Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 2{, U, day of - J lJ_h (2 ---' 2014, m Tallahassee, Florida. ELIZ RETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW. WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32303 (U.S. Mail) CERTIFICATE OF SERVICE == ' I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to ------==-- the above named addressees by U.S. Mail on this th f 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
Findings Of Fact At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences: Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness. Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences: Absences for illness must be documented by your treating physician and a written medical note presented to this principal upon your return to the site. Upon return to the worksite, you must provide an unconditional medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.) These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program. Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows: . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer. The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows: Involvement with the recommended program of therapy is to be monitored by district's referral agency. Acceptable attendance at the worksite must be maintained. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented. Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination." Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite: Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave. The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal." The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave. Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows: 3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . . Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract. DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under its jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed at the Peace River Center for Personal Development, Inc. (Peace River Center) in Polk County, Florida, as a counselor for abused or chemically-dependent children. This job required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from his employment. Petitioner and Peace River Center were notified on February 3, 1997. As required by law, Peace River Center removed Petitioner from contact with children and assigned him to other duties. On August 31, 1990, Petitioner was charged with vehicular homicide, a felony, to which he pled nolo contendre. Adjudication was withheld. Petitioner served 3 years probation and paid costs of $275.00. The pertinent facts surrounding the accident are: (a) Petitioner was traveling at approximately 75-to-80 miles per hour in a 45 mile-per-hour zone when he struck and killed a pedestrian who was attempting to cross the street; (b) The victim was a married woman in her mid 50's with an adult son; (c) Petitioner had no excuse for the excessive speed; (d) Both Petitioner and his passenger were severely injured; and (e) There were no drugs or alcohol involved. Petitioner received some counseling after the accident; however, he currently is not receiving any counseling. Even though Petitioner testified that his inability to hold a job was related to the accident, there was no indication that Petitioner felt he needed or intended to get counseling in this regard. Petitioner graduated from high school and has completed approximately 30 hours toward his college degree. Petitioner is planning to begin college again and work toward a degree in Management Information Systems. Since the accident, Petitioner has held six different jobs. Presently, Petitioner is working with Peace River Center (see Finding of Fact 3). Before being disqualified, Petitioner appeared to be doing a credible job for Peace River Center. In April 1994 and March 1996, Petitioner was involved in automobile accidents wherein Petitioner was charged with reckless driving. No one was injured in these accidents, and there was only minimal property damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Families enter a Final Order denying Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 19th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1997. COPIES FURNISHED: Scot Adams, pro se Post Office Box 212 Highlands City, Florida 33846 Jack Emory Farley Chief Legal Counsel District 14 4720 Old Highway 37 Lakeland, Florida 33813-2030 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated September 27, 2002.
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: General Findings Respondent, Robert A. Pringle, Jr., holds Florida Educator Certificate No. 720759, covering the areas of mathematics and physical education, which is valid through June 30, 2005. Mr. Pringle has a bachelor's degree in education from Maryville College in Maryville, Tennessee. Mr. Pringle played baseball at Maryville College for five years and coached baseball for two semesters at the college. In 1993, immediately after graduating from Maryville College, Mr. Pringle was employed as a mathematics and physical education teacher at Riverdale High School ("Riverdale") in the Lee County School District (the "District"). Mr. Pringle's employment as a teacher at Riverdale has continued uninterrupted since 1993. For the past eight years, Mr. Pringle has served as Riverdale's head baseball coach. He has been Riverdale's golf coach since 2000. Mr. Pringle has had no prior disciplinary actions brought against his license. The precipitating event for the allegations in this case was the varsity baseball tryout in January 2002. During Mr. Pringle's tenure as head coach, the Riverdale baseball team had progressed from a perennial losing program to a contender for the state championship in Class 3A. Competition was fierce for the 16 available spots on the team. In some years, as many as 100 boys would try out for the team. In January 2002, 38 players participated in the three-day tryout. Mr. Pringle testified that, though the number of players trying out was lower than in some previous seasons, the quality of the players was quite high, and he knew that the cuts would be hard to make. There were 25 players trying out who had played for the Riverdale varsity or junior varsity teams, in the autumn "wooden bat" league, or for local summer or AAU teams. In 2001, there had been many complaints from the disappointed parents of players who failed to make the cut. Before the 2002 tryouts, Mr. Pringle warned the Riverdale administrators to expect another round of complaints, because he fully expected that some good players would be cut. The varsity tryouts were conducted from Monday, January 14, through Wednesday, January 16, 2002. Players were allowed to choose the positions for which they wanted to be considered. At the tryouts, the coaches assessed each player on the basis of the "five tools" of baseball: hitting for average; hitting for power; running speed; arm strength; and fielding ability. The five tools are the accepted standard for rating baseball players. Running speed was measured via a timed 60-yard dash. Arm strength was measured by timing a throw from 120 feet away for infielders and 220 feet away for outfielders, commencing from the point at which the ball touched the fielder's glove to the point at which the ball touched the receiver's glove. Two coaches would time each dash or throw to ensure accuracy. Fielding was assessed by coaches on a one-to-five scale. One coach would hit to the fielders while two others stood to the side observing. Hitting and pitching were also graded on a one-to-five scale, with several coaches observing and comparing notes to arrive at a consensus rating. The Riverdale coaches conducting the tryouts included Mr. Pringle, assistant varsity coach Justin Cook, and junior varsity coach Cliff Trosterud. They were assisted at the tryout by Tommy Watkins, Jason Guy, and Ryan Carter, all of whom play professional baseball at the minor league level, as well as Casey Brock, a former college player who assists with the junior varsity pitchers at Riverdale. Mr. Pringle posted the results of the tryouts on the door of his classroom on the morning of Thursday, January 17, 2002. Among the players who did not make the varsity team were twin brothers Willard and Chris Truckenmiller, Curtis Rine, and Tyler Caruthers. All of these boys were juniors who had played junior varsity baseball the previous year, though mostly in a backup capacity. Mr. Pringle testified that all of these boys had the ability to play high school baseball, but that the talent level on the 2002 Riverdale team was extraordinarily high and they were simply not good enough to make that team. During a change of classes on the morning of January 17, 2002, Curtis Rine entered Mr. Pringle's classroom at Riverdale. Curtis was very upset at not making the cut. He yelled at Mr. Pringle that he did not need to be on his team, that he could transfer to Bishop Verot High School (a private Catholic school in Fort Myers) and play baseball for them. Mr. Pringle did not report this incident because Curtis did not use profanity or otherwise do anything that merited discipline; he was "just a kid . . . upset that he was cut from the baseball team." On the evening of January 17, 2002, Mr. Pringle conducted varsity practice at the Riverdale baseball field. Chris Stevens, a deputy with the Lee County Sheriff's Department assigned as Riverdale's school resource officer, was in the parking lot outside the baseball field. Richard Shafer, Riverdale's principal, had informed Deputy Stevens that there were parents disgruntled about the baseball cuts and asked Deputy Stevens to stay near the baseball field to make sure Mr. Pringle was safe. Deputy Stevens noticed Kim Caruthers, the mother of Tyler Caruthers, in the parking lot with Tyler's father. Deputy Stevens approached Mr. Pringle on the baseball field and told him that Ms. Caruthers was apparently waiting to talk with him. Mr. Pringle told Deputy Stevens that he would talk to her and attempt to explain the situation regarding the baseball cuts. Mr. Pringle testified that as soon as he came near her, Ms. Caruthers began yelling and "calling me every name in the book" in a profane harangue. She said that "I hurt her son and now she was going to hurt me." Deputy Stevens concurred that Ms. Caruthers was very angry and became more agitated as the conversation went on, until she "start[ed] to boil" and repeatedly threatened that Mr. Pringle was "going to go down." Deputy Stevens told Ms. Caruthers more than once that she needed to calm down. Deputy Stevens testified that Mr. Pringle maintained a calm, professional demeanor throughout Ms. Caruthers' rant and tried repeatedly to explain the tryout process to her. After about ten minutes, Ms. Caruthers began to walk away from Mr. Pringle, then turned around and spat at Mr. Pringle. The spit landed on Mr. Pringle's shoe. Deputy Stevens told Ms. Caruthers to leave.2 Deputy Stevens told Mr. Pringle that the spitting could be construed as battery and that he had the right to press charges. At the time, Mr. Pringle saw no need to press charges. Mr. Shafer, the Riverdale principal, testified that Ms. Caruthers had been generous to the school. Among other donations, she had offered $35,000 to support the baseball program. On January 17, 2002, the same date as her confrontation with Mr. Pringle, Ms. Caruthers showed up at a school open house and told Mr. Shafer that she would not give the money to Riverdale and would take her money to a school that wanted her son. Mr. Pringle testified that matters with Ms. Caruthers did not end on the evening of January 17, 2002. Over the next three weeks, she repeatedly made threatening phone calls. She would come to the baseball field and yell at Mr. Pringle. She came into the school and shouted at him in the hallways. She threatened to circulate flyers labeling Mr. Pringle a "pervert" and a "rapist." Tiring of the harassment, Mr. Pringle filed a complaint for misdemeanor battery against Ms. Caruthers on February 6, 2002. He testified that he hoped that pressing charges would lead to entry of a restraining order that would keep Ms. Caruthers away from him. Eventually, the state attorney declined to prosecute the matter. On February 18, 2002, Tom and Mary Rine, the parents of Curtis Rine, met with Mr. Pringle, Mr. Shafer, Riverdale athletic director Boyd Gruhn, and assistant principal Don Trelease. Both Mr. Shafer and Mr. Trelease recalled that the gist of the meeting involved the Rines' contention that their son should be on the varsity baseball team. Mr. Shafer told the Rines that he had seen the scores on the cut list, looked at the quality of the people who judged the players, and concluded that the tryout had been conducted fairly and competently. At this point, the Rines launched into a series of personal allegations against Mr. Pringle. Their chief accusation concerned a story their son Curtis had told them about a bus trip to a baseball game in Miami the previous season. They alleged that on the trip back from Miami, Mr. Pringle and the other coaches went around the bus asking the players if they wanted to accompany them to "Lookers," a strip club in Fort Myers. The Rines also alleged that Mr. Pringle "always" had a dip in his mouth at games and practices,3 and that he freely used profanity in the presence of his players. Mr. Shafer asked the Rines why they would want their son to play on a team where such inappropriate behavior was occurring. The Rines responded that Mr. Pringle was a successful coach. Ms. Rine testified that at this meeting, Mr. Pringle admitted that he chewed tobacco on the field, but never when there was a student around. If he was on the field on the weekend, or during the school day when no students were present, he would use tobacco, but would take it out if anyone else approached. Ms. Rine also testified that Mr. Pringle admitted to using improper language with students, including the term "blow job." Mr. Pringle testified that he did not admit to using tobacco on the baseball field. He did admit to using tobacco away from the school and stated that his life away from the school was his own business unless he did something to embarrass Riverdale. Mr. Pringle testified that he did admit to using the term "blow job" once in a conversation with his players and expressed regret that he did not employ the term "oral sex" or some other more clinical term. Mr. Pringle explained that late in the 2000 baseball season, five Riverdale athletes, including one member of the baseball team, were facing charges for having received oral sex from an underaged female. Later, there was coverage of the matter in the local newspapers and on television news, but when the charges first arose, neither Mr. Pringle nor his players knew anything other than that the player did not show up for practice and that rumors were flying around the school. Mr. Pringle was called into the principal's office and the matter was explained to him. He then met with his players to explain the situation and gauge the team's reaction. He told his players that no decision had been made whether the player would be expelled from school or even suspended from the baseball team, and he wanted to ensure that the other players would react appropriately should their teammate later show up to play. It was a delicate situation, and Mr. Pringle wanted to be sure his players understood the facts. He used the term "blow job" in explaining what happened, because he thought that was a term the players would understand. At the meeting with the Rines, he conceded that it was a poor choice of words. Mr. Trelease confirmed Mr. Pringle's version of the discussion regarding tobacco. Mr. Pringle stated that he was a tobacco user, but he leaves his tobacco in the car and never has it on his person when he is at school. Mr. Trelease did not recall the details of the profanity discussion because it was such a minor part of the overall meeting. He stated that the Rines spent most of the meeting talking about their allegations of misbehavior on the bus trip back from Miami. Mr. Pringle's version of the discussion at the meeting with the Rines is credited. There is no essential conflict between his version and that of Ms. Rine as to the profanity discussion. They both recalled Mr. Pringle's admitting to using the term "blow job." Ms. Rine simply leapt to the conclusion that this constituted a broader admission than Mr. Pringle intended. As to the tobacco discussion, Mr. Pringle's version is supported by the credible testimony of Mr. Trelease. On Tuesday, January 28, 2002, a group of parents including Terry and Dani Truckenmiller, Mary Rine, Kim Caruthers, and the father of Sean Fox (a 2002 Riverdale graduate who had played golf for Mr. Pringle and who had failed to make the varsity baseball team as a junior) met with Mr. Shafer and Doug Whittaker, the director of curriculum for the District. Mr. Shafer testified that these parents voiced allegations that Mr. Pringle constantly used tobacco on school property, used profanity in the presence of students, and indulged in sexual innuendo with and about female students. Mr. Shafer stated that it was clear to him these parents not only wanted Mr. Pringle fired, but wanted his teaching certificate revoked. On January 29, 2002, the Truckenmillers filed a written complaint with the District. Mr. Pringle was immediately suspended from his coaching duties, though not his teaching duties, and the District commenced an investigation into the parents' allegations. Bill Shoap, the District's coordinator of personnel services, conducted the investigation. In his investigative report, Mr. Shoap framed the issues as follows: The allegations are as follows: Whether Robert Pringle ever used tobacco products on school district property during baseball practice and game times; whether he ever used profanity in front of team members; and whether he ever communicated sexual innuendo towards students. Mr. Shoap described the investigation as follows: A total of forty-nine [sic] witness statements were received regarding this investigation. Approximately 27 concerned parents, past co-workers and community members submitted letters of support for Robert Pringle, describing him as a positive role model and dedicated coach, as well as an effective teacher. Each of the 16 members of the Riverdale Varsity Baseball team (acting as witnesses) signed a letter which specifically refutes the three allegations being made against Mr. Pringle. This investigation also takes into account additional information provided by those who have worked near or along the side of Mr. Pringle, as well as those who have made the allegations . . . . Mr. Shoap submitted his investigative report to the District on February 11, 2002. On February 12, 2002, a pre-determination conference was held to allow Mr. Pringle to respond to the allegations. John Hennebery, the District's coordinator for professional standards presided over the conference, which was also attended by the District's staff attorney and a recording secretary. Mr. Pringle denied every allegation. He admitted that he does use dip, but stated that he has never done so on school grounds or at any school function, including baseball practices and games. He stated that on occasion he might have muttered the word "damn" or "hell" to a fellow coach in the dugout and that a player conceivably could have overheard, but that he had never otherwise used profanity in front of students. After reviewing the investigative report and considering Mr. Pringle's statements, Mr. Hennebery determined that there was no probable cause to proceed further in the matter and that no disciplinary action should be taken against Mr. Pringle. Mr. Hennebery testified that the allegations simply could not be substantiated. He noted that Florida High School Athletic Association ("FHSAA") rules prohibit chewing tobacco, and that no one had ever been ejected from a Riverdale baseball game for that offense. He also noted that Mr. Pringle had been accused of "cussing out" the entire team and offering trips to a strip club to a charter bus full of students, yet only a few students, none of whom included current members of the baseball team, and no coaches claimed to have witnessed these acts. In sum, Mr. Hennebery concluded that the witnesses supporting Mr. Pringle were more credible than his accusers. Mr. Pringle's suspension was lifted on February 14, 2002. At about the same time, someone filed a complaint with the Office of Professional Practices Services of the Department, which assigned Shellie White to investigate on behalf of the Department. It is noted that there was confusion at the hearing as to who filed the complaint with the Department and dispute as to the manner in which Ms. White conducted her investigation. Mr. Pringle alleged that Ms. White purposely neglected to interview any witnesses possessing exculpatory information. This allegation was lent some support by the testimony of Jason Scott, a social studies teacher at Riverdale. Mr. Scott stated that Ms. White commenced an interview with him, then stopped it after five minutes and never contacted him again. It is also noted that the Department chose not to elicit testimony from Ms. White or anyone else involved in its investigation of Mr. Pringle and chose not to clarify the question as to who filed the complaint against Mr. Pringle.4 On September 27, 2002, the Department issued its finding of probable cause and the Administrative Complaint described in the Preliminary Statement above. Terry Truckenmiller Terry Truckenmiller is the father of the twins, Willard and Chris, who were cut from the varsity team in January 2002. Of all the witnesses who testified on behalf of the Department, Mr. Truckenmiller was the most vociferous accuser. He was also the least believable. For the sake of orderly presentation, Mr. Truckenmiller's testimony is treated separately at the outset, so that the Findings of Fact in Sections III through VI below may deal with those witnesses possessing some level of credibility. In a statement provided to Ms. White, the Department's investigator, Mr. Truckenmiller wrote: In the 5 years I have known Mr. Pringle it is comman [sic] knowledge from students, staff & parents that he chews tabacco [sic] & swears every moment at school. It is comman [sic] knowledge of his sexual conduct and actions with minor girls. He has taken his players to "strip clubs" many times and supplied them with alcohol on a weekly basis. I repeat this is not an allegation-- it is FACT. Mr. Shafer (the Principle)[sic] knew of this and probably many more, that he has "sweeped [sic] under the rug." This all started when a friend of Mr. Pringle who was the wrestling coach here at Riverdale asked my son if he was having sex with his girl-friend [sic] & did she like to swallow. With her brother on the team the info got back to her mom and she brought it to Mr. Shafer's attention and the word was put around school that this family was trouble-makers. This was done from the staff at Riverdale. When this was brought forward my sons were starting QB & running back in football, starting catcher (1 son) & starting shortstop (other son). It also maybe [sic] noted that Mr. Pringle picked & told me how great my boys are & would be for Riverdale-- they would start & play full-time over the boys that are now on the team playing. He would tell us how much "better" the boys were than the others. Why did this change? I coached in high school for football, baseball and took softball teams to the state finals. I know all these kids & their talents, since I've been coaching in Lee County for over 25 years. I also know my boys are not the best on the team, but they were chosen by another high school coach who took the best 15 boys in the whole county to the national finals! Top 15 in county, but not top 15 in their local school? There must be a reason-- there is [sic] you come forward and your family gets dumped on by the staff at school. My boys had teachers come up to them and tell them to watch their backs the staff said they will get them. The "good ole boy" network at Riverdale starts with Mr. Shafer and Mr. Gruhn the athletic director, the assistant principles [sic] and athletic coaches and staff hide and alter records to please their need. Were [sic] also told if we did not go forward with our complaints that our boys grades would be "fixed" to suit us. 40 yr. old men do not ask high school kids if they "swallow", are they "easy to lay", what positions they like, who and when they have "slept with". This investigation has been in the hands of administrators for 2 yrs., we have been continualy [sic] lied too [sic] & decieved [sic] by them. What Mr. Pringle has done is wrong! If he were not a teacher he would be in prison. Our kids need role models that know right from wrong. Thank you for your time and effort in this matter. May the Lord be with you always. At the hearing, Mr. Truckenmiller stood by everything in the above statement. Thus, Mr. Truckenmiller swore that: Mr. Pringle chewed tobacco and swore continually at school; Mr. Pringle took students to strip clubs; Mr. Pringle provided alcohol to students every week; Mr. Pringle made lewd remarks to female students and possibly even had sexual relations with them; and the entire Riverdale administrative staff, from Mr. Shafer down, was made aware of Mr. Pringle's actions and conspired to cover up his activities, going so far as to offer bribes in the way of altered grades to the Truckenmillers in exchange for their silence. The statement also implies, in an echo of the Rines' meeting with Mr. Shafer, that Mr. Truckenmiller nonetheless wanted his sons to play varsity baseball on Mr. Pringle's team. At the hearing, Mr. Truckenmiller testified that, unlike Mr. Pringle, "I don't believe in abusing children . . . If a man wants to take kids to strip clubs and talk sexual innuendo with kids and ask them some of the things that he asks them, it's just totally inappropriate. You do not go up to a 16 year old girl and ask her if she swallows." Mr. Truckenmiller testified that he had witnessed Mr. Pringle "curse and swear" hundreds of times at practices and games. He stated that it was "a continuous thing," that Mr. Pringle cursed, swore, and degraded players every three minutes. Mr. Pringle used the words "shit," "piss," "damn," "hell," and "God damn," among others. He used the word "fuck" "numerous, numerous, numerous times." Mr. Truckenmiller testified that he saw Mr. Pringle chewing tobacco "basically every day for three years." Mr. Truckenmiller stated that he heard Mr. Pringle ask about a girl "swallowing" during a baseball practice with the entire team present. No other witness recalled this incident, and, when pressed during cross-examination, Mr. Truckenmiller could not name anyone else present who might confirm his story. Mr. Truckenmiller testified that he has heard 70 to 80 different people talk about the "fact" that Mr. Pringle takes students to strip clubs. He also heard "the boys" discussing the fact that Mr. Pringle supplied them with alcoholic beverages. No other witness confirmed these "facts." Mr. Truckenmiller testified that it was Mr. Shafer, the principal of Riverdale, who offered to "fix" his sons' grades in exchange for dropping his complaint. At the hearing, Mr. Shafer was shown Mr. Truckenmiller's written statement. Mr. Shafer credibly denied the allegation that he covered up anything regarding this matter and was visibly offended that such allegations were made against him. Mr. Shafer testified that none of the accusations against Mr. Pringle came forward until after the 2002 varsity baseball cuts. The administration spread nothing about the Truckenmillers being "troublemakers" and no one "dumped" on that family. He absolutely denied that anyone at Riverdale altered records or made any sort of offer to "fix" the Truckenmiller boys' grades. Mr. Shafer did recall that Ms. Caruthers had made such an offer to him, i.e., she would drop her complaint if her son were placed on the varsity baseball team and that he declined even to discuss the matter with her. In a letter dated January 18, 2002, Ms. Caruthers alleged that her son was cut from the baseball team in retaliation for an alleged incident between Tyler Caruthers and Dr. Christine Dollinger, an assistant principal at Riverdale. The allegations themselves are irrelevant and so absurd on their face that they do not merit discussion here. However, the story culminated in a scene in which Dr. Dollinger begged Ms. Caruthers not to report the incident and offered to change Tyler's grade in Spanish class in exchange for Ms. Caruthers' silence. Ms. Dollinger credibly testified at the hearing that Ms. Caruthers' letter was "offensive" and "full of lies" and that no such incident ever occurred. While no direct link was established, the similarity between Ms. Caruthers' story and that of Mr. Truckenmiller is notable enough to suggest that the former may have inspired the latter. At the hearing, Mr. Truckenmiller adamantly denied ever coordinating with Ms. Caruthers or any other parents regarding the complaints against Mr. Pringle. However, Mary Rine admitted attending such a meeting with the Truckenmillers. She denied that Mr. Pringle was the subject of the meeting, but conceded that "Bob's name probably did come up" in connection with a discussion about the laxity of the Riverdale administration in "taking care of problems when they had them." Mr. Truckenmiller also denied contacting Sean Fox about his testimony in this proceeding and claimed not to know if his wife or sons had done so. Sean Fox testified that the Truckenmillers persistently phoned and e-mailed him, both at home and while he was away at college in North Carolina in the Fall of 2002. Mr. Fox stated: "They wanted to know what I knew, kind of as their inside man, if you want to say that, since I played around [Mr. Pringle] and with him for golf and baseball, and wanted to know anything I knew." Mr. Truckenmiller testified that neither he nor his wife had ever caused any trouble or conflict while their sons played Little League baseball. Several witnesses testified to the contrary. Fred Burson, a former junior varsity baseball coach at Riverdale, a ten-year district administrator for Little League, and a witness for the Department, testified that the Truckenmillers have a "long, storied history of causing trouble." He did not know Mr. Truckenmiller well, but has known Mrs. Truckenmiller for a long time, and stated that she has caused trouble at every level of baseball in which her children have participated. Mr. Burson testified that he would never be a part of anything the Truckenmillers were involved in. Justin Cook, the assistant varsity baseball coach at Riverdale, coached both Truckenmiller boys in Little League. He testified that Mr. and Mrs. Truckenmiller complained to him about their sons' positions, then took their complaint to the Little League officials when they were dissatisfied with his response. Fred Barker is the parent of a Riverdale varsity baseball player and a coach in the autumn "wooden bat league." He has coached both Truckenmiller boys. He testified that the Truckenmillers perpetually complained about the coaching if their children did not play where and when the Truckenmillers thought was proper. Elizabeth Parrish was player agent for the Little League, and her husband was the president of the Little League during the years when the Truckenmiller children played at that level. She testified that Mr. Truckenmiller was required to step down as an assistant coach in the Little League for telling a player he would "whip his ass" if the player didn't do as he was told. Diane Byrus' son, Greg, played one year of junior varsity and three years of varsity baseball for Mr. Pringle at Riverdale, and he was a contemporary of the Truckenmillers throughout their youth's baseball careers. Ms. Byrus testified that in 2001, when Greg was playing catcher for the varsity squad, the Truckenmillers told her that Greg was no good and that Mr. Pringle should make their son the starting catcher. Ms. Byrus had observed both Mr. and Mrs. Truckenmiller coach in the Little League and stated that she would not let either of them coach her son because of the way they treated the children. Mr. Truckenmiller was "very obnoxious" on the field, cursing in front of the players, even saying the word "fuck" while coaching teenagers. Mrs. Truckenmiller was belligerent and constantly belittled other peoples' children. Ms. Byrus did not want her children to be around the Truckenmillers. The above findings are sufficient to demonstrate that Mr. Truckenmiller was a wholly unreliable witness, and his testimony has been disregarded as the basis for any finding of fact in this case. In his witness statement, Mr. Truckenmiller gathered every available scrap of hearsay and rumor about Mr. Pringle, magnified it, and presented it as "fact." For example, rumors that Mr. Pringle once suggested a trip to a strip club (discussed in Section V, supra) became, in Mr. Truckenmiller's telling, the "fact" that Mr. Pringle regularly smuggled underaged high school students into such places. Other accusations, such as Mr. Pringle's giving alcohol to students, were not even alleged by any other witness. To the Department's credit, its Administrative Complaint did not include Mr. Truckenmiller's wilder accusations regarding strip club attendance and providing alcohol to players, or his implication that Mr. Pringle may have molested high school girls. However, the Department knew or should have known that much, if not all, of Mr. Truckenmiller's testimony was fabricated, yet it chose to give him free rein to retell these stories as a witness for the Department in this case. Including Mr. Truckenmiller's inflammatory testimony in its case suggests that the Department engaged in this proceeding for reasons other than arriving at the objective truth of the matters at issue. Use of Tobacco The Administrative Complaint alleges that Mr. Pringle "chewed tobacco at baseball practice, at baseball games, on trips to games and/or at school; allowed his players (students) to do the same . . . and/or provided chewing tobacco for students despite the fact that there was a rule for athletes at the school that they could be dismissed from the team for possession of tobacco." The Department called several witnesses who stated they had seen Mr. Pringle using dip on the baseball field. Fred Burson was the junior varsity baseball coach at Riverdale under Mr. Pringle from 1998 through 2000. In an April 4, 2002, letter to the Department's investigator, Shellie White, Mr. Burson wrote: "I have seen Mr. Pringle use tobacco on the field during practice and games." However, Mr. Burson's testimony at the hearing was much more equivocal. He testified that he never actually saw Mr. Pringle put tobacco into his mouth. Mr. Burson had seen the can of dip in Mr. Pringle's car, saw a bulge in Mr. Pringle's mouth, and assumed that it was dip. He never saw Mr. Pringle carrying the can of dip in his pocket and could not recall ever seeing Mr. Pringle spit tobacco juice. Mr. Burson was not sure if any students were ever present during those times he thought Mr. Pringle had dip in his mouth, which appears to conflict with his written statement that Mr. Pringle used tobacco during baseball games. Mr. Burson never saw Mr. Pringle offer dip to a student; to the contrary, Mr. Burson testified that Mr. Pringle discouraged his players from using tobacco. Despite the fact that he was called by the Department, Mr. Burson was plainly a reluctant witness. He stated that he "resent[ed] being here" because this case was a matter of "sour grapes" and a waste of time and money. Mr. Burson testified he was never offended by anything that Mr. Pringle did and never saw Mr. Pringle do anything in the presence of parents, students, or teachers that would embarrass Riverdale. Sean Fox graduated from Riverdale in 2002 and had played junior varsity baseball and varsity golf. His witness statement to Ms. White, dated May 7, 2002, stated as follows regarding tobacco: All of the alligations [sic] against Coach Pringle are true. I have witnessed with my own two eyes, everything dealing with chewing tobacco and profanity. I witnessed him telling another teammate that he did have chewing tobacco with him and that he could have some that it was "over on top of the crate." He has some of my friends hooked on chewing tobacco thanks to him sharing it. I have had him this past year for a golf coach and he did the exact same things on the golf course. On a golf trip to Clewiston, he was chewing tobacco in the van spitting it out in a 20 oz. bottle of Coke right in front of us. His chewing tobacco is an everyday thing for him at Riverdale. At the hearing, Mr. Fox's testimony was far less assured than was his witness statement. He continued to maintain that someone at practice had blurted out a request for tobacco, and that Mr. Pringle had indicated he had some on a crate or on the dugout bench. Mr. Fox could not recall who had asked for the tobacco, though he was "pretty sure" it was a student. He agreed that his recollection of the event was "pretty hazy." Mr. Fox admitted having no basis for alleging that Mr. Pringle had hooked his friends on tobacco. Rather than "an everyday thing," Mr. Pringle's tobacco use was "every now and then at practice." In his direct testimony, Mr. Fox stated that he had seen Mr. Pringle put tobacco in his mouth "maybe once or twice." However, during cross-examination, he admitted that he never actually saw Mr. Pringle put tobacco in his mouth and never saw him spit tobacco juice, except on the Clewiston golf trip. As to the Clewiston incident, Mr. Fox admitted that he "can't honestly say" that he saw Mr. Pringle spit tobacco juice into a Coke bottle. He saw the motion of the bottle to Mr. Pringle's mouth and assumed he was spitting tobacco juice. Curtis Rine, one of the players cut from the 2002 Riverdale baseball team, testified that he once saw Mr. Pringle openly dipping tobacco in his math class, and that Mr. Pringle openly dipped tobacco on the baseball field, both at practices and at games. He testified that Mr. Pringle allowed players to use tobacco, and they would all have it in their mouths, "pretty much" at every practice and every game. The players openly used and spat tobacco at games, in front of parents, school officials, and the umpires, who did nothing about it. Curtis Rine also testified that on a bus trip home from an away baseball game, two players were dipping tobacco in the back of the bus. They swallowed the tobacco, became sick, and hung their heads out of the bus window to throw up. Curtis Rine testified that Mr. Pringle laughed when he saw the two boys throwing up. No one else associated with the Riverdale baseball team, players or coaches, either in their written statements or their live testimony, claimed to have ever witnessed players hanging out of a bus window and throwing up. Assistant baseball coach Justin Cook pointed out that the Riverdale team rides a charter bus to away games and that the windows of such a bus cannot be opened by the passengers. Mr. Pringle also denied that anyone ever threw up on the bus and noted that the bus driver would have reported such an incident had it happened. No other witness ever claimed to have seen Mr. Pringle use tobacco in the classroom. As Mr. Hennebery testified, had Mr. Pringle openly used tobacco during a baseball game, he would have been ejected. Mr. Pringle was never ejected from a Riverdale baseball game. Any player using tobacco in a game would have been ejected from that game and suspended from playing baseball for two weeks. No Riverdale player was ever ejected for tobacco use under Mr. Pringle. Mr. Pringle strongly and credibly denied allowing any player to use tobacco under any circumstances. Curtis Rine's testimony on these points cannot be credited. Mary Rine, Curtis' mother, also testified that she witnessed Mr. Pringle chewing tobacco at Riverdale baseball games. She testified that he continuously spat tobacco juice throughout the games, even while standing in the third base coach's box in full view of the umpires. She also stated that on five or six different occasions at the baseball field, she saw Mr. Pringle with dip in his mouth at the concession stand. Mr. Pringle testified that he never went to the concession stand with dip in his mouth. Amy Cafaro-Dillon's son, John Cafaro, played junior varsity baseball at Riverdale in 2001. He tried out for the varsity team in 2002, but did not survive the cut. John Cafaro played golf on the Riverdale varsity team coached by Mr. Pringle. Ms. Cafaro-Dillon testified that she has spent a great deal of time around Mr. Pringle because of her son's participation in baseball and golf. When her son was on the junior varsity team, she helped run the concession stand at baseball games. She attended every practice. Ms. Cafaro-Dillon testified that she never saw Mr. Pringle use dip on school grounds. Elizabeth Parrish's son, Robby, played four years of varsity baseball at Riverdale for Mr. Pringle and graduated in 2000. Ms. Parrish "more or less" ran the concession stand for the four years her son played baseball at Riverdale. She attended every baseball game her son played in at Riverdale and continued attending some of the games in 2001 and 2002. Ms. Parrish testified that she never saw Mr. Pringle using tobacco. The only thing she ever saw Mr. Pringle spit was sunflower seeds. Justin Cook teaches business at Riverdale and has spent three seasons as assistant varsity baseball coach. He spends hours with Mr. Pringle every day during baseball season and sits less than a foot from Mr. Pringle during games. Mr. Cook confirmed that he has seen Mr. Pringle use Copenhagen dip when he is away from school, such as on a fishing trip. However, Mr. Cook stated that Mr. Pringle has never used dip at any school-related function, including baseball games and practices, and in fact, leaves the can of dip locked in his truck when he is at school. As did Mr. Hennebery, Mr. Cook pointed out that tobacco use at baseball games violates state and school rules and that officials will eject a coach or player caught with tobacco. Jason Scott has taught social studies at Riverdale for four years, and has served as assistant golf coach under Mr. Pringle for the past two seasons. He has also attended several baseball games as a spectator. Mr. Scott testified that he has never seen Mr. Pringle use tobacco products in front of students. Fred Barker's son, Brian, played three years of varsity baseball under Mr. Pringle. Fred Barker has assisted Mr. Pringle in running the autumn "wooden bat" baseball league. He attended nearly every baseball game, home and away, during his son's career at Riverdale. Mr. Barker testified that he had no idea Mr. Pringle used tobacco until these allegations arose after the 2002 cuts. Brian Barker testified that he knows what dip looks like in the user's mouth because his father used dip for years, but that he had never seen Mr. Pringle use dip. Brian also stated that he had never seen any of his fellow players use dip, in contrast to the testimony of Curtis Rine. James Simmons has two sons who played varsity baseball at Riverdale under Mr. Pringle: Justin played four years of varsity baseball and graduated in 2000; and Joshua played two years of junior varsity, two years of varsity, and graduated in 2002. Mr. Simmons attended every Riverdale baseball game, home and away, when his sons were on the team. Between 1998 and 2001, Mr. Simmons attended nearly every baseball practice. Mr. Simmons testified that he never saw Mr. Pringle use tobacco. Greg Byrus played three years of varsity baseball at Riverdale, graduating in 2003. He also played on the golf team for two years. Mr. Byrus testified that he has used dip for about a year and knew two other Riverdale players who used dip. However, he stated that none of the three players ever used dip at a practice or a game because it was not allowed. Mr. Byrus testified that he had once seen Mr. Pringle use dip at a fishing tournament, but that he had never seen Mr. Pringle use it during a school-related function. In response to Mr. Byrus' testimony, Mr. Pringle testified that he was unaware that Greg Byrus used dip. Mr. Pringle stated that he has never seen a student using tobacco products while that student was a member of the baseball team. He has seen former players smoking or dipping tobacco products after graduation. Diane Byrus is the mother of Greg Byrus. She is the athletic secretary at Riverdale and reports to Boyd Gruhn, the school's athletic director. She attended all but two games during Greg's four years at Riverdale and sat in a lawn chair at the fence near the Riverdale dugout, no more than five or six feet from Mr. Pringle. Ms. Byrus testified that she never saw Mr. Pringle use tobacco at a school activity, though she has seen him use it in social activities away from school. Richard Shafer, the principal of Riverdale for six years, testified that when he first came to the school, he had a concern about several coaches using tobacco. In 1999, he "heard something" about Mr. Pringle chewing tobacco on the field. He had a discussion with Mr. Pringle and William Hoke, then the athletic director about the matter. Mr. Pringle denied using tobacco on the field, and that was the end of the matter. Mr. Shafer heard no complaints about Mr. Pringle chewing tobacco until after the 2002 baseball cuts. Mr. Shafer has never seen Mr. Pringle with tobacco in his mouth. Mr. Hoke, the athletic director at Riverdale during the 1998-1999 school year, testified that when word got out in the community that he was going to Riverdale, he began hearing things about profanity and tobacco use among the coaching staff. People relayed such concerns to him because they knew of his activity in the Fellowship of Christian Athletes and of his strong opposition to cursing and tobacco use. At the start of the school year, Mr. Hoke called a general meeting of the coaching staff to remind them of the rules. Mr. Hoke stated that if he ever discussed tobacco use or profanity individually with Mr. Pringle, it would have been at the "tail end" of a meeting on another subject and would have been a mere reiteration of the statements made in the general meeting. Mr. Pringle did not recall an individual meeting with Mr. Hoke about the subject of tobacco and profanity, though he did recall that Mr. Hoke "hit those topics hard" in the general meeting. Mr. Hoke testified that he watched the coaching staff "like a hawk" for objectionable behavior, and that he never witnessed Mr. Pringle using profanity or tobacco products during his tenure as athletic director. In his own defense, Mr. Pringle testified that he does use Copenhagen, a dip. He started using dip during his last year of college. Mr. Pringle fished in tournaments while in college and still fishes recreationally. He likes to put a dip in his mouth when he is out on the water fishing. He has a dip at night before he goes to bed, and occasionally when playing golf. However, when he is at school, the dip container is either locked in his truck or left at home. As a possible explanation for Sean Fox' claim that he saw a container of tobacco in the dugout, Mr. Pringle noted that the Riverdale baseball field is used by the community and by college teams. He quite often finds tobacco products, beer bottles, and other refuse at the field after outsiders have used it. Mr. Pringle flatly denied ever having offered tobacco to a student. He stated that he would never allow players to use tobacco products on the field and that he has never seen a current Riverdale player use tobacco. Mr. Pringle is a member of the FHSAA and of the Florida Athletic Coaches Association. Both associations prohibit profanity, tobacco, and alcohol at any athletic event. In high school baseball, the rules are enforced by the umpires. A player ejected for using tobacco or profanity is not allowed to play in another game for two weeks. Prior to the 2002 season, a coach ejected for tobacco or profanity was required to leave the school grounds and serve a one-game suspension. Mr. Pringle testified that the rule was strengthened in 2002 and now provides the same two-week penalty for coaches as for players. Mr. Pringle testified that in his ten years at Riverdale, no coach or player has been ejected from a baseball game or even warned by the umpires regarding tobacco use or profanity. Mr. Pringle stated that he runs a strict program. Players are not permitted to argue with or "show up" the umpires, or to throw bats or helmets. The same strict rules apply to practices as to games. Mr. Pringle testified that he has high goals for the Riverdale baseball program, and "there's no way I would allow myself or a player to jeopardize our goals" by using tobacco on the field. Mr. Pringle testified that he did use tobacco in front of Mr. Burson, when the coaches would go out for dinner after practices or especially after tryouts, to review the cut lists. Mr. Pringle stated that he will occasionally dip tobacco after dinner and likely did so on those occasions with Mr. Burson and the other coaches. Mr. Pringle recalled the golf trip to Clewiston, but denied using tobacco on that trip. He also denied ever using tobacco in the classroom. Mr. Pringle stated that he is an inveterate chewer of sunflower seeds and has chewed those on golf trips, bus trips, and even in the classroom when he is not actively teaching. If he is indoors or in a car, he spits the sunflower shells into a container. Mr. Pringle chews sunflower seeds at baseball practices and games. The assistant coach, Mr. Cook, confirmed that the coaches and some players chew sunflower seeds "all the time" during practices and games. Ms. Parrish testified that Mr. Pringle usually bought sunflower seeds from the concession stand before games. Mr. Pringle makes his own beef jerky, which he chews at practices and games. Mr. Pringle also chews gum. Any of those items could be mistaken, at a distance, for dip tobacco, particularly by someone who knows that Mr. Pringle does use dip on occasion. In summary, the Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that Mr. Pringle ever chewed tobacco at baseball practice, at baseball games, on trips to games, or at school. The Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that Mr. Pringle ever provided tobacco to his players or allowed his players to use tobacco in his presence. Swearing The Administrative Complaint alleges that Mr. Pringle "used profanity and/or demeaning language in front of students, including but not limited to words to the following effect: asking them what the hell they were thinking; telling them they were uncoachable motherfuckers; telling them they were worthless pieces of shit, sorry asses and/or fucking losers; and/or asking a student how he could be 17 years old and only be in the 9th grade." No evidence was presented that Mr. Pringle asked a student "how he could be 17 years old and only be in the 9th grade." No evidence was presented that Mr. Pringle called his players "uncoachable motherfuckers," "sorry asses" or "worthless pieces of shit." Thus, these allegations are deemed abandoned. The Department called several witnesses who claimed to have heard Mr. Pringle use profanity in front of students. In his May 7, 2002, statement to Ms. White, Sean Fox wrote: Profanity with him is an everyday thing. On the golf course, baseball field, anywhere outside of his classroom, every other word out of his mouth is profanity. On a couple of occasions in the classroom talking to him during golf season, in a quiet manner, he has used profanity in those little conversations. At the hearing, Mr. Fox testified that his written description was "pretty much accurate." Mr. Fox stated that to his knowledge this swearing occurred only in front of the athletes, not other students. Mr. Pringle would say "damn" and "hell" if the players did something wrong. Mr. Fox stated that Mr. Pringle said "fuck" once or twice in his presence. Willard Truckenmiller testified that he only heard Mr. Pringle curse a couple of times, after games. "Shit" and "damn" were the only words he could clearly recall Mr. Pringle using. He stated that Mr. Pringle might have said "hell" a couple of times, but he expressly denied ever hearing Mr. Pringle say the word "fuck." Curtis Rine testified that Mr. Pringle used profanity in front of the baseball players, either when joking around or when something happened in a game that made him mad. Mr. Pringle used "probably almost every single" curse word, including "hell," "shit," "fuck," "bitch," and "assholes." Curtis Rine stated that Mr. Pringle once called the entire team out onto the field, berated them for fooling around and not doing their jobs during the previous day's game, and called them "fucking losers." Mary Rine's older son, Tommy, played varsity baseball for Mr. Pringle in 2000 and 2001. Ms. Rine testified that Tommy would come home complaining about the swearing that occurred on the baseball field. She stated that in 2001, she wrote a letter to Mr. Shafer to complain about a variety of things, including the cursing and use of tobacco on the baseball field. Her husband delivered the letter to Ms. Dollinger, who told Mr. Rine that she would investigate the matters raised in the letter. The Rines did not retain a copy of the letter. At the hearing, Ms. Dollinger testified that she purged her files when she changed jobs a year later, and that the Rines' letter must have been destroyed at that time. She could not remember the exact substance of the Rines' complaint. She did recall bringing four baseball players into her office separately to discuss the allegations made by the Rines about Mr. Pringle and recalled being satisfied that there was no truth to the allegations. She then met with Mr. Pringle to discuss the allegations and her findings and to caution him that there were parents on the lookout for misbehavior on the baseball field. Ms. Rine coached cross-country at Riverdale for six years. While running with her team across the baseball field one day, she stated that she heard Mr. Pringle yelling at the players participating in an off-season conditioning program, "What the hell were you thinking about?" Ms. Rine conceded that the players were in the dugout and that she could not see into the dugout from her position, but she was certain that she recognized Mr. Pringle's voice. Ms. Rine testified that Mr. Pringle would swear at baseball games if the game was going badly or a player made a bad play. She recalled hearing him say "shit," "damn," and "hell," though she could remember no particular instance of his swearing aside from the incident with her cross-country team. Fred Burson testified that he has heard Mr. Pringle say the word "fuck," but only under his breath in frustration. Mr. Burson could not say whether any student heard the word. He testified that this was not typical language for Mr. Pringle, but that, like anyone else, Mr. Pringle would occasionally become frustrated and say something he shouldn't. In three years of working with Mr. Pringle, Mr. Burson never heard Mr. Pringle curse at a student or direct such language at any other person. As noted above, Mr. Hoke watched the coaches "like a hawk" during his tenure as athletic director and never heard Mr. Pringle use profanity. Justin Cook, the assistant varsity baseball coach for the last three years, testified that he has heard Mr. Pringle swear a few times when they have been fishing together, but never when performing his professional duties. Mr. Pringle has used the word "hell" two or three times in game conversations with Mr. Cook. During games, Mr. Cook and Mr. Pringle sit very close together in folding chairs outside the dugout, and are not near the players. Mr. Cook stated that he did not believe the players could hear these conversations. Mr. Cook testified that Mr. Pringle has said to him, "What the hell is going on right now?" However, Mr. Pringle has never said that to the players. Mr. Cook also recalled Mr. Pringle meeting with him in the right field corner before a game, 200 feet from the dugout where the players were sitting and saying, "How in the hell are we going to beat this team today?" Mr. Cook has never heard Mr. Pringle shout a curse word. Jason Scott, the teacher who assists Mr. Pringle with the golf team, testified that Mr. Pringle's behavior has always been purely professional. He has heard Mr. Pringle curse while playing golf with a group of adults, but has never heard Mr. Pringle utter a curse in the presence of a student. Brian Barker, who played baseball for four years under Mr. Pringle, testified that he never heard Mr. Pringle use any vulgar or sexually explicit language. The worst thing Mr. Pringle might have said was "damn," and Mr. Barker could not say for certain whether Mr. Pringle had said that. He stated that Mr. Pringle "gets on to you when you do something wrong," but never says anything to put down or demean his players. Mr. Barker testified, "[Y]ou can't really get nothing done when somebody is cussing at you . . . Why would he cuss at us to get us to work harder for him? I mean, it just don't make any sense." Greg Byrus, who played three years of varsity baseball under Mr. Pringle, testified that Mr. Pringle did not say anything that he considered cursing or profanity. He stated that Mr. Pringle would occasionally use the word "damn" or "hell" when something went wrong on the field. Mr. Byrus did not consider "damn" or "hell" to be curse words. He stated that Mr. Pringle did not shout the words; only the players sitting on the bench could hear them. Mr. Byrus expressly denied that Mr. Pringle had ever called the players "losers" or otherwise demeaned the players. Diane Byrus, Greg's mother, stated that she did consider "damn" and "hell" to be curse words, but that she never heard Mr. Pringle utter even those terms. From where she sat at the baseball games, she could hear the players talking in the dugout and was certain she could have heard Mr. Pringle cursing had he done so. Ms. Byrus stated that, in her position as athletic secretary, she would have been obliged to report to the athletic director any misbehavior by Mr. Pringle. She never saw any such misbehavior. Mark Ryan and Fred Barker both testified that they had never heard Mr. Pringle utter a profanity. James Simmons testified, "I've heard him holler at them, but he didn't cuss them." The assistant principals, Don Trelease and Christine Dollinger, both testified that they had never heard Mr. Pringle utter a profanity at a baseball game. In his own defense, Mr. Pringle testified that he has never used profanity in a game situation or at practice, and had certainly never shouted profanity on the field or in the dugout. He conceded that he has softly said "damn" or "hell" to a coach sitting next to him. He denied ever turning to a student and saying, "What the hell were you thinking?" or anything like that. He noted that use of profanity is a cause for ejection from baseball games and that neither he nor any of his players had ever been cautioned or ejected for using profanity. He also noted that Riverdale plays 15 home games every year, with an average attendance of 100 people, yet no one complained about his alleged foul language or tobacco use until after the 2002 cuts. Mr. Pringle stated that he probably had used profanity in the presence of Mr. Burson, but only away from school and never when students were present. Mr. Pringle and Mr. Burson would exchange jokes that included ribald language, all the way up to the word "fuck." In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle used profanity and/or demeaning language in front of students. The only thing clearly and convincingly demonstrated is that Mr. Pringle would occasionally mutter an oath to the coach seated next to him. Of the student witnesses, only Curtis Rine claimed to have heard Mr. Pringle berate players with profanity, including calling the entire team "fucking losers." The Department's other two student witnesses, Willard Truckenmiller and Sean Fox, recalled no such berating of players, though they claimed to have heard Mr. Pringle utter curse words. Greg Byrus and Brian Barker denied hearing Mr. Pringle use profanity in front of the players, as did assistant coach Jason Scott. Mr. Byrus did recall Mr. Pringle occasionally saying "damn" or "hell." Fred Burson, who recalled hearing Mr. Pringle use the word "fuck" on the field, testified that he said the word under his breath. Of all the witnesses not directly involved with the baseball team, only Mary Rine claimed to have heard Mr. Pringle use profanity on the baseball field. Other adults who spent as much or more time with the baseball team as did Ms. Rine testified that they never heard Mr. Pringle use profanity. The weight of the credible evidence favors Mr. Pringle. At most, the evidence establishes only that some players may have overheard Mr. Pringle say the word "damn" or "hell" to a coach seated next to him at the edge of the dugout. No credible evidence established that Mr. Pringle ever directed such language at students, or that he ever used language that any reasonable person would consider demeaning to his baseball players. Sexual Innuendo The Administrative Complaint alleges that Mr. Pringle "told coarse jokes and/or made inappropriate sexual comments in front of students, including but not limited to, comments about the following: blowjobs; lap dances; getting a piece of ass; asking a student how he would like to fuck the hell out of a certain female; asking a female student if her black eye was due to her boyfriend's penis having hit her eye while she was giving him oral sex; asking male students about their sexual relationships with their girlfriends; and/or discussing how much 'head' a student had received." In his May 7, 2002, statement to Ms. White, Sean Fox wrote the following: As far as sexual comments & gestures, he has set a world record in that department. He has made numerous sexually related comments to one of my good friends, Melissa Land. She has told me that he said "Damn, you look good in those shorts," and "If you ever need help raising a grade, I'm sure we can make a trade." Melissa didn't even have him for a teacher, so how could he help her raise her grade in another class? Melissa Nunez, Jackie Whitlock are two other cheerleaders I'm almost certain he has made sexually-referred [sic] comments to and probably even sexual contact with. On road trips with golf & baseball I have heard him make comments about the girls saying "How would you like to fuck the hell out of her?" "Just let me know, I can make it happen." Every day he has a different sexual comment about a cheerleader. I have asked other cheerleaders (who request to remain anonymous) that Pringle has asked them to have sexual fun & sexual intercourse. He has done everything he has been accused of and denied everything during baseball season to keep his coaching job. He should not be a coach, nor a teacher before some more serious [sic] happens (i.e. rape, mollesting [sic]) He thinks that since he is a teacher, he can get away with this easier. He's not at this high school to teach, he's here to take advantage of girls that are 17 & 18 years old. Someone needs to get rid of him & out of this school before rape or mollesting [sic] occurs & the school board and school really get into a situation I'm sure they don't want to be in. Lee County School Board did a horrible job investigating him before. As a student, this scares me knowing a creep, a pervert like him is on the loose getting away scot- free. At the hearing, Mr. Fox considerably softened those portions of his statement that he did not expressly disavow. Mr. Pringle's actual comments about girls were "maybe not that extreme" when compared to those in Mr. Fox' written statement. Mr. Pringle would "just say something about how good a girl would look or how maybe the way she acted." Mr. Pringle's comments were "maybe not necessarily" about cheerleaders, but about some other unnamed girls. At the hearing, Mr. Fox could recall no particular statements Mr. Pringle made about girls. When questioned about the "How would you like to fuck the hell out of her?" comment, Mr. Fox stated: I don't remember the whole "let me know" thing, "I can make it happen," but I'm sure once or twice-- I can't remember specifically, but the first statement would be true at some point. Mr. Fox testified that he wrote his statement "probably out of pure anger at the time and frustration" over being dragged into this matter at a time he was preparing for graduation and going through family problems. Graduation was supposed to be a good time, but this controversy was roiling the school and Mr. Fox was being pulled into it. He stated that, if he could, he would take back the accusations that Mr. Pringle was a "creep" and a "pervert." He testified at the hearing that Mr. Pringle was a good coach and a good role model for students. Mr. Fox admitted that, of all the girls named or referenced in his statement, Melissa Land was the only one he actually spoke with about these matters. His other allegations were based on the girls' "reputations and rumors that I have heard about them, and stuff like that." He admitted having no personal knowledge as to the truth of any of the allegations in his statement regarding Mr. Pringle and female students. Sean Fox never saw Mr. Pringle make any inappropriate comment to any female student. In a written statement to Ms. White dated April 3, 2002, Willard Truckenmiller alleged that Mr. Pringle talked to players about having sex with their girlfriends and whether the girls were "easy." He also wrote about a cheerleader, later identified as Melissa Land, who came to school with a black eye. Willard Truckenmiller alleged that Mr. Pringle asked Ms. Land "if her boyfriend miss [sic] her mouth and hit her in the eye." He alleged that Ms. Land did not come forward because she was threatened with being kicked off the cheerleading squad if she did. At the hearing, Willard Truckenmiller testified that Mr. Pringle made no sexual comments in his presence. As to Melissa Land, he disclaimed any personal knowledge of the incident, stating that he only knew what Ms. Land told him. For reasons set forth below, it is far more likely that Willard Truckenmiller's information about the incident came from Curtis Rine, the "boyfriend" referenced in the statement, than from Melissa Land. Curtis Rine testified that he was dating Melissa Land at the time of the incident. Melissa had received a black eye during a cheerleading practice. Mr. Rine testified that Melissa told him that she saw Mr. Pringle in the hallway, and that Mr. Pringle asked her, "What happened to your eye? Did your boyfriend, you know, miss your mouth and hit you in the eye with his dick?" Mr. Rine testified that this made him angry but that he did not report Mr. Pringle. Ms. Land testified that she did not know Mr. Pringle very well but that she would walk past his classroom and say hello every day during the change of classes. On the day in question, Mr. Pringle was standing outside his classroom with Mark Ryan, another teacher. Ms. Land recalled that Curtis Rine was with her as she walked past Mr. Pringle and Mr. Ryan. Mr. Pringle saw her black eye and "said something like, 'What were you doing with your boyfriend?'" Ms. Land testified that she did not take the remark as referencing sex. She simply took it as a joke and laughed, "blew it off." Later, however, Curtis Rine told her that he thought Mr. Pringle was making some kind of sexual remark. Mr. Ryan recalled the incident. He knew Melissa Land as a former student of his. She walked past Mr. Pringle and him during change of classes, and they noticed she had a black eye. Mr. Pringle said something like, "What happened to you?" This was in the context of a brief, lighthearted conversation about whether cheerleading is a "sport," a running joke in the hallways of Riverdale. The entire conversation lasted no more than twenty seconds. When asked directly whether Mr. Pringle made any kind of sexual remark to Melissa Land, Mr. Ryan testified: Absolutely not. I mean, I have been a teacher for 15 years in Lee County, and any remark of a sexual nature would be something that would be imprinted in my memory. And no. I mean, nothing like that has ever happened. You know, I mean, this conversation, if it’s a conversation that becomes something out of the normal teacher- student, in passing, joking type of conversation, you would remember that. Absolutely not. That would be something that... it would just... it would absolutely stick. Mr. Pringle testified that he and Mr. Ryan were standing in the hallway when Melissa Land came walking by. Curtis Rine was not with Ms. Land. Mr. Pringle asked Ms. Land what happened to her eye, and she explained that another girl accidentally hit her during cheerleading practice. Mr. Pringle jokingly asked how she could get hurt in cheerleading, since it was not a sport. At the hearing, Mr. Pringle explained that this was a running joke at the school because Riverdale's cheerleading team is highly competitive and nationally ranked, yet receives no money from the school's athletic budget. Melissa Land laughed, and that was the end of the conversation. It is clear from the testimony of all involved that the sexual content of this incident derived from the mind of Curtis Rine, not from anything Mr. Pringle said to Melissa Land. Any fair-minded investigation could only have led to the conclusion that this allegation was, if not utterly devoid of merit, then certainly one that could not be proven by clear and convincing evidence when no one who was actually present recalled Mr. Pringle saying anything like what was alleged. The fact that such a vile and improvable allegation was included in the Administrative Complaint again raises questions as to the Department's intent in bringing this case against Mr. Pringle. In his written statement to Ms. White dated April 3, 2002, Curtis Rine wrote: Now about the strip clubs and sexual coments [sic]. One night we had a baseball game in Miami and on the way home, there were a couple of us in the front of the bus and [Mr. Pringle] asked if we were gonna go to Lookers with him (strip club) and we said no. I also heard him ask Matt Howerton how many blow jobs has he got now. At the hearing, Curtis Rine stood by the text of his statement, though he noted that he believed Mr. Pringle was joking about taking the boys to a strip club. Matt Howerton was another player on the Riverdale baseball team. It was well known, at least among the baseball players, that Matt's older sister was a dancer at "Lookers," the strip club allegedly mentioned by Mr. Pringle. Curtis Rine stated that Matt laughed when Mr. Pringle suggested they go there. Brian Barker was one of the Riverdale players on the charter bus to the Miami game. He never heard Mr. Pringle make a comment about going to Lookers or any strip club, on that trip or at any other time. Mr. Barker stated, "I definitely would recall something like that, yeah." Greg Byrus was another Riverdale player who rode the bus to the Miami game. He never heard Mr. Pringle say anything about going to Lookers, though he qualified his statement by noting that he was in the back of the bus and Mr. Pringle was sitting in the front. Assistant coach Justin Cook sat next to Mr. Pringle on the bus coming back from Miami. Mr. Cook testified that Mr. Pringle never said anything about going to Lookers and has never made any comment of the kind to students in Mr. Cook's presence. Mr. Pringle testified that he never made any comment about going to Lookers. He stated that he would never make such a comment, if only because it was a "very touchy subject" due to the fact that Matt Howerton's sister worked at the club. Other kids gave Matt "a hard time" about it, in a teasing manner. Mr. Pringle did not approve of the teasing and disallowed it on the baseball field. Mr. Trelease testified that the Lookers allegation was raised by the Rines at their meeting with him, Mr. Shafer, Boyd Gruhn, and Mr. Pringle on February 18, 2002. Mr. Trelease stated that when the school's administration investigated the matter, it could find no substantiation for the allegation from any player on the bus. Thus, on the record produced at the hearing, Curtis Rine is the sole witness to Mr. Pringle's alleged invitation to a bus full of students and coaches to join him at a strip club. This allegation has not been proven. Other sexual comments were attributed to Mr. Pringle by Sean Fox, Willard Truckenmiller and Curtis Rine: asking "How would you like to fuck the hell out of her?"; asking whether certain girls were "easy"; asking how often they had sex with their boyfriends; and asking a student how many blow jobs he'd had. Mr. Pringle denied ever making any such comments. No other coach ever heard him make such comments. Brian Barker and Greg Byrus denied ever hearing Mr. Pringle make such comments. The District's investigation concluded there was no reason to give credence to these allegations. Mr. Trelease noted that no such allegations had ever surfaced against Mr. Pringle until the 2002 baseball cuts were made. Mr. Hennebery noted that even after the allegations against Mr. Pringle had reached the District level, the charges of sexual innuendo did not come up until the investigation was nearly complete, as a sort of afterthought. In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle told coarse jokes and/or made inappropriate sexual comments in front of students. Conclusions The Department produced not a single disinterested witness to support any of the allegations brought against Mr. Pringle. In some cases, this would not be of overriding significance. However, in this case, the accusations regarding Mr. Pringle alleged that his behavior was open and notorious. He cursed freely and often, in front of the entire baseball team and any parents who happened to be in the vicinity. He chewed tobacco at Riverdale baseball games, in full view of the fans, school officials, and umpires. He offered to take a bus load of minors to a strip club. Yet the only persons who witnessed these acts were those who had been cut from his baseball team or their parents. To give credence to these allegations, one must be prepared to believe that the entire Riverdale baseball team, their parents, several Riverdale teachers and all of its administrators, and the Lee County School District either lied or acted in bad faith to protect Mr. Pringle. The undersigned was not persuaded that such a conspiracy existed and is at a loss to understand how the Department could have been so persuaded. The testimony of two of the Department's own witnesses, William Hoke and Melissa Land, tended to support Mr. Pringle's version of events. Department witness Fred Burson testified that this case was "a waste of time," and could not say whether any student ever witnessed Mr. Pringle's tobacco chewing and cursing. Mr. Pringle testified that he had indeed cursed and dipped tobacco in Mr. Burson's presence, but never in the presence of a student. Sean Fox, author of some of the most sordid accusations against Mr. Pringle, retracted the bulk of them on the witness stand. He now regretted the vitriol of his written statement and testified that Mr. Pringle was a good coach and a good role model, though in January 2002, he had told teacher Jason Scott that he was not trying out for baseball "because I hate Pringle." The Rines and the Truckenmillers carried clear grudges against Mr. Pringle because of the 2002 baseball cuts. The Rines' dissatisfaction with Mr. Pringle actually dated back to their elder son Tommy's experiences on the Riverdale baseball team, having nothing to do with cursing or tobacco use. The parents believed that Tommy had the potential to pitch at the University of Florida. Mr. Pringle and his assistants did not share that opinion. The Rines were angry that Tommy pitched only sporadically for Riverdale and that the coaches would not risk their own credibility by recommending Tommy to college and professional scouts. As Curtis Rine put it, Mr. Pringle had "screwed over" Tommy, and his parents believed that Mr. Pringle was going to "screw me over, too." The local newspaper and television stations ran stories on the allegations against Mr. Pringle while the District was conducting its investigation. John Hennebery and Bill Shoap both testified that the District has a strict confidentiality rule regarding ongoing investigations, and both testified that the District was not the source for these stories. Mr. Pringle credibly testified that a television reporter indicated to him that the sources for the story were Mary Rine, Kim Caruthers, and one of the Truckenmillers, all of whom sought to create a public scandal that would lead to Mr. Pringle's dismissal. When the news was released that the District had cleared Mr. Pringle of the charges against him, Tom Rine, the father of Curtis and Tommy, flew into an obscenity-laced tirade against Mr. Pringle in the presence of two female Riverdale students who were visiting the Rine home. In front of these girls, Mr. Rine threatened violence against Mr. Pringle in explicit terms. Mr. Rine's behavior was so extreme and threatening that one of the girls reported the matter to Deputy Stevens, who filed an incident report and let it be known that Mr. Rine should stay away from the Riverdale campus. Mary Rine testified that her husband assured her that he did not engage in this tirade. Both of the female Riverdale students testified that he did. The Department listed Mr. Rine as a witness, but elected not to call him. These facts are recited not to further discredit the Department, but to point out that the Department knew or should have known of these facts before it elected to proceed against Mr. Pringle, or at least before this matter ever reached the point of a formal hearing. As far as Riverdale High School and the Lee County School District were concerned, this matter was concluded on February 14, 2002. For reasons not apparent to the undersigned, the Department of Education elected to revive these charges and extend Mr. Pringle's ordeal for an additional year and a half. The Department did not come close to carrying its burden in this case. Moreover, the Department should have known that it could not carry its burden long before this case came on for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 6th day of November, 2003, 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 6th day of November, 2003.
The Issue Whether Respondent, American Water Service Company, Inc., (“American Water”), discriminated against Petitioner, Micheal D. Bristol (“Bristol”), in violation of the Florida Human Rights Act and, if so, what penalty should be imposed?
Findings Of Fact Bristol is a 33-year-old, Caucasian male. He has been diagnosed with lumbar disk degeneration, depression, and anxiety. He holds a General Education Degree. At all times relevant hereto, Bristol was employed by American Water as a customer service representative. A customer service representative fields calls from American Water’s customers concerning complaints, renewals, changes in services, or other issues. The customer service representative uses a telephone and computer to respond to between 60 and 100 customer inquiries per day. The customer’s account information is brought up on the customer service representative’s computer in order to assist with whatever issue is raised concerning the customer’s complaint or issue. American Water is a utilities company that contracts with municipalities to provide water and sewer services to the citizens of the cities. It is a national company with water utility customers in several states. It is governed in part by the Public Utilities Commission and is charged with meeting certain standards regarding customer complaints. Having customer service representatives who are available and qualified is an important factor in meeting those standards. There are between 200 and 250 customer service representatives at American Water’s office in Pensacola, Florida, where Bristol was employed. American Water has another customer service center in Alton, Illinois, with about 200 customer service representatives. Calls coming in from customers are routed to the first available representative, regardless of at which service center they are working. Each representative sits in a cubicle with a desk holding two computer monitors, a telephone, and other necessary equipment. The customer service representatives wear headsets for the telephone which have cords of five to six feet in length. The back side of the cubicle is open to a common area. It is imperative that American Water maintain an adequate workforce of representatives each day. Using historical data, American Water tries to estimate the number of representatives who must be working each hour of each day. Some days historically have more incoming calls than other days, and American Water staffs accordingly. It is understood that some employees may need to take sick leave from time to time. All employees are given vacation days. Thus, making sure that there are enough workers on any given day is a moving target, yet it is integral to the work being done. American Water has instituted policies to help assure adequate staff. For example, there is a limit on the number of employees who may be on vacation at any given time. Some employees are allowed to work part time, but with a very definitive schedule. All employees are required to notify American Water immediately if they are unable to work on their assigned dates and times. Attendance is a singularly important requirement for an American Water customer service representative. At some point in time after he was first hired by American Water, Bristol was diagnosed with a degenerative disk disorder. The disorder causes him discomfort, making it difficult to sit for long periods of time. (However, see paragraph 19, below.) Bristol left his employment with American Water in October 2010. In May 2011, he returned to American Water, again as a representative in the customer service center. He had the same duties as in his previous employment. As Bristol began to experience more problems with his back, he began to use up all of his annual leave and sick leave when he felt he was unable to work. There was no evidence presented at final hearing as to how many annual leave hours employees receive, but each employee is allowed 80 sick leave hours per year. In 2012, Bristol applied for additional leave under FMLA and was approved for 480 hours, equivalent to 60 full work days. American Water approved intermittent leave under FMLA for one day per month with up to two days per time. During calendar year 2012, Bristol used some but not all of his FMLA leave. Bristol reapplied for FMLA leave again in February 2013, and was approved for another 480 hours. In that year, he used all 480 hours of FMLA leave. Bristol took leave whenever he felt like his back pain would prevent him from working. The leave was described as “intermittent” because there was no regular schedule or times associated with the leave. His schedule was, therefore, contrasted from a part-time employee who works fewer hours on a predetermined but regular schedule. On or about November 18, 2013, Bristol was notified that his FMLA leave had been used up. He had also exhausted his annual leave and sick leave allotment. Despite the fact that Bristol’s intermittent leave had created scheduling problems for the company, an employee of American Water provided Bristol with the necessary paperwork for requesting leave under the Americans with Disability Act (“ADA”). Part of that paperwork was a Health Care Provider Statement (“HCPS”) to be completed by his physician. Bristol was advised that after completing the HCPS, American Water would try to ascertain whether there were any accommodations they could provide to him on the job. Bristol submitted the HCPS to his treating physician to be completed and returned to American Water. Meanwhile, American Water tried to accommodate Bristol’s condition. He was provided an ergonomic work station, having a desk that could be raised or lowered, allowing Bristol to work while standing or sitting. He could change positions as needed to alleviate his back pain as much as possible. He could move, albeit not very far, within his small work area. Contradictory testimony was presented as to the exact size or configuration of the work space, so how much Bristol was able to move around is not clear. It is clear, however, that American Water attempted to accommodate his needs as much as the situation allowed. Bristol’s physician, Dr. Carie Fletcher, completed and signed the HCPS on November 26, 2013. The form was provided to American Water. Based upon the information supplied by Dr. Fletcher, American Water notified Bristol by letter dated December 2, 2013, that the current ergonomic work station and job duties were sufficient accommodations for the malady described by his doctor. Bristol said he did not believe the accommodations were sufficient. American Water thereafter asked Dr. Fletcher whether she had anything to add concerning Bristol’s disability or impairment. In response to that inquiry, Dr. Fletcher amended her previous submission, specifically on sections 4(b) and 7 of the form. Section 4(b) asks this question: “Is the Patient ‘substantially limited’ as to the condition, manner, or duration under which the Patient can perform that major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” Dr. Fletcher had originally stated, “Cannot stand/sit for prolonged periods (>1 hr), cannot lift objects >25 lbs secondary to back pain.” Upon American Water’s inquiry, she added this statement: “May expect exacerbation of back pain/DJD intermittently, up to 5-7 occurrences per month, at two days per occurrence.”2/ The question at section 7 of the form asked, “Does the diagnosed condition or conditions affect the Patient’s ability to perform any one of the essential functions of the Patient’s position?”. Dr. Fletcher originally stated: “Recommend allowing frequent position changes, limit lifting; will likely still experience intermittent exacerbations of back pain.” When American Water asked for additional detail, Dr. Fletcher added: “Please allow pt to stand and walk at liberty for approx five minutes every hour.” The amendments were provided to American Water on December 10, 2013. American Water’s HR personnel discussed the doctor’s recommendations and decided that the ergonomic work area and the extension cord on the telephone headset would allow Bristol the movement and flexibility needed. Lifting heavy objects was not part of Bristol’s job duties, so that was not discussed. Dr. Fletcher did not specifically suggest intermittent leave for Bristol, nor did she state that he would need to take leave five to seven times per month at one to two days per time. Rather, her response to American Water’s inquiry was that Bristol “may expect exacerbation” of his condition five to seven times a month. In section 8 of the form – which is the section for the physician to recommend accommodations – Dr. Fletcher wrote only, “As noted above.” (Again, see endnote 2, below). On January 31, 2014, American Water again contacted Dr. Fletcher for additional information. She was asked about Bristol’s mental or psychological disorder, to which she replied, “depression and anxiety” but that the condition did not currently limit Bristol’s activities. As to the lumbar disk degeneration, the limitations were listed as, “limits his ability to sit/stand/lift items and duration of work tolerated.” Dr. Fletcher was provided a matrix outlining Bristol’s essential job functions and asked what accommodations might be warranted for each. Dr. Fletcher replied to those inquiries on February 6 as follows (paraphrased): As for typing, Bristol may need to take breaks every hour; As for sitting, Bristol should be allowed to move/walk for five minutes every hour; As for standing, Bristol should be allowed to sit/rest for five minutes every hour; As to whether he could work full time, i.e., attendance, yes, as long as the previously noted accommodations were provided. It is significant that Dr. Fletcher again did not recommend intermittent leave for Bristol. Bristol nonetheless continued to ask American Water to approve intermittent leave as an accommodation. The primary reason American Water would not approve intermittent leave for Bristol was that it was necessary to be able to staff the customer service center at all times. Allowing employees to miss work randomly would adversely affect American Water’s ability to insure adequate staff. In fact, American Water considered Bristol a very good employee and would have preferred to retain him if possible. This was despite an allegation that Bristol had forwarded computer screen shots of customers to his personal email address, a terminable offense. American Water considered its actions to be in compliance with the recommendations of Dr. Fletcher. Although attached to a headset wire, Bristol had some minimal ability to move about his work space. He was able to stand when he needed to stand and sit when he needed to sit. He was not required to lift anything over 25 pounds. He was able to leave his work station to walk around every hour or so, but would have to log out temporarily to do so. Employees could log out using a special “AUX” code for bathroom breaks. It must be noted that during the entirety of the final hearing, Bristol sat without taking (or asking for) any breaks. He did not take advantage of breaks requested by others; rather, he remained seated as he talked with his counsel. His willingness and ability to remain seated during the final hearing flies in the face of his stated difficulties while working at American Water. While there may be some unstated reason that Bristol did not need relief at the final hearing, without some explanation that fact significantly affects the credibility of his testimony.3/ Bristol continued to miss many days (or parts of days) at work after his FMLA leave was used up. Being away from one’s work station for over an hour was considered an absence by American Water.4/ He presumed that those absences would ultimately be covered or approved under his anticipated ADA leave, but no one ever told him that would be the case (nor did he inquire about it). His presumption was based on the fact that his prior absences while applying for FMLA leave had been covered once FMLA was approved. While waiting for a response to the ADA leave request, Bristol continued working at American Water – and continued missing all or parts of days from work. He would ask his direct supervisor, Shelby Weese, about the status of his ADA application from time to time, but she did not have any information from HR to share with him. On February 13, 2014, Bristol and his union representative (Courtney Brown) met with HR business partner Delles. Bristol at that time explained that he believed his ADA leave would be retroactively applied to his unexcused absences. At this meeting, Delles explained that the FMLA leave Bristol had taken previously was mandated by law, i.e., American Water could not object to the leave once Bristol was approved. To obtain FMLA leave, an employee needs only to work the requisite number of hours in their job. Thus, he was allowed to miss numerous days of work without recourse. The ADA leave, however, was different; the requirements for approval of ADA leave are more stringent than for FMLA leave. An employer does not have to grant ADA leave, but is required to approve FMLA leave if the employee qualifies. At the meeting with Delles, Bristol advised her that he would be filing a claim against American Water with the Employee Equal Opportunity Commission. This was despite the fact that American Water had attempted to provide accommodations. Further, Bristol had never been chastised or reprimanded by American Water for applying for ADA leave or FMLA leave. In fact, American Water had prompted Bristol to apply for ADA when his FMLA leave was exhausted. All the while, Bristol continued to be absent from work in excess of his available leave. Bristol had been notified on June 12, 2013, that he was being issued a Level I verbal warning for non-attendance pursuant to American Water’s attendance policy. On that same day, he was notified that he was being issued a Level II written warning for non-attendance due to a second occurrence. On November 15, 2013, he was given a Level III final written warning for non-attendance. A Level I verbal warning is issued when an employee uses up his sick leave and annual leave and then misses between one hour and one full day of work, i.e., an unexcused absence. The warning would remain “active” in an employee’s file for up to six months. A Level II written warning is issued when the employee has a second unexcused absence while the verbal warning was still active. The Level II warning would remain active for up to 12 months. A Level III final warning is issued when there is a third unexcused absence while the Level II warning was still active. If there is a fourth unexcused absence, the employee’s contract of employment will be terminated. American Water followed its progressive discipline policy regarding Bristol’s absences. On February 24, 2014, Bristol was notified by American Water that his employment was being terminated. The stated reason for the termination of employment was excessive absences. The letter of notification indicated absences of over one hour on 34 additional days following his final written warning. Bristol refused to accept the accommodations suggested by American Water. He maintained that the only way he could continue working was to be allowed to take intermittent leave whenever he felt the need. American Water could not agree to that plan because it had a defined need for customer service representatives to be available on the days they were scheduled, except for normal expectation of sickness or other unforeseen reasons for being absent. Otherwise, American Water would find it impossible to effectively schedule the necessary number of representatives on any given day. American Water did not offer Bristol an alternative job because, as a union member, he was in the only job covered by the union. Whether he could have withdrawn from the union was not discussed with Bristol (or addressed at final hearing). After termination of his employment at American Water, Bristol became employed as a “salad chef” at a local restaurant called Jaco’s. He works approximately seven hours each day and stands for the duration of his work shift, but he gets to walk around the kitchen area. Bristol did not say whether Jaco’s was asked to provide any accommodations for his disability. This fact, too, negatively colors Bristol’s credibility concerning his claims against American Water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that American Water Service Company, Inc., did not discriminate against Micheal D. Bristol. DONE AND ENTERED this 24th day of April, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 24th day of April, 2015.
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
