified on behalf of Petitioner. He did not participate in the April 2016 investigation into the matters that gave rise to this proceeding. Oswald testified that, in light of the video having been stored on Respondent's Google Drive, the District would consider Respondent's effectiveness as a teacher to be greatly diminished. Oswald acknowledged that he never had evaluated Respondent's performance as a teacher; had not reviewed Respondent's performance evaluations; and had not spoken to Respondent's former students or their parents regarding Respondent's effectiveness as a teacher. His opinion regarding Respondent's diminished effectiveness was solely based on what he characterized as Respondent's "poor judgment" in having downloaded the video onto his District Google Drive. Oswald's opinion regarding Respondent's "poor judgment" was based on his unsupported assumption that Respondent had intentionally downloaded the video and intentionally stored it on his District Google Drive. However, as discussed below, the clear and convincing evidence does not establish that Respondent did, in fact, intentionally download and store the video on his Google Drive. Here, the evidence overwhelmingly established that Respondent was a very well-liked, well-respected, and highly effective teacher while he taught at Jupiter High School. The evidence does not clearly and convincingly establish that Respondent engaged in any conduct that would diminish his effectiveness as a teacher, or that his effectiveness as a teacher was, in fact, diminished. III. Findings of Ultimate Fact Whether charged conduct constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but, instead, is an ultimate fact). Conduct Charged in Paragraph 3 Specifically, with respect to the conduct charged in paragraph 3 of the Amended Complaint, Petitioner did not present any evidence whatsoever to substantiate the charge that Respondent had sexual relations with a student or students in his office at Jupiter High School, or at his residence. To the contrary, all of the evidence in the record regarding this charge showed that Respondent did not have sexual relations with students in his office at Jupiter High School, or at his residence. Additionally, as discussed above and further addressed below, the competent substantial evidence establishes that Respondent did not have an online relationship with student D.S., through the Grindr app or any other electronic medium. Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct alleged in paragraph 3 of the Amended Complaint. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 3 of the Amended Complaint. Conduct Charged in Paragraph 4 As discussed above, Petitioner did not present any evidence to substantiate the charge that Respondent approached student B.M. on Grindr in March 2015. Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct alleged in paragraph 4 of the Amended Complaint. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 4 of the Amended Complaint. Conduct Charged in Paragraph 5 The competent substantial evidence does not clearly and convincingly establish that Respondent sent sexually graphic messages and nude photographs to student D.S., as charged in paragraph 5 of the Amended Complaint. As discussed above, to substantiate the allegations in paragraph 5, Petitioner presented screenshots of photographs stored on D.S.'s computer and phone, consisting of a Grindr app profile photograph of a user having the profile name "Grindr Guy, 28"; screenshots of text messages alleged to be communications between D.S. and Respondent; and photographs of Respondent's face, an unclothed male torso, and penises that D.S. claims were sent to him by Grindr Guy, 28. As discussed above, D.S. assumed that he was communicating with Respondent because the person with whom he was communicating sent him photographs of Respondent's face; the proximity, on one occasion, of the person with whom he was communicating; and his supposition that Respondent was 28 years old. However, as discussed above, Petitioner did not present definitive or persuasive evidence establishing that Respondent was Grindr Guy, 28. To this point, D.S. acknowledged that Grindr Guy, 28 never told, or otherwise indicated, to him that he was Respondent. Moreover, the evidence showed, and D.S. acknowledged, that because Respondent's face photographs were posted on the internet, they could have been sent to him by "anyone." D.S. also acknowledged that he could not identify Grindr Guy, 28 based on that Grindr user's proximity. To that point, D.S. was not sure that he was at Jupiter High School when he detected Grindr Guy, 28 in close proximity to him, and there is no evidence establishing the date, time, or location of Grindr Guy, 28 when D.S. detected him nearby. Moreover, even if D.S. had been at school when he detected Grindr Guy, 28 nearby, there was no evidence whatsoever showing that Respondent used the Grindr app while at school. In fact, D.S. acknowledged that Grindr Guy, 28 could have been anyone on the Jupiter High School campus that day who used the Grindr app. Additionally, as discussed above, none the photographs of the penises or the unclothed male torso depicted Respondent's face, nor did they contain any other information showing them to be photographs of Respondent, or photographs sent by Respondent to D.S. Likewise, none of the screenshots of text messages between D.S. and Grindr Guy, 28 contained any information showing that Respondent engaged in those communications, or that he sent them to D.S. Petitioner also presented documents obtained from Grindr, consisting of chat logs and Grindr profile information, to show that Respondent sent sexually graphic messages to D.S., as charged in paragraph 5 of the Amended Complaint. However, the documents obtained from Grindr are not competent substantial evidence, so cannot be afforded weight in this proceeding. Specifically, the documents do not meet the self-authentication requirements in section 90.902, Florida Statutes. They do not contain any indicia or information whatsoever showing them to be documents that were prepared by Grindr—much less that they are what they purport to be, i.e., records of Respondent's Grindr profile. The documents also were not accompanied by any certification or declaration from Grindr's records custodian or other qualified person establishing any of the predicates set forth in section 90.902(11) for self-authentication. Additionally, Petitioner did not authenticate the documents through a witness having personal knowledge regarding the manner of creation or preparation of the documents sufficient to show that the documents are what they purport to be. See Wells Fargo Bank, N.A. v. Balkissoon, 183 So. 3d 1272, 1275 (Fla. 4th DCA 2016). Petitioner presented the testimony of Munoz, who testified that he received the documents in response to a subpoena sent to Grindr. However, Munoz was not qualified to testify—and, indeed, did not testify—regarding the creation or preparation of the documents, or that the documents were what they purported to be. Unauthenticated records do not constitute competent substantial evidence. See Berkowitz v. Delaire Country Club, Inc., 126 So. 3d 1215, 1219 (Fla. 4th DCA 2012). Because the documents provided by Grindr were not authenticated, they do not constitute competent substantial evidence on which findings of fact can be based. Additionally, the documents purported to have been provided by Grindr were presented by Petitioner to prove the truth of the matters asserted in them, such as the profile number of the Grindr profile alleged to belong to Respondent, and the ages of the persons stated in the chat logs. Therefore, they are hearsay. The documents were created by Grindr. Thus, to the extent they may be "business records" under section 90.803(6), they were business records of Grindr—not of Petitioner, the Educational Practices Commission, the District, or any other entity. Petitioner, as the party seeking to have evidence admitted pursuant to a hearsay exception, bears the burden of establishing a proper foundation to show that the evidence falls within that exception. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). To do so, Petitioner was required to present the testimony of a witness competent to testify that the records were made at or near the time of the event recorded; that the record was made by, or from, information transmitted by a person having knowledge of the recorded event; and that it was the regular practice of the entity keeping the records to make such a record. Id. Here, Petitioner did not present a witness who testified to any of the predicate requirements in section 90.803(6) necessary to establish that the documents purportedly received from Grindr fell within the business records exception to the hearsay rule. Accordingly, the documents cannot be used as the sole evidentiary basis for any finding of fact with respect to the matters asserted therein, such as Respondent's Grindr profile number, or the ages of the persons communicating in the chat logs. Further, because there is no independent competent substantial evidence linking Respondent to a specific Grindr profile number or to any of the chat logs, the documents received from Grindr cannot be assigned any weight in this proceeding. Based on the foregoing, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 5 of the Amended Complaint. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 5 of the Amended Complaint. Conduct Charged in Paragraph 6 Paragraph 6 of the Amended Complaint charges Respondent with having engaged in sexually-explicit communications on Grindr with persons he knew, or should have known, were under 18 years of age. Petitioner relies on the chat logs obtained from Grindr as evidence to substantiate those charges. However, for the reasons discussed above, the chat logs do not constitute competent substantial evidence. Therefore, they cannot be used as the sole basis for finding that Respondent engaged in the conduct charged in paragraph 6. Further, because there is no independent competent substantial evidence in the record substantiating the allegations that Respondent engaged in the conduct charged in paragraph 6, the chat logs received from Grindr cannot be assigned weight in this proceeding. Accordingly, it is found, as a matter of ultimate fact, that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 6 of the Amended Complaint. Conduct Charged in Paragraph 7 of the Amended Complaint Paragraph 7 of the Amended Complaint charges Respondent with having engaged in sexually-explicit communications on Grindr with a person who claimed to be an 11th-grade student, and having sent photographs of himself and D.S. to this Grindr user. Again, Petitioner relies exclusively on the chat logs obtained from Grindr as evidence to substantiate those charges. However, for the reasons discussed above, the chat logs do not constitute competent substantial evidence, and, thus, cannot be used as the sole basis for findings that Respondent engaged in the conduct charged in paragraph 7. Additionally, because there is no other competent substantial evidence in the record substantiating the allegations that Respondent engaged in the conduct charged in paragraph 7, the chat logs received from Grindr cannot be used to supplement or explain such evidence, and, thus, cannot be afforded any weight in this proceeding. Accordingly, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 7 of the Amended Complaint. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 7 of the Amended Complaint. Conduct Charged in Paragraph 8 As discussed above, Petitioner did not present any competent or persuasive evidence showing that Respondent communicated with underage persons or students, including D.S., through Grindr, or any other internet application. Additionally, as discussed above, there was no competent substantial evidence presented showing that Respondent knew that underage persons "could have access" to the Grindr application. To the contrary, the competent, persuasive evidence showed that Respondent knew that persons using the app had to be at least 18 years old. No evidence whatsoever was presented showing that Respondent knew that, notwithstanding the Grindr age restriction, persons younger than 18 years of age would access and use Grindr. As discussed above, to the extent Petitioner attempts to rely on the Grindr chat logs to show actual or imputed knowledge on Respondent's part of any Grindr users' ages, those chat logs constitute unauthenticated hearsay evidence that does not fall within any exception to the hearsay rule, and, therefore, do not constitute competent substantial evidence. There is no competent or persuasive evidence showing that Respondent "should have known" that persons younger than 18 years old "could have access" to the Grindr app. Again, the evidence showed that Respondent reasonably relied on Grindr's age-screening process to ensure that minors would not use the app. Furthermore, in any event, no statute, rule, or Palm Beach County School Board policy per se prohibits District employees from using social media dating applications. To the extent employees use such social media platforms, they must adhere to the standards of conduct established in applicable statutes, rules, and policies. As found above, in using the Grindr dating app, Respondent did not engage in any conduct that violated any statutes, rules, or District policies. Accordingly, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 8 of the Amended Complaint. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 8 of the Amended Complaint. Conduct Charged in Paragraph 9 Paragraph 9 of the Amended Complaint alleges that Respondent stored a sexually-explicit video on the Google Drive cloud storage feature of his District Google account, and that the video violates school board policy because it had no educational purpose and was "stored on the premises accessible to students." First, as discussed above, there was absolutely no evidence presented showing that the video was accessed or viewed by students. Moreover, the competent, credible evidence established that the only way (apart from hacking) for the video to have been accessible to students is for Respondent to have shared his Google account log-in credentials such that his log-in information was obtained by students.20 Respondent credibly testified that he did not share his log-in information with anyone else, and Petitioner did not present any countervailing evidence showing that Respondent had, in fact, done so. Thus, the evidence does not clearly and convincingly establish that any students ever accessed the video, or that it ever was accessible to any students by virtue of it having been stored on the Google Drive of Respondent's Google account. As discussed above, the competent, credible evidence established that (apart from Respondent's Google account having been hacked) there were three ways for the video to have come to be stored on the Google Drive of his account: (1) Respondent purposely downloaded it and saved it on the Google Drive; (2) the file was inadvertently saved to Respondent's Google Drive while he had both his Google Drive and other programs or files open on his personal computer; or (3) the video file was sent to Respondent's Gmail account, which automatically saves imbedded files in emails to the Google Drive associated with that Gmail account. As discussed above, Respondent testified, credibly, that he had not ever seen the video before the commencement of this proceeding, and that he did not download the video or save it to the Google Drive associated with his 20 As noted above, there was no evidence presented that Respondent's Google account was hacked. District Google account. Petitioner did not present any evidence directly countering Respondent's claim that he did not download and store the video to his Google Drive. As discussed in detail above, the credible, persuasive evidence established that there are two other plausible means by which the video could have come to be stored on Respondent's Google Drive: either he inadvertently saved it from another application onto his open Google Drive; or else he received it via email, and the video was automatically saved to his Google Drive, without him actively opening the link and downloading and saving the video to his Google Drive, or even being aware that he had received the email with an imbedded link to the video. Petitioner bears the burden of proof in this proceeding, which is penal in nature, to show that Respondent engaged in culpable conduct in downloading and storing the video on his District Google Drive such that he violated School Board policy. Petitioner did not meet its evidentiary burden. Based on the foregoing, it is found, as a matter of ultimate fact, that the video stored on Respondent's Google Drive was neither accessed by, nor accessible to, students, in violation of School Board policy. Based on the foregoing, it is also found, as a matter of ultimate fact, that Respondent did not download and store the video on his District Google Drive in violation of School Board policy. Furthermore, the evidence does not clearly and convincingly establish that Respondent engaged in any conduct with respect to the video that constitutes gross immorality or moral turpitude. In fact, the credible, persuasive evidence establishes that he did not take any action, or engage in any conduct whatsoever, to store it on his Google Drive. Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in the Amended Complaint. Accordingly, it is found, as a matter of ultimate fact, that Respondent's effectiveness as a teacher was not diminished.
Conclusions For Petitioner: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 For Respondent: Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed in this proceeding on February 25, 2020, be dismissed. DONE AND ENTERED this 11th day of October, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2021. COPIES FURNISHED: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa M. Forbess, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Kevin R. Sanders, committed the offenses alleged in an Administrative Complaint filed by the Commissioner of Education with the Education Practices Commission on June 10, 1997.
Findings Of Fact Petitioner, Frank T. Brogan, as the Commissioner of Education of the State of Florida, is authorized to enter complaints against persons holding teaching certificates in the State of Florida. Respondent, Kevin R. Sanders, has held at all times relevant to this proceeding Florida Teaching Certificate No. 660581. The certificate was issued by the Department of Education and is valid through June 30, 2002. Mr. Sanders is authorized to teach in the areas of physical education and general science. (Stipulated Facts). At all times relevant to this proceeding, Mr. Sanders was employed by the Escambia County School District (Stipulated Fact). During the 1995-1996 school year1, Mr. Sanders served as a teacher and coach at Pensacola High School (hereinafter referred to as the “Pensacola High”) (Stipulated Fact). Mr. Sanders was assigned responsibility for the supervision of an in-school suspension class (hereinafter referred to as the “ISS Class”) (Stipulated Fact). Mr. Sanders was assigned to serve as the ISS Class teacher for each class period except for one period, which was his planning period. ISS Class students went to a physical education class taught by Jack Jackson during Mr. Sanders’ planning period. Pensacola High’s ISS Class was a disciplinary program established for students who have exhibited behavior warranting suspension from school. Rather that suspending the student from school, the student is assigned to the ISS Class so that he or she will continue to attend school and receive academic instruction. Deans at Pensacola High responsible for disciplinary actions determine whether a student’s conduct warranted referral to the ISS Class and the length of the referral. Students assigned to the ISS Class would continue to receive academic assignments from their teachers. They were required to work on those assignments while in the ISS Class. While students were in the ISS Class, they were not allowed to talk or to sleep. Mr. Sanders wrote the in-school suspension program for Pensacola High, so he was familiar with the purpose of the program. Class periods at Pensacola High were one and one-half hours in duration. There were seven class periods, numbered 1 through 7. On even days, i.e., October 4, class periods 2, 4, 6, and 8 were held. On odd days, i.e., October 5, class periods 1, 3, 5, and 7 were held. Class period 7 was the last class period held on odd days and class period 8 was the last class period held on even days. A “varsity sports” class was scheduled for the last school period, period 7 or 8, of the school day. The varsity sports class consisted of two combined physical education classes. The teachers responsible for these classes were Mr. Jackson and Toby Peer. During the fall of 1995, students in the varsity sports class engaged in weightlifting. Mr. Sanders wanted to act as the instructor. Mr. Sanders was not, however, scheduled to participate in the varsity sports class. His responsibility was to supervise the ISS Class. Early during the fall of 1995, Mr. Sanders, Horace Jones, the Principal of Pensacola High, and David Wilson, the head football coach at Pensacola High, met to discuss allowing Mr. Sanders to supervise the weight training program for the varsity sports class. Mr. Sanders and Mr. Wilson explained to Mr. Jones that weightlifting would only be taught every other day, on odd days. They asked Mr. Jones for permission for Mr. Sanders to go the football stadium where the varsity sports class was held to supervise the weightlifting. Mr. Jones agreed to allow Mr. Sanders to go to the football stadium during class period 7 to supervise weightlifting. Mr. Jones did, however, indicate that Mr. Sanders’ ISS Class should be supervised. The testimony in this proceeding concerning the conditions, if any, that Mr. Jones imposed on Mr. Sanders and/or Mr. Wilson, was contradictory. Mr. Jones indicated that he did not give Mr. Sanders permission to take his ISS Class to the stadium or otherwise remove them from their normally assigned classroom. Mr. Sanders testified that Mr. Jones was aware that Mr. Sanders was taking the students to the stadium on the days that he supervised weightlifting. Based upon the weight of the evidence, Mr. Jones either gave express permission for the ISS Class to be taken to the stadium when Mr. Sanders was supervising weightlifting or was aware that the ISS Class was being taken to the stadium. Mr. Sanders’ ISS Class was assigned to room 30-A, which was located on the second floor of the main classroom building of Pensacola High. Room 30-A is located on the west end of the main classroom building. Subsequent to obtaining permission to supervise weightlifting for the varsity sports class, Mr. Sanders took his ISS Class to the football stadium during class period 7. Mr. Sanders left the students in the bleachers of the stadium above the weightlifting room. The weightlifting room was located in a room just below the bleachers where he left the students. While the students were in the bleachers, they were not directly supervised by any teacher or adult. There were assistant football coaches on the football field in the stadium supervising athletes engaged in football drills some of the time that the ISS Class was left in the bleachers, but they were not assigned the responsibility to supervise the ISS Class. Mr. Sanders would usually, but not always, inform Mr. Wilson that he had arrived to supervise the weightlifting training. Mr. Sanders did not, however, insure that the students in his ISS class were actually being directly supervised by another teacher or adult. Nor did Mr. Wilson tell Mr. Sanders that any arrangement had been made to provide supervision for the ISS Class on October 17, 1995, or on any other occasion. On October 17, 1995, Mr. Sanders had eight students assigned to the ISS. For class period 7, Mr. Sanders escorted his class from classroom 30A to the stadium (Stipulated Fact). When the ISS class arrived at the stadium, Mr. Sanders directed the eight students to sit in the bleachers and told them to remain seated there. Mr. Sanders then left the eight students, went around the side of the stadium and went into the weight room located just below where he had left his students. Mr. Sanders could not see or hear the eight students that he left in the bleachers from the weight room. When Mr. Sanders left the eight students, there were no other teachers or adults left to supervise the eight students. Mr. Sanders left them unsupervised despite the fact that the eight students had evidenced disciplinary problems and, therefore, had evidenced a need for close supervision. Some of the students were in the ISS Class due to truancy, but were left unsupervised by Mr. Sanders. Although there were other assistant coaches present to supervise students in the stadium area, the evidence failed to prove that any of those coaches, including Mr. Core, who was on the stadium football field part of the time that the ISS Class was sitting in the bleachers, were in charge of supervising the ISS Class. The evidence failed to prove that Mr. Core or any other teacher present that day had been given such an assignment. Because Mr. Core was engaged in supervising passing drills with the football team, even if it had been proved that he was in charge of the ISS Class, he could not be expected to provide reasonable supervision of the ISS Class and supervise passing drills. Despite Mr. Sanders' testimony that supervision of the ISS Class was the responsibility of Mr. Wilson, he also testified that he left the weightlifting room on several occasions to check on the students. The evidence failed to support either explanation. At some time after Mr. Sanders left the ISS Class students in the stadium, a 15 year-old female student (hereinafter referred to as “Student X”) that had been assigned to the class that day left the other students to go to the ladies’ restroom under the stadium (Stipulated Fact). She was gone approximately 45 minutes. Student X had been determined to have a Specific Learning Disability and was in the exceptional student education program. While Student X was under the stadium stands, she performed oral sex on several male students in the ladies’ bathroom (Stipulated Fact). Eight male students were subsequently arrested, charged and prosecuted for committing an unnatural and lascivious act with Student X. Seven students pled no contest to the charge, and one was tried and acquitted (Stipulated Fact). Five of the male students were supposed to be in the varsity sports class. At or close to the end of class period 7, an assistant coach came into the weightlifting room and told Mr. Sanders that he had heard that there was a girl underneath the stadium and suggested that Mr. Sanders “might want to go check.” Mr. Sanders left the weight room and began searching under the stadium from the north end where the weight room was located, to the south end. Mr. Sanders eventually found Student X and a male student in a small room in the back of the boys’ junior varsity locker room under the south end of the stadium. Mr. Sanders found Student X and the other student talking. He instructed the male student to return to his drivers' education class. Mr. Sanders took Student X back to the bleachers and the ISS Class. Mr. Sanders did not report the incident nor take any action against Student X or the male student he found her with. The next day, Student X reported that students in ISS Class were teasing her about having done something bad. Although not known by teachers at the time, Student X was being teased about what had happened to her on October 17, 1995. She reported the teasing to the Dean's office. Richard Souza, the head of the exceptional student education program, talked to Student X and concluded that Student X should not be sent back to the ISS Class. 38. Student X was teased further on the bus and in other parts of the school about the incident. What had happened to Student X on October 17, 1995, was not discovered until several days after the event took place. Student X was ultimately transferred to another school. Mr. Sanders' was issued a written reprimand for his involvement in the October 17, 1995, incident by the Superintendent of Schools, School District of Escambia County. Mr. Sanders was subsequently transferred to Workman Middle School as a physical education teacher. Mr. Sanders contested the suggestion in the reprimand that he was required to "provide direct supervision" of the ISS Class. Based upon the weight of the evidence, it is concluded that Mr. Sanders breached his responsibility to the ISS Class when he failed to make reasonable effort to protect the students of the ISS Class from conditions harmful to learning and/or to their mental and/or physical health and/or safety. He breached his responsibility when he left the students unattended and unsupervised. Until he knew that another teacher or adult had taken over the supervision of the ISS Class, it was unreasonable for him to abandon them. The evidence failed to prove that Mr. Sanders "intentionally" exposed any student to unnecessary embarrassment or disparagement. The evidence in this case proved the following facts concerning the aggravating and mitigating circumstances required to be considered in disciplinary cases by Rule 6B-11.007(3), Florida Administrative Code: The offense is this case was severe. Mr. Sanders breached one of the most important duties of a teacher: to insure that the students under his charge were properly supervised. The offense did not constitute a danger to the "public." The evidence only proved one repetition of Mr. Sanders' offense. It has been almost four years since the incident. Mr. Sanders has not been disciplined by the Education Practices Commission. Mr. Sanders has been an educator for approximately ten years and was, and still is, well thought of by some in the Escambia County School Board. He has been an educator in Florida since the 1989-1990 school year and was an educator in Alabama for one year prior to that. The actual damage as a result of the lack of supervision of the ISS students was severe. One student was severely harmed and the other students, who had evidenced a great need for supervision, were left unattended. The penalty will not be as effective a deterrent as the publicity concerning the incident. If Mr. Sanders is suspended, as recommended by Petitioner, it would have a serious impact on his livelihood. The evidence failed to prove any effort at rehabilitation by Mr. Sanders, nor is there any rehabilitation reasonably necessary in this matter. Mr. Sanders was not forthright concerning his responsibility in this matter. Mr. Sanders did not admit his responsibility to stay with the students at a minimum until he knew they were supervised. Instead, he attempted to lay the blame elsewhere. Mr. Sanders is currently employed as a teacher for the Escambia County School District. He is employed at Tate School. There was only one violation. Therefore, there was no need for any "[a]ttempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation." There have been no related violations against Mr. Sanders in another state, including findings of guilt or innocence, penalties imposed and penalties served. Mr. Sanders was negligent in his actions, but he did not commit any violation independent of his neglect. There were no penalties imposed for related offenses. No pecuniary benefit or self-gain enured to Mr. Sanders. The degree of physical and mental harm to Student X was great. No physical and/or mental condition contributed to Mr. Sanders' violation, including recovery from addiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kevin R. Sanders has violated the provisions of Section 231.29(1)(i), Florida Statutes, in that he violated Rule 6B- 1.006(3)(a), Florida Administrative Code, as alleged in Count One and Count Two of the Administrative Complaint. It is further RECOMMENDED that Count Three of the Administrative Complaint alleging that Mr. Sanders violated Rule 6b-1.006(3)(e), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Mr. Sanders' teaching certificate be suspended for a period of six months, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998.
