The Issue Whether WKDR II, Inc. (WKDR), is jurisdictionally time-barred from bringing the challenges in Case Nos. 21-0844 and 21-0845 to contest the Department of Revenue's (Department) tax assessment and subsequent freeze of WKDR's bank account to attempt to collect on the assessment.
Findings Of Fact The Department administers Florida's sales tax statutes and performs audits to ensure compliance with sales tax laws. WKDR is a Ford franchise car dealership operating as LaBelle Ford. WKDR is organized as an "S" corporation and is wholly owned by Douglas Plattner (Mr. Plattner). WKDR's address is 851 South Main Street, LaBelle, Florida 33935 (851 South Main Street). Mark Smith (Mr. Smith) is a self-employed certified public accountant (CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for Mr. Plattner and WKDR. Mr. Smith's business mailing address is 115 Tamiami Trail North, Suite 7, Nokomis, Florida 34275 (115 Tamiami Trail). On or about March 21, 2019, the Department began a sales tax audit of WKDR for the period of March 1, 2016, through February 28, 2019 (audit period). WKDR was notified of the audit through a Notice of Intent to Audit Books and Records, dated March 21, 2019. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department. Mr. Barnard was responsible for examining the books and records of various taxpayers for compliance with Florida tax laws. Mr. Barnard retired from the Department in May 2021. He was employed by the Department for 30 years. He spent the last 15 years with the Department as a Tax Auditor IV—the most senior tax auditor position at the Department. Mr. Barnard was responsible for the tax audit of WKDR for the audit period. On or about July 30, 2019, Mr. Smith sent the Department a fully executed Power of Attorney/Declaration of Representative form (POA form) to appear as WKDR's representative in connection with the Department's audit. The POA form was completed and signed by WKDR's owner (Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith authority to speak and act on WKDR's behalf for the Department's audit. The POA form correctly states the mailing addresses of both WKDR and its CPA/representative, Mr. Smith. It also correctly states the e-mail address and fax number for Mr. Smith. Mr. Smith entered WKDR's address in section 1 of the POA form. The POA form included spaces for a contact person's name, telephone number, and fax number at WKDR, but those spaces were left blank in the form signed by Mr. Smith and Mr. Plattner. The POA form signed by both Mr. Smith and Mr. Plattner set forth the name, address, telephone number, and fax number of Mr. Smith’s CPA firm in section 2 of the POA form. Section 6 of the POA form provides as follows: Notices and Communication. Do not complete Section 6 if completing Section 4. Notices and other written communications will be sent to the first representative listed in Part I, Section 2, unless the taxpayer selects one of the options below. Receipt by either the representative or the taxpayer will be considered receipt by both. If you want notices and communications sent to both you and your representative, check this box. If you want notices or communications sent to you and not your representative, check this box. Mr. Smith completed section 6 by checking option "a," indicating that they wished to have notices and communication sent to both the taxpayer (WKDR) and the representative (Mr. Smith). Mr. Smith's e-mail address was added on the POA form by the Department's employee, Lisa Weems, after she called Mr. Smith's telephone number to obtain his e-mail address. All other information was added by Mr. Smith after consultation with Mr. Plattner, before they both signed the form. Throughout the audit, the Department's auditor, Mr. Barnard, primarily communicated with WKDR through its designated representative—Mr. Smith—at his mailing address and e-mail address. This included multiple requests for documents. At times, Mr. Barnard communicated directly with Mr. Plattner while copying Mr. Smith on the correspondence. Mr. Barnard sent a letter dated November 14, 2019, by regular mail, to WKDR at 851 South Main Street, with a copy to Mr. Smith at 115 Tamiami Trail. Mr. Smith testified that he received and read this letter. The November 14 letter provided WKDR and Mr. Smith with notice that, as things stood on that date, a NOPA was imminent. The letter stated, in pertinent part: On September 20th, we wrote you a letter requesting the information needed to complete the audit of WKDR II Inc. and the DR54 Formal Notice of Demand to Produce Certain Records. The letter stated that your failure to provide the information be [sic] September 27, 2019 may result in an assessment. That is, the implementation of alternative audit procedures to estimate a liability based on the best available information. As of the date of this letter you have not complied with our request. Therefore, enclosed is the Notice of Intent to Make Audit Changes (DR1215) and the audit work papers, which are an estimate based upon the best information available as provided in Section 212.12(5)(b), Florida Statutes. You have 30 days to review the audit adjustments, which expires on December 16, 2019. * * * If we do not hear from you by December 16, 2019, the audit file will be sent to Tallahassee so that the Notice of Proposed Assessment (NOPA) can be issued to you. The NOPA is the formal notice of the amount due. The NOPA will also provide the procedures for filing informal and formal protests. The Notice of Intent to Make Audit Changes, which was included with the November 14 letter, listed a "balance due through 11/14/2019" of $1,157,025.16. This sum included taxes of $801,967.01, a penalty of $200,491.75, and interest of $154,566.40. The notice also explicitly laid out WKDR's opportunities to informally protest this preliminary sum through a conference with the auditor or the auditor's supervisor. It provided that after the 30-day informal conference period expired, a NOPA would be issued. On December 20, 2019, Mr. Barnard sent an e-mail to Mr. Plattner with a copy to Mr. Smith. Attached to the e-mail was a letter of the same date. The letter provided as follows: On November 14, 2019, a Notice of Intent to Make Tax Audit Changes (DR-1215) was issued with additional tax due of $801,967.00. The 30 day informal protest period with the Service Center was up December 13, 2019.[2] Although your representative, Mark Smith, did provide some sales invoices after issuance of the DR-1215 they did not represent a full month of invoices as requested. Please be advised all sales invoices for December 2018 must be provided by January 3, 2020 for any changes in the assessment to be considered. These invoices should consist of same for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for December 2018. As indicated in the December 20 letter, one month before the NOPA was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30-day informal protest period expired on December 13, 2019. Mr. Smith's testimony on this matter was evasive. At first, he acknowledged that he received the December 20 letter. However, after objection from WKDR's counsel, Mr. Smith backtracked and denied receipt. His attempted denial was not credible and is not credited. The undersigned finds that Mr. Smith received the December 20 letter. Mr. Barnard sent another letter, dated January 7, 2020, by regular mail to Mr. Plattner, and by e-mail to both Mr. Plattner and Mr. Smith, which stated as follows: Please be advised the information necessary to make an adjustment to the audit results issued on November 14, 2019 has not been provided. As stated in our December 20, 2019 letter this information was sales invoices for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for the entire month of December 2018. 2 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline of December 13 for the 30-day informal conference period, while the e-mail sent on December 20 referenced a deadline of December 16. The discrepancy in the December 20 letter is immaterial as both deadlines (December 13 and 16) had passed by the date of the December 20 letter. The audit will be closed and a Notice of Proposed Assessment will be issued shortly. Once again, Mr. Smith’s testimony was evasive. After seemingly admitting he received and read the January 7 letter, Mr. Smith testified that he did not receive the January 7 letter. The undersigned found Mr. Smith's testimony on this point wholly untruthful. At the hearing, during cross-examination, the Department's counsel asked Mr. Smith about his actions and impressions after receipt of the January 7 letter in the following exchange: Q. Let's go to Exhibit 22, which is Bates Number 00081. This is another e-mail sent to you on January 7th, 2020 to Mr. Plattner showing a carbon copy to Mr. Mark Smith CPA POA. The third sentence states; "The audit will be closed and a notice of proposed assessment will be issued shortly." Does that mean that the audit is still open or the audit is closed? A. That, like I said, I mean, I've -- I've dealt with audits where they say they're going to do this and do that and it's taken them two years to send anything. Q. This letter dated January 7th, 2020 does not give a new deadline, does it? A. It does not appear to but -- yeah, it does not appear to. Q. In fact, it says the audit is closed. That means that it's done, right? A. No. I don't -- I -- not necessarily. Q. It also says that the notice of proposed assessment will be issued shortly. So you knew at this time, the NOPA was imminent, right? A. Not necessarily. Q. Is there any language in this letter indicating that WKDR has any more time to provide additional documents? A. I've worked with the State before and they've provided us additional time quite often. Q. In fact, the auditor did provide you a deal -- a great deal of additional time to have the audit, didn't he? A. Well, we provided him so many documents that we thought he needed more time too. The whole tenor of Mr. Smith's testimony was to acknowledge that he read and understood the January 7 letter to say the NOPA was imminent, but that he knew from his experience the NOPA was "not necessarily" imminent. Notably, when asked if he knew at that time that the NOPA was imminent, Mr. Smith did not say that he did not know that because he did not receive or read the January 7 letter when it was sent to him by e-mail. Mr. Smith provided answers to these and several other questions about what he did or did not do in response to the January 7 letter. It was not until after an objection by WKDR's counsel that, as before, Mr. Smith backtracked to say that he did not receive the letter. In making the finding that Mr. Smith was untruthful when he testified that he had not received the January 7 letter, the undersigned had the distinct opportunity to observe the demeanor of Mr. Smith during testimony on this issue. He was not credible and his belated denial is not credited. The undersigned finds that Mr. Smith received the January 7 letter, reviewed it, and hoped that he could buy more time as he had thought he might be able to. Testimony of Lisa Weems Ms. Weems is a Revenue Specialist III for the Department. She has worked for the Department, in its Compliance Standards Section, for over 15 years. In addition to other tasks, Ms. Weems is responsible for printing NOPAs to send out to taxpayers and their representatives. Ms. Weems testified in great detail about the process she uses to send out NOPAs. When a NOPA is issued, it is uploaded to the Department's system overnight and cannot be printed until the following morning. Because of this, Ms. Weems sends out NOPAs only four days a week—Tuesdays, Wednesdays, Thursdays, and Fridays. Ms. Weems prints and mails out approximately 400 NOPAs per week. On the day of the final hearing, she had mailed out 88 NOPAs. Ms. Weems has a system in place to keep track of the NOPAs she sends out. Ms. Weems clearly and credibly testified about the process she used to send out NOPAs and when and by what means she used to send the NOPA to WKDR and its representative in this case. Each NOPA is mailed out in a packet that includes four documents: the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a document titled How to Pay Your Audit Assessment and Notice of Taxpayer Rights. The packets are sent by USPS first-class mail. WKDR's NOPA was issued on January 13, 2020. It had to load in the Department's system overnight, so it was printed on January 14, 2020. WKDR's NOPA assessed taxes of $801,967.01, a penalty of $200,491.75, and interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following the audit.3 3 The amount of the taxes assessed and penalty remained the same as was listed in the Notice of Intent to Make Audit Changes. The amount of the interest had increased. The interest listed in the Notice of Intent to Make Audit Changes was for the period up to November 14, 2019. The NOPA specified that the deadline to request a formal hearing before DOAH was May 12, 2020, or 60 days from the date the assessment becomes a final assessment. The Notice of Taxpayer Rights provided detailed instructions on how to contest the assessment and provided further details on the timelines and deadlines to do so. Ms. Weems sent WKDR and Mr. Smith copies of the NOPA by USPS first-class mail on January 14, 2020. On January 14, 2020 (the day after the NOPA was uploaded), Ms. Weems printed an original and copy of WKDR's NOPA. She placed the original NOPA and the other three documents in a window envelope, addressed to WKDR at 851 South Main Street. A copy of the NOPA, along with the three other documents, were placed in another envelope, addressed to Mark Smith, CPA, at his business mailing address, 115 Tamiami Trail. Ms. Weems testified that she created a mail log sheet, wrapped the log sheet around the envelopes, and placed both of these NOPA envelopes in the outgoing mail basket. After placing the items in the outgoing mail basket, a Department employee from Building L picks up the outgoing mail and mails it out. Ms. Weems testified that she has mailed NOPAs this way for over 10 years. Ms. Weems testified that it was her practice, and what she was taught by the Department, to send NOPAs that had assessments for over $100,000.00 by fax and e-mail, in addition to regular mail.4 WKDR's assessment was for an amount greater than $100,000.00. On January 16, 2020, Ms. Weems sent a copy of the NOPA to Mr. Smith by fax transmission. 4 It must be noted that the Department's internal policy to send NOPAs with assessments over $100,000.00 by e-mail and fax is an unadopted rule; however, it is not necessary to rely on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat. Ms. Weems sent the fax to Mr. Smith's fax number, which was provided on the POA form. Ms. Weems used a fax coversheet when sending the fax. The coversheet recorded several important pieces of information. It provided the case number and the taxpayer's name (WKDR). Two boxes on the fax coversheet were checked—a box indicating there was a "POA" (Power of Attorney) in the file and a box indicating the NOPA was to be sent to the "POA." Ms. Weems also made some notes on the fax coversheet. She wrote: "original notice mailed 1/14/20," "email: mark@swagcpa.com," and "(8) pages." Ms. Weems testified that the reference to eight pages represented the amount of pages she faxed. These pages included the four documents sent by USPS first-class mail mentioned above. After faxing the documents to Mr. Smith's fax number, Ms. Weems received a fax transmission report. The report indicated "Results OK." The term "OK" on a fax transmission report is generally accepted as meaning that the transmission was completed successfully. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and Notice of Taxpayer Rights to Mr. Smith by e-mail. Ms. Weems sent the e-mail to Mr. Smith at mark@swagcpa.com—the e-mail address she obtained from Mr. Smith's office, and which he confirmed was his through testimony at the hearing. The e-mail's subject line stated "Audit Number 200262550-010 WKDR II, INC." The e-mail stated as follows: Please respond back to me by e-mail letting me know you did receive the Notice of Proposed Assessment (Nopa) and Taxpayer Rights by Email and Fax please. Good afternoon, Mr. Smith. I'm e-mailing you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights. I also faxed you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights to fax number 941-866-7691. The Original Notice of Proposed Assessment (Nopa) & Taxpayer Rights was mailed out on 1/14/2020. Any questions call the Nopa Line at 850-617-8565. Thanks, Lisa Weems. The e-mail included an attachment labeled "3125_001.pdf." Ms. Weems testified that the attachment was a copy of the NOPA and Taxpayer Rights. Ms. Weems requested a "delivery receipt" and "read receipt" through her e-mail platform for the e-mail she sent to Mr. Smith. This was her customary practice when sending e-mails. A few seconds after sending her e-mail, she received a "delivery receipt" confirmation that the e-mail was delivered to mark@swagcpa.com. Shortly thereafter, Ms. Weems received a "read receipt" confirmation that her e-mail was received by Mr. Smith and was "read." The use of delivery and read receipts are not novel practices. Delivery and read receipts are used by a sender of an e-mail to confirm that the e-mail sent has been delivered to the addressee and, subsequently "read," that is, opened by the recipient. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax and e-mail. Ms. Weems's monthly log for January 2020 includes entries that confirm she sent the WKDR NOPA by e-mail and fax to Mr. Smith at the contact information he provided. In addition to her personal monthly log, Ms. Weems also used SAP—a Department computer system that employees work in every day—to document her activities. On January 16, 2020, Ms. Weems made a notation in SAP that stated as follows: "I faxed the Notice of Proposed Assessment (NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941-866- 7691. I e-mailed the Notice of Proposed Assessment (NOPA) and taxpayer rights to Mark Smith on 1/16/20 to e-mail address (mark@swagcpa.com). See attachments and notes." Testimony of Mark Smith Mr. Smith testified that he did not receive the NOPA by USPS first- class mail, fax, or e-mail. If the undersigned took Mr. Smith's testimony as true, all three of the Department's avenues of sending the NOPA failed. Mr. Smith testified that the NOPA, sent by USPS first-class mail, in the same fashion used for several other letters that he had received from the Department, was not received. Other than Mr. Smith's denial, WKDR provided no evidence that the NOPA and accompanying documents Ms. Weems mailed in separate packages to WKDR at its address and to WKDR's representative's address were not received. Mr. Smith testified that during the time the NOPA was sent, his business utilized an electronic faxing service called MyFax.com. Through this service, he received faxes in e-mail format, with the contents of the fax attached to the e-mail as a PDF document. Mr. Smith testified that he did not receive the fax from Ms. Weems. Mr. Smith also testified that he rarely read faxes because "90 plus percent of our faxes are payroll-related" and belonged to his business partner. Mr. Smith did not credibly explain how he comes to know about the ten percent of faxes directed to him. While perhaps his business partner screens faxes, it is inconceivable that a business firm would not ensure that incoming faxes are directed to the person to whom they are sent. That is particularly true where, as here, Mr. Smith has provided his business fax number as a means to give him notices regarding WKDR's audit. Although the Department provided documentation of a delivery and read receipt of the NOPA sent by e-mail to Mr. Smith, Mr. Smith testified that he did not receive it. Mr. Smith offered no credible explanation for the delivery and read receipts. Once again, it is not credible that a CPA who serves as the POA for taxpayer WKDR would not be reviewing e-mails delivered to his e-mail address, when his office has provided that e-mail address to the Department. Notably, he acknowledged reviewing other e-mail communications from the Department with regard to WKDR's audit. Mr. Smith's feigned ignorance of an e-mail delivered to him and opened by him is not credible and is not credited. The competent substantial evidence establishes that the Department mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on the POA form. The testimony that Mr. Smith did not receive the NOPA is not credible. WKDR did not deny that it received the NOPA mailed to it; WKDR offered no testimony on the subject.5 The NOPA was mailed to the same addresses provided by Mr. Smith and Mr. Plattner on the POA form and used by the Department to successfully communicate with Mr. Smith during the audit. WKDR and Mr. Smith were on notice that a NOPA was forthcoming. The Department advised WKDR and Mr. Smith by letter through regular mail and e-mail, on at least two occasions, that a NOPA was going to be issued and that the Department anticipated an assessment of additional taxes of approximately $801,967.00. The Department provided notice of the NOPA in a manner reasonably calculated to inform WKDR and its representative of WKDR's rights and of the deadlines to take action to protect those rights. WKDR and the Department communicated frequently during the audit, but after issuance of the NOPA, communications with WKDR and Mr. Smith ceased for several months. Mr. Smith did not reach out to the Department to find out why communications ceased. The reasonable inference is that Mr. Smith was fully aware of why the previous communications during the audit stopped: because the audit had culminated 5 In its post-hearing submittal, WKDR argued that the NOPA mail should have been sent to Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing address given on the NOPA. WKDR had the opportunity in the POA form to designate Mr. Plattner as the taxpayer contact person but chose not to do so. in the NOPA and it was up to WKDR to contest the NOPA in a timely hearing request. On or around February 18, 2021, the Department issued an NIL against WKDR, by which it notified WKDR that it intended to freeze funds from WKDR's bank account in the amount of $999,999.99. The NIL provided that WKDR had 21 days from the date of receipt of the NIL to dispute the matter. On February 19, 2021, WKDR submitted a petition for a chapter 120 administrative hearing to challenge the NOPA. WKDR's petition challenging the Department's NOPA was filed with the Department 403 days after the date on the NOPA (January 13, 2020) and 286 days after the deadline for filing a petition to request an administrative hearing had passed. On February 23, 2021, WKDR timely filed a petition for an administrative hearing to dispute the NIL. WKDR's dispute of the NIL is solely based on its challenge to the NOPA, and its claim that it did not receive the NOPA when issued the year before. WKDR failed to timely exercise its opportunity to protest the amount of the Department's assessment, the underlying audit findings, and the methods the Department used to reach the amount in the assessment. There is no claim by WKDR in this case that the content of the Notice of Taxpayer Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested; its claim is solely that it did not receive the NOPA and the accompanying Notice of Taxpayer Rights, a claim which is not credible. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department sent the NOPA to WKDR's representative by USPS first-class mail, e-mail, and fax, and to WKDR directly by USPS first-class mail; and that Mr. Smith received the NOPA by USPS first-class mail, e-mail, and fax, and that WKDR received the NOPA by USPS first-class mail. WKDR did not submit a timely request for hearing to dispute the NOPA.
Conclusions For Petitioner: Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 For Respondent: J. Clifton Cox, Esquire John G. Savoca, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order dismissing DOAH Case Nos. 21-0844 and 21-0845. DONE AND ENTERED this 30th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JODI-ANN V. LIVINGSTONE 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 30th day of November, 2021. Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Kristian Oldham, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jacek Stramski, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Doug Plattner 3118 Walter Travis Drive Sarasota, Florida 34240 James H. Sutton, Esquire Moffa, Sutton & Donnini, PA 8875 Hidden River Pkwy, Suite 230 Tampa, Florida 33637-2087 J. Clifton Cox, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Allison M. Dudley, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John G. Savoca, Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact Petitioner was employed by Respondent, Seamless, at its Ocala, Florida plant from January 9, 1985 to June 21, 1985. At the time she was employed, she was furnished an employee handbook which outlines, among other things, the procedures for applying for and receiving leaves of absences. Mrs. Lanham had also been employed by Becton-Dickinson, a company owned by Dart & Kraft, Inc., the company which owns Seamless as well. Becton-Dickinson was the forerunner to the Seamless operation at the same plant site. During this previous period of employment, Mrs. Lanham applied for a four day leave of absence extending from March 7, 1984 through March 10, 1984 for medical reasons. The form application for a leave of absence prepared by the Petitioner and bearing her signature as well as those of the additional individuals in her chain of supervision reflects that the form was submitted subsequent to Mrs. Lanham's return from leave. Mrs. Lanham contends that she was discriminated against because of a physical handicap (rheumatoid arthritis) yet the employment application she executed on November 1, 1984, some two months before she was hired and approximately 7 months prior to the leave of absence which resulted in her termination, reflected that she did not have any physical condition which would limit her ability to perform the job applied for. Mrs. Lanham took an administrative leave on June 10, 1985 and remained absent until June 21, 1985. On June 10, Mrs. Lanham's husband delivered a disability certificate signed that date by Mrs. Lanham's physician, Dr. Panzer, to Mrs. Lanham's supervisor, Mrs. Kibler. This disability certificate was in turn transmitted to Mrs. Reese, the personnel specialist, by Mrs. Kibler. On June 12, Mrs. Reese talked by telephone with Mr. Lanham, advising him that Mrs. Lanham had to come in to fill out a form for a leave of absence. Later in the day, Mr. Lanham called back to say that Petitioner would be in the next morning. Mrs. Lanham did, in fact, come in on June 13. In a meeting in Mrs. Reese's office, Mrs. Reese gave Mrs. Lanham a form for a leave of absence request. At the time, Mrs. Lanham objected to coming in to fill out the form indicating she did not think it was necessary because she had a doctor's statement which she understood would make a leave of absence request unnecessary. In response, Mrs. Reese explained that the leave of absence request was necessary because the doctor's statement, previously submitted on June 10, showed no diagnosis and was, therefore, inadequate. In response Mrs. Lanham indicated she would not fill out or sign any form without first taking it to her attorney. The completed leave of absence form was received by Mrs. Reese that same day, after lunch, when Petitioner's husband brought it in and dropped it off at the reception desk. This leave of absence form is dated by Mrs. Lanham on June 12, 1985, and indicates in the explanation portion thereof that the reason for the requested leave of absence is "job related injury." When Mrs. Reese saw this entry, she immediately called Mrs. Lanham's home leaving word for Mrs. Lanham to return the call. This call was not returned, and, later in the day, Mrs. Reese again called Mrs. Lanham, this time leaving word for her to report to the Oakbrook Clinic for an examination of the job related injury the first thing the next day. Mrs. Lanham at no time reported to the clinic for the examination as directed either that day or any time thereafter. Repeated phone calls to the Lanham residence failed to result in Mrs. Lanham being reached. In addition, repeated requests by mail, telegram, and phone for her to come into the office and explain her absence were met with no response. In fact, Mrs. Lanham was on vacation during a substantial portion of the time of her absence a vacation which, she contends, her doctor advised her to take. There was no independent evidence in any form of the nature of Mrs. Lanham's condition or her doctor's prescribed course of treatment for it. Since, therefore, her leave of absence had not been approved, it was thereafter determined that she had abandoned her job and on June 21, 1985, she was notified by certified mail that a determination was made that she had voluntarily resigned her position with the company. Mrs. Lanham contends that she felt it was perfectly all right for her to wait until she returned from her leave of absence to submit the leave of absence request basing this conclusion on the fact that when she worked for Becton-Dickinson, some two years previously, that was the procedure followed. Though that might have been the procedure at the earlier time with the other company, it is clear that that was not the procedure followed by Seamless at the time in question and Mrs. Lanham's reliance on the earlier procedure, especially in light of the repeated contacts with her and the additional attempted contacts, result in the clear conclusion that she declined to comply with the company rules at her own peril. Mrs. Lanham indicates that the reason the diagnosis was not in the initial disability certificate submitted by her was that the lab work had not been completed at the time it was submitted and she failed to go to Oakbrook Clinic notwithstanding the repeated requests by Mrs. Reese because she understood that it was up to her to go at her convenience. She intended to go to Oakbrook when she got back from her vacation. 9. Subsequent to all the above, Mrs. Lanham settled a Workmen's Compensation claim in her case for some financial award. The terms of the settlement are not relevant to the issues herein. It is evident, however, that the award was based on compromise rather than liability and no firm determination of compensability was made. Mrs. Lanham was absent for three days prior to submitting the absence request form for this June 1985 absence. When the form was submitted, it contained information relating to a job related injury, which entry was placed there by Mrs. Lanham's attorney. This raised legitimate questions in the Respondent's personnel officials' minds to require further contact with Petitioner since there had been no previous notification of injury. By this time, however, Petitioner had either gone on vacation or for some other reason, refused to respond to the requests of the personnel people to either come into the plant or go to the clinic for evaluation. Mrs. Lanham may have had a valid disability, but it was not the disability for which she was terminated. It was the extended unexcused or unapproved absence from June 13 through June 21, a period of more than three days, which, under the guidelines set out in the employee manual, resulted in a legitimate conclusion by management that Petitioner had abandoned her position and it is clear that her termination was based on that rather than any reference to her handicap. All other information relating to Mrs. Lanham's complaints about job working conditions and her request to be reassigned have little if any bearing on the issue of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition for Relief filed by Gladys L. Lanham be denied. RECOMMENDED this 22nd day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1986. COPIES FURNISHED: Gladys L. Lanham. 4631 SW 87th Terrace Ocala, FL 32674 John L. Johnson, Esq. Labor Counsel Dart & Kraft, Inc. 211 Sanders Rd. Northbrook, IL 60062 Susan K. McKenna, Esq. 57 W. Pine Street Suite 202 Orlando, FL 32801 Betsy Howard Clerk of the Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 Aurelio Durana General Counsel Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by Respondent in this case. 1. Incorporated in finding of fact 1. 2. Incorporated in finding of fact 1 and 2. 3-4. Incorporated in finding of fact 4. 5. Incorporated in finding of fact 2 and 4. 6. Incorporated in finding of fact 5. 7. Incorporated in finding of fact 1. 8. Treated in finding of fact 9. 9-11. Incorporated in finding of fact 6. 12. Incorporated in finding of fact 6 and 7. 13. Incorporated in finding of fact 6. 14. Incorporated in finding of fact 10 and 11. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS GLADYS L. LANHAM, EEOC Case No. n/a Petitioner, FCHR Case No. 85-3099 DOAH Case No. 85-4345 SEAMLESS HOSPITAL PRODUCTS, FCHR Order No. 86-032 Respondent. /
The Issue Whether the Respondent discriminated against the Petitioner on the basis of race and age when it terminated his employment.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Jerome Williams. DONE AND ENTERED this 29th day of September, 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 29th day of September, 2003.
The Issue The issue for determination is whether Petitioner is entitled to creditable service in the Florida Retirement System for service in the Florida Virtual School from September 15, 2001, through June 30, 2002.
Findings Of Fact Petitioner is a regular class member of the Florida Retirement System (FRS). On October 23, 2003, Petitioner entered the Deferred Retirement Option Program (DROP) and left her employment on June 30, 2004. Petitioner worked most of her career as a teacher and an administrator for the Pasco County School Board (School Board). The School Board is a local education association (LEA) and a local agency employer within the meaning of Subsection 121.021(42)(a), Florida Statutes (2001). Beginning with the 2001-2002 school year, Petitioner undertook additional employment by working in the Florida Virtual School (FVS) in accordance with former Section 228.082, Florida Statutes (2000).1 Petitioner undertook additional employment to increase the average final compensation (AFC) that Respondent uses to calculate her retirement benefits. From September 15, 2001, through June 30, 2004, Petitioner worked for the LEA and served in the FVS. During the 2001-2002 school year, Petitioner was a full-time employee for the LEA and also served part-time in the FVS. Beginning with the 2002-2003 school year, Petitioner served full-time in the FVS and also worked for the LEA during the summer. The LEA paid Petitioner annual salaries as a full-time employee for all relevant school years and made the necessary contributions to the FRS. The AFC includes compensation Petitioner received from the LEA, and that compensation is not at issue in this proceeding. With one exception, the AFC includes the compensation Petitioner received for service in the FVS. The AFC does not include $6,150 (the contested amount) that Petitioner earned during her first year of service in the FVS from September 15, 2001, through June 30, 2002 (the contested period).2 Sometime prior to April 2004, Petitioner requested that Respondent include the contested amount in her AFC. In a one- page letter dated April 6, 2004 (the preliminary denial letter), Respondent notified Petitioner that Respondent proposed to deny the request. The grounds for denial stated that Petitioner earned the contested amount in a temporary position and that FVS did not join the FRS until December 1, 2001. In relevant part, the preliminary denial letter states: . . . you filled a temporary instructional position as an adjunct instructor whose employment was contingent on enrollment and funding pursuant to Section 60S- 1.004(5)(d)3, F.A.C., copy enclosed. As such, you are ineligible for . . . FRS . . . participation for the time period in question. The School joined the FRS on December 1, 2001 and past service was not purchased for you since you filled a temporary position. Effective July 1, 2002, you began filling a regularly established position with the Florida Virtual High School and were correctly enrolled in FRS. The School has reported your earnings from July 1, 2002, to the present to the FRS. Respondent's Exhibit 2 (R-2). A two-page letter dated June 23, 2004 (the denial letter), notified Petitioner of proposed final agency action excluding the contested amount from her AFC. The only ground for denial stated that Petitioner earned the contested amount in a temporary position. The denial omits any statement that FVS did not join the FRS until December 1, 2001. However, the denial letter includes a copy of the preliminary denial letter and is deemed to include, by reference, the stated grounds in the preliminary denial letter. In relevant part, the denial letter states: By letter dated April 6, 2004 (copy enclosed). . . [Respondent] advised you filled a temporary instructional position as an adjunct instructor from September 15, 2001 through June 30, 2002. We have reviewed the information submitted in your recent letter and maintain our position that you were an adjunct instructor from September 2001 through June 2002, pursuant to Section 60S-1.004(5)(d)3, F.A.C. (copy enclosed). Your employment with the Florida Virtual School during the time period in question was contingent on enrollment and funding. Since you filled a temporary position, the School was correct in excluding you from the [FRS]. This notification constitutes final agency action. . . . R-3 at 1. The legal definition of a temporary position varies depending on whether the employer is a state agency or a local agency. If the employer is a state agency, a position is temporary if the employer compensates the position from an account defined as "an other personal services (OPS) account" in Subsection 216.011(1)(dd), Florida Statutes (2001) (OPS account). If the employer is a local agency, a position is temporary if the position will exist for less than six consecutive months; or as otherwise provided by rule. § 121.021(53), Fla. Stat. (2001). The distinction is based, in relevant part, on the practical reality that local agencies do not maintain OPS accounts for "the fiscal affairs of the state." § 216.011(1), Fla. Stat. (2001). The employer that paid Petitioner the contested amount was not an LEA. Three different employers may have been responsible for payment of the contested amount. Some evidence supports a finding that the employer was the Board of Trustees of FVS (the Board). Contracts of employment for service in FVS identify the employer as the Board.3 The Board has statutory authority over personnel serving FVS and has statutory authority to govern FVS. Other evidence supports a finding that the employer that paid Petitioner the contested amount was FVS. The record evidence identifies the employer that enrolled in FRS and made contributions on behalf of Petitioner as FVS. Finally, there is evidence that the Orange County School Board, acting as the statutorily designated fiscal agent for FVS (the fiscal agent), was the employer that paid Petitioner the contested amount. The contested amount was paid from funds administered by the fiscal agent in the name of FVS. The Board, FVS, and the fiscal agent each exemplify distinct characteristics of a state agency defined in Subsection 216.011(1)(qq), Florida Statutes (2001). The Board consists of seven members appointed by the Governor for four-year staggered terms. The Board is a public agency entitled to sovereign immunity and has authority to promulgate rules concerning FVS. Board members are public officers and bear fiduciary responsibility for FVS. The Board has statutory authority to approve FVS franchises in each local school district. §§ 228.082, Fla. Stat. (2000) and 1002.37, Fla. Stat. (2001). FVS is administratively housed within an office4 of the Commissioner of Education, as the Head of the Department of Education (Commissioner). The fiscal year of FVS is the state fiscal year. Local school districts cannot limit student access to courses offered statewide through FVS.5 The fiscal agent of FVS is a state agency. The fiscal agent receives state funds for FVS and administers those funds to operate FVS for students throughout the state. The Board, FVS, and the fiscal agent each satisfy judicial definitions of a state agency pursuant to "territorial" and "functional" tests discussed in the Conclusions of Law. Each agency operates statewide in accordance with a statutory mandate to serve any student in the state. Each serves students in public and private schools; in charter schools; in home school programs; and in juvenile detention programs. Unlike an LEA, the scope of authority and function of the employer that paid the contested amount to Petitioner was not circumscribed by county or other local boundaries; regardless of whether the employer was the Board, FVS, or the fiscal agent (collectively referred to hereinafter as the employer). The employer did not pay the contested amount from an OPS account. The fiscal agent for FVS is the presumptive repository of funds appropriated for FVS. The fiscal agent is organically structured as a local agency even though it functions as a state agency in its capacity as fiscal agent. Unlike a state agency, an organic local agency does not maintain an OPS account, defined in Subsection 216.011(1)(dd), Florida Statutes (2001), for the "fiscal affairs of the state." The legislature funded FVS during the contested period in lump sum as a state grant-in-aid provided in a line item appropriation pursuant to Subsection 228.082(3)(a), Florida Statutes (2000). The legislature subsequently began funding of FVS through the Florida Education Finance Program (FEFP). Each FVS student with six-credit hours required for high school graduation is included as a full-time equivalent student for state funding. Each student with less than six-credit hours counts as a fraction of a full-time equivalent student. A local LEA cannot report full-time equivalent student membership for courses that students take through FVS unless the LEA is an approved franchise of FVS and operates a virtual school. As student enrollment in FVS increased, the legislature changed the funding formula to avoid paying twice for students in FVS; once to fund FVS and again to fund local LEAs that were authorized to earn FTE funding for students enrolled in FVS. The employer that paid the contested amount to Petitioner was a state agency that did not compensate Petitioner from an OPS account defined in Subsection 216.011(1)(dd), Florida Statutes (2001). Petitioner did not earn the contested amount in a temporary position within the meaning of Subsection 121.021(53)(a), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(62). Respondent argues that Petitioner earned the contested amount in a temporary position in a local agency defined in Subsection 221.021(42), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(36). A temporary position in a local agency is generally defined to mean a position that will last less than six months, except as otherwise provided by rule. By rule, Respondent defines a temporary position to include temporary instructional positions that are established with no expectation of continuation beyond one semester. Fla. Admin. Code R. 60S-1.004(5)(d)3. Respondent supports its argument with limited documentary evidence (the documents). The documents consist of several items. An undated FVS Information Sheet indicates the employer started Petitioner as an adjunct instructor on September 15, 2001. An FVS memorandum dated several years later on March 16, 2004, indicates Petitioner started an adjunct position on September 6, 2001, and includes a parenthetical statement that it was seasonal employment.6 The employer paid Petitioner $3,150 during 2002 as miscellaneous income and reported it to the Internal Revenue Service (IRS) on a "Form 1099-Misc." An undated letter of intent for the 2002-2003 school year, which requests submission before March 8, 2002, indicates that Petitioner intended to continue her adjunct employment status and requested a full-time position if one became available.7 Use of labels such as "adjunct" to describe employment status during the contested period would be more probative if the duties Petitioner performed were limited to the duties of a part-time, on-line instructor. As discussed hereinafter, Petitioner earned the contested amount while occupying a dual- purpose position in which she performed both the duties of an instructor and significant other duties unrelated to those of an instructor. The trier of fact would be required to disregard a substantial body of evidence to find that Petitioner's position was limited to that of a part-time, on-line instructor. The IRS requires taxpayers to report miscellaneous income paid to independent contractors on Form 1099-Misc. Neither the denial letter nor the preliminary denial letter includes a statement that Petitioner occupied a non-employee position as an independent contractor. Judicial decisions discussed in the Conclusions of Law give little weight to the use of IRS Form 1099-Misc in cases such as this one where there is little other evidence of independent contractor status or where the evidence establishes an employer-employee relationship. The record evidence discussed hereinafter shows that Petitioner and her employer enjoyed a continuing employment relationship within the meaning of Florida Administrative Code Rule 60S-6.001(32)(f). Respondent was not a party to the employment contract and did not witness the employment relationship between Petitioner and her employer. Nor did Respondent call a witness from FVS who was competent to testify about events that occurred during the contested period. The testimony of Petitioner is supported by the totality of evidence. In relevant part, Petitioner disclosed to her supervisors at FVS at the time of her employment that she sought employment to enhance her retirement benefits. The proposed exclusion of the contested amount from the AFC is inconsistent with a material condition of employment. Respondent asserts that the documents satisfy requirements for notice and documentation of a temporary position in Florida Administrative Code Rule 6.1004(5). The rule requires an employer to notify an employee at the time of employment that the employee is filling a temporary position and cannot participate in the FRS; and to document the intended length of the temporary position. However, the terms of the documents from Respondent are ambiguous and insufficient to provide the required notice and documentation. The documents did not expressly notify Petitioner she was filling a temporary position that did not qualify as a regularly established position in the FRS. None of the documents use the term "temporary" or "temporary position." The notice and documentation requirements of the rule must be satisfied, if at all, by implication from terms on the face of the documents such as "adjunct," "adjunct position," and "adjunct employment status." Unlike the term "temporary position," neither the legislature nor Respondent defines the term "adjunct." One of the several common and ordinary uses of the term "adjunct" can mean, "Attached to a faculty or staff in a temporary . . . capacity." The American Heritage Dictionary of the English Language, at 21-22 (4th ed. Houghton Mifflin Company 2000). The employer used an undefined term such as "adjunct" as an ambiguous euphemism for a temporary position. The ambiguity of the term "adjunct" is underscored when each document from Respondent is considered in its entirety. The letter of intent form requested Petitioner to indicate whether she intended to continue her "adjunct employment status" and whether she would be interested in "a full-time position." The form did not refer to either a "temporary position," or a "part-time position." Petitioner reasonably inferred that "adjunct employment status" was the part-time alternative to "a full-time position." The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. Respondent also does not define part- time employment to exclude a regularly established position. The FVS utilized different contracts for adjunct and part-time instructors. The contracts of record pertaining to Petitioner are not contracts for adjunct instructors (adjunct contracts). The contracts are annual contracts. Even if Petitioner were to have signed a contract for adjunct instructors, the contract used for adjunct instructors was ambiguous. In relevant part, the adjunct contract included a caption in the upper right corner labeled, "Terms of Agreement for Part-Time Instructional Employment." (emphasis supplied) As previously found, a part-time position may be a regularly established position. Use of the term "part-time employment" on a contract for an adjunct instructor supported a reasonable inference that the employer was using the terms "adjunct" and "part-time" synonymously to differentiate part-time employment from full-time employment. The employer required Petitioner, unlike adjunct instructors, to sign in on an instructor log sheet and to attend training sessions and staff meetings. Petitioner attended training sessions on September 8 and 22, and October 24, 2001. Petitioner attended other training sessions on February 26 and 27, 2002, and on March 27 and April 10, 2002. The employer also issued office equipment to Petitioner that the employer did not issue to adjunct instructors. Petitioner performed significant duties in addition to those required of a part-time instructor. Petitioner wrote grant applications and assisted in writing a procedures manual for FVS. By November 30, 2001, Petitioner had completed and submitted a federal "Smaller Learning Communities Grant" for $230,000. On December 27, 2001, Petitioner began working on the procedures manual, finalized the work on January 3, 2002, and was listed in the credits in the manual. The additional duties assigned to Petitioner continued through the second semester of the contested period. On February 26 and 27, 2002, FVS asked Petitioner to develop their "FCAT" course for the eighth grade. Petitioner wrote and developed the course. By May 30, 2002, Petitioner had written and submitted three more grant applications and was a member of a team that developed strategies for additional fundraising. For the 2002-2003 school year, Petitioner entered into an annual contract for a full-time non-instructional position, as Grants Manager, and a separate contract for employment in a part-time instructor position. Each contract was terminable only for "good cause" within the meaning of Subsection 1002.33(1)(a), Florida Statutes (2002). The expectation of continued employment is further evidenced by the general business experience of FVS leading up to the contested period. In the 1997-1998 school year, approximately 25 students were enrolled statewide in FVS. In the next three years, enrollment grew to 5,564. Professional staff grew from 27 teachers to 54 full-time teachers. Legislative funding was adequate for the growth FVS experienced, and the legal contingency of enrollment and funding was not a realistic condition of continued employment. There was nothing temporary in the expectations of the employer and Petitioner during the contested period. FVS staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. The employer also had legitimate reasons to expect continued employment of Petitioner based on the individual experience the employer enjoyed with Petitioner, the ongoing and continuous nature of Petitioner's work, and the significant additional duties assigned to Petitioner. The employer, in fact, employed Petitioner continuously after the contested period. When FVS enrolled in the FRS on December 1, 2001, some employees purchased past credit. Petitioner was not on the list of employees for whom past credit was purchased. That omission is consistent with Petitioner's understanding that she was already receiving FRS credit. By rule, Respondent required the employer to make an affirmative disclosure that Petitioner did not occupy a position qualifying for FRS credit. After FVS enrolled in the FRS on December 1, 2001, FVS was required to make contributions to the FRS on behalf of Petitioner for approximately 208 days during the remainder of the contested period. FVS did not make the required contributions to the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order including in the AFC that portion of the contested amount earned on and after December 1, 2001, and excluding the remainder of the contested amount from the AFC. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 25th day of March, 2005.
The Issue The issue to be determined is whether Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rules 6A-10.081(4)(c), (5)(d), (5)(f), and (5)(o), and if so, what penalty would be appropriate.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Respondent holds Florida Educator’s Certificate number 1036252, covering the areas of elementary education, middle grades-integrated curriculum, physical education, and reading. Respondent’s certificate is valid through June 30, 2017. At all times relevant to these proceedings, Respondent was employed as a fourth-grade teacher at HCES. He began working at HCES shortly after the beginning of the school year in the fall of 2009. When he started working at HCES and for part of the time relevant to this case, he was married to Tammy Madison, who was teaching and continues to teach at HCES as a kindergarten teacher. According to Mr. Madison, they separated in late 2011 and he moved out. Both continued to teach at HCES until Respondent’s transfer in January 2014. None of the allegations giving rise to this proceeding are based upon alleged shortcomings in the performance of Mr. Madison’s duties in the classroom. In January 2011, Amanda Cravatt began teaching at HCES as a long-term substitute teacher in the first grade. She had performed her student teaching at HCES and worked in a classroom with Lori Farish. Ms. Cravatt started the school year in August 2011, team teaching with Ms. Farish, but at some point during the school year was assigned her own class. Ms. Cravatt got married in April 2011. She did not know Mr. Madison when she started teaching at HCES, and prior to the 2011-2012 school year, had no contact with him. She has apparently flourished in the classroom, because for the 2013-2014 school year, she was one of the top five teachers in the District. On or about April 5, 2012, Mr. Madison sent Ms. Cravatt an e-mail on the District Groupwise e-mail system, inquiring about her last name. Ms. Cravatt did not solicit the e-mail, but continued the communication with him. At least one of the emails sent to her on Groupwise by Mr. Madison referred to her as a “hot woman.” Ms. Cravatt was unsure when Mr. Madison sent her the first e-mail, but did not believe the one about her name was the first one. She provided him her personal e-mail account address because she knew some of the e-mails were not appropriate to send through the e-mail system. Over a time period comprising approximately two weeks, the nature of the e-mails Mr. Madison and Ms. Cravatt exchanged intensified, including some sexually-explicit text and nude photos. Mr. Madison wanted a sexual relationship with Ms. Cravatt and was very persistent. Despite the fact that they were both legally married, Ms. Cravatt agreed to meet with Mr. Madison on or about April 21, 2012, after attending a family wedding. She met Mr. Madison at a Publix in Perdido Key, and they drove in her car to a parking lot across the street. The two of them got in the back seat of her car and had sexual intercourse. Afterwards, she dropped him off in the Publix parking lot and went home. The accounts given with respect to this encounter are very different. Ms. Cravatt maintains that she went with the purpose of talking to Mr. Madison and getting to know him better. She claims that he was very persistent: that she did not want to have sex and told him so, but that he pressured her to do so. She thought that by going ahead and having sex with him, she could “get out of the situation.” Mr. Madison, on the other hand, contends that from the very beginning the relationship was all about sex: “I mean, that’s what she and I – that’s what it was all about. It was no friendship. It was our friendship conversation was briefly in e-mails but it was all sexual. We met under the knowledge that we were going to have sex.” The accounts concerning the termination of the relationship are equally divergent. Mr. Madison claims that Ms. Cravatt wanted the relationship to continue and that he did not, and that Ms. Cravatt’s feelings were hurt when he ended the relationship. She, on the other hand, testified that she wanted to put the whole thing behind her and that he continued to pressure her to meet again. She was relieved that the school year was almost over. She sent him an e-mail saying she would not see him again, and admitted calling him an ass and a jerk, because he was so persistent. She asked him to destroy the pictures she had sent him and both testified that they agreed to keep the encounter between themselves. Ms. Cravatt destroyed the photos that Mr. Madison sent her and thought he had agreed to destroy the ones of her. Neither account is particularly credible, and the truth about the progression of the encounter is probably somewhere between the two accounts. However, the more credible evidence indicates that both were willing partners, but that Ms. Cravatt quickly regretted the incident. The more persuasive testimony also supports a finding that Ms. Cravatt was embarrassed and wanted to distance herself from the incident. At some point, Ms. Cravatt showed some of the e-mails sent through Groupwise to her co-teacher, Ms. Farish. On or about May 11 or 12, 2012, Ms. Farish spoke to Amanda Moore, the principal for HCES, about the e-mails from Mr. Madison to Ms. Cravatt because of the personal nature of the content. Ms. Moore spoke to both Mr. Madison and Ms. Cravatt about the e-mails and told both of them that they were not to continue on the District Groupwise system.1/ When Ms. Moore spoke with Ms. Cravatt, Ms. Cravatt seemed to her to be concerned about the emails as well. Ms. Moore made it clear that the e-mails through Groupwise could not continue, but did not ask Ms. Cravatt about anything beyond the e-mails, and Ms. Cravatt did not volunteer anything. When Ms. Moore asked Mr. Madison about the e-mails, he told her he was not going to share his personal life with her, but that it was a “two-way thing.” Ms. Moore stated that e-mails on Groupwise were happening on school grounds, and they were not going to continue. She also addressed the fact that his wife worked at HCES at the time these e-mails were sent, and the e-mails were disrespectful to his wife. She warned Mr. Madison that if the e-mails continued, she would start formal disciplinary procedures. Mr. Madison indicated that he understood and there were no further incidents that year. In the spring of the 2012-2013 school year, however, rumors were swirling through the faculty about Mr. Madison’s alleged relationship with a married third-grade teacher at HCES, Ms. Manthei.2/ The rumors made things uncomfortable at school because, as stated by Ms. Moore, both Madisons and Ms. Manthei were on the same faculty, and people were beginning to “take sides.” Both Ms. Manthei and Mr. Madison applied for priority transfers to other schools. Ms. Manthei was successful in obtaining a transfer and left HCES after the spring of 2013 to work at Ferry Pass Middle School. Mr. Madison was not successful in obtaining a transfer at that point, and he and Tammy Madison both continued to work at HCES at the beginning of the 2013-2014 school year. On July 10, 2013, the Madisons’ divorce was final. Mr. Madison was 43 years old at this point. In August of 2013, Daniela Brao began teaching third grade at HCES. Ms. Brao was 22 years old, and had just graduated from the University of West Florida. She is a petite, very attractive young woman. This was her first teaching job, and she was living alone, away from her family and friends. She did not know anyone at HCES before she began working there, but wanted to teach at HCES because of its excellent reputation in the District. Ms. Brao taught a different grade, in a different part of the school, and had no students in common with Mr. Madison. She only knew who Mr. Madison was because of faculty meetings and seeing him around school. Tara Papillion, another third- grade teacher with approximately six years’ experience who began at HCES in the fall of 2012, was assigned as her mentor teacher. Ms. Papillion was the person Ms. Brao could consult about any questions she had as a new teacher at the school. Each year, HCES publishes an emergency phone list to members of the faculty and staff. The emergency phone list is published so that faculty and staff can reach each other in times of emergency, such as severe weather. Information about the use of the emergency telephone list is contained in the required reading materials that each teacher is expected to review at the beginning of the school year. Mr. Madison signed a certification on August 29, 2013, that he reviewed the required reading materials. On September 13, 2013, Ms. Brao was waiting to pick up her students from the music portable, which was behind her classroom. Mr. Madison came up to Ms. Brao and asked if she was Cuban or Puerto Rican. Ms. Brao was taken aback because she had never spoken to him before. She replied that she was Venezuelan. Mr. Madison laughed and said something along the lines of “oh, alright, at least I didn’t call you Mexican.” She found the whole incident confusing, because it was her first encounter with him, and she had no real reason based on work assignments to have any interaction with him. Later in the day, Mr. Madison sent her an apology through e-mail, saying he should not have assumed that she could only be Cuban or Puerto Rican and that he could have just asked what her latin background was. Ms. Brao responded by telling Mr. Madison not to worry about it. Both e-mails were on the District Groupwise system. On Monday, September 16, 2013, the school emergency phone list was published. Mr. Madison used the emergency phone list to obtain Ms. Brao’s personal cell phone number. The next day, he texted her, saying: ms. brao, this is miles madison from school. i apologize for texting you without your permission but i rarely run into you at school to ask. i just want to know if you received more than 2 emails from me? im just curious because i tried to retract two. Thanks. Ms. Brao responded by saying, “Hi, no just the one! I replied to it back on Friday. Anyways no worries about the question, no offense taken!” Respondent replied by stating, Ok thanks. i retracted two i sent friday night. i was curious to know if the retract button really worked Ms. Brao did not respond. She did not ask for or expect Respondent to text her, and did not know anything about him except that his wife also worked at HCES. She thought it was strange that he would text her after she had e-mailed him back. On September 26, 2013, at 4:24 p.m., Respondent texted Ms. Brao again, saying, are you mad or upset? (no response) are you mad or upset? (no response) are you not even a little curious? (no response) are you mad or upset? You look angry when i pass Ms. Brao responded about an hour later, saying, “[t]hat must just be my face at the time. Haha.” Respondent texted her again, saying, “so that would mean you are not angry with me for contacting you? i did everything i could not to.” Ms. Brao did not respond. She considered the texts inappropriate and they made her uncomfortable. She did not understand why he was sending them: she did not send texts to other teachers after hours unless there was an emergency, and in addition, she was hearing rumors about Madison and his relationship with a previous teacher at the school who had transferred. Ms. Brao did not want to get caught up in a situation with a man she believed to be married and whose wife was still working at the same school. At some point Ms. Brao mentioned the texts to Ms. Papillion, who initially told her not to worry about them. However, on October 28, 2013, she received another series of texts that increased her discomfort. That afternoon, Respondent texted her saying, do you have any interest at all? i would greatly appreciate a reply either yes or no. i need to know so i can keep you on my mind or get you off. with sugar on top, please say something Ms. Brao replied, No I’m sorry I’m a very private person. I prefer to keep my private life separate from my career. While reasonable people would consider her response to be abundantly clear, Mr. Madison did not get the message. He responded: thank you. i do think you are very beautiful and it is nice to see you everyday. a perfect and let me down easy reply. everything is cool Ms. Brao responded, “thank you, see you at school.” While this text should have ended the exchange, Mr. Madison was undeterred, and texted again: hey, i just realized i am a private person too. do you have an exception for that? just trying a little harder. Ms. Brao responded by saying, “[n]o, I’m sorry also I am already in a relationship.” She was not actually in a relationship, but wanted him to leave her alone. Then the following text exchange occurred: i figured that. how could you not be? i hope you dont feel weird seeing me at school knowing what you know. i thought i had a 1 in a million shot for you and i was happy with those odds i apologize for this, i think about you too much and then drink and so this. i should know better but it is the way you look. Please stop texting me. sorry no more Ms. Brao was very upset by the texts, and this final exchange really bothered her. She decided to say something to her principal about them, and despite being injured in a car accident the following morning, went to school afterwards in order to speak to Ms. Moore. Ms. Brao showed the texts to Ms. Papillion and told her that she was going to talk to Ms. Moore. Ms. Papillion offered to go with her and Ms. Brao readily agreed: she had at this point been employed by the school a scant two months and was very nervous about complaining to her boss about the behavior of another teacher. Ms. Papillion had received some Facebook messages from Respondent that she found odd, but did not consider them to be on the level of the texts Ms. Brao received.3/ Her primary purpose for going with Ms. Brao to see Ms. Moore was to provide emotional support. Ms. Brao was visibly upset about the texts when she spoke to Ms. Moore. She did not know Respondent well enough to know how to take his messages. Ms. Moore called Keith Leonard, Director of Human Resources for the District, because she wanted to make sure that she was taking the necessary steps to have a positive working environment. Mr. Leonard came to the school and spoke with both Ms. Brao and Ms. Papillion, read the Facebook posts and cell phone texts, and assigned the District investigator, Gary Marsh, to investigate further. Mr. Leonard asked Ms. Moore whether there were any other concerns, and Ms. Moore told him about the e-mail issue concerning Mr. Madison and Ms. Cravatt from 2012. Ms. Moore then went to Ms. Cravatt and told her that Mr. Marsh would be talking with her and that Ms. Moore wanted her to share with him the incident with Mr. Madison. At this point, Ms. Moore did not know that there had been any type of sexual encounter or relationship between Mr. Madison and Ms. Cravatt. She only knew about the e-mails exchanged on Groupwise about which she had counseled both teachers in 2012. Mr. Marsh came to the school and spoke with Ms. Brao, Ms. Papillion, Ms. Cravatt, and Mr. Madison. Ms. Brao and Ms. Papillion spoke to Mr. Marsh about the texts and Ms. Papillion relayed the contents of the Facebook messages she received. Being questioned by Mr. Marsh placed Ms. Cravatt in a difficult situation. She had agreed to keep the encounter with Mr. Madison to herself, and true to that agreement, she did not reveal to Mr. Marsh that she had any relationship or encounter with Mr. Marsh. She did acknowledge the Groupwise e-mails but did not indicate that there were any others. In other words, she answered only those questions asked of her. In so doing, she stated that in 2012, Mr. Madison had e-mailed her through Groupwise and made references to her being a “hot woman,” referenced being intoxicated when he was writing to her, and questioned whether she was a newlywed or divorced. These were true statements. She told Mr. Marsh that Respondent’s contacts were highly inappropriate (which they were, especially on a school district e-mail system), as she is married and did not indicate that she wanted further contact with him. She also stated that she still feels uncomfortable around Respondent when they are together at school. While Ms. Cravatt’s answers are most likely accurate statements in response to the questions asked of her, she knew when making them that they did not represent the totality of the interactions she had with Mr. Madison. Given the details left unstated, the statements were misleading. However, they were not necessarily untruthful. In all likelihood, she did not want to be around him and did not want further contact with him, although her feelings were not necessarily as a result of the Groupwise e-mails. Mr. Marsh also interviewed Mr. Madison, and recorded the interview. Respondent acknowledged both the texts and the Facebook messages, admitted that Ms. Brao did not initiate any contact or discussion with him, and that he obtained her personal cell number from the school telephone tree to make initial contact with her. However, he did not feel that his text messages were inappropriate, and noted that he stopped texting her when she asked him to stop. Mr. Madison’s subjective view that the text messages were not inappropriate is not credible and is rejected. Ms. Brao stated that the messages were “creeping her out” and her view is more than reasonable. Respondent was employed at HCES to teach fourth grade, not to use the female faculty as his personal dating service. Moreover, despite his claim that the texts were not inappropriate, the language he used in the text indicates that he knew better: he even apologized up front for texting her without her permission. Moreover, Mr. Madison is not a child. By any objective standard, he should have known that contacting a young woman over 20 years his junior with whom he has no prior relationship, using her personal cell phone number that she did not give him permission to use, is, standing alone, questionable. Continuing to text her when she gave him absolutely no encouragement (and even told him that she was a private person who did not want to mix her professional and private lives) was inappropriate. To text her and reference her looks, state that he cannot stop thinking about her, and state that he thinks about her when he drinks is over the top. Moreover, Respondent admitted that he was pre-occupied with Ms. Brao, wanted to ask her out and was more or less fantasizing a relationship or hoping for one, and could not “read her silence.” Contrary to his claims, Ms. Brao’s reaction was quite clear. It is true that Mr. Madison did not seek to intimidate or threaten Ms. Brao at school and she did not know of any attempt on his part to approach her outside of school other than the texts. However, the texts and their content frightened her. As she stated, because of the rumors at school about his past relationships, and the fact that she did not know him personally, she did not know what he was capable of doing, especially given his statement that he thinks of her when he drinks. As a result, she was concerned for her safety and purchased pepper spray for her protection. She began avoiding Respondent in the halls; checked and locked her classroom each time she entered or exited it; altered her schedule to leave school immediately after the bell; and altered her lunch schedule, all in an effort to avoid contact with Respondent. She quit wearing makeup and wore looser clothing in an effort to look less attractive. Her concerns intensified after she met with Mr. Marsh, and being informed that Respondent was going to be disciplined because of his behavior toward her made her feel more vulnerable, not knowing whether he would retaliate against her for complaining about his behavior. After completion of his investigation, Mr. Marsh presented the information gathered to the District Disciplinary Committee, who then, consistent with District policy and practice, made a recommendation to the Superintendent concerning what, if any, discipline should be imposed. It was determined that a letter of reprimand would be appropriate. On December 5, 2013, Mr. Madison received a Notice of Proposed Disciplinary Action and was directed to appear at Dr. Alan Scott’s office on Monday, December 9, 2013, and advised that he could have a union investigator present at the meeting. The Notice indicated that he was being provided a copy of information identifying specifically the offense or misconduct involved, as well as an accounting of the offense including times, dates, witnesses, and any other information presently available. It is not clear from the Notice whether the information was provided that day, or was provided when Mr. Madison met with Dr. Scott on December 9. On December 9, 2013, Respondent was given a letter of reprimand by Dr. Scott. The letter states in pertinent part: The School District of Escambia County learned of allegations regarding you sending inappropriate messages to female co-workers at Hellen Caro Elementary School. In accordance with our contractual obligations you were provided due notice and the opportunity to respond to the allegations. Based on the investigation, including the meeting with you, the District finds you engaged in sending inappropriate and unprofessional messages to female co- workers. These messages were considered to be harassing in nature and created an atmosphere of fear when directed at a newly hired female teacher. The District also found that you inappropriately used the phone tree directory to contact the newly employed teacher without her consent for contact in a non-emergency situation. Based on the above findings, the District concluded your conduct was unprofessional, inappropriate and displayed a disregard for professional standards. The District also concluded that your behavior lacked any positive educational value. Your conduct adversely affects your ability to work in a cohesive nature with fellow co-workers at Hellen Caro Elementary School. The District believes that, as a teacher, you are required to exercise a measure of leadership beyond reproach. By your actions, you have lessened the reputation of all who practice the profession. The profession cannot condone your actions, nor can the public, who we serve. Respondent did not grieve the reprimand or request a hearing to contest the discipline. However, when he received the information compiled through Mr. Marsh’s investigation, including the witness statements, he believed that Ms. Cravatt had gone forward to complain about him. He considered this a betrayal of their agreement and it made him angry. As a result, on December 10, 2013, he e-mailed Ms. Moore and asked to speak to her. She was attending meetings off campus and responded that she would see him upon her return the next day. Mr. Madison met with Ms. Moore on December 11, 2013. At that time he apologized to her for the embarrassment he was causing the District, and indicated that he was trying to make things right and do a good job in the classroom. She in turn shared her expectations for him in teaching his students on a professional level. Mr. Madison told Ms. Moore that he felt he was being unfairly accused by Ms. Brao, Ms. Papillion, and Ms. Cravatt: he said he and Ms. Papillion were only friends, and that he wanted to get to know Ms. Brao better and thought she might be interested in him. He recognized he should not have used the emergency telephone tree to get her telephone number, and stopped texting her when she asked him to. With respect to Ms. Cravatt, he told Ms. Moore that he was very upset when he learned that Ms. Cravatt was a part of this, because they had a relationship in the past with an understanding that they would protect each other and not hurt each other or let it get out. He felt that Ms. Cravatt had broken that promise and he wanted his name cleared. Mr. Madison then handed to Ms. Moore a piece of paper he had prepared on his computer the day before, and that was admitted into evidence as Petitioner’s Exhibit 3. The document stated: I have multiple pictures of Cravatt naked that she sent me during the month of April, 2012. one is of her posing in a bathroom fully naked one is of her bending over and taking a picture of her rear using the mirror. one is of her sunbathing naked (face not shown), Caesarean scar is visible. one is of her sunbathing at the purple parrot just showing her body and feet. Cravatt made a false statement to Gary Marsh stating that she received what she felt was inappropriate messages and that she felt uncomfortable being around me at school. She and Ms. Farrish also conspired or Cravatt alone insinuated that I sent her flowers and a poem during the month of May 2012. Cravatt and I had sex on one occasion in the back of her car behind the True Value in Perdido Key in April 2012. She sent me an email later that I felt was threatening and i said that we were not going to see each other again. She called me an “ass and a jerk” and that was the last contact I had with her. I have sexual emails that she and I exchanged and have printed all pictures of her. Below this text at the bottom of the paper were three short paragraphs that were marked through with blue magic marker but completely readable. Those paragraphs read: I want Cravatt to contact Mr. Marsh at 850- 439-2220 in the presence of Mrs. Moore and she can leave a message if he does not answer. I want her to admit that she lied about her statement. When Mr. Marsh contacts me stating that he received this clarification, then I will not pursue this matter. If she refuses, then the pictures and the e-mails will be delivered to the District. Respondent claims that after he cooled off, he decided that he did not want the pictures to go to the District and only wanted Ms. Moore to get Ms. Cravatt to tell the truth. He claims he marked through the last few paragraphs because he did not want her to follow through with what he had written there, and that when Ms. Moore asked if he wanted the paper back, he said to either burn it or give it back to him. Ms. Moore, on the other hand, testified that Mr. Madison told her that he had compromising pictures of Ms. Cravatt and that if Ms. Cravatt did not go to Mr. Marsh and retract her statement, he was going to send the pictures and e-mails to the District. He asked her if she wanted to see the pictures, and she declined. Ms. Moore read the document and asked Respondent several times if the statements were true and if he was sure he wanted her to go to Ms. Cravatt and he said yes. Ms. Moore’s testimony is credited. She was candid, consistent, and had no agenda other than to maintain a professional atmosphere at HCES. Conversely, Respondent did not give Ms. Moore Petitioner’s Exhibit 3 immediately. He wrote it the day before he gave it to Ms. Moore and by his own testimony, he had cooled down before seeing her. It would have been a simple matter to delete the final paragraphs from the typewritten document before giving it to Ms. Moore. If he did not have access to the computer, he could have cut or torn off the bottom of the page. Instead, he marked through the documents so that they remained legible. Moreover, as is found below, his statements made during the ensuing investigation were consistent with the sentiment expressed in those final paragraphs, and at least at the time he gave the document to Ms. Moore, he did want her to follow through with the District. It is more likely that he changed his mind, if at all, after giving Ms. Moore the document. The afternoon of December 11, Ms. Moore called Ms. Cravatt to her office and showed her the document Respondent had prepared. Ms. Cravatt denied the statements Respondent had documented. Ms. Moore then called Mr. Leonard at the District and reported the day’s events, sent his office a copy of Petitioner’s Exhibit 3 at his request, and was told Mr. Marsh would contact her. December 11 was the first that Ms. Moore was aware that there were allegations that Ms. Cravatt had previous personal contact with Mr. Madison beyond the Groupwise e-mails. The next morning, December 12, Ms. Cravatt came to Ms. Moore’s office at approximately 7:00 a.m. She was crying and very upset, and wanted to speak with Mr. Marsh. Ms. Moore determined that Ms. Cravatt was not going to be able teach her class and arranged for a substitute. Mr. Marsh arrived at HCES at approximately 9:00 a.m. Ms. Cravatt requested to meet with him privately and they spoke in the school professional library. After about 45 minutes, Mr. Marsh asked that Ms. Moore join them. At that point, Ms. Cravatt told Ms. Moore, “you’re not going to be happy with me, but I am going to admit to all of this on paper, but it’s not true.” Ms. Cravatt told Ms. Moore that she just wanted it all to stop. At that point, Mr. Marsh took Ms. Cravatt’s sworn statement in which she admitted to having sent the pictures and sexual e-mails to Mr. Madison, as well as to having sex with him. When the tape was turned off for the recorded interview, however, Ms. Cravatt continued to deny that she had a relationship with Mr. Madison.4/ She did not want to admit to the allegations to Ms. Moore because it was very embarrassing to her and she wanted to keep her private life and her career separate. On Friday, December 13, 2013, both Ms. Cravatt and Mr. Madison were suspended with pay pending completion of an investigation by Mr. Marsh. As stated by Dr. Scott, “[p]art of what we have to do is to protect the educational process at the school. The behavior of adults should not interfere with what we’re trying to do with the young students at the school . . . . The situation at the school was untenable. It was a difficult environment. Some of the female teachers were very uncomfortable there.” As part of the investigation, Mr. Madison was interviewed twice: once on December 12, 2013, and again on December 20, 2013. The summaries of the recorded interviews include the following: [December 12, 2013] In synopsis, Madison was advised he was being interviewed as a witness who had provided allegations to Moore. In discussion, Madison reported having a consensual sexual relationship with Amanda Cravatt in April, 2012; noting he had both pictures and emails as evidence of their relationship. He explained this was their only liaison, and that they had agreed to never discuss their liaison again and to delete anything between them. However, after reading the information provided by Cravatt in a prior investigation, he felt it was necessary to provide this information to Moore so she could speak with Cravatt and have her tell the truth. He added this was a chance for Cravatt to make things right and admit she lied. In further discussion, Madison declined multiple requests to provide the referenced photographs and other documents for review in support of his allegations; stating he was keeping his word with Cravatt to not tell anyone about their relationship. Madison also stated the referenced photographs were his security to keep either her or her husband from doing any harm to him. He noted that if he gives up the photographs, then he has nothing; adding he wanted her to worry for the rest of her life. Madison feels his written comments are not extortion, noting he did not want to hurt either her or her family; only to prove that her comments were false. At the conclusion of the interview [Madison]/5 attempted to take back the document previously given to Moore; claiming it was only meant for Moore to see. [December 20, 2013] On this date, Miles Madison, Teacher, Hellen Caro Elementary School (HCES) was interviewed regarding this investigation, specific to his allegations that A. Cravatt had provided false information during a prior investigation. Madison was accompanied by Bill Vincent, Union Representative . . . . In synopsis, Madison stated his intentions were not to make any “allegations”, but rather provide the information to Ms. Moore, Principal, HCES so she could address them with Ms. Cravatt. Madison felt there had been an “injustice”; as the letter [was] given to Moore only to address his thoughts about what he felt to be incorrect statements by Cravatt. In further discussions, Madison stated only he can interpret what is meant by his comments, as that document was to be used by Moore to get facts straight with Cravatt. In addition, he requested Moore destroy the document after she spoke with Cravatt. Madison also stated that he had no expectations of any specific outcome, but then stated that her comments were a lie and he wanted them removed from the records. He also wanted her to know that he will always have the referenced pictures, but denied he would use the pictures against her. (Emphasis added.) Mr. Madison admitted at hearing that on December 12 he told Mr. Marsh he wanted Ms. Cravatt to be aware he had the photographs and for her to worry for the rest of her life, and that on December 20 he stated he wanted her to know that he will always have those pictures for future reference, yet denies threatening her, saying that he made at least one of those statements in anger. Respondent’s denial is not credible. On January 8, 2014, Respondent was notified that his suspension with pay was lifted and he could return to work the following day. The decision was made, however, that he should not return to HCES, and he was transferred to Ferry Pass Middle School. Ms. Cravatt returned to her classroom at HCES after the Christmas break. Respondent’s transfer from HCES made a significant difference in Ms. Brao’s ability to function as a teacher. As she stated, she felt like she could breathe and it was a relief not to worry about Respondent. Respondent was also notified by letter dated January 8, 2014, that the Superintendent intended to recommend to the School Board that he be suspended for three days without pay, beginning January 22, 2014. The letter provided him a point of entry to challenge the School Board’s decision. The School Board approved the recommendation that Respondent be suspended for three days without pay, and he was notified by letter dated January 22, 2014. Mr. Madison did not challenge the suspension and presently teaches at Ferry Pass Middle School. Respondent expressed no real remorse for his actions, and does not seem to comprehend that he has done anything wrong. He does not believe that Ms. Brao and Ms. Papillion were uncomfortable with him at any time. He continued to express anger toward Ms. Cravatt and considers himself to be a victim with respect to the statements she made to Mr. Marsh in the first investigation. Despite being told repeatedly that she had never gone to Ms. Moore to complain about him, and was questioned as a result of Ms. Farish’s original report to Ms. Moore and Ms. Moore’s report to Mr. Leonard, he insisted that Ms. Cravatt had orchestrated the complaints regarding his e-mails to her. Even assuming that his assumptions were correct, which they are not, his actions would not be justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a final order finding Respondent guilty of violating Counts 2-6 in the Administrative Complaint. It is further recommended that Respondent’s license be suspended for a period of two years, followed by probation for three years; that he receive a reprimand and an administrative fine of $500, due two years from the issuance of the Final Order in this case; and that as a condition of probation, Respondent be required to complete such continuing education as determined appropriate by the Commission, with an emphasis on professionalism and boundaries. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2015.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. 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 on this the, $ day of pel , 2013, in Tallahassee, Florida. Wi IZABETH DUDEK SECREFARY Agency for Health Care Administration 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 BY LAW, WITH THE DISTRCIT 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 RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Via Inter-office Mail) Timothy Cerio, Esq. Gray Robinson P.O. Box 11189 Tallahassee, FL 32302 (Via U.S. Mail) Hon. Stewart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Ken Yon Acting Bureau Chief Medicaid Program Integrity (Via Inter-office Mail) AHCA Finance and Accounting (Via Inter-office Mail) Department of Health (Via Inter-office Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been furnished to the above named addressees by U.S. Mail or other designated means on this the Fine Arr) 2013. < a Richard Sete. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630 Aurora of the Treasure Coast Provider No. 142189100 Dated: 7 fl » 20183 William M. Blocker, II, Esq. Assistant General Counsel
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired for theft.
Findings Of Fact At all times material to this case, Respondent Osmel Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach County School District ("District"), assigned to work at Berkshire Elementary School ("Berkshire"). Petitioner Palm Beach County School Board ("School Board") operates the schools within the District and has authority over all District personnel, including Gonzalez. As a noninstructional employee of the District, Gonzalez was subject to the collective bargaining agreement entered into between the School Board and the Service Employment International Union, Florida Public Services Union ("SEIU"). Elsa Ramon was a teacher at Berkshire during the 2007- 08 school year. Gonzalez cleaned her classroom as part of his regular duties. Some time in May 2008, Mrs. Ramon realized that she had not seen her cellular phone since using it on May 6 to call her husband. She recalled having placed a call to her husband that morning and leaving the phone on a table in her classroom. Because Mrs. Ramon did not use her phone frequently, she initially thought she had simply lost or misplaced it. When the phone did not turn up after a diligent search, Mrs. Ramon and her husband obtained a replacement phone from their carrier, T-Mobile. Mrs. Ramon's existing number was assigned to the replacement cell phone. Mrs. Ramon immediately began receiving calls on the new phone for a woman whose name she did not recognize. The frequency of these calls caused Mrs. Ramon to suspect that someone was using her old phone. She and her husband went to the T-Mobile store to report their concern about this possibility. They learned that a huge bill of approximately $3,300 had been run up on Mrs. Ramon's account, the result of numerous phone calls, including many international calls to persons in Cuba. T-Mobile promptly deactivated the phone number; it had been used without Mrs. Ramon's permission for about two weeks. Although Mrs. Ramon had not placed the many, expensive phone calls that produced the charges totaling several thousand dollars, T-Mobile nevertheless demanded that she pay the bill, pursuant to the contract between them. After some negotiation, T-Mobile reduced the charges to about $2,600, which Mrs. Ramon paid. Meantime, on June 2, 2008, Mrs. Ramon reported the theft of her cell phone to the School Police Department, because she believed that the phone had been taken from her classroom. After an investigation that lasted several months, the school police identified Gonzalez as the culprit. On October 3, 2008, Gonzalez was arrested on a charge of grand theft. On January 23, 2009, Gonzalez pleaded guilty, in the Circuit Court in and for Palm Beach County, to grand theft, a third-degree felony. He was sentenced to 12 months' probation and ordered to make restitution to Mrs. Ramon. As of the final hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the loss she had incurred as a result of his unlawful use of her cell phone. At the hearing, Gonzalez admitted using Mrs. Ramon's phone, without her permission, to call friends and family in Cuba and other places. He denied having stolen the phone, however, claiming that he had found it in a store. The undersigned rejects this claim, which is not really exculpatory in any event, as being too implausible to believe. The simplest and best explanation for Gonzalez's having come into unauthorized possession of the cell phone of a teacher whose classroom he regularly entered for work related reasons, which phone was last seen and used by its rightful owner in said classroom, is that Gonzalez himself took the phone from the classroom. This, the undersigned finds, is almost certainly what occurred. Assuming Gonzalez's testimony about finding the phone were credible, however, which it was not, the undisputed fact remains that Gonzalez stole lots of expensive airtime, running up a bill of more than three thousand dollars in just two weeks by making numerous international phone calls, among others, for which Mrs. Ramon was liable. Thus, even in Gonzalez's telling, he committed a crime (to which he pleaded guilty), albeit one whose victim was a stranger rather than a co-worker. Ultimate Factual Determinations Gonzalez stole property from a teacher in whose classroom he worked as a custodian. As a result of this criminal behavior, he was arrested and accused of committing felony grand theft, a charge to which he eventually pleaded guilty. Having admitted to the commission of a felony that victimized an employee of the District, Gonzalez has given the School Board just cause to terminate his employment. Therefore, it is determined that the School Board has sustained its burden of proving, by clear and convincing evidence, the allegations forming the basis for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Gonzalez from his position as a custodian in the Palm Beach County School District. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 3rd day of December, 2009.
The Issue Whether the Respondent, Allan Williams, P.E., and Allan Williams, P.E., d/b/a ABW Engineering (Respondent or Williams), committed the violations alleged in the Administrative Complaint dated November 15, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Allan B. Williams is a licensed engineer fully authorized to do business in Florida. Respondent's recognized and legally sufficient name to do business is "Allan B. Williams, P.E." On or about August 20, 2002, Respondent filed a fictitious name application with the Florida Department of State, Division of Corporations (DOS), that represented Allan B. Williams sought to do business under the fictitious name "ABW Engineering." Subsequently, the fictitious name was renewed on March 28, 2007, and was valid through December 31, 2012. On or about May 29, 2013, Respondent again filed the requisite papers with DOS to establish "ABW Engineering" as a fictitious name, with an active status expiration date of December 31, 2018. It is undisputed that Allan B. Williams, the subject of this case, is the person who established ABW Engineering with DOS. In 2007, Petitioner cited the Respondent with practicing engineering through a business entity that was not properly authorized to do business in Florida. In response to that claim, Respondent acknowledged that he did business as ABW Engineering and stated, in part: I didn't know I needed one. In all the years I practiced in Washington, D.C., Maryland and Virginia I never needed one. The only time I can remember this being a requirement, is, if you are a corporation home based outside these states and jurisdiction and you wish to do business in these states and jurisdiction, then you have to pay a "foreign corporation" tax or fee. It was my impression that Certificate of Authorization was the same as a foreign corporation fee. In further response to the 2007 dispute, Respondent filed the appropriate paperwork and paid the required fees to obtain a Certificate of Authorization for ABW Engineering (No. 27462) with Allan B. Williams, P.E., identified as the registered principal officer for the company. The licensure date for ABW Engineering was May 3, 2007. The letter announcing the approval of the Certificate of Authorization for ABW Engineering contained the following provisions: Your Certificate of Authorization will expire February 28, 2009. A notice of renewal will be mailed to the address of the business thirty (30) to forty-five (45) days prior to the expiration date. * * * In accepting this registration, you assume the responsibility of complying with the requirements of Chapter 471, Florida Statutes and Chapter 61G15, Florida Administrative Code. Allan B. Williams, P.E., did not timely renew the Certificate of Authorization for ABW Engineering when it expired on February 28, 2009. From March 1, 2009, through May 8, 2013, Allan B. Williams, P.E., did business under the letterhead and logo of ABW Engineering. Respondent used the letterhead and logo on billing for engineering services rendered by Allan B. Williams, P.E. On or about May 8, 2013, Petitioner issued a Notice to Cease and Desist to ABW Engineering. That notice provided, in pertinent part: Our records show that you do not currently have a certification as required by section 471.023, FS. If the above facts are true, they establish probable cause for FBPE to believe you are violating Florida law by offering ENGINEERING SERVICES without the required license or certification. On May 23, 2013, Respondent wrote a letter in response to the Notice to Cease and Desist that provided: Certificate of Authority has never been uppermost in my mind. Why? For over thirty five years I have always received constant reminders to complete my courses in continuing education and to renew my PE license. Not once have I received reminders about renewing my Certificate of Authority. And so Certificate of Authority becomes obscure in comparison to the other licensing requirements. Think about it. For your PE you have to satisfy educational requirements at an accredited school of Engineering; you have to work for four (4) years doing progressively challenging engineering work which prepares you to take the PE exams; you have to pass the exams and then you get your PE License. Then every two (2) years you have to pass continuing education courses. For Certificate of Authority you fill out a form and you pay $255. I don't think any Engineer would purposely avoid paying a $255 fee and risk losing thousands of dollars in earnings. It slipped my mind—I forgot it—I apologies [sic]. On June 10, 2013, Respondent received a Certificate of Authorization for ABW Engineering. On September 18, 2013, Petitioner notified Respondent that the Board was issuing a citation based upon the allegations previously disclosed to Respondent: that ABW Engineering had offered engineering services during a period of time when it was not properly certified or authorized to do business. Under the terms of the citation, Respondent was given the option of paying the penalty calculated pursuant to Florida Administrative Code Rule 61G15-19.0071 ($5,000.00) or having the case prosecuted pursuant to section 455.225, Florida Statutes (2013).1/ Respondent chose the latter. At hearing, Respondent maintained that he did not do business as ABW Engineering, but as Allan B. Williams, P.E. That claim was not deemed persuasive in light of the totality of evidence that established Respondent routinely used the ABW Engineering letterhead and logo, was listed in the telephone and other directories as ABW Engineering, and billed for engineering services with the logo and name. Moreover, Respondent admitted that using "ABW Engineering" was a strategy to secure work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order finding Respondent in violation of offering engineering services through a fictitious name that did not have a valid Certificate of Authorization, imposing an administrative fine in the amount of $5,000.00, awarding the costs of prosecution against Respondent, and reprimanding Allan B. Williams, P.E., as the registered general officer of ABW Engineering. DONE AND ENTERED this 2nd day of September, 2014, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of September, 2014.
