Findings Of Fact Anthony Granger is 14 years old and lives with his mother, Mrs. Betty Granger. Anthony began the 1982-83 school year at Mays Junior High School. On September 8, 1982, Anthony was disciplined for shouting obscenities in class. On September 10, he struck another student and was suspended for five days. On September 24, he was involved in a fight and was suspended for ten days. Mays Junior High School administrators thereafter sought to transfer Anthony to the Douglas MacArthur School because of his disruptive behavior. In the meantime, Mrs. Granger sought to have Anthony transferred to Cutler Ridge Junior High School, where she is a full-time employee. Mrs. Granger was aware of the ten day suspension, but did not know of the earlier incidents or the proposed assignment to the Douglas MacArthur School. Notices of these matters were apparently sent to Mr. Granger, who is separated from Mrs. Granger. The transfer to Cutler Ridge was approved under the majority-minority transfer program. Anthony attended classes at Cutler Ridge for three days in October, after which the transfer was withdrawn. Following a period of confusion and communication breakdown among the three schools, the area school board office and Mrs. Granger, the latter withdrew Anthony from school and has arranged for private tutoring pending outcome of this review. Mrs. Granger's testimony established her sincerity in seeking an appropriate placement for Anthony. Although his behavior was unacceptable at Mays Junior High School, Mrs. Granger's availability at the Cutler Ridge School should preclude further behavioral problems if this placement is reinstated by Petitioner.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner authorize the student, Anthony Granger, to enroll in its Cutler Ridge Junior High School effective immediately. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Betty Granger 11361 Southwest 227th Street Miami, Florida 33170 Mr. Walter Granger 11361 Southwest 227th Street Miami, Florida 33170 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues are: (1) Whether Walter Vernon Creech (Petitioner) is entitled to purchase past service in the Florida Retirement System (FRS) for a period of service with the City of Live Oak (City), during which time he became vested in the City's local retirement plan and elected to retain those vested benefits prior to commencement of employment with the Suwannee County Sheriff's Department, and (2) whether Petitioner is entitled to variance and waiver of regulations which prohibit purchase of prior service for FRS inclusion when the member was vested at the time in a local retirement system.
Findings Of Fact Petitioner was employed as a police officer with the City of Live Oak, Florida, and is currently a deputy sheriff with the Suwannee County Sheriff's Department. On March 1, 1990, the Suwannee County Sheriff's Department assumed the functions of the Live Oak Police Department and the Police Department was disbanded. Petitioner and other members of the Police Department became employees of the sheriff's office. Petitioner has been continuously employed by the sheriff's office since 1990 and presently is the patrol commander for the Sheriff. The ordinance creating the City of Live Oak Retirement System was repealed on October 12, 1990. The pension plan was terminated. An annuity was purchased by the City of Live Oak following termination of the pension plan from the Franklin Life Insurance Company for Petitioner, a vested member of the former pension plan. The annuity entitled Petitioner to future benefits. Non-vested members of the police force were refunded their previous contributions to City of Live Oak retirement plan. Several months prior to the retirement annuity purchase and the repeal of the City of Live Oak Retirement System, Petitioner had elected, on April 9, 1990, by ballot provided by Respondent to retain his vested benefits with the annuity provided by the City and "begin membership in the [FRS] effective March 1, 1990." The ballot choice selected by Petitioner stated specifically that "I understand I may not purchase past service in the FRS for service under the local retirement system which may be used to obtain a benefit." Petitioner's position is that he was not aware on April 9, 1990, that he could select the second ballot choice that would have permitted him to withdraw from City of Live Oak Retirement system and join the FRS at that time. He represents that he was told specifically by the sheriff at the time that he could not elect this option. The sheriff is now deceased. At the time he joined the sheriff's office, Petitioner had not vested in the FRS, although he had prior service as a state employee. No evidence establishes on-site visitation by Respondent employees upon transfer of police functions to the County Sheriff's Office, or direct advice by Respondent employees to Petitioner or any other transferring employees. A letter, however, dated April 18, 1990, from Loraine Voss, a former Bureau Chief with Respondent, documents that there were communications between Respondent employees and the now-deceased sheriff. In pertinent part, the letter advised that employees were eligible to purchase past service credit in FRS provided such past experience would not be used to provide a benefit in another retirement scenario. Absent the letter authored by Voss, Respondent provided no documented direction regarding retirement options to Petitioner at the time of his election to retain his service in the city's retirement annuity. The action of local authorities (i.e., the mayor of the City of Live Oak and the county sheriff) in advising the transferees on retirement matters was not taken at the behest of or on behalf of Respondent. As established by testimony of the now-retired police chief, Jack Garret, members of the police force were aware at the time that their contributions could be withdrawn from the City's retirement fund even though a member might be vested. Before the police force of the City of Live Oak was disbanded, Marvin Clayton, a representative of the Florida Department of Insurance, addressed the members of the force. Clayton recalled that at the February 9, 1990, meeting, he informed the officers of the force that persons who were vested in the City's plan could have their contributions refunded and thereby become eligible to buy past service with the FRS. Local police and fireman retirement funds were regulated by the Department of Insurance at that time. In 1998, Petitioner changed his mind. He contacted Respondent's representative in order to purchase additional retirement credit in FRS for his time with the City of Live Oak Police Department. By letters dated June 15, 1998, and again on October 15, 1998, he was informed by Respondent's representatives that he was not eligible to purchase such service because of provisions of Sections 112.65(2) and 121.081(1)(h), Florida Statutes. As established at the final hearing, Petitioner would have to assign any benefits of his annuity to FRS and pay required FRS contributions plus interest since 1990 in order to acquire FRS credit today for his time with the City of Live Oak Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter an order denying (1) the Petition for Waiver and Variance and (2) also denying the request to be permitted to purchase for creditable FRS service the time spent by Petitioner in the employment of the City of Live Oak Police Department. DONE AND ENTERED this 23rd day of August, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of August, 2000. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive Tallahassee, Florida 32303 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether the Respondent's teaching certificate should be disciplined in accordance with Sections 231.162(8) and 231.28(1), Florida Statutes, for alleged acts of misconduct as set forth in the Administrative Complaint, dated September 20, 1993, which alleged that Respondent has seriously reduced his effectiveness as an employee of the School Board of Orange County, Florida; violated the provisions of law or the rules of the State Board of Education; failed to make a reasonable effort to protect students from conditions harmful to learning or to their health or safety; intentionally exposed students to unnecessary embarrassment or disparagement; and exploited a professional relationship with a student for personal gain or advantage, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rules 6B- and 6B-1.006, Florida Administrative Code.
Findings Of Fact Respondent is a 39-year old male who was born in Puerto Rico and moved to Florida in February 1992. Respondent is of Hispanic origin. His first language is Spanish and his second language is English. Respondent is married and has four children. Respondent holds Florida teaching certificate #695322, covering the area of art, which was valid through June 30, 1993. During the 1992-1993 school year, Respondent was employed as an art teacher at Ridgewood Park Elementary School, in the Orange County School District. Respondent began his employment at that school in August 1992. Respondent is a very demonstrative, expressive person. He regularly rewarded his students for good effort or a job well done with verbal affirmations, pats on the back or head, hugs, and, occasionally with the girls, a kiss on the forehead or cheek. In the fall semester of 1992, Respondent elicited the services of four or five children in his classes to help clean up his classroom, both before and after the school day. They were asked to pick up, clean and sweep the room. Jodi Witmer was one of the students who regularly volunteered her services to help in Respondent's classroom. Jodi Witmer is a female child who was nine years old during the relevant time period. During 1992-1993 school year, Witmer was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class. Because Witmer helped out regularly in Respondent's classroom, performing such duties as sweeping and sorting papers, she received pats and hugs regularly from Respondent. Respondent also kissed her on the forehead and cheek, at least a couple of times for her efforts. Witmer testified that Respondent did not touch her or attempt to touch her in any way other than by giving her hugs or pats. Witmer also denied that Respondent attempted to have Witmer touch him in any inappropriate way. Specifically, she denied that Respondent tried to put his or her hand on his pants and touch his penis, as alleged in the administrative complaint. Autumn Smith is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Smith was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class. Respondent hummed the song, "Autumn of My Dreams" when Smith walked by on two or three occasions. This made her feel uncomfortable or "weird." Respondent did not grab Smith by the buttocks. Chrystal Brown is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Brown was a fourth grade student as Ridgewood Park Elementary School and was in Respondent's art class. On one or two occasions, Brown and a friend asked if they could help Respondent clean up his classroom after school. Respondent gave permission for them to help clean up after school. On one occasion, while Brown and a friend were working in the back of the class and Respondent was at his desk, Respondent saw the girls dancing. He asked them what they were doing. They responded that they were "dancing nasty." Respondent told them to stop and they did. Brown later stated to school authorities that Respondent had asked them to "dance nasty" for him. This statement was not accurate. In December, 1992, rumors began circulating by some students that Respondent had kissed or "raped" some girl in his class. These rumors eventually came to the attention of other teachers in the school and they were reported to the school administration. In December 1992, the principal of Ridgewood Park Elementary School, Donna Smith, reported the alleged incidents of improper conduct against Respondent, as are described in the Administrative Complaint, to law enforcement, HRS and the School District. Respondent was arrested and relieved of duty with pay, and an investigation was undertaken by the School System, HRS and law enforcement. An information was not filed against Respondent concerning these charges. However, extensive pre-trial publicity was generated in the local news media about this case. On March 10, 1993, Respondent and the School System entered a settlement and release agreement. On April 22, 1993, Respondent resigned. Subsequent to the events set forth above and following his resignation, Respondent let his teaching certificate expire and moved with his family back to Puerto Rico.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent, Elvin Gonzalez, did not violate the provisions of Sections 231.28(1)(f) or (i), Florida Statutes, or Rules 6B-1.006(3)(a), (e) or (h), Florida Administrative Code. It is further RECOMMENDED that a Final Order be issued DISMISSING all charges against Respondent for the above violations. DONE AND ENTERED this 13th day of January, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 13th day of January, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3 (but is irrelevant), 4 (irrelevant), 5 (irrelevant), 6 (irrelevant), 7, 8, 9, 10, 11, 12, 13, 17, 19 (but subsumed), 20, 21 (in part), 22 (in part), 26 (irrelevant). Rejected as against the greater weight of credible evidence: paragraphs 14, 15, 16, 18, 21 (in part), 22 (in part), 23, 24, 25, 27. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9 (in part), 11, 12, 21, 22, 24, 29, 45, 46, 51, 52 (irrelevant) 54 (irrelevant), 57, 59 (irrelevant). Rejected as irrelevant, immaterial, subsumed, or a comment on the testimony of a witness: paragraphs 6, 9 (in part), 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 48, 49, 50, 53, 55, 56, 58, 59 (in part). Rejected as against greater weight of credible evidence: paragraph 47. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way Suite G Tallahassee, Florida 32308 Joseph Egan, Jr., Esquire P. O. Box 2231 Orlando, Florida 32802 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. - DONE AND ORDERED this 2916 day of in Tallahassee, Leon County, Florida. uqusl '2014, ELIZ , SECRETARY Agency for Health Care Administration Page 1 of3 Filed September 2, 2014 3:39 PM Division of Administrative Hearings ENGAGEMENT NO.: NH05-l 12C A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 David C. Jones Assistant Secretary of B.E.F., Inc., d/b/a Oak Bluffs Health Center 420 Bay Avenue Clearwater, Florida 33756 Email address: djones@tjmproperties.us Debora E. Fridie, Assistant General Counsel Office of the General Counsel, MS #3 Zainab Day, Audit Administrator Bureau of Medicaid Program Analysis, MS #21 Bureau of Finance & Accounting, MS #14 Page 2 of3 ENGAGEMENT NO.: NH05-112C CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced addressees this 2t:L2y of -2014. RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850)-921-0158 Page 3 of3 STATE OF FLORIDA
The Issue Whether Respondent engaged in the misconduct alleged in the charging document; and, if yes, whether such offenses are violations of Pinellas County School Board Policy 8.25 and the Code of Professional Conduct and/or constitute "just cause" for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Petitioner, the Pinellas County School Board, operates the public schools in Pinellas County, Florida. Respondent has been a teacher for 25 years. The last 18 years, he has worked as a music teacher in the Pinellas County schools. From 1986 to 1993, Respondent taught music at Dixie Hollins High School. From about August 1993 until about April 28, 2004, Respondent worked as a music teacher at Southern Oak Elementary School (Southern Oak). Respondent transferred to Southern Oak because his two sons were attending school there. At all times relevant to this proceeding, Respondent taught music to students in kindergarten through fifth grade at Southern Oak. The classroom teachers brought their classes to the music room where Respondent taught music and returned to pick up the students at or near the time the music class was over. The music room at Southern Oak was a large room, which included the open area where the students sat during their music class. In addition to the area where Respondent taught the various classes, the music room also included an office, a practice room, and three storage rooms. The music room had several large windows facing outside. As part of the music classes, Respondent worked with the children on rhythm movement, singing, playing instruments, and active listening, where the children were asked to keep the beat of the music that was playing on either the television or compact disc player. In the 2003-2004 school year, Respondent used a music curriculum that was about two years old. This music curriculum included a variety of videos and lessons. As part of his teaching and implementation of this curriculum, Respondent showed these curriculum-related videos to the students in his music classes. During the 2003-2004 school year, C.L., St.H., and Sa.H. were students at Southern Oak. C.L. was seven years old in second grade. St.H. and Sa.H., who are sisters, were about seven years old and in first grade. Like all other students at Southern Oak, C.L., St.H., and Sa.H. went to Respondent for music. C.L., St.H., and Sa.H. were all in different classes and, therefore, they did not attend music class during the same class period. Rather, they went to music with their respective classes at the time scheduled. At all times relevant to this proceeding, C.L. did not know either St.H. or Sa.H. Also, at all times relevant to this proceeding, neither St.H. nor Sa.H. knew C.L. Situation Related to C.L. On December 1, 2003, while C.L. was in the tub, her mother, Ms. L., picked up C.L.'s panties from the floor and noticed that there was blood in the panties. Ms. L. asked C.L. questions about the blood, but C.L. could not say when the bleeding had started. The following day, Ms. L. took C.L. to see Jeanette Moss, M.D. She also took two pairs of C.L.'s panties to the doctor's office to show the doctor. Because Ms. L. first discovered the blood in C.L.'s panties on December 1, 2003, she did not know and, thus, could not state with absolute certainty when this episode of bleeding began. However, Dr. Moss' medical report for that office visit indicated that C.L. was brought in by her mother because of suspected vaginal bleeding for the last five days. Dr. Moss did not conduct a vaginal examination, but looked in C.L.'s vaginal area to see if there was still bleeding and determined that there was not. Dr. Moss inquired about the possibility of sexual abuse, but Ms. L. did not think this was possible because she believed that C.L. was always properly supervised. After December 1, 2003, Ms. L. became aware that C.L. had two more episodes of bleeding, one in early January 2004 and one in late January or early February 2004. Following the early January 2004 episode, Ms. L. took C.L. to a medical office, where a nurse, Rene Nolan, looked at C.L.'s vaginal area, but did not conduct a vaginal examination. At the time of this visit, there was no bleeding. Nurse Nolan asked Ms. L. about the possibility of sexual abuse. Still, Ms. L. did not believe this was possible. Following the episode of bleeding in late January or early February 2004, C.L. was referred to Dr. Diamond, an endocrinologist. Dr. Diamond saw C.L. in April 2004 and reported to Ms. L. that there was no indication that the bleeding was related to puberty. With Ms. L.'s permission and in her presence, Dr. Diamond looked at C.L.'s vaginal area and, based on that observation, reported to Ms. L. that the vaginal opening "was not right for a seven-year-old" and indicated he believed there was some kind of sexual abuse. He told the mother to call the Child Protective Team (Child Protective Team or CPT) and have a full examination done. Ms. L. contacted the Child Protective Team the day after she and C.L. went to Dr. Diamond's office, but was told that a police report had to be filed before an examination could be performed. Since C.L. had denied that anything inappropriate had happened, Ms. L. was reluctant to file a police report. Ms. L. contacted Nurse Nolan and shared her concerns about filing a police report. She also updated Nurse Nolan about what had been happening with C.L. since the January 2004 office visit. Nurse Nolan then referred Ms. L. to Dr. Cheek, a physician who had previously worked with the Child Protective Team. On or about April 16, 2004, C.L. was examined by Dr. Cheek. After examining C.L., Dr. Cheek told Ms. L. that she was able to see C.L.'s hymen and determined that there was missing tissue, and there was also scar tissue. Dr. Cheek told Ms. L. that she suspected some type of abuse and reported her suspicion to the child abuse authorities. On or about April 20, 2004, a nurse practitioner with the Child Protective Team conducted a full examination of C.L. That examination, like the one performed by Dr. Cheek, showed loss of hymenal tissue and scarring. The medical record, completed by the nurse practitioner, stated that the loss of hymenal tissue with scarring observed during the examination "is consistent with penetrating trauma." Notwithstanding C.L.'s repeated denials that any sexual abuse had taken place, the nurse practitioner told Ms. L. that based on the findings of the examination, she believed that C.L. had been sexually abused. After C.L. was examined by the nurse practitioner with the Child Protective Team, C.L. and her mother met with a counselor at the CPT office. The counselor told C.L. that if someone had touched her, she should tell her mother and the counselor. C.L. did not verbally respond, but became visibly upset. The counselor then left the room, afterwhich, Ms. L. reiterated that C.L. should tell if someone had touched her and made her feel uncomfortable. After the counselor left the room and in response to her mother's question, C.L. stated that the only person who touched her was her music teacher. C.L.'s mother then asked, "Your music teacher?" C.L. then replied, "You know, the one I said was creepy." In describing how her music teacher touched her, C.L. said only that he would hold her on his lap real tight. C.L. then began crying. About that time, the counselor returned to the room, and Ms. L. told her what C.L. had just revealed to her. In making the comment, "You know, the one I said was creepy," referred to in paragraph 21, C.L. was referring to an earlier conversation she had with her mother about the music teacher. In or about November 2003, when C.L. came home from school, she told her mother that the music teacher was "creepy." Ms. L. then asked C.L. what did she mean. In response, C.L. told her mother, "He makes me sit on his lap." At or near the time C.L. made the statements to her mother noted in paragraph 22, C.L.'s parents discussed what C.L. told her mother. At that time, the parents did not suspect sexual abuse. So after discussing the matter, C.L.'s parents decided they did not want to get an innocent person in trouble, but if it happened again, they would "address it." After Ms. L. told the counselor what C.L. had said while the counselor was out of the room, the counselor asked Ms. L. what she knew about the music teacher. Ms. L. told the counselor about an incident that occurred at or near the beginning of school when she attended that school's open house. According to Ms. L., when she visited the music teacher's room during the open house, he flirted with her. However, there is no indication of exactly what the music teacher did to lead Ms. L. to that conclusion. It is unclear whether C.L. was in the room or had left the room when her mother told the counselor about the "flirting" incident. After Ms. L. told the counselor that C.L. had said the music teacher held her on his lap, the counselor asked C.L. if that was all that he had done and did it make her feel uncomfortable. C.L. answered, "Yes," and said that the music teacher had just held her tight and would not let her get up. After leaving the Child Protective Team office, Ms. L. went to a fast food restaurant before taking C.L. back to school. While at the drive-thru window, Ms. L. noticed that C.L. was clutching a stuffed animal and was crying. Ms. L. asked C.L. what was wrong. C.L. told her mother that she needed to tell her what had happened. After Ms. L. pulled over in the parking lot, C.L. told her mother, "It was him." Ms. L. asked C.L., "Who is him?" C.L. answered, "My music teacher." In response to her mother's asking what was her music teacher's name, C.L. said, "Mr. Fronczak." Immediately after C.L. made the revelations described in paragraph 27, Ms. L. went home and called her husband. Mr. and Mrs. L. then called the Pinellas County Sheriff's Office. Subsequently, C.L. revealed additional details concerning the number of times and how Respondent touched her. During the 2003-2004 school year when C.L. was a second grade student at Southern Oak, her class went to Respondent for music once a week. Each music period class lasted about 30 to 45 minutes. Every other week, Respondent showed the students a curriculum-related video, which would be played on the television which was located at the front of the classroom. The students in C.L.'s class would always sit on the floor to watch the videos. Whenever Respondent showed a video to C.L.'s class, the lights in the classroom were turned off, and the vertical blinds at the windows were closed. While the video was showing, Respondent sat in a chair in the back of the room, with the students seated in front of him, a few feet away. The students were facing the television and had their backs to him. The chair in which Respondent sat had no sides or arms. C.L. did not always sit on the floor during the entire time the video was playing because Respondent would whisper to her, "Come over here." C.L. reasonably understood Respondent's statement to mean that he wanted her to come to where he was seated. In response to the directive, C.L. usually would get up from the floor where she was sitting with the other students and go to Respondent. She would then be required to sit in his lap. If C.L. did not get up when Respondent whispered to her, he would pull her or pick her up and take her to his chair and put her on his lap. Even though C.L. was unable to state the exact time that the incidents described in paragraph 33 occurred, her credible testimony was that the incidents occurred about four or five times during the 2003-2004 school year. The first time C.L. was required to sit in Respondent's lap, he touched her inappropriately in her "private area," either under or over her clothes. This encounter lasted about five or ten minutes, and less time than the video played. While C.L. was sitting on Respondent's lap, she did not say anything, but she did try to get up. However, she could not get up because Respondent was holding her down. In a second incident, Respondent touched C.L. in her private area. C.L. testified that she thought, in this instance, Respondent touched her under her clothes, put his hand in her underpants, and put his fingers inside her. When Respondent put his fingers inside her, C.L. did not scream, even though it hurt and felt like "needles went through" her. During a third incident, Respondent touched C.L. in her private area, but over her clothes. On that particular day, C.L. was sitting on the floor near the back of the music room. Respondent whispered to her, "Come over here." C.L. just turned around, but did not go to Respondent. However, after C.L. did not come to him, Respondent again told C.L. to come to him. After the second directive from Respondent, C.L. got up and went to him. In this instance, C.L. was on Respondent's lap for five or ten minutes, during which he touched C.L. over her underwear. During a fourth incident, Respondent touched C.L. inside her underwear and put his fingers inside her. He may have used two hands, but only one hand at a time. Respondent used one hand to hold her on his lap while his other hand was inside her underwear and/or inside her. He would then sometimes change or alternate hands. When Respondent put his fingers or finger inside C.L., it hurt, but, again, she did not scream. C.L., as she had during the past incidents, tried to get up from Respondent's lap, but she was unable to do so because Respondent was holding her down. When it was over, Respondent let C.L. up, and she went back to her seat on the floor. The foregoing incidents did not occur every time C.L. was in music class. However, when each incident occurred, the lights in the classroom were out, the vertical blinds were closed, and Respondent was seated in his chair (which did not have sides/arms), in the back of the classroom behind the students. During these incidents, C.L. did not sit in Respondent's lap the entire class period or the entire time the video was playing. Given that the incidents happened more than two years ago, when C.L. was only about seven years old, she could not specifically identify the time during the 2003-2004 school year that the incidents occcurred. C.L. could not recall, in each of the incidents described above, whether Respondent touched her private area over or under her clothes. However, C.L. clearly recalled that in the two or three instances when Respondent touched her under her clothes, she was wearing a skirt. Even though C.L. was unable to identify the precise dates and to describe the exact inappropriate touching that occurred in each instance, C.L.'s testimony that four or five such incidents happened during the 2003-2004 school year in Respondent's class is found to be credible. C.L. recalls that at some point, there was blood in her panties. However, she does not recall whether there was bleeding after Respondent touched her in her private area. Prior to the incidents described above, C.L.'s parents had told her about "good touch, bad touch." C.L. believed that what Respondent was doing to her was inappropriate. However, until April 2004, she did not tell her parents or anyone else that Respondent had been touching her in her private area, even though she had been specifically asked if anyone had touched her in that area. C.L. initially told the law enforcement officers who were investigating her allegations that she was not afraid of anyone. However, the reason C.L. did not initially tell anyone that Respondent touched her inappropriately was that she was afraid that she would get in trouble with "the teacher." Another reason C.L. did not tell anyone what happened was that she was afraid that if she told anyone, Respondent would come and hurt her whole family. In April 2004, C.L. finally told her mother that Respondent had touched her because she was "tired of having to go to [medical] exams and missing out on class activities." Despite C.L.'s denying several times that anyone had touched her in an inappropriate manner, those earlier denials are not a basis for discounting her testimony that the incidents described above occurred. In cases such as this, children frequently delay for a significant period of time that they have been the victims of sexual abuse. Prior to C.L.'s disclosing that Respondent had touched her, no one suggested to her that Respondent had done anything to her. C.L.'s reason for stating that Respondent touched her was that he had done so. In fact, C.L.'s credible testimony was that no one had ever touched her in her "privates" like Respondent did. The Testimony of Sally Smith, M.D. Sally Smith, M.D., is board-certified in pediatrics and has worked in the field of child abuse for 19 or 20 years. During that time, Dr. Smith has handled at least 1,000 sexual abuse cases. In or about 2002, Dr. Smith became the medical director for the Pinellas County Child Protective Team. As medical director, Dr. Smith conducts examinations of children for the Child Protective Team. In addition to conducting such examinations, Dr. Smith also supervises the two nurse practitioners with the Child Protective Team who also conduct such examinations, including the nurse practitioner who examined C.L. in April 2004. According to the medical report, at the time C.L. was examined by the nurse practitioner at the CPT office, C.L. had not reported any abuse. The nurse practitioner who examined C.L. documented seeing an abnormality of the hymen, the membrane that covers part of the opening of the vagina. According to the medial report, the back part of C.L.'s hymen, the part near the rectum, was abnormal in that there was an area of the hymen that was about 25 percent missing, which indicated the abnormality was caused by a laceration. Also, there was also some scarring in that area, which indicated healing of the laceration. The type of abnormality found in C.L. is one of the few types of abnormalities considered specific for penetrating trauma. Based on her review of the examination and the photographs related thereto, Dr. Smith could not say definitively what caused the laceration. However, based on her review of the report and the photographs of C.L.'s genital area, Dr. Smith's credible testimony was that the photographs and examination report indicate that C.L. had a significant episode, or perhaps one or more episodes of penetrating trauma to the hymen-vaginal area. It takes at least several weeks to develop scar tissue. Accordingly, the fact that the area was scarred at the time of the examination indicates that the injury occurred several weeks to a month prior to examination. Respondent suggested that the injury to C.L.'s hymen may have been caused by an injury to the genital area, but presented no evidence to support this suggestion. Contrary to this proposition, C.L. has no history of previous penetrating trauma to her genital area due to an accidental injury. The type of injury/abnormality of C.L.'s hymen documented during examination is not the type seen in a straddle injury. Because the hymen is located a half inch to an inch above the surface and is protected by the outer labia in the genital area, straddle injuries do not result in hymenal injuries. Respondent suggests that the injury to C.L.'s hymen may have been caused by masturbation, but presents no evidence to support this suggestion. Contrary to Respondent's assertion, the credible testimony of Dr. Smith is that the abnormality or injury to C.L.'s hymen that was seen at the time of C.L.'s examination in April 2004 is not the type of injury seen in children who masturbate. Moreover, the abnormality or injury observed in C.L. could not be caused by C.L.'s inserting her own finger into the vaginal opening. The reason is that the child's own finger is similar in size to that of the opening of her vagina, so her finger would not cause the lacerations or trauma. However, a grown man's finger could cause such lacerations or trauma. The credible testimony of Dr. Smith is that the injury to C.L.'s hymen is evidence of sexual abuse. Moreover, the abnormality or injury to C.L.'s hymen was consistent with C.L.'s late reporting of how Respondent had inappropriately touch her. The medical report prepared at or near the time C.L. was examined by the nurse practitioner at the Child Protective Team office noted that C.L. had had three episodes of vaginal bleeding over the preceding four months, one of which lasted about ten days. This information was provided by C.L.'s mother. In this case, the episodes of bleeding can not be linked to the times that C.L. experienced the penetrating trauma described above. However, because injuries such as the one that C.L. had do not necessarily result in bleeding, such a link is not dispositive in determining when or how the injuries occurred. The credible and undisputed testimony of Dr. Smith is that the hymen of a child C.L.'s age, prior to puberty, is a relatively thin membrane that does not have a lot of blood vessels, and, therefore, a laceration of the hymen may not bleed like a cut on the skin. However, a "fair percentage" of children that have an incident of penetrating trauma to the genital area may have some fluid/discharge associated with such trauma, but not necessarily bleeding. In this case, there is no definitive medical explanation for the cause of C.L.'s bleeding. C.L.'s vaginal bleeding occurred from December 2003 through February 2004, but did not occur after Respondent was removed from the school in late April 2004. The trauma necessary to tear the hymen would be associated with some sensation for the child. However, often, in incidents such as those described in paragraphs 36 and 38, the child may not react, cry out, or make any verbal response to the penetration and/or significant trauma. According to the credible testimony of Dr. Smith, children frequently delay divulging, for a significant period of time, that they have been sexually abused. Testimony of Wade Meyers, M.D. Wade Meyers, M.D., is a child and adolescent psychiatrist and forensic psychiatrist. Dr. Meyers is currently a professor at the University of South Florida, where he is chief of the Division of Child Psychiatry in the Department of Psychiatry. During this proceeding, Dr. Meyers testified regarding his opinion of the credibility of the students who made the allegations that are at issue in this proceeding. In preparation for giving his opinion, Dr. Meyers reviewed materials which included deposition transcripts, videotaped depositions, and a number of Pinellas County investigative reports.1 Dr. Meyers did not specify which documents he reviewed for each particular student. However, Dr. Meyers did not review any videotaped depositions or videotaped interviews of C.L., but only her deposition transcript(s). Based on Dr. Meyers' review of the materials described in paragraph 65, he opined that C.L.'s allegations regarding Respondent were not credible and that she had not been abused sexually in any way by Respondent. Dr. Meyers based his conclusions and/or opinions on the four reasons set forth below. First, Dr. Meyers testified that C.L.'s allegations cannot be validated as the medical evidence and the timing do not fit logic that would match digital penetration in a young girl. This assertion is based on the medical record which indicates that the bleeding started in December 2003 and went on for five or eight to ten days. Dr. Meyers noted when the bleeding was first observed, during the Thanksgiving holiday, when students were out of school. Also, when the bleeding was first observed, C.L. had not been in school for several days and had not been in Respondent's class for about two weeks. Dr. Meyers apparently believed that the bleeding was necessarily related to C.L.'s allegations that Respondent had digitally penetrated her. Based on this belief, Dr. Meyers concluded that because C.L. had not been in Respondent's music class for about two weeks prior to Ms. L.'s discovering blood in C.L.'s underwear, Respondent could not have penetrated C.L.'s hymen. Dr. Meyers' conclusion, that the medical evidence and timing do not logically coincide with the allegation that Respondent digitally penetrated C.L., is not persuasive. This conclusion or assertion is contrary to the credible and persuasive testimony of Dr. Smith that there is not necessarily bleeding associated with digital penetration of a child C.L.'s age. Therefore, the truth regarding C.L.'s allegation that Respondent digitally penetrated C.L. need not be tied or related to any specific episode of bleeding. Second, Dr. Meyers asserted that C.L.'s initial denial and subsequent denials that any sexual abuse had occurred are a basis for not believing her later statements that Respondent engaged in the alleged conduct.2 According to Dr. Meyers, a victim of sexual abuse usually reveals such abuse in the initial interview. Dr. Meyers' conclusion, in paragraph 69, based on his assertion that victims of sexual abuse usually reveal such abuse in their initial interview, is not persuasive. Dr. Smith's credible testimony, that victims of sexual abuse or acts alleged by C.L. frequently do not disclose this information until some time after the incidents have occurred, is persuasive. Third, Dr. Meyers testified that when evaluating children for sexual abuse, it is important to not do multiple interviews. According to Dr. Meyers, when children who have initially denied that sexual abuse has occurred are interviewed multiple times, the children may feel pressured to change their answer, and they may begin to doubt if they actually forgot what happened. Therefore, their initial statements, not their subsequent statements, are more credible. Where, as in this case, C.L. was interviewed and/or questioned multiple times, Dr. Meyers testified that her subsequent statements, in which C.L. alleged inappropriate touching by Respondent, are not credible. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible because she felt pressured to make the allegations after she was questioned or interviewed multiple times is not persuasive. Admittedly, Dr. Meyers never met or interviewed C.L. or viewed any videotaped depositions or videotaped interviews of C.L. Therefore, at most, his conclusion and opinion are based solely on a review of written documents (i.e. the deposition transcript and/or investigative reports). Moreover, those conclusions and opinions are contrary to C.L.'s credible, persuasive, and clear testimony presented at this proceeding. Fourth, Dr. Meyers asserts that C.L.'s allegations lack credibility because of the leading and suggestive questioning techniques used during C.L.'s deposition and/or interviews.3 Dr. Meyers testified that the techniques used were not only improper, but likely resulted in C.L.'s having a "false memory" about the alleged incidents. According to Dr. Meyers, a false memory is one in which the source of the memory (i.e. the purported suggestive and/or leading questions) is false even though to the child the memory is real. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible, but instead are the result of a "false memory" are not persuasive. Furthermore, this conclusion and opinion are contrary to the credible, persuasive, and clear testimony of C.L. presented at this proceeding. For the reasons stated above, the conclusions and/or opinions of Dr. Meyers, as they relate to C.L., are not persuasive. Situation Involving St.H. and Sa.H. When St.H. and Sa.H. were in first grade, their mother, Ms. H. asked them how was their day at school. The girls never talked much about their teachers. However, in response to their mother's question, the girls reported that Respondent stroked their hair. Ms. H. wondered about this behavior and asked a teacher whether a teacher's stroking students' hair was normal behavior. After the teacher told Ms. H. that that was just the way Respondent was, Ms. H. thought that Respondent's behavior (stroking the girls' hair) was not necessarily inappropriate. Based on her conversation with the teacher, Ms. H. never discussed the matter with Respondent. When St.H. was in first grade, Respondent was her music teacher. During music class, Respondent would call St.H. to come up to him, and he would "take [her] waist" and sit her on his lap. While St.H. was sitting on Respondent's lap, he would stroke her hair and rub her neck and stomach. When St.H. was in Respondent's music class, the vertical blinds at the windows were always closed. St.H. recalled that she sat on Respondent's lap every music period. St.H. sat on Respondent's lap when the students in the music class were playing instruments, but did not stay on his lap the entire music period. When Respondent was showing the students how to play the various instruments, he would make St.H. get off his lap. Respondent also had St.H. to sit in his lap when he showed videos to the class. After Respondent turned the television on, he would go back to his chair, he'd then pat his leg. St.H. would then go to Respondent and sit in his lap. The reason St.H. went to Respondent and sat on his lap is because she knew what that sign, patting his leg, meant "because he does [did] that a lot and that means [meant] for me to go to him." Even though sitting on Respondent's lap made St.H. feel uncomfortable, she never told Respondent how she felt. However, St.H. did ask him why he had her sit on his lap. Respondent then told St.H. that her older sister (who at this time was about 15 years old) had sat in his lap, presumably when she was in his class. St.H. wrote about Respondent's actions in her journal, but she later disposed of the journal because the journal entries reminded her of the bad memories. St.H. would not want Respondent as a teacher again because she would not want to go through the experience she had with Respondent again. When Sa.H. was in first grade, Respondent showed videos during music class. Respondent turned out the lights when he showed the videos. When the video was showing and the lights were out, sometimes Sa.H. would have to sit on Respondent's lap. Sa.H. did not sit in his lap the entire class period, but only sat there about five minutes. When Sa.H. was sitting on Respondent's lap, he would rub her stomach and back and tap her legs. At this proceeding, more than two years after the events related to Sa.H. occurred, she could not recall when she first sat on his lap or how she knew to go to Respondent and sit on his lap. However, Sa.H. did not want to sit on Respondent's lap and felt nervous when she was on his lap. Sa.H. never told Respondent that she did not want to sit on his lap. Moreover, Sa.H. never told anyone that she was sitting on Respondent's lap during the time she was in first grade. Sa.H. would not want Respondent as a teacher again because of what he did to her. According to Sa.H., "It would be very scary again." The testimony of St.H. and Sa.H. is found to be credible, notwithstanding the conclusion of Dr. Meyers to the contrary. Respondent's Denies Alleged Inappropriate Conduct At this proceeding, Respondent testified that he never touched any student inappropriately. According to Respondent, this is evidenced by the fact that, in the criminal trial that was based on the allegations of C.L., the jury acquitted him. At this proceeding, Respondent testified that he never touched C.L. inappropriately and that she never sat in his lap. During his testimony at his criminal trial, Respondent testified that he did not recall if C.L. sat on his lap during the movies/videos. However, Respondent recalled that C.L. came to him when she was feeling sad, but she was not on his lap. Rather, Respondent recalled that C.L. stood next to him and sat on his knee for a short period of time, and he asked her what was wrong. Based on this testimony, Respondent appears to try to make a distinction between C.L. sitting on his lap and sitting on his knee. Contrary to his testimony at trial, at this proceeding, Respondent testified that when C.L. was sad or something was wrong, she came up to him and leaned on his knee. According to Respondent, he taught about 700 students a week, and, when they are sad or something is wrong, they come up to him as C.L. did. At this proceeding, Respondent testified that he never touched either St.H. or her sister, Sa.H., or had them sit in his lap. Notwithstanding Respondent's testimony at this proceeding that he never allowed any student to sit in his lap, during his deposition, he testified that he had kids in his lap all the time. In explaining this seeming discrepancy in his sworn testimony, Respondent explained that when he said students were in his lap all the time, he meant that they were "standing next to me" or "leaning on my knee when they come up to get instruments." Respondent testified that this would happen because this (i.e. getting the musical instruments) was a fun activity, and the children would get excited. However, according to Respondent, there was nothing sexual about the children standing next to him or leaning on his knee. They would simply get their instruments and return to their seats. Respondent gave several explanations that he apparently believed established that it would not be reasonable for him to engage in the alleged misconduct in light of the number of people who were regularly in and near his classroom, often with no advance notice. First, many visitors, including parents of prospective Southern Oak students, came to Southern Oak to observe the school. During these visits, the visitors sometimes went into the music classroom while class was in session. Second, Robert Ammon, principal of Southern Oak, circulated throughout the school almost every morning. Even though Mr. Ammon did not necessarily go into the music classroom every day, he would walk in or near the general vicinity of Respondent's classroom. Third, because there was a refrigerator and microwave in the office in the music room, several teachers were routinely in and out of Respondent's classroom each day to get and/or warm their food. Respondent's explanations are not a sufficient basis to support his assertion that it was not reasonable for him to engage in the alleged misconduct. In fact, the teachers who were in and out of Respondent's classroom, or more specifically, the office in the music classroom, on a regular basis, were there for a specific purpose and only for a few minutes. Respondent's testimony at this proceeding, in which he denied inappropriately touching C.L., St.H., and Sa.H., is not credible. Prior Complaints or Disciplinary Actions Against Respondent Prior to the matters at issue in this proceeding, there have been three complaints filed against Respondent during his tenure with the Pinellas County School District. Two of the complaints were determined to be unfounded, and one resulted in a letter of caution being issued to Respondent. The incident which resulted in Respondent's receiving a letter of caution, involved an act of dishonesty. Specifically, Respondent made a telephone call to someone, and, during that call, he misrepresented himself as someone calling from the superintendent's office on behalf of a School Board member. In the 2001-2002 school year, a complaint was made against Respondent. In January 2002, the assistant principal at Southern Oak notified the principal, Mr. Ammon, of allegations that Respondent had inappropriately touched students. The matter was reported to the Pinellas County School District's Office of Professional Standards, which then reported the matter to the Pinellas County Sheriff's Office. After an on-site investigation was conducted, the allegations were determined to be unfounded. The Office of Professional Standards received the investigation determination of "unfounded" from the Sheriff's Office. The Office of Professional Standards defines the term "unfounded" to mean that the conduct alleged never happened. Accordingly, the allegations in the complaint discussed in paragraph 102 were deemed not to have happened. Therefore, no disciplinary action was imposed against Respondent. After the January 2002 complaint was investigated and determined to be unfounded, Mr. Ammon met briefly and "informally" with Respondent. Although no disciplinary action was required or appropriate in this situation, Mr. Ammon discussed with Respondent the need for him to not put himself in a situation where such charges (inappropriate touching of students) might come up. During this conversation, after Mr. Ammon perceived that Respondent did not comprehend the seriousness of the issue, Mr. Ammon directed Respondent not to touch students for any reason. Mr. Ammon regularly conducted faculty meetings where he cautioned teachers to exercise common sense in their physical contact with students and reminded them of appropriate boundaries in this context. During the 2002-2003 school year, a teacher reported to Mr. Ammon that some students had come to her about Respondent inappropriately touching them. The matter was then reported to the Pinellas School District's Office of Professional Standards and to the Pinellas County Sheriff's Office. As directed by the Office of Professional Standards, Mr. Ammon interviewed the students. As with the previous complaint, following the interviews and the investigation, the allegations were determined to be unfounded, and possibly retaliatory. As a result thereof, the Office of Professional Standards deemed that the alleged conduct never occurred, and no disciplinary action was imposed on Respondent. Superintendent's Recommendation of Dismissal On or about April 28, 2004, Respondent was arrested and subsequently charged with capital sexual battery and lewd and lascivious behavior on a child. By letter dated May 30, 2004, Dr. J. Hinesley, then superintendent of the Pinellas County School District, recommended that the School Board dismiss Respondent as a teacher. According to the description of the agenda item related to Respondent's dismissal, the rationale for the superintendent's recommending dismissal was that Respondent's alleged actions were a violation of Pinellas County School Board Policy 8.25(1)(a), (c), (n), (u), and (v).4 Pinellas County School Board Policy 8.25 has been duly-adopted by the School Board. That policy enumerates offenses for which disciplinary action may be imposed and sets out the penalty or penalty range for each offense. School Board Policy 8.25(1)(a) makes it an offense for school board employees to engage in inappropriate sexual activity, including sexual battery and other activities. The penalty for employees who engage in such conduct is dismissal. School Board Policy 8.25(1)(c) makes committing a criminal act (felony) an offense for which the School Board employees may be disciplined. The penalty range for this offense is reprimand to dismissal. School Board Policy 8.25(1)(n) lists, as an offense, making inappropriate or disparaging remarks to or about students or exposing a student to unnecessary embarrassment or disparagement. The penalty range for this offense is caution to dismissal. School Board Policy 8.25(1)(u) lists, as an offense, insubordination. The penalty range for committing this offense is caution to dismissal. School Board Policy 8.25(1)(v) lists, as an offense, misconduct in office. The penalty range for this offense is caution to dismissal. Prior to this proceeding, and after the superintendent recommended Respondent's dismissal, Respondent was tried on the criminal charges and was found not guilty. Notwithstanding Respondent's being acquitted of the criminal charges, in the instant administrative proceeding, it is found that Respondent inappropriately touched C.L., St.H., and Sa.H. and also failed to observe the appropriate boundaries in his physical contact with those students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 13th day of September, 2006.
The Issue Whether DOT should deem Spruce Creek in violation of the conditions attached to permit No. 50-86-36; and itself overlay the road construction on State Road 200 in Marion County 5.7 miles west of 1-75 with a friction course, and place necessary pavement markings?
Findings Of Fact 1. On April 4, 1986, DOT issued permit No. 50-86-36, for construction on State Road 200 in Marion County at "mile Post No. 9.125, Lt." DOT's Exhibit No. State Road 200 has two lanes at that point. Spruce Creek had applied for the permit in order [t]o construct one 30 foot driveway, a right and left turn lane per sketch, and in accordance with Index No. 515 273. DOT's Exhibit No. 1. Harvey D. Erp, who gave the same address as Spruce Creek, signed the permit, accepting it and agreeing to its provisions, among which is the requirement that "connection(s) . . . be constructed in accordance with [DOT] regulations . . . in its `Policy and Guidelines for Vehicular Connections to Roads on the State Highway System.'" DOT's Exhibit No. 1. The sketch Spruce Creek attached to its application envisions construction of a 30-foot mile driveway entering State Road 200 perpendicularly from the north; and the widening of State Road 200 on either side of the main intersection to create room for a left-turn lane for east-bound traffic and a right-turn lane for traffic headed the other way on State Road 200. The sketch specifies "5/8" FRICTION COURSE FC4" over virtually the entire length of the project, and contemplates painting stripes to delineate the new turning lanes. DOT's Exhibit No. 1A. "FC4" designates a type of asphalt mixed with rock in such a way as to create a good braking surface, partly by facilitating drainage. Spruce Creek began the project authorized by Permit No. 50-86-36, but did not see it through to completion. "All of it was completed . . . except for the overlay of a five-eighths inch friction course and the striping." (T. 13)
The Issue The issues in this case are: (1) Whether Respondent violated Subsection 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor without being registered or certified; and, if so, (2) what penalty should be imposed against Respondent.
Findings Of Fact Based on the evidence and testimony of the witnesses presented, the following facts are found: Crestwood Construction Corporation (Crestwood Construction) was established about six years ago and is located in Port Charlotte, Florida. At all times material to the proceeding, Respondent, Edward Kolba, was president of Crestwood Construction. When Crestwood Construction was established and at all times relevant hereto, Marc Lusardi was the vice-president and the qualifying contractor for the company. Respondent is not currently nor has he ever been a licensed contractor in the State of Florida. On or about August 28, 1998, Respondent as president of Crestwood Construction, entered into a contract with Robert and Doris LaBar to construct a house at 27421 Neaptide Drive, Charlotte County, Florida. The contract price for the construction was $79,994.00. At or near the time Mr. and Mrs. LaBar and Respondent were negotiating the construction contract, Respondent gave the impression that he was the contractor responsible for supervising the construction of the LaBars' house. Consistent with the impressions or representations of Respondent regarding his responsibilities for the LaBar project, Respondent did, in fact, oversee most of the project. At the time Crestwood Construction and the LaBars entered into the contract, Mr. Lusardi, the company's qualifying contractor, did not reside in Florida but in Colorado. Moreover, during most of the time the LaBar home was under construction, Mr. Lusardi was not in Florida. Furthermore, the only part of the LaBar project that Mr. Lusardi oversaw was the construction of the foundation. Respondent acknowledged that at all other times, Mr. Lusardi was out of state. In Lusardi's absence, Respondent became responsible and/or assumed responsibility for overseeing the construction of the LaBars' house. Respondent has had extensive work experience in the construction industry. However, Respondent admitted and did not dispute that he is not a registered or certified contractor in the State of Florida. The investigative costs for the Department of Business and Professional Regulation in this case, excluding costs associated with any attorney's time, were $213.08.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended a final order be entered (1) finding that Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and (2) imposing an administrative penalty of $5,000. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 27th day of December, 2001. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060 Edward Kolba Post Office Box 8014 Port Charlotte, Florida 33949-8014 Marc S. Lusardi 2101 South Ocean Drive Hollywood, Florida 33019 Marc S. Lusardi 182 East Byrd Drive Pueblo, Colorado 81007 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060
The Issue Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another (white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked. The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.
Findings Of Fact Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform her that she was no longer employed and that she should call the personnel department for further information. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and $5,000 for "pain and suffering." Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief. DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1998. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ronald Blocker Orange County School Board Post Office Box 271 Orlando, Florida 32802 Ada Sims 1601 Crooms Avenue Orlando, Florida 32805 Frank C. Kruppenbacker, Esquire Post Office Box 3471 Orlando, Florida 32801-3471 Dr. Donald Shaw, Orange County Superintendent of Schools Post Office Box 271 445 West Amelia Street Orlando, Florida 33802-0271
