The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2004.
Findings Of Fact Respondent was reassigned to the alternative school program on January 4, 1983, following numerous incidents which required discipline during the preceding 12 months. There were repeated incidents of unexcused absences and tardiness, and on December 13, 1983, Respondent was found to be in possession of a quaalude tablet without authorization. Since being reassigned to the alternative program, Respondent's performance and conduct have improved. Her parents accept responsibility for the earlier problems and have curtailed their business travel in order to spend more time with her. They have secured counseling for Respondent and seek to have her returned to the regular program as soon as possible.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order affirming the assignment of Respondent to its alternative education program. DONE and ORDERED this 6th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Dr. Leonard Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Mike Eldridge 14800 Northeast 16th Avenue North Miami, Florida 33161
The Issue The issue in this case is whether Petitioner should be exempt from disqualification for employment pursuant to Section 435.07(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which an exemption is required pursuant to Sections 435.06 and 436.07(1). Petitioner seeks the exemption to operate a day care service out of her home. Petitioner is an employer and an employee within the meaning of Sections 435.02(1) and (2). Petitioner operates an unlicensed day care center from her home and employs at least one other person to assist her in providing day care for an undetermined number of children. Respondent is the licensing agency defined in Section 435.02(3). Petitioner has provided day care services for parents in the neighborhood on an intermittent basis from 1979 through the present. Petitioner has provided day care services to some parents gratuitously while other parents have paid for day care services. Parents who have paid for day care services have paid according to their means. No evidence established a fee schedule for day care services. Petitioner knows she is required to obtain a license in order to operate a day care business. In 1987, Petitioner obtained such a license but allowed that license to expire. On October 27, 1993, the Orange County Sheriff's Office charged Petitioner with aggravated child abuse in violation of Section 827.03, Florida Statutes (1993) ("Section 827.03"). Violation of Section 827.03 is a felony which disqualifies Petitioner from employment pursuant to Sections 435.03(2)(x) and 435.04(2)(x). The state attorney reduced the charges against Petitioner to a first degree misdemeanor charge of child abuse. Petitioner entered a plea of nolo contendere to the misdemeanor charge in Case Number MO 93-17467. The court withheld adjudication of guilt, placed Petitioner on supervised probation for six months, required Petitioner to pay fines and costs of $115, and required Petitioner to complete a parenting program. Petitioner satisfied the terms of her probation, although Petitioner did not do so in a timely manner. Petitioner missed at least one meeting with her probation officer and required additional time to pay the fine and court costs. Sometime in February 1999, Petitioner applied for a license from Respondent to operate her existing day care service. Respondent denied the application on the basis of the 1993 misdemeanor charge. On February 25, 1999, Petitioner requested an exemption from disqualification. Respondent denied the request for exemption, and Petitioner requested this hearing. Sufficient time has elapsed since the incident within the meaning of Section 435.07(3). Approximately six years have elapsed since the incident. The nature of the harm caused to the victim was significant. On October 17, 1993, Petitioner administered corporal punishment to her eight-year-old biological grandson using a telephone cord. The punishment left two open wounds above and below the left knee and a raised looped bruise on the leg. The wounds and bruises were visible to the arresting officer on October 27, 1993. The nature of the harm to the victim was not life threatening and did not require medical treatment. School officials observed the injuries to the victim and reported them to the Sheriff's Office. Petitioner denies that the open wounds observed by the arresting officer were caused by the incident. Petitioner claims the open wounds were caused during an accident at play. However, resolution of that factual issue is not necessary in order to determine whether Petitioner is entitled to an exemption. A more important issue is whether the incident was a single isolated incident or a common practice by Petitioner. On that issue, there is conflicting evidence. The Charging Affidavit alleges that the victim claimed Petitioner routinely "whipped" the victim, his brother, and his sister with a telephone cord. Petitioner denies she disciplined any of her grandchildren with anything but her hand other than the one incident at issue in this proceeding. Petitioner claims that the incident arose from her frustration over recurring teacher complaints to Petitioner that the victim was disrupting classes and not performing in school and over Petitioner's inability to correct the victim's misbehavior after repeated attempts to address the situation without spanking the victim. The factual issue is resolved by the testimony of the mother of the victim and the testimony of other mothers who entrust the care of their children to Petitioner. The mother of the victim is the mother of the victim's brother and the victim's sister and also is Petitioner's biological daughter. The mother testified at the hearing that the incident in 1993 was the only time Petitioner had disciplined her children with anything but a minor hand slapping. The mother's testimony was credible and persuasive and consistent with the testimony of other mothers who have entrusted, and continue to entrust, the care of their children to Petitioner. There is no evidence that Petitioner has ever disciplined any child unrelated to Petitioner. Petitioner demonstrated sufficient evidence of rehabilitation since the incident in 1993. After Petitioner completed the parenting course required by the terms of her probation, Petitioner continued her education in child care. She completed three courses given by Respondent and earned 33 credit hours. Petitioner completed courses in "Fundamentals of Child Care," "Developmentally Appropriate Practices for Young Children," and "Introductory Child Care Training Courses." Petitioner demonstrated sincere remorse for the 1993 incident. Petitioner also demonstrated an awareness of the emotional harm caused, her importance to young children in her care, and an adequate awareness of appropriate parenting for children while they are in her care. Petitioner continued to care for the victim after 1993 without further incident. The mother of the victim and the mothers of other children continued to entrust the care of their children to Petitioner after the incident. The testimony of these mothers was consistent, credible, and persuasive. Petitioner has repaired her relationship with the victim. Both have learned to accept responsibility for their actions. The victim is now a well-adjusted young man who loves his grandmother and enjoys spending time with her. Counsel for Respondent exposed several inconsistencies in Petitioner's testimony with the intent to discredit Petitioner's testimony. Those instances are a matter of record and not addressed individually in this Recommended Order. After hearing the testimony of the mothers at the hearing, it is unlikely that Petitioner intended misrepresent the facts. It is more consistent with the testimony of the mothers at the hearing to find that the discrepancies in Petitioner's testimony resulted from Petitioner's lack of knowledge and business acumen rather than from her lack of good faith. Counsel for Respondent made much of the fact that Petitioner has operated, and continues to operate, an unlicensed day care center out of her home. Counsel noted in the record that the letter denying Petitioner's application for a license provides Petitioner with notice that the operation of an unlicensed day care business is a misdemeanor. Petitioner acknowledges this fact but claims that the day care center is her only means of financial support and the only affordable alternative for working parents who utilize her service. The issue of whether Petitioner currently operates an unlicensed day care center must be addressed in a separate proceeding if Respondent chooses to do so. Respondent must separately charge Petitioner with operating an unlicensed day care center, give Petitioner adequate notice of the charge, give Petitioner a point of entry, and provide Petitioner with a reasonable opportunity to defend the charge. Respondent cannot raise that charge for the first time in this proceeding as a ground for denying the exemption requested pursuant to Section 435.07(3) and effectively transfer the burden of proof to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 20th day of December, 1999, 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 20th day of December, 1999. COPIES FURNISHED: John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801-1782 Annie Bell 2218 Nantes Court Orlando, Florida 32808
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which Petitioner claims to be substantially affected by an agency statement that allegedly violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns two sentences at page 11 of a pamphlet generated by Respondent, which is entitled "Florida's Educational Opportunities for Students with Sensory Impairments (2000)(the DOE Pamphlet)." The two sentences state that the Florida School for the Deaf and the Blind (FSDB) is an available educational option for sensory-impaired children in Florida.
Findings Of Fact Background Congress enacted the Individuals with Disabilities Education Act (IDEA) "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. Section 1400 (d)(1)(A). As a condition to IDEA funding, each state must have a policy in effect that executes the principal goal of the Act, which is to assure "all children with disabilities [have] the right to a free appropriate public education." 20 U.S.C. Section 1412(1). In 1997, Congress substantially amended IDEA. On March 12, 1999, regulations were published at Part B of Part 34 of the Code of Federal Regulations (CFR), implementing the 1997 IDEA amendments. The IDEA, as amended, is implemented in Florida at Section 230.23(4)(m), Florida Statutes, and Chapter 6A-6, Florida Administrative Code. IDEA’s centerpiece is the "individualized education program" (IEP), which is a detailed statement "summarizing the child’s abilities, outlining the goals for the child’s education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 173 (3d Cir. 1988). The IEP provides special education and related services tailored to the child’s unique needs and designed to provide the child with a "free appropriate public education." 20 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13, 300.15, 300.344-300.347; Section 230.23(4)(m)5, Florida Statutes; Rule 6A-6.03028, Florida Administrative Code. A team including the child’s teachers, local education agency representatives and the child’s parents creates the IEP; 20 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule 6A-6.03028, Florida Administrative Code. Both IDEA and the parallel Florida Statute state that special education students should be educated with non-disabled peers "to the maximum extent appropriate," and that separate classes or schooling should be used if "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." See 34 CFR Section 300.550 and Section 230.23(4)(m)6, Florida Statutes. Placement must be determined on a child-by-child basis. Section 230.23(4)(m), Florida Statutes, generally identifies the educational options available for sensory- impaired children in Florida, including FSDB. That statute is implemented in pertinent part by Respondent at Rules 6A-6.03014, and 6A-6.03022, Florida Administrative Code, which set school district admissions criteria for visually impaired and dual- sensory impaired children, respectively. One of the options listed in the statute is FSDB. Section 230.23(4)(m)3, Florida Statutes. Section 242.3305, Florida Statutes, states the "responsibilities and mission" for FSDB. In pertinent part, it provides that FSDB educates "hearing-impaired and visually impaired students in the state who meet enrollment criteria." Rule 6D-3.002, Florida Administrative Code, implements that statute by setting forth the "Admission and Enrollment Requirements" for FSDB. The DOE Pamphlet was generated in 1997, and amended in 2000, to explain the special education options available to parents of sensory-impaired school-age children in Florida. The Parties Petitioner is a nine-year-old student who is legally blind and otherwise developmentally impaired. He resides in St. Johns County, Florida, and attends classes for the sensory- impaired offered by the St. Johns County School District. His parents moved from Belize in September, 1999, for the express purpose of enrolling Petitioner at FSDB. Respondent is the head of the state agency that published the DOE Pamphlet. FSDB is a state school that, pursuant to Section 242.3305, Florida Statutes, maintains a residential program for educating sensory-impaired children in Florida. The Factual Background The Petition asserts that Petitioner’s parents moved to St. Johns County in 1999, where they "chose to enroll the Petitioner in the . . . FSDB . . . as described in the DOE Pamphlet." The Petition notes that FSDB declined to accept Petitioner. The Petition further states Petitioner then filed multiple due process petitions pursuant to Section 232.23(4)(m), Florida Statutes, which "yielded an offer by FSDB that the Petitioner be evaluated over an extended period in a temporary assignment at FSDB." Thereafter, "As the parents’ choice of enrollment was denied by FSDB, Petitioner’s parents enrolled the Petitioner in the local St. Johns County School District." The Petitioner further states that he later sought County support for placement at FSDB, which was rejected because the County believed it could adequately educate Petitioner. The records of DOAH adequately set forth the factual background. Petitioner was denied admission to FSDB when he applied in 1999. Thereafter, his parents filed a due process petition to contest the FSDB denial (DOAH Case No. 99-493OE). Petitioner and FSDB entered into a Settlement Agreement, which allowed Petitioner to enroll at FSDB on a "temporary assignment basis for extended evaluation [in] accordance with Rule 6D- 3.002(4) . . ., for a period of 90 school days within which time [Petitioner] will participate in the educational program as established by the IEP team." The Petitioner dismissed his case, however, for reasons not apparent in this record, the child’s parents opted not to enroll their son in the school. On January 19, 2000, Petitioner’s parents again filed a request for a due process hearing, alleging that they made a "unilateral mistake" in entering into the first Settlement Agreement. (DOAH Case No. 00-0348E). On March 1, 2000, Petitioner and FSDB entered into another Settlement Agreement (the Second Settlement Agreement). The Second Settlement Agreement provided for the same 90-day temporary assignment, which would commence on the first day of the 2000-2001 school year. That agreement also provided that Petitioner could contest any decision made by FSDB after the temporary assignment. The Petitioner then dismissed his petition. On July 9, 2000, Petitioner filed a third request for due process hearing against FSDB (DOAH Case No. 00-2871E). It alleged that both settlement agreements denied rights under the IDEA, violated FSDB’s admissions rules, and the Second Settlement Agreement was an attempt by FSDB to "circumvent the requirements of law." Petitioner requested a hearing to determine "their conformity to both IDEA and FSDB Rule 6D." On August 8, 2000, DOAH dismissed the case on two grounds. First, Petitioner failed to allege a dispute subject to DOAH review, because Petitioner "clearly stated his intent to continue his enrollment in the public schools of St. Johns County . . .," and further stated his satisfaction with that school system. Final Order in N.H. v. F.S.D.B., Case No. 00- 2871E at p. 3. Second, it was dismissed because the Second Settlement Agreement barred the action. Id. at p.3, et seq. That order was not appealed, and became final. Petitioner filed a fourth due process petition on August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP meeting set for August 8, 2000, which was set by FSDB to implement the Second Settlement Agreement. Petitioner later withdrew that request. FSDB has repeatedly stated, and continues to maintain, that it will excuse the terms of the Second Settlement Agreement to allow Petitioner to remain in the St. Johns County School District. Alternatively, FSDB continues to state Petitioner may temporarily enroll at FSDB pursuant to the Second Settlement Agreement. The Current Case Petitioner filed the instant rule challenge on January 21, 2001. His father received a copy of the predecessor 1997 version of the DOE Pamphlet in August 2000, from a representative of the Dade County School District. He asserts the following two sentences constitute an unpromulgated rule in violation of Section 120.56(4), Florida Statutes: Parents in Florida have the right to choose the educational setting they consider most appropriate for their child who has a hearing or visual impairment. FSDB is an option in the continuum of placement for the education of students with sensory impairments. The Petition claims Petitioner is adversely affected by the two sentences due to the following three injuries: (1) his "parents were denied the right to choose the educational setting they feel most appropriate for their child"; (2) his sensory-impaired peers attend FSDB; and (3) the St. Johns County School District loses funding for special education of sensory- impaired children because most local parents of sensory-impaired children choose FSDB over the District. At the hearing, Petitioner presented the testimony of two employees of the Respondent, Shan Goff and Margot Palazesi. Both testified that the Respondent promulgated the DOE Pamphlet as an informational document for parents and others dealing with sensory-impaired children in Florida. Ms. Goff testified that DOE generates a multitude of similar brochures and pamphlets. She further stated that there is no relation between funding of FSDB and funding of local school districts’ special education programs. The DOE Pamphlet is clear. At page 3, the DOE Pamphlet distinguishes between mandatory education of sensory- impaired children in school districts and discretionary admissions at FSDB: School districts must provide educational programs to each eligible student who has a sensory impairment, beginning on the student’s third birthday and continuing until the student’s 22nd birthday or until the student graduates with a standard diploma, whichever comes first. * * * For students between the ages of 5 and 22 who have sensory impairments and who meet enrollment requirements, the FSDB provides educational and co-curricular programs, support services, day school and residential programs. Immediately following the two challenged sentences, the DOE Pamphlet advises: Interested parents may contact the School’s Parent Information Office for information regarding admission . . . There is no evidence that the DOE Pamphlet, read in pari materia, is inconsistent with the laws, regulations, or policies of the federal government.
The Issue The issue herein concerns Respondent's appeal of the School Board's assignment of George S. Mulet, Jr. to an alternative school placement.
Findings Of Fact Based on the documentary evidence received and the entire record compiled herein, the following relevant facts are found: By letter dated February 9, 1983, the Petitioner, School Board of Dade County, Florida, administratively assigned Respondent, George Sixto Mulet, Jr. to Youth Opportunity School--South--in accordance with a recommendation of the principal and screening committee of the Petitioner's Department of Alternative Education Placement. The basis for that action was allegedly the Respondent's disruption of the educational process in the regular school program. By letter dated March 8, 1983, and received by the Division of Administrative Hearings on March 21, 1983, the Petitioner referred the matter to the Division of Administrative Hearings for a hearing pursuant to Chapter 120, Florida Statutes. The matter was duly scheduled by copy of a notice of hearing served on the parties dated April 11, 1983, noticing the matter for hearing for April 27, 1983. In this regard, the undersigned's secretary received a message from Marta Quinones, Respondent's mother, stating that she was requesting a continuance of the hearing. The undersigned Hearing Officer's secretary advised the parent, Marta Quinones, that it would be necessary to request a continuance in writing. No such written request was received, nor was the undersigned Hearing Officer, or Petitioner's counsel, advised in writing, or otherwise, that the Respondents would not appear at the hearing as scheduled. Accordingly, I shall recommend that the matter be referred to the School Board of Dade County to take final action consistent with its preliminary assignment based on the Respondent's failure to administratively pursue its appeal rights.
Recommendation Based on the foregoing findings and conclusions, it is hereby RECOMMENDED: That the matter be referred back to the Petitioner, School Board of Dade County, Florida, to take final action pursuant to the recommendation made herein based on the Respondent's failure to exhaust, or otherwise pursue, its appeals protections pursuant to Chapter 120.57(1), Florida Statutes. RECOMMENDED this 17th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire Law Offices of Jesse J. McCrary, Jr. Suite 800, 3000 Executive Plaza 3050 Biscayne Blvd. Miami, Florida 33137 Mrs. Marta Quinones 3531 Southwest 91 Ave. Miami, Florida 33165 Mr. Leonard M. Britton Superintendent Dade County School Board Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Petitioner, who is employed as an occupational therapist by a local school board, is considered a “teacher” eligible for the 2015 State of Florida Best and Brightest Scholarship Program.
Findings Of Fact The 2015 Florida Legislature Appropriations Act created the Best and Brightest Teacher Scholarship Program, chapter 2015- 232, p. 27, Item 99A. The eligibility pre-requisites for applying to and being awarded the Scholarship (up to $10,000) were established in the Scholarship. The Scholarship provides as follows: Funds in Specific Appropriation 99A are provided to implement Florida's Best and Brightest Teacher Scholarship Program. The funds shall be used to award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT. To be eligible for a scholarship, a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment and have been evaluated as highly effective pursuant to section 1012.34, Florida Statutes, or if the teacher is a first-year teacher who has not been evaluated pursuant to section 1012.34, Florida Statutes, must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment. In order to demonstrate eligibility for an award, an eligible teacher must submit to the school district, no later than October 1, 2015, an official record of his or her SAT or ACT score demonstrating that the teacher scored at or above the 80th percentile based upon the percentile ranks in effect when the teacher took the assessment. By December 1, 2015, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall submit to the department the number of eligible teachers who qualify for the scholarship. By February 1, 2016, the department shall disburse scholarship funds to each school district for each eligible teacher to receive a scholarship. By April 1, 2016, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall provide payment of the scholarship to each eligible teacher. If the number of eligible teachers exceeds the total the department shall prorate the per teacher scholarship amount. The Scholarship does not define the word “teacher.” Petitioner, who timely filed an application for the Scholarship, contends that she is a “teacher” and is therefore eligible for the award. Respondent and Intervenor contend that Petitioner is an occupational therapist, and, as such, she is not considered a “classroom teacher,” which is the target group that the Legislature intended for the teacher scholarship program to cover. Petitioner contends that even if the Scholarship is limited to “classroom teachers,” she meets the statutory definition of a “classroom teacher” and is therefore eligible to receive the Scholarship. It is undisputed that the 2015 Scholarship language is vague as to whether the Scholarship is limited to classroom teachers. In 2016, the Legislature made it clear that the award is intended to only cover “classroom teachers.” Legislation enacted in subsequent legislative sessions may be examined to ascertain legislative intent. See Crews v. Fla. Pub. Emp’rs Council 79, AFSCME, 113 So. 3d 1063, 1073 (Fla. 1st DCA 2013)(citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006)). Recently, the Governor signed chapter 2016-62, Laws of Florida. Section 25 of chapter 2016-62 enacts section 1012.731, Florida Statutes, the Florida Best and Brightest Teacher Scholarship Program.1/ Section 1012.731(2) provides that the “scholarship program shall provide categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic success.” The Legislature's amendment of the language, just a year after the first appropriation, confirms that the Legislature intended the award to go to "classroom teachers," as defined in chapter 1012. Petitioner was hired by Respondent as an occupational therapist. She has worked as an occupational therapist for Respondent for approximately 17 years. Petitioner does not hold a Florida teaching certificate and her position as an occupational therapist does not require a Florida teaching certificate. Instead, Petitioner is licensed by the Florida Department of Health, which has jurisdiction over ethical violations committed by occupational therapists licensed in Florida. In her position as an occupational therapist, Petitioner reports to Respondent’s director of Pupil Support Services, who supervises all therapists within Sarasota County Public Schools. Petitioner’s stated job goal is “[t]o facilitate the handicapped student’s independent functioning in the school setting.” Petitioner’s performance responsibilities, as set forth in her job description, are to: Conduct appropriate evaluation of students referred for possible exceptional student education needs and prepare reports of the evaluation and findings. Plan intervention and service delivery programs to meet student’s individual needs. Implement and direct interventions essential to meeting targeted students’ needs. Provide information and consultative services to appropriate personnel in support of students with disabilities. * * * Establish schedules for meeting with students, conferencing with parents and assisting in rehabilitation techniques. Provide resources to all stakeholders involved in the evaluation, identification of student needs and rehabilitation of students. Petitioner delivers therapeutic services individually or in a small group setting, in a room assigned to her, or in a classroom, usually at the same time a teacher is delivering instruction to the entire class. Petitioner completes “lesson plans,” which are referred to in the therapy setting as “plans of care.” Plans of care differ in substance from lesson plans prepared by teachers because lesson plans set out a teaching plan for the entire class, whereas plans of care set out therapeutic goals and activities directed to one student that complies with the goals set forth in a student's Individualized Education Plan (IEP). As an occupational therapist, Petitioner is responsible for maintaining a “class roster,” which is referred to in the therapy setting as a “caseload.” Occupational therapists maintain a caseload for student accountability purposes and for Medicaid billing purposes. Petitioner’s therapy sessions are assigned a “700” course code, which correlates in the Florida Department of Education's course directory to “related services.” Joint Exhibit O is an example of courses offered to students by Respondent. The course list includes math, language arts, physical education, science, social studies, art, Chinese, music, and occupational therapy. Petitioner is listed as the “teacher” for the occupational therapy course. Unlike the other listed “teachers,” Petitioner is not instructing students in a subject area; she is delivering a service. See § 468.203(4)(b), Fla. Stat. (2015). Succinctly stated, the difference, in this context, between “occupational therapy” and the other listed “courses,” is that occupational therapy is not a subject area that a student learns about; it is a service that a student receives to help them to achieve independent functioning. Although listed as “course” by Respondent, occupational therapy, as compared to the other listed “courses,” is not a “course” within the meaning of section 1012.01(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County enter a final order finding Petitioner ineligible for the Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 8th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2016.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is a ninth grade student at North Dade Junior High School. She was born August 22, 1968. Respondent's behavior during the 1983-84 school year has been unsatisfactory and she is no longer responsive to the supervision of school officials. She was counseled or suspended on three occasions for excessive talking in class. She rejected an assignment to a special assistance classroom (C.S.I.) and refused to serve one suspension. She has cut classes and left school without permission on several occasions. A school-parent conference held December 7, 1983, produced no improvement in Respondent's disruptive behavior.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Rose Marie Farrell to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Mary Farrell 2970 Northwest 153 Terrace Opa Locka, Florida 33054 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
