The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 10th day of January, 2003.
The Issue Whether disciplinary action should be taken against Respondents for alleged violations of Sections 455.277 and 477.028, Florida Statutes (1979).
Findings Of Fact Respondent Luella and Porter's School of Beauty currently holds License No. CT 0000056 and is located at 316 NE First Street, Pompano Beach, Florida. Respondent Luella A. Bailey is an owner of the Respondent beauty school and currently holds License No. IC 0031324 as a cosmetology instructor. In March of 1980 Respondent Bailey discussed a two week course of study in Esthetology given by the Respondent beauty school with Bonnie Cohen and her mother, Sharon Cohen. Bonnie Cohen and her mother were led to believe that the course, which involved the study of the face, the use of massage and water vapor and the use of various creams and oils would enable Bonnie Cohen to obtain a paid position in cosmetology salons performing facials. Respondent Bailey suggested at least two places where Bonnie Cohen might obtain employment as a person trained to perform facials: Christine Valmy Salon and Palm Aire Spa Salon. Respondent Bailey knew or should have known that in order to perform facials in a cosmetology salon an employee must be certified as a cosmetologist. Respondent Luella and Porter's School of Beauty has been in business for a long period of time and is recognized as a reputable school. Bonnie Cohen paid a fee of $500.00 and took the two week course given at Respondent school which began on March 18, 1980 and ended on March 28, 1980. She learned to massage areas of the face and neck, apply creams and chemicals used to clean and soften the skin, and learned how to apply treatments for various minor skin problems. Miss Cohen was awarded a certificate worded: "Esthetics - Scientific Facial Treatments and Skin Care Seminar. This certifies that Bonnie Cohen has parti- cipated in the Christine Valmy Seminar for Esthetics - Scientific Facial Treat- ments and Skin Care. Date, March, 1980." The certificate was signed "Christine Valmy by Luella Bailey." In October of 1980, Bonnie Cohen sought employment at two cosmetology salons, Christine Valmy Salon and Palm Aire Spa Salon, both of which were recommended to her by Respondent Luella Bailey. The owner of the Palm Aire Spa Salon discussed employment with Bonnie Cohen and would have employed her, but when Miss Cohen produced the herein described certificate instead of a cosmetology license the owner of the salon would not employ her to perform facials. A cosmetology license is required for employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring Respondent Luella Bailey and imposing on her as a licensee an administrative fine not to exceed $1,000.00 In addition the Hearing Officer recommends that the license of Respondent Luella and Porter's School of Beauty be suspended for a period of six (6) months. DONE and ORDERED this 21st day of August, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 21st day of August, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Luella & Porter's School of Beauty 316 NE First Street Pompano Beach, Florida 33060 Ms. Luella A. Bailey 3200 NW 90th Avenue Coral Springs, Florida 33065 Nancy Kelley Wittenberg, Secretary Department. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF COSMETOLOGY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY, Petitioner, CASE NO.: 81-1600 vs. LICENSE NOS. CT0000056 IC0031324 LUELLA & PORTER'S SCHOOL OF BEAUTY AND LUELLA A. BAILEY Respondents. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent has been employed by the Escambia County School Board since 1967. On or about October 3, 1973, he was suspended from his position as Principal of Scenic Heights Elementary School because criminal charges had been filed against him. Sometime during the year 1971, Respondent and Mr. Alfred F. Brown went to an auction of leased office equipment at the Holiday Inn on Highway 29. Items for bids were on display in a room and identical items were in boxes in a trailer outside. Persons in the display room were able to bid on the displayed articles or to purchase boxed items at the same price which the highest bidder had paid. Respondent did not bid at the auction, but he did purchase two Bell and Howell projectors, two Wollensak tape recorders and a Panasonic portable television set. Respondent did not notice any school markings on these items and he kept them in his home from 1971 until October of 1973. On August 9, 1973, Respondent went to Zoellner Music House to pick up Mr. James Justice, a blind piano tuner, and take him to his residence to tune an eight to ten year old Story and Clark piano located in Respondent's living room. Mr. Justice was under the impression that said piano belonged to Scenic Heights Elementary School, and that the tuning was being done because Respondent was having an open house for the teachers at his school . Mr. Justice was also asked by Respondent to give his opinion as to the condition of a ten to eighteen year old Wurlitzer piano located in Respondent's garage. Pursuant to instructions from Respondent, the secretary at Zoellner's made out the bill for the tuning to Scenic Heights School. Mr. Justice brought said bill to Respondent's residence when he tuned the piano and Respondent signed the bill on the same day. Respondent did not pay for the twenty dollar tuning bill. In March of 1973, Respondent and his wife purchased a home located approximately one block from Scenic Heights Elementary School. They moved into their new home in July, 1973. Respondent used one of the rooms in the house as an office. In mid-July of 1973, Respondent purchased from Bill Thompson's Office Equipment Center a 30-compartment cabinet, an executive chair, an executive and a secretarial plastic chair mat and a file cabinet. The statement for these items in the total amount of $328.20 was made to Scenic Heights Elementary School. It was the testimony of Respondent and his wife that Respondent told Thompson's that he intended to pay for those items used in his home office, but that he requested Thompson's to sell him the items at the same discounted price which the county schools would be charged. The bill was not paid by Respondent as of October 3, 1973--the date he was suspended by the school board. On August 11, 1973, Respondent purchased two lawn rakes and the bill in the amount of $17.02 was made to Scenic Heights School. Respondent explained that he purchased these rakes for the Boy Scouts to use when they wished to contribute something for the school. These two rakes were not found at the school. At the time Respondent and his wife moved into their new home in July of 1973, Respondent owned an old, dark Wurlitzer piano which did not match his wife's new living room furniture. Sometime in July, Respondent and his wife drove over to Santa Rosa County to the Treasure House to look at antiques. While there, Respondent met the owner, Mr. Franklin Willis, and Inquired whether Willis had or ever got any used pianos. Mr. Willis told Respondent that he did not ordinarily stock pianos because of their size, but said he would call Respondent if he ran across any. Respondent left his business card with Willis for that purpose. While Respondent was at the Treasure House, he also saw Harley Carmen Phillips, whom he knew previously from having Mr. Phillips work on his cars. Within a week or two after this, Respondent again had Phillips do some work on his car and they discussed the purchase of a fishing boat. On or about August 3, 1973, Respondent bought the boat from Phillips, who delivered it to Respondent's residence. Respondent paid for the boat by a $700 check. Phillips had trouble cashing the Respondent's Pensacola bank check at a bank in Milton. During this period of time, Phillips and Willis were in the business of transporting stolen automobiles from one state to another and selling them. At a later time they were both convicted for violations of the Dyer Act and served time in the penitentiary. Respondent was unaware of the illegal activities engaged in by Phillips and Willis until October of 1973. A week or two after his visit to the Treasure House, Respondent received a telephone at the school from Mr. Willis. Willis informed Respondent that he had a piano he thought Respondent would be interested in. Respondent said he would have to see it first. About noon, Mr. Phillips brought in Willis truck a Story and Clark piano to Respondent's residence. Respondent called Willis to negotiate the price he would pay. Respondent thought he could sell his old Wurlitzer for about $400 and he therefore offered Willis $400 for the Story and Clark. Willis agreed. Due to the trouble Phillips had had previously cashing the Respondent's check for the boat, Respondent paid for the piano in cash. Phillips helped Respondent move his old Wurlitzer into the garage. When the Story and Clark piano was being delivered, Respondent's maid, Ms. Magnolia Long, now deceased, told Respondent that she would like to have a cheap piano for her child. Respondent therefore told Willis on that same day to be "on the lookout" for a piano costing $100 or $125. On or about August 17, 1973, Willis called Respondent at school and told him he had a piano for Respondent's maid. Respondent told him to bring it to his residence around 3:00 p.m. and he and the maid would look at it. Again, Phillips was driving Willis' truck with two pianos on it. Ms. Long said she wanted the piano so Respondent called Willis to negotiate the price. They agreed upon a price of $125. While on the phone, Willis offered to sell the other Wurlitzer piano on the truck to Respondent. Respondent said he would buy it for a good price, figuring that he could sell it at the same time that he sold his old Wurlitzer. He thus bought the second piano on the truck for $225 by a check made out to cash. That piano was placed in Respondent's garage along with the originally owned Wurlitzer, and the $125 piano was taken to the home of Ms. Long. Respondent told Ms. Long that he would deduct any profit he made on the sale of the $225 piano from the cost of the $125 piano he bought for her. Respondent then placed a classified ad in the Pensacola News Journal advertising the two Wurlitzer pianos for sale. He sold them both, receiving $350 from John Boazman for the piano Respondent had paid $225. Thus, Respondent did not charge Ms. Long anything for the $125 piano. Mr. Boazman testified that Respondent had told him at the time that he was selling this piano for a friend, and went to the house to call said friend to see if he would accept $350. Sometime thereafter and at the request of Ms. Long, Respondent called Willis and inquired about obtaining another piano for Ms. Long's church. This time, Willis himself brought the piano to Respondent's residence. Respondent thought that Ms. Long's church could raise the money for the piano and, if not, Respondent could get the P.T.A. to buy it for his school. With the exception of the Wurlitzer piano originally owned by Respondent, all of the other pianos were stolen from churches outside the Pensacola area. The only evidence that Respondent had knowledge that these pianos were stolen came from Mr. Willis, who testified that Respondent told him to get the pianos from areas other than Pensacola. Respondent purchased from Willis a riding lawn mower for $140 and approximately 54 bundles of shingles. These items were also stolen by Willis. Sometime in late September of 1973, Mr. Willis was arrested and charged with receiving stolen property and possession of a firearm by a convicted felon. He also had federal charges pending against him for transporting stolen automobiles across state lines. In exchange for information on Respondent, the State granted Willis immunity on the stolen property charge. The possession of a firearm charge was dropped for insufficient evidence. The State also agreed to help Willis on the federal charge by explaining to the judge that Willis had given information regarding Respondent. Based upon information from Willis that certain reported stolen items were located in Respondent's home, a search warrant was executed on October 1, 1973. Respondent was not home at the time, and law enforcement officers seized the Wurlitzer piano located in Respondent's garage, the Story and Clark piano located in Respondent's living room and a Zenith radio having a school board property number on it. Respondent was arrested on the same date while at a conference in Santa Rosa County. Another search of Respondent's residence was conducted on or about October 19, 1973, and the following items were found: two tape recorders, two projectors, a Panasonic television set and a riding lawn mower. There was evidence that the television set had the name of Fideles School written on it in indelible ink. The shingles were found in the carport at a rental home owned by Respondent or his wife. During October 22-24, 1973, three tape recordings of conversations between Respondent and Willis were taken with the consent of Willis and without the knowledge of Respondent. Respondent's attorney had advised him to talk with Willis and to obtain any information he could from him regarding the charges against Respondent. Respondent had many conversations with Willis between October 1 and the dates of the tape recordings. At the time of the recordings, Respondent had already been told by Willis that the items sold to him had been stolen. Respondent explained that he had taken the Zenith radio from the school in order to listen to the election returns at his home. He further explained that it was always his intention to personally pay for the piano tuning and the office equipment in his home. His suspension on October 3, 1973, prevented him from doing so.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's teaching certificate be revoked for a period of six years, effective August 31, 1973. Respectfully submitted and entered this 10th day of February, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P. 0. Box 1752 Tallahassee, Florida 32302 James A. Johnston, Esquire One North Palafox Street Pensacola, Florida 32501 Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: GLENN PORTER DISMUKES DOAH CASE NO. 76-1776 /
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. In the timeframe relevant to this proceeding, the 2011- 2012 school year, Respondent was employed as the lead technology teacher, pursuant to an annual services contract, at Miami Norland High School ("Norland"), a public school in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. Events Giving Rise to This Proceeding Certification Examinations Norland offers courses in Adobe Photoshop ("Photoshop") and Adobe Dreamweaver ("Dreamweaver"). Each course offers an industry certification examination. The exams are provided by Certiport, an independent provider of educational, assessment, examination, and certification programs. To prepare for a certification exam, the student takes practice exams. Performance on the practice exams indicates readiness to take the certification exam, so it is important that the student perform well on the practice exams prior to taking the certification exam. Upon reaching a certain achievement level on the practice exams, indicating readiness to take the certification exam, the student goes to another classroom to take the certification exam. The exams are taken on a computer. Nothing but the computer is allowed on the desk during the exam. Students are informed of the rule that they are not allowed to have or use papers, notebooks, or any other materials when taking the exam. If the student passes the exam, he or she receives a certificate. In the 2011-2012 school year, the certification exams for Photoshop and Dreamweaver were administered more than once per school day at Norland. As part of his responsibility as lead technology teacher at Norland, Respondent proctored the certification exams for the Photoshop and Dreamweaver courses during the 2011-2012 school year. To be authorized to proctor the certification exams, Respondent entered into a Proctor Agreement with Certiport ("Agreement"). The Agreement required, among other things, that Respondent ensure the security of the exam and supervise certification candidates taking the exam to ensure that no notes containing the content of the test questions or answers were used during the exam. The Agreement provided that in the event of any evidence of improper conduct by the candidate or violation of the exam process, the proctor must terminate the exam, confiscate the exam materials, and immediately notify Certiport. Adherence to the Agreement was required for Respondent to be authorized to serve as a proctor for the certification exams. Alleged Cheating on Certification Exams D.J. was enrolled as a student in Mr. Halligan's Photoshop course at Norland during the 2011-2012 school year. Despite never having obtained a passing score on a practice exam, D.J. was taken out of Halligan's class to take the Photoshop certification exam.2/ D.J. took the Photoshop certification exam twice, and sat for it during her regularly scheduled Photoshop class.3/ D.J. took the certification exam for the second time on April 3, 2012, and passed it on her second sitting. Respondent proctored the Photoshop certification exam on April 3, 2012, during the period when D.J. took the exam and passed. D.J. testified, credibly, that Respondent allowed her to use a package containing the answers during the exam, and that he told the other students taking the exam during that period that they also could use assistance materials to take the exam. After finding out that she had passed the exam, D.J. returned to her Photoshop class and told Halligan that she had passed. She also told him that Respondent had allowed her and others to use materials to assist them while taking the exam. D.J. testified, credibly, that she had never been a student in Respondent's class, that he had never disciplined her, and that she had never had problems with him. Accordingly, she had no motivation to fabricate her statement that Respondent had allowed her to cheat on the exam. N.A. also attended Norland during the 2011-2012 school year and also took Halligan's Photoshop course. N.A. had never achieved the minimum passing score on the practice exams, but nonetheless was ordered to take the Photoshop certification exam.4/ She sat for the Photoshop certification exam three times and passed it on her third sitting, on April 3, 2012. N.A. credibly testified that Respondent had allowed her to use the practice exam package to take the certification exam.5/ After passing the exam, N.A. returned to Halligan's class and told him that she had passed. Halligan asked her how she had passed and she told him that Respondent had allowed her to use her practice exam package. Halligan asked her to provide a written statement regarding what had happened. She prepared a written statement but subsequently retracted it. Halligan and another technology teacher, Mr. Gant, contacted the Office of the Inspector General for Miami-Dade County Public Schools ("OIG") and reported that students who were not capable of passing the certification exams were, in fact, passing. The OIG conducted an investigation into alleged violations regarding the Adobe and Dreamweaver certification exam protocol at Norland. As part of this investigation, Ellen Roelofs, along with another OIG investigator, interviewed N.A. and asked her if she had cheated on the certification exam. N.A. initially denied having cheated but then confessed to having done so.6/ The OIG investigation ultimately substantiated allegations that Respondent had allowed students to cheat on the Photoshop and Dreamweaver certification exams. Following completion of the OIG investigation, a conference for the record ("CFR") was conducted between Respondent; Joyce Castro, a District Director for the Miami-Dade County Public Schools Office of Professional Standards; and others regarding charges that Respondent allowed students to cheat on the Photoshop and Dreamweaver certification exams, in violation of Petitioner's policies 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 2605, Research and Evaluation. Based on the OIG report findings, the Office of Professional Standards determined that Respondent could not be trusted in the future to proctor the certification exams. Following the CFR, the matter was presented to a disciplinary review team, which recommended that Respondent be terminated from his employment. On October 16, 2013, Petitioner took action to suspend Respondent without pay and terminate his employment. Respondent's Defenses Respondent verified that as part of his duties as lead technology teacher at Norland, he proctored the Photoshop and Dreamweaver certification exams in the 2011-2012 school year. Respondent denied having given students the answers to the exams or otherwise allowing them to cheat on the exams. The undersigned found Respondent's testimony less than forthcoming and not credible. Respondent also presented the testimony of Rhailyn Campbell, a student at Norland during the 2011-2012 school year. Campbell testified that he took the Dreamweaver certification exam on April 3, 2012, midday; that Respondent did not tell him or any other students that they could cheat on the exam; and that he did not observe any other students cheating or being allowed to cheat. Campbell denied having been interviewed by the OIG during its investigation of Respondent. However, Roelofs testified, credibly, that she did, in fact, interview Campbell during the OIG investigation. This testimony was substantiated by the Report of Interview she prepared memorializing that interview. Based on this evidence, Campbell's testimony is deemed not credible.7/ Respondent also presented the testimony of Haresh Seogopaul, T.O., and Dean Anthony Richards, students at Norland in the 2011-2012 school year. Seogopaul and T.O. testified that they took the Dreamweaver8/ certification exam on January 25, 2012. Richards took the Photoshop certification exam on January 25, 2012. Each testified that he did not cheat on the exam, that Respondent did not allow him to cheat on the exam, and that Respondent did not allow others to cheat on the exam. This testimony does not contradict D.J.'s and N.A.'s credible testimony that they were allowed to cheat on the Photoshop certification exams conducted on April 3, 2012; it merely shows that Respondent did not allow students to cheat on an entirely different day, January 25, 2012. Through the testimony of Roelofs, Respondent offered the Report of Interview ("Report") for K.E., D.C., and D.W., each of whom took the Photoshop certification exam on April 3, 2012, and each of whom were interviewed by Roelofs during the OIG investigation. Each Report was prepared by Roelofs and contained a summary of the statement made by the student being interviewed, at the time he was interviewed. Each summary reflects that the student stated that Respondent did not allow students taking the certification exam to cheat on the exam.9/ Clearly, Roelofs has no personal knowledge of the facts and events that are described in the summaries of these students' statements, and the statements themselves constitute unsubstantiated hearsay that does not supplement or explain other competent evidence in the record. As such, these reports and their contents do not constitute competent substantial evidence on which findings of fact may be based. Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate his employment as a teacher on the basis of just cause——specifically, misconduct in office under Florida Administrative Code Rule 6A-5.056 and violation of Petitioner's policies 3210, 3210.01, and 2605. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that just cause exists, on these bases, to suspend Respondent without pay and terminate his employment. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Misconduct in Office Misconduct under rule 6A-5.056(3) requires violation of the Code of Ethics of the Education Profession, as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted in rule 6B-1.006. Here, the evidence establishes that Respondent allowed students to cheat on the Photoshop certification exams administered on April 3, 2012. In doing so, Respondent failed to exercise the best professional judgment and integrity and failed to achieve and sustain the highest degree of ethical conduct, in violation of rule 6B-1.001. Respondent violated rule 6B-1.006 by failing to maintain honesty in all professional dealings. He also violated this rule by submitting fraudulent information on documents in connection with his professional activities, both in allowing or enabling students to cheat, and for his role in generating fraudulent passing scores for students who cheated on the exams. Rule 6A-5.056(3)10/ requires, for a finding of misconduct, a showing that the violation is sufficiently serious to impair the individual's effectiveness in the school system. Here, the evidence establishes that as a result of his conduct, Respondent's effectiveness in the school system is impaired. Castro persuasively testified that Respondent could not be trusted in the future to proctor exams. Moreover, Respondent violated the Agreement with Certiport, so can no longer serve as proctor for the Photoshop and Dreamweaver certification exams. For these reasons, it is determined that Respondent's effectiveness in the school system is impaired. Accordingly, the preponderance of the evidence establishes that Respondent's conduct at issue in this proceeding constitutes misconduct in office pursuant to rule 6A-5.056(3). Violation of Petitioner's Policies Petitioner has charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which requires that instructional staff maintain honesty in all professional dealings and not submit fraudulent information on any document in connection with professional activities. Here, the evidence establishes that Respondent did not maintain honesty in his professional dealings in connection with his proctoring duty to maintain the integrity of the Photoshop certification exams. Further, he submitted fraudulent information on documents in connection with his professional activities, in allowing or enabling students to cheat and for his role in generating fraudulent passing scores for students who cheated on the certification exams. Accordingly, it is determined that Respondent violated Policy 3210. Petitioner also has charged Respondent with violating Policy 3210.01, Code of Ethics. Here, the evidence establishes that Respondent did not abide by Petitioner's Code of Ethics. His actions in allowing cheating on the certification exams show that he did not make the well-being of the students and the honest performance of his professional duties his core guiding principles. Through his actions, he failed to protect and advance the Miami-Dade County Public School District and its students. Accordingly, it is determined that Respondent violated this policy. Additionally, Petitioner has charged Respondent with violating Policy 2605, Research and Evaluation. Policy 2605 incorporates the test administration and security standards set forth in the document titled "Miami-Dade County Public Schools: Standards, Guidelines, and Procedures for Test Administration and Test Security"(November 2007)(hereafter "Test Security Document"). These standards require, among other things, that all testing activities, including supervision and monitoring, be conducted in a manner that ensures the security of test content. The standards also require that all standardized tests be administered in accordance with established administration and test security procedures as outlined in program guides for each testing program; that students shall not be assisted in answering test questions by any means or by any person; and that test proctors must actively monitor students to discourage cheating and must record, and immediately notify the principal and test chairperson of, any test administration irregularity or security breach. Here, Respondent's professional duties included serving as proctor for the Photoshop and Dreamweaver certification exams for Norland. Respondent's conduct in allowing students to cheat on the Photoshop certification exams violated the foregoing test administration and security standards and, thus, violated Policy 2605.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding its suspension of Respondent, Emmanuel Fleurantin, without pay and terminating his employment as a teacher. DONE AND ENTERED this 29th day of July, 2014, 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 29th day of July, 2014.
The Issue The issue is whether the talent agency license held by Respondent should be disciplined for exercising undue influence on an artist for financial gain, and failing to provide clients with copies of contracts which list the services to be provided and fees to be charged and which state that the agency is regulated by the Department.
Findings Of Fact Jane Daniels has been licensed as a talent agency in the State of Florida, doing business as T.J. Norris Co., Inc., and holds license TA-0000015. Ms. Daniels is married to Bill Daniels, a photographer. Their offices are in Fort Lauderdale. Each has a separate entrance, but the suite of offices connect internally. Terri Bjorklund took her infant son, Glenn, to the T.J. Norris agency in February, 1988, responding to one of the advertisements seeking babies and toddlers for advertising work during the Christmas season. Ms. Bjorklund showed Art Feldman, an employee of the T.J. Norris agency, two 8x10 photographs and a photo card bearing three smaller pictures of her son during her interview. Mr. Feldman told Ms. Bjorklund that the pictures of the baby "belong in the garbage," and made the baby "look like an amputee." Mr. Feldman told Ms. Bjorklund that she needed a professional photographic portfolio for her son to obtain work, and he suggested a photographer right in the building who was, in fact, Bill Daniels. Ms. Bjorklund paid $170 to the T.J. Norris agency; $30 was a registration, and $140 was a down payment on the photographic portfolio, which would cost $295. Ms. Bjorklund was told that the balance due on the portfolio could be paid from work the agency obtained for the baby. Ms. Bjorklund was not able to pay any more money for the photographs because her husband had been hurt in a motorcycle accident, was not able to work, and the family was on food stamps. She emphasized that if she could not "work off the balance" through work obtained for the baby, she did not want to pay the $140 that day. Based upon Ms. Daniels' assurances about the payment arrangement, Ms. Bjorklund had the photographs taken by Bill Daniels. When Ms. Bjorklund called the T.J. Norris agency on several occasions to see if there was work available for her son, she was told that no work would be found until Ms. Bjorklund paid off the balance of the portfolio in full. When Ms. Bjorklund stated that she intended to complain to the Department of Professional Regulation or to a local television station because their agreement was not being honored, she was given appointments to take the baby to castings. These were always cancelled, except for one, where the part required the child to speak; this was useless because the child was only 8 months old. The application filed with the T.J. Norris agency disclosed the child's age. Ms. Bjorklund ultimately took her son to other talent agencies, and obtained work for her son through them. In obtaining this work, Ms. Bjorklund used the card with the pictures Mr. Feldman had derided. Those photographs were adequate for use in obtaining bookings for a young child. Expensive photographic portfolios are not ordinarily done for young children because they change quickly as they grow. Ms. Bjorklund never received a copy of the contract she signed with the T.J. Norris agency when she paid the $30 registration fee at the agency. Jonathan Ferrara went to the talent agency on July 12, 1988. He submitted head shots and resumes in order to obtain modeling or acting work through the T.J. Norris Agency. Mr. Ferrara uses the stage name Mark Love. Mr. Ferrara was interviewed by Art Feldman, an employee of the T.J. Norris Agency. Mr. Ferrara never received a copy of the contract with the agency, although he had paid a $30 registration fee, and an additional $15 to make a master card, which is sent to movie companies for use in casting. Jodi Lewine went to the T.J. Norris Agency to obtain modeling or acting work on August 5, 1988. She had no prior experience. She was interviewed by Art Feldman, who told her she would have to have photographs taken before the agency could solicit work for her. Feldman suggested that the photographs be taken by the photographer whose studio was in the same building, the studio of Bill Daniels. Mr. Feldman never told Ms. Lewine that she could have photographs taken by another photographer, but there is no evidence that he required Ms. Lewine to have the work done by Mr. Daniels. (Tr. 43, 1. 16-19, and Tr. 49, 1. 9) Models do not ordinarily acquire portfolios of photographs until after they have worked on several jobs through collecting the photographs taken on those jobs. Ms. Lewine never received a copy of the contract which she signed with the T.J. Norris Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Professional Regulation finding T.J. Norris Co., Inc., to have violated Section 468.402(1)(t), on two occasions and Section 468.410(3), on three occasions, and imposing an administrative fine of $2,000. DONE and ENTERED this 27th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1990.
Findings Of Fact On or about April 14, 1988, the Petitioner, Richard N. Harper, applied with the Respondent, the Department of Insurance, Division of State Fire Marshal, for certification as a fire fighter. On or about April 26, 1988, the Department notified the Petitioner, through his employer, the Polk County Fire District, that additional information was needed on his application--including, among other things, a re-check of his uncorrected vision by an optometrist. On or about September 6, 1988, the Department again notified the Petitioner that additional information was needed on his application--again including, but not limited to a re-check of his uncorrected vision by an optometrist. On or about October 17, 1988, the Department notified the Petitioner that his application was being denied because his uncorrected visual acuity allegedly is not good enough. The Petitioner's uncorrected vision is 20/200 in both eyes; his corrected vision is 20/20 in both eyes. The National Fire Protection Association's pamphlet entitled NFPA NO. 1001, "Fire Fighter Professional Qualifications," 1981 edition Section 2-2, "Medical Requirements for Fire Department Candidates," prescribes medical standards which include the following standards for vision: Vision. The cause for rejection for appointment shall be: * * * (b) STANDARD VISUAL ACUITY. Standard visual acuity without correction, less than 20/40 in one eye, and 20/100 in the other eye; and with correction, less than 20/20 in one eye, and 20/40 in the other eye.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order granting the application of the Petitioner, Richard N. Harper, for certification as a fire fighter. RECOMMENDED this 2nd day of May, 1989, in Tallahassee, Florida. Hearings Hearings LAWRENCE JOHNSON Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5655 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but unnecessary. 2.-6. To the extent they propose that Harper's uncorrected vision is better than 20/200 in either eye, rejected as subordinate to facts contrary to those found. To the extent they propose that, except for vision, Harper is physically qualified to be a fire fighter, accepted but irrelevant to the issues raised in this proceeding. To the extent that they propose that Harper's vision meets licensure requirements, accepted and incorporated. 7. Accepted but subordinate. 8.-9. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-6. Accepted and incorporated to the extent necessary. 7. Unnecessary. COPIES FURNISHED: Lawrence C. Stewart, Jr., Esquire Jollay and Stewart, P.A. Post Office Box 979 Winter Haven, Florida 33882-0979 Lisa S. Santucci, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 ============================================================ =====
