Findings Of Fact Respondent is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners, who practices in Cape Coral, Florida. In the Sunday, August 6, 1978, edition of the Fort Myers News-Press there was published an advertisement which was headlined "Chiropracters Seek Research Volunteers." The text of this advertisement read as follows: The International Pain Control Institute is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis. Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress paterns [sic], spinal curvature, muscle spasms, muscle imbalance, spinal distortions, and scoliosis. This is a public service program for participating volunteers. The doctors are contributing their time, service, and facilities for the program. Anyone wishing to be a volunteer may tele- phone participating doctors directly for information or an appointment. In the above-quoted advertisement, readers were directed to contact the office of Respondent ". . . for free consultation, preliminary exam and Contour Analysis . . ." Peggy Mills, and her husband, Harry Mills, both of Cape Coral, Florida, read the above-quoted advertisement on or about August 6, 1978. Mr. and Mrs. Mills each made an appointment with Respondent for Contour Analysis on August 12, 1978. Mr. and Mrs. Mills both appeared at Respondent's office on August 12, 1978, and advised Respondent that they had come in response to his advertisement in the Fort Myers News-Press. Respondent performed a Contour Analysis on both Mr. and Mrs. Mills. Respondent advised Mrs. Mills that the Contour Analysis indicated some physical problem in her neck, which was consistent with the medical history given by Mrs. Mills. Respondent advised Mrs. Mills that, since she had volunteered to participate in the Contour Analysis program, that he would perform an additional X ray and would allow her three additional office visits for a charge of $75.00. Respondent also advised Mr. Mills that his condition did not appear to be as bad as that of his wife, and that Respondent would perform the same procedures on Mr. Mills for only $50.00. Respondent left Mr. and Mrs. Mills alone to discuss whether they wished to avail themselves of the proffered additional treatments. Mr. and Mrs. Mills apparently decided to proceed with treatment and, on August 12, 1978, gave to Respondent a post-dated check in the amount of $125 to cover the cost of that treatment. Payment in the form of the post-dated check was made after Mr. and Mrs. Mills had requested that they be allowed to pay Respondent for the continued treatments on an installment basis after each office visit. Both Mr. and Mrs. Mills testified that they made their initial appointment in response to the advertisement assuming that the "research program" was a government funded program and that they would, in effect, be getting "something for nothing" in that they would obtain a diagnosis of their condition at no charge. In fact, Respondent performed a Contour Analysis on both Mr. and Mrs. Mills, showed them the photograph resulting from this analysis, discussed the photograph with them, and performed a gross physical examination, including palpation of their spines, on both of them. In addition, both Mr. and Mrs. Mills were furnished with research questionnaires which they filled out on their initial visit to Respondent's office. Respondent charged, and received, nothing from either Mr. or Mrs. Mills for the services performed during the August 12, 1978, visit. In the course of discussing the results of the Contour Analysis with Mr. and Mrs. Mills, Respondent informed Mr. Mills that there appeared to be little that he could do for him, but that there was a possibility that he could help Mrs. Mills with her neck problems. Respondent further advised both Mr. and Mrs. Mills that for a total of $125, he would see both of them for an additional three office visits, the first of which would involve the taking of additional X rays, followed by a second visit for a thorough physical examination, and a final appointment to discuss additional findings and a recommended course of treatment, if necessary. Respondent also advised both Mr. and Mrs. Mills that he could refer them to another doctor should he conclude that he could do nothing further for them at the end of the third visit. Although Mr. and Mrs. Mills agreed to pursue this course of treatment, and delivered a post-dated check to Respondent for $125, they apparently later had second thoughts about the advisability of receiving further treatment from Respondent. Mrs. Mills apparently checked with other chiropractic physicians and determined that she could obtain the type of diagnostic procedures offered by Respondent at a cheaper price. In fact, it appears from the evidence in the record in this proceeding that Mr. and Mrs. Mills' chief complaint was not that Respondent proposed to charge them for the three follow-up consultations, but that the amount which he proposed to charge was too high. Mr. and Mrs. Mills stopped payment on the post-dated $125 check and declined to keep the appointments which they had initially scheduled with Respondent. No testimony was offered in this proceeding regarding the existence, location or function of the International Pain Control Institute. No testimony was offered by Petitioner in this proceeding to indicate that Petitioner gave notice to Respondent of facts which the agency contends warrant the revocation, suspension, annulment or withdrawal of his license to practice chiropractic, or that Respondent was given an opportunity, prior to the filing of the Administrative Complaint in this cause, to demonstrate compliance with all lawful requirements for the retention of his license.
The Issue Whether Respondent, The Keyes Company, discriminated against Petitioner, Kim-Renée Roberts ("Roberts"), during her employment with Respondent, in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes (2017), based on her gender.
Findings Of Fact The undersigned makes the following findings of facts based on the testimony presented at the hearing, the exhibits, and the record: Roberts is a female and has been a Florida-licensed real estate agent since 1988. Respondent is a real estate brokerage company. Mike Pappas ("Pappas") is Respondent's President and CEO. Kozlow has worked for Respondent for over 28 years and currently serves as its regional sales and branch manager at the branch located in Palm Beach Gardens, Florida. Third Palm Capital is the developer of a real estate project called the VistaBlue Project, a condominium located on the Atlantic Ocean on Singer Island in Palm Beach County, Florida. Keith Spina was the architect for the VistaBlue Project. Spina, Keith's brother, who is a Florida-licensed real estate agent, was contacted to gauge his interest in securing the listing for the VistaBlue Project on behalf of Respondent. After Respondent's representatives and Spina participated in meetings with Third Palm Capital, an exclusive listing agreement was reached on September 25, 2015, under which Respondent, through the management of Spina, would serve as the listing agent for the VistaBlue Project. Spina hired Roberts and Harris, another Florida-licensed real estate agent, to work as on-site sales people for the VistaBlue Project. As on-site sales people, it was their primary job to sell condominium units and interact with potential clients who visited VistaBlue's sales gallery. During the relevant time period, Harris was the only male working under Spina with respect to the VistaBlue Project. Spina also hired Farnsworth and Grunow as his administrative assistants for the Project. Despite her title, Farnsworth was also a Florida-licensed real estate agent. Ultimately, Spina's sales team was comprised of Roberts, Harris, Farnsworth, and Grunow. Spina later replaced Harris with Debbie Walker ("Walker") after Harris voluntarily left in February 2016. This sales team operated under Spina's supervision and he was their boss for all intents and purposes. Spina considered himself the "chief" of the sales team he assembled, with the understanding that Kozlow and Pappas were the two higher executives in the chain of command at Respondent. Since Spina was considered the sales team leader, Kozlow deferred to Spina to make daily decisions regarding his team. She generally did not involve herself in his decisions. As the team's boss, Spina had the discretion to hire and fire people on his team.1/ Spina developed the team's work schedule and work expectations. There was, however, frequent input from the other team members before he created the work schedule. Most of Spina's sales team began working on the VistaBlue Project in October 2015. Roberts, who was hired as an independent contractor on October 1, 2015, started work on the sales team in November 2015. Roberts was employed by Respondent as a real estate sales associate pursuant to an Independent Contractor Agreement ("Agreement") that contained details of her employment arrangement and responsibilities. Pet. Ex. 3. The Agreement was signed by her and dated October 1, 2015.2/ The Agreement and the meaning of its terms are not in dispute. The document speaks for itself. However, it contained several pertinent provisions paraphrased below: Roberts was not subject to the control of Respondent in the conduct of her business as a real estate sales associate. Pet. Ex. 3, ¶ 2.3/ As an independent contractor, she would not be treated as an "employee" with respect to her services for federal taxes or for any other purposes. Pet. Ex. 3, ¶ 1. She was solely responsible for all expenses associated with the conduct of her business. Pet. Ex. 3, ¶ 6d. She had no authority to bind Respondent to any promise or representation, unless expressly authorized to do so by Respondent in writing. Pet. Ex. 3, ¶ 8. She agreed to sell, lease, rent real estate listed with Respondent, and solicit additional listings on behalf of Respondent. Pet. Ex. 3, ¶ 6a. The Agreement could be terminated by either party on one day's notice. Pet. Ex. 3, ¶ 13. She agreed to pay any applicable membership or participation fees imposed by the local Board of Realtors. Pet. Ex. 3, ¶ 6c. She agreed to maintain her own automobile liability insurance at her cost. Pet. Ex. 3, ¶ 6g. As far as on-site responsibilities were concerned, the VistaBlue listing agent, Spina, was responsible for the real estate services required for the successful operation of his sales team and the promotion and sale of the condominium units by Respondent. Regarding compensation, Spina agreed to share some of his commission from the VistaBlue listing with Respondent sales associates, Roberts and Harris. The developer agreed to advance a monthly draw against the commission for the sales associates that worked at the VistaBlue Sales Gallery. On October 1, 2015, prior to the opening of the "on- site" VistaBlue Sales Gallery, Spina's sales team worked full time, five days a week, at Respondent's Legacy Place branch office preparing the ground work to launch the VistaBlue Project. Roberts started working on the VistaBlue team in the beginning of November 2015 and, like the others, first reported to Respondent's Legacy Place branch office. Spina expected all the team members, including Roberts, to attend the Legacy Place branch office from 9:00 a.m. to 5:00 p.m., five days a week during the start-up period. However, at the end of her first day at Respondent's Legacy Place branch office, Roberts informed Spina that she would not be coming back to Respondent's Legacy Place branch office because it was not what she was paid to do. Consequently, for some period, Roberts worked from home and received emails there.4/ Roberts's refusal to work at Respondent's Legacy Place branch office during the start-up period did not provide Spina the cohesive "team support" he needed during the early stages of the VistaBlue Project. The fact that Roberts did not work at Respondent's Legacy Place branch office on any consistent basis during the start-up period caused hard feelings, dissension, and frustration with Spina and the others who were working at the office. Eventually, in January 2016, the VistaBlue Sales Gallery officially opened on the condominium/project site.5/ Under the listing agreement with the developer, there were staffing requirements for the VistaBlue Sales Gallery. The listing agreement required Spina to ensure that two associates and one administrative assistant were on hand every day of the week: 10:00 a.m. to 5:00 p.m., Monday through Saturday; and 12:00 p.m. to 5:00 p.m. on Sunday. Roberts' late arrivals and sporadic attendance continued at the new VistaBlue Sales Gallery once it opened in January 2016. During the course of her employment, Spina discussed with Roberts the issues he had with her. Spina and Roberts disagreed, apparently, on many things, including, operation, sales and marketing decisions, and strategies.6/ Spina and Roberts disagreed, for instance, that she should go out and do sales calls before the sales gallery was open, they disagreed on her calling other agents to seek leads and market the property, they disagreed on when she should arrive at the office each day, they disagreed about marketing materials she did not like, and they disagreed about the use of a scale model kept at the site. Harris, the other male sales associate working at the VistaBlue Sales Gallery, testified that Roberts did not arrive at work on time very often.7/ According to Harris, Roberts would frequently arrive at the VistaBlue Sales Gallery an hour late. This frustrated Spina when he came to the sales gallery and she was not there. Grunow, a female who also worked in the sales office, testified that when Roberts was late, she heard Spina telling her that he expected her to be there on time and he expected her to be working while they were in the sales gallery. However, she never heard Spina yell at Roberts. Spina just talked loudly. Roberts acknowledged that her late arrivals caused dissatisfaction and frustration by other members of the sales team. It was apparent to the undersigned that Roberts' recurrent late arrivals at the VistaBlue Sales Gallery caused dissension and some frustration by other sales team members. Roberts could not recall if there were any formal rules that she had to follow while working at the sales gallery. According to Roberts, there were no practices or guidelines for how work was done at the sales gallery. Roberts' gender discrimination claim against Respondent is based upon the way Spina treated her, as opposed to other male employees in the office. In general, Roberts claimed that in meetings or in front of other team members, Spina yelled at her, berated her, and belittled her under a variety of different scenarios and circumstances.8/ She claimed that Harris was able to keep his draws, but she was not; that Harris could come and go as he pleased, but she could not; that her job was threatened when she spoke up; and if she did not do what Spina told her, her job was in jeopardy. She claims that when she brought up suggestions, she was belittled and berated and told she did not know what she was talking about.9/ More specifically, Roberts claim of gender discrimination revolved around several events over the ten months she worked on the VistaBlue listing, as outlined below. She claims that when she brought up the subject of an architectural model for the project at a meeting at the Respondent's Legacy Place branch office, Spina yelled at her and said, "We're not going to do that." "We don't need to have something like that in there."10/ She claims that when she asked about having bottled water at the sales gallery with the logo on it, Spina said "we're not going to have that, we're going to have this, this, and this." She claimed that when Spina gave her marketing materials to review, she marked up the materials with her comments. Spina incorporated her ideas on a new sheet, and sent it off to the developer, taking credit for the changes she proposed. She claimed that Harris, a male sales associate, was able to keep his draws after he departed, but she was not. Roberts testified about a meeting at the VistaBlue Sales Gallery with Harris, Spina, and Farnsworth, where she claims that Spina told her and Harris that they needed to make 2,000 phone calls a week. When she questioned this, Spina yelled at her and threatened her job. When encouraged by her attorney to provide any other details or examples of Spina's belittling or discriminatory behavior, she said she was "finished" and provided no more examples. On cross-examination, when Roberts was asked what Spina said when he yelled at her at the VistaBlue Sales Gallery, the only thing she could remember is that he wanted the sales associates to make 2,000 phone calls; she did not recall any other details. On cross-examination, when asked about the meeting at Respondent's Legacy Place branch office where the architectural model was brought up, Roberts said that Harris, Grunow, Farnsworth, and Spina were present. When asked what Spina said to her, Roberts said, "He did not know what that [the scale model] was, what I was referring to, why we needed it, and said we weren't going to have it." She could not recall anything else Spina said to her other than, "it was not going to be done." Regarding hiring and firing for the VistaBlue Project, if Spina was unhappy with someone, Spina needed to speak to the developer, discuss it with him, and ask him what he could do or not do to change it. When asked if he had the authority to get rid of people if they were doing something he did not want them to do, Spina said, "If the developer allowed me to, yes." Roberts' claim that Spina yelled at her and belittled her on multiple occasions, however, was contradicted by Harris, Grunow, Farnsworth, Ricci, and Spina himself. Harris testified that when he attended sales meetings with Roberts (the frequent situs of Spina's alleged yelling or belittling behavior), the meetings were very open, conversations flowed freely, ideas were shared, and everyone at the meetings had the opportunity to express themselves.11/ Significantly, when asked directly about whether Spina yelled at Roberts during these meetings, Harris responded emphatically that he had "absolutely" never heard Spina yelling at Roberts, or anyone else, for any reason. Grunow testified that although Roberts and Spina would let each other know if either one was not happy with how things were handled at the sales gallery, she never heard Spina yell. Farnsworth testified that she overheard several disputes discussed between Spina and Roberts regarding the operations of the sales gallery, the layout of the offices, the project scale model, the project renderings, the sales brochures, and the business cards. When these "differences of opinion," as she put it, were discussed, Spina would tell Roberts his decision and what he expected her to do.12/ It is also significant that when Farnsworth was pressed for details during on-site questioning by the developer's agent, Tuller, she was not able or willing to characterize Spina's behavior towards Roberts as verbally "abusive." Nor did she ever suggest to Tuller that Roberts needed protection or suggest that Tuller should do something directly to intervene in the ongoing dispute. Spina testified that in his discussions with Roberts, she had the opportunity to express her opinion about the sales gallery operations, but since he was the listing agent, the team leader, and the one hired to run the sales gallery for the developer, his decisions had to be honored and ultimately followed. They discussed many things, and they disagreed on many things, but he never yelled at her. Ricci, the marketing/advertising director of Interiors by Steven G, the interior decorator for the VistaBlue Project, was called by Roberts. She testified about her attendance and observations of the interactions between Spina and Roberts at several design meetings related to the condominium units. These meetings were held at the VistaBlue Sales Gallery. Ricci testified that at the meetings, Roberts was very out-spoken about her style and design preferences. Based on Roberts' input and very active involvement at the meetings, Ricci mistakenly concluded that Roberts was the head of sales or the sales director. Although Spina did not seem to be interested in what she had to say and may have cut her off, Ricci testified that Spina did not raise his voice at Roberts, and she did not witness any belittling behavior by Spina towards Roberts. When questioned directly by the undersigned at the hearing, Ricci testified that Roberts never mentioned to her that Spina's conduct or words were in the nature of sexual harassment. Likewise, Ricci never noticed anything of a sexual nature in any comments by Spina to Roberts. She never observed Spina yelling at Roberts. Tuller, the real estate developer's executive assigned to the VistaBlue Project, was responsible for all aspects of the VistaBlue Project. He testified that based upon his personal observations of Spina's interactions with the salesforce at the sales gallery, he found Spina to be very personable and professional. Tuller testified about a meeting with Roberts at a Marriott Hotel on August 4, 2016. During that meeting, Roberts complained that there were harsh and dysfunctional working conditions at the sales gallery. She complained that Spina was loud, raised his voice, and was short with the staff. Tuller responded to Roberts that, that was "news to him," and contrary to what he had personally observed. When Tuller asked Roberts bluntly if Spina's conduct included any sexual or other forms of harassment, Roberts quickly remarked, "No, no, not that, not that. It's just hard to be there."13/ On August 4, 2016, shortly after her hotel meeting with Tuller, Roberts attempted to call Kozlow but was unable to reach her.14/ Roberts sent Kozlow a text message that same day and wrote "I'm not sure if I should be speaking with you or with Mike . . . . There are some very serious issues at VistaBlue that I need to discuss and get some direction." They agreed to talk the following day. Later that same day, Kozlow sent an email back to Roberts, and copied Spina and Pappas, president of Respondent. She told Roberts that she had the utmost confidence in Spina and his management of VistaBlue and that she was sure that Spina could resolve any issues. On August 5, 2016, Roberts replied to Kozlow's email and wrote, "The reason I reached out to you is that the issue is with Kevin. I will make another attempt to resolve it with him. However, if there is no resolution I will reach out to you again. At a meeting I had with Kevin two weeks ago, he suggested that I speak to Randal [Tuller] but I wanted to handle this internally first." On August 5, 2016, Kozlow was copied on Spina's email to Roberts wherein he attempted to arrange a meeting with her that day. Later Kozlow wrote to Roberts and commented "Hopefully you and Kevin can resolve any issues. He is the lead and we will not be making any changes that he doesn't agree with." At the time of this text and email exchange between Roberts and Kozlow, Spina had worked for Respondent in Kozlow's branch office for more than seven years. Kozlow found Spina to be very friendly and respectful of others. She had not received any other complaints about Spina's conduct.15/ Kozlow testified that while she was exchanging the text messages with Roberts from Wisconsin, she did not know what the issues were at VistaBlue and that Roberts never told her what the nature of the issues were with Spina. Further, despite the opportunity and exchange of communications, Roberts never told her that Spina was discriminating against her on the basis of her gender or sex. Kozlow also testified about Respondent's policy against gender discrimination. She was aware of the policy when she received Roberts August 4 and 5, 2016, text messages and emails. The policy is published in Respondent's Policy Manual. The policy was in effect when she first started working for Respondent in 1990. Pet. Ex. 8. If she became aware that any associate or employee of Respondent was discriminating on the basis of gender or another protected class, she had a duty to report it to Pappas, the president and owner of the company. Once reported, there would be an investigation, and if the allegations were found to be true, there would be corrective action. After the meeting between Tuller and Roberts at the Marriott Hotel, Tuller called Spina and arranged a meeting with him to discuss Roberts' complaints. At the meeting, Tuller testified that Spina admitted he was frustrated with Roberts because she was hard to work with, she would not listen to him, she would not do what he asked her to do, she did not show up on time, and she was not professional. Tuller asked Spina to try to find a solution that would work for everyone. Spina testified that, subsequently, he talked again with Tuller and told Tuller that he needed to terminate Roberts from the sales gallery. When Tuller told Spina that there had been too many changes with marketing and that the owner of the project would not support such a change, Spina informed Tuller the only other option was for Spina to leave. Spina offered to pay for a manager to take his place. Tuller was amenable to this option, and subsequently, Spina and Tuller interviewed several managers to take his place. However, in the end, Tuller did not agree on a replacement for Spina. When Tuller asked Spina to stay, Spina told Tuller that he could not and that he was leaving the VistaBlue Project. Spina testified that the reason he consulted with Tuller about Roberts was because he felt that he did not have the authority to terminate somebody without consulting with the developer. As a result of Spina's decision to withdraw from the VistaBlue listing, the listing was terminated, and the draws against commission that the developer paid were reconciled against the commission that was due to Keyes on termination. At the termination of the listing agreement, the draws that were paid exceeded the commission that was due to Respondent by $6,000. Roberts admits that as a result of the termination of the VistaBlue listing, her position at the VistaBlue Sales Gallery came to an end. Spina did not tell her she was fired or terminated. She simply was not able to continue her position because of the loss of the listing by Spina and Keyes. She interviewed with the new broker for VistaBlue but was not hired. Although Roberts complained that she did not receive all of her draws, Roberts admitted that when she had previously wanted to take a listing for a different condominium unit outside of the VistaBlue Project, she had agreed to forego her draw. Spina further explained to her the reason she did not receive the August 2016 draw was that the draws that she had been paid exceeded the commission that was due to her upon the termination of the listing agreement. Although she was not happy, she agreed with that because that had been her agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 6th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2018.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Since August 24, 1972, Gladys Karnitz has held cosmetology license No. CL- 0075512. Petitioner's Exhibit No. 1. During this period, she has been registered to practice cosmetology in Florida as a master cosmetologist. Id. On June 13, 1986, Ms. Karnitz obtained salon license No. CE-0041778 for a 1600- square foot facility in a shopping center in Destin, A Total Image Salon. Petitioner's Exhibit No. 2. From January to March of 1988, Donna Blackburn, known then as Donna Stack, worked as a receptionist in A Total Image Salon. After Gladys Karnitz spent a day teaching her how to perform manicures, pedicures and waxing, she asked Ms. Blackburn to render these services to the salon's patrons, even though she knew Ms. Blackburn was not licensed by the Board of Cosmetology. Ms. Blackburn agreed to and did perform manicures, pedicures, and waxing for salon clients on numerous occasions during the three months she worked there. Clients paid the salon for her services, and sometimes gave Ms. Blackburn tips. In April of 1988, Sheila Masters worked two or three weeks as a salaried employee for Gladys Karnitz at A Total Image Salon. She performed manicures and "nail sculptures" for salon customers who paid the salon for her services. Gladys Karnitz knew Sheila Masters was unlicensed, and that their arrangement was unlawful. She told Ms. Masters that she could "get her out of it," if they were caught, because she knew somebody. When DPR's L. M. Rabiteau and W.D. Taylor investigated, as a result of an anonymous complaint that Ms. Karnitz was employing unlicensed persons, she delayed producing appointment books until she had altered them in an effort to conceal appointments for Ms. Blackburn's services. Eventually she admitted hiring Ms. Masters, which she characterized as acting as a "good Samaritan." She claimed Ms. Masters had told her she was licensed and would bring her license in. In fact, Ms. Karnitz was well aware that Ms. Masters had no license.
Recommendation It is, accordingly, RECOMMENDED: That the Board of Cosmetology impose an administrative fine of $1,000 and suspend respondent's license for 180 days. DONE and ENTERED this day of June, 1989, in Tallahassee, Florida. Robert T. Benton, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Copies furnished: Filed with the Clerk of the Division of Administrative Hearings this day of June, 1989. Tobi C. Pam, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0729 Gladys Karnitz c/o A Total Salon 5003 Highway 98 East Destin, FL 32541 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0729 Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology 1940 North Monroe Street Tallahassee, FL 32399-0729
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with numerous violations of Part VII of Chapter 468, Florida Statutes (1989), which are the statutory provisions regulating the talent agency business.
Findings Of Fact At all times material hereto, Respondent has been licensed as a talent agency in the State of Florida, having been issued license number TA 0000015. Respondent's last known address is 2803 East Commercial Boulevard, Suite #204, Fort Lauderdale, Florida 33308. At all times material hereto, Respondent has been married to Bill Daniels, a photographer, whose office is in the same building as the Respondent's agency. The Respondent and Bill Daniels share living quarters, expenses, profits from each other's incomes, and a joint personal checking account. At all times material hereto, Art Feldman (who is also sometimes known as "Art Field"), under the Respondent's direction, regularly spoke to, interviewed, and took money from artists who sought work through T.J. Norris Co., Inc. At all times material hereto, the Respondent and Art Feldman recommended only Bill Daniels as a photographer to the artists seeking to register with the Respondent. At all times material hereto, the Respondent, as well as Art Feldman and Ed Russell (who was another of Respondent's employees), were authorized by Bill Daniels to collect funds from and issue receipts to talent registered with the Respondent for photographic services and to obtain Bill Daniels picture releases from talent. The Bill Daniels receipts reflected that the Respondent "does not guarantee work or casting." At all times material hereto, Bill Daniels, at no charge to the Respondent, would make up photos from proofs of talent registered with the Respondent, a service Mr. Daniels did not provide to other talent agencies. Bill Daniels gave the Respondent the photography negatives of talent registered with Respondent. Facts regarding Counts One, Two, and Three -- Laurie Wells On or about February 2, 1988, Laurie Wells, after seeing Respondent's advertisement, took her daughter, Jena, to the Respondent's agency for the purpose of procuring modeling and/or acting work for her daughter, who was three years old at the time. The Respondent and Art Feldman told Ms. Wells that Jena would be perfect for an upcoming television series starring Zsa Zsa Gabor. The Respondent and Art Feldman both told Ms. Wells that she would not be able to use her own photographs of Jena, but would need to have a portfolio of photographs taken by Bill Daniels before Jena could be submitted for consideration for a role in the television series. Ms. Wells paid Mr. Feldman three hundred twenty- five dollars to register her daughter with the agency and to have photographs taken by Bill Daniels. Nevertheless, Jena was never called for casting for the television series and Jena never received any work through Respondent's agency. Ms. Wells never received a copy of the contract she signed with the Respondent's agency. At the time she was dealing with the Respondent's agency, Ms. Wells was a beginner in the talent industry. The photographs that Ms. Wells brought with her to her first meeting with the Respondent and Mr. Feldman were current photographs of Jena. The photographs that Ms. Wells brought with her to that first meeting were later used by other talent agencies from which Jena obtained work. Even though the Respondent and Mr. Feldman never guaranteed any work for Jena, they both made statements implying that there was lots of work available and that Jena would be perfect for some of that work. Facts regarding Counts Four, Five, and Six -- Donna Thomas On or about March 29, 1988, Donna Thomas, as a result of one of Respondent's advertisements, took her four-year-old granddaughter, Tami, to Respondent's agency to procure modeling work for Tami. Ms. Thomas spoke with both Art Feldman and with the Respondent. The Respondent told Ms. Thomas that her granddaughter was one of the most beautiful little girls they had had in the agency for a long time. The Respondent went on to state that she could definitely get Tami all kinds of work, but before they could do so Tami would have to have some pictures made. The Respondent also suggested that the pictures should be made as soon as possible. It was suggested to Ms. Thomas that she should have the photographs done by Bill Daniels. Ms. Thomas was not told of any other options for obtaining photographs. Ms. Thomas paid the Respondent two hundred fifty-five dollars to register Tami with the agency and to have photographs of Tami taken by Bill Daniels. The Respondent's agency never procured any work for Tami; the agency never even called about any work opportunities for Tami. At the time of her dealings with the Respondent's agency, Ms. Thomas was a beginner or novice to the talent industry. The evidence in this case is unclear as to whether the Respondent did or did not provide a copy of a contact to Ms. Thomas or to Tami's parents. Facts regarding Counts Sixteen, Seventeen, and Eighteen--Mr. and Mrs. Waldron On or about April 21, 1988, Mrs. Waldron, after seeing one of the Respondent's advertisements, took her son Richard to the Respondent to procure work for him in modeling or acting. Art Feldman told Mrs. Waldron that her son Richard was absolutely beautiful and was exactly what the agency was looking for. Feldman went on to say that he received calls every day from people who are looking for children just like Richard for movies, commercials, catalogs, and newspaper ads. Mr. Feldman went on to say that photographs had to be taken before the agency could do any work for Richard; that without a portfolio there was absolutely nothing the agency could do for Richard. Feldman urged Mrs. Waldron to use Bill Daniels for the photographs and described Bill Daniels as a "resident photographer" who did all of the agency's portfolios and who could get the photos done faster than other photographers. Mrs. Waldron signed a contract with the Respondent's agency and paid the Respondent three hundred fifty-five dollars to register Richard with the agency and have Richard's photographs taken by Bill Daniels. Mrs. Waldron never received a copy of the contract she signed with the Respondent. Richard did not procure work through the Respondent for over a year. When contacted about the lack of work, Art Feldman insisted that updated photographs be taken. When Mrs. Waldron refused new photographs until Richard obtained work, Richard was suddenly called for work as an extra on a movie called "Chains of Gold." Subsequently, Mrs. Waldron asked about other work for Richard, but Art Feldman said it was unavailable until more photographs were taken. At the time of her dealings with the Respondent, Mrs. Waldron was a beginner to the talent industry. Facts regarding Counts Twenty-two, Twenty-three, and Twenty-four--Marie Strong On or about July 11, 1988, Mrs. Marie Strong took her six-month-old son, Caleb, to Respondent's agency for the purpose of procuring work for Caleb in modeling and/or acting. Mrs. Strong met with Art Feldman who told her he could obtain work right away for Caleb, because there were several catalogs coming out within the next week or two that needed children Caleb's age. Feldman also told her that in order to do that she needed to get a professional portfolio taken right away by the agency's photographer, Bill Daniels. Feldman urged Mrs. Strong to pay a deposit on the photographs that very day and dissuaded her from taking time to discuss the matter with her husband. Mrs. Strong paid a deposit in the amount of one hundred thirty dollars the first day and returned the next day with the balance of one hundred ninety- five dollars. The photographs of her son Caleb were taken that day by Bill Daniels. Mrs. Strong was not told of any options to have the photographs taken by some other photographer. The Respondent's agency never procured any work for Mrs. Strong's son. The Respondent's agency never provided Mrs. Strong with a copy of a contract. At the time of their dealings with the Respondent, Mrs. Strong and her son were novices or beginners to the talent industry. Facts regarding Counts Twenty-five, Twenty-six, and Twenty-seven--Kory Bielski On or about September 8, 1988, after seeing Respondent's advertisement and calling for an appointment, Kory Bielski went to Respondent's agency for the purpose of procuring modeling and/or acting work. Mr. Bielski met with Art Feldman. Mr. Feldman told Mr. Bielski there was a lot of work he might be good for and that he wanted Mr. Bielski to sign up with the agency and get started. However, Mr. Feldman told Mr. Bielski that he had to have photographs taken before they would do anything. Mr. Feldman told Mr. Bielski that the agency had a photographer it worked with, and referred him to Bill Daniels. Mr. Feldman did not mention that Mr. Bielski could go to another photographer. Mr. Bielski paid Mr. Feldman a total of $425.00 to pay for the agency's registration fee and for photographs to be taken by Bill Daniels. The only work Mr. Bielski received through the Respondent's agency was two days of work as an extra in a movie. Mr. Bielski signed a contract with the Respondent's agency, but he was never given a copy of the contract. Facts regarding Counts Twenty-eight, Twenty-nine, and Thirty--Brian Cossack On or about October 14, 1988, in response to a newspaper advertisement, Brian Cossack went to Respondent's agency for the purpose of procuring voice-over work. Mr. Cossack met first with Art Feldman. Even though Mr. Cossack's primary interest was in obtaining voice-over work (in which the physical appearance of the artist is irrelevant), Mr. Feldman told him he would be perfect for a role in an upcoming horror film and that he would also be given TV commercial work. When Mr. Cossack said he had very little on-camera experience and did not feel prepared to take on a role of that type, Mr. Feldman continued to insist that he would be a shoe-in for the role. Mr. Feldman called the Respondent into the room and the Respondent also expressed assurances that Mr. Cossack would be perfect for movie and TV work. The Respondent went on to say that she would pay half of the cost of Mr. Cossack's photography session. After mentioning that he was relying on their assurances, Mr. Cossack paid $30.00 to register with the Respondent's agency and agreed to pay $300.00 for photographs to be taken by the photographer recommended by the Respondent. Mr. Cossack paid $100.00 towards the photographs on the first day. A few headshots were taken that day. A few days later, Mr. Cossack returned, paid the $200.00 balance, and some more photographs were taken. Mr. Cossack never received any of the photographs. Mr. Cossack gave both checks for the photographs to Mr. Feldman. The only work Mr. Cossack obtained through the Respondent's agency was work as an extra in a movie. He worked one day as an extra and declined an opportunity to work a second day as an extra. There is no clear and convincing evidence that the Respondent's agency failed to provide Mr. Cossack with a copy of a contract. Facts regarding Counts Thirty-three and Thirty-four--Chaim Kohl On or about December 28, 1988, Chaim Kohl took his four-year-old son, Roy, to Respondent's agency for the purpose of procuring modeling work for Roy. At that time Mr. Kohl was a beginner to the talent industry. Mr. Kohl met with Art Feldman and told Mr. Feldman that he wanted the agency to teach his son how to be a model and to obtain work for his son as a model. Mr. Feldman told Mr. Kohl that Mr. Kohl would have to have photographs of his son taken by Bill Daniels if he wanted the Respondent's agency to represent him. Mr. Feldman also said that as soon as the photographs were ready there would be lots of castings because the agency had lots of work with huge clients. Mr. Kohl agreed to have the photographs taken and ultimately paid $30.00 to register his son with the Respondent's agency and $300.00 for the photography session with Bill Daniels. Mr. Kohl's son never received any work through the Respondent's agency; he was never even called for any castings. Facts regarding Counts Thirty-five and Thirty-six--Harriet and Jim Nabors During February of 1989, Jim and Harriet Nabors went to Respondent's agency for the purpose of procuring modeling and/or acting work. At that time Mr. and Mrs. Nabors were both beginners to the talent industry. They went to Respondent's agency more or less on a lark, in response to one of the Respondent's newspaper advertisements. Mr. and Mrs. Nabors met with Art Feldman. Mr. Feldman told them that before any work could be sought for them, they would have to have photographs taken by Bill Daniels, who he described as being the agency photographer. No other photographic options were given. Mr. and Mrs. Nabors paid $30.00 each to register with Respondent's agency. Mrs. Nabors paid an additional $395.00 for photographs. Mr. Nabors paid $410.00 for photographs and $300.00 for four acting lessons. All of the checks were delivered to Mr. Feldman. Neither Mr. Nabors nor Mrs. Nabors received any work through the Respondent's agency. They received very few calls advising them of work opportunities. When Mrs. Nabors called about opportunities, she was told that business was slow. Facts regarding Counts Thirty-nine and Forty--Michelle Barton On or about September 7, 1989, Michelle Barton took her son, Nicholas, to Respondent's agency for the purpose of procuring modeling work for Nicholas. At that time Nicholas was almost a year old and Ms. Barton was a beginner to the talent industry. Ms. Barton met with Art Feldman and told him she wanted to obtain modeling work for her son. The son had red hair. Mr. Feldman said there was a big need for children with red hair and specifically mentioned that there would be casting opportunities during the next month. Mr. Feldman also told Ms. Barton that she would have to have a portfolio of photographs of Nicholas taken by Bill Daniels, who was described to her as the agency photographer or as a photographer affiliated with the Respondent's agency. She was not told of any other photographic options. Ms. Barton paid $30.00 to register her son with the Respondent's agency and paid $295.00 to have photographs taken by Bill Daniels. She later paid an additional $25.00 to obtain two extra photographic prints. Ms. Barton delivered all of the checks to Mr. Feldman. Ms. Barton never received any work for her son through the Respondent's agency. Ms. Barton later registered her son with another agency. The only photographs she sent to that agency were snap shots. The second agency called her on several casting opportunities. Facts regarding Count Forty-one--Marilyn Moore On or about March 21, 1990, after seeing the Respondent's advertisement in the telephone book, Marilyn Moore took her thirteen-month-old daughter, Jaime, to Respondent's agency for the purpose of procuring modeling work for Jaime. At that time Ms. Moore was a beginner to the talent industry. Ms. Moore met with Art Feldman and told him she wanted to obtain modeling work for her daughter. She had with her a small color photograph of the child that had been taken approximately a month earlier by Olan Mills. Mr. Feldman told Ms. Moore that he definitely thought her daughter had potential as a model, but that first she would have to be registered with the agency and they would need more photographs of the child. Mr. Feldman also told her that he had a photographer who could take the photographs. Ms. Moore asked if they could use the photographer she already had, and Mr. Feldman replied that the agency really needed eight-by-ten black and white photographs and that the agency photographer was in the next room and could do the photographs right then and there for a fee. Ms. Moore asked Mr. Feldman if she could use another photographer and Mr. Feldman replied that it was best to use the agency's photographer because they had worked together before and the agency photographer knew exactly what they needed. Ms. Moore registered her daughter with the Respondent's agency and wrote a $30.00 check to pay the registration fee. She left the payee's name blank on the check and delivered the check to Mr. Feldman. Someone later stamped the check with the name Bill Daniels as payee. Ms. Moore did not agree to have the agency's photographer take any photographs of her child and she declined the request that she make another appointment with the Respondent's agency. Later that same day, Ms. Moore stopped payment on the $30.00 check she had delivered to Mr. Feldman. A couple of days later, before he knew that payment had been stopped on the check, Mr. Feldman called Ms. Moore on the telephone and told her she could use her own photographs. Facts regarding Counts Forty-two, Forty-three, and Forty-four--Sonia Watson On or about December 7, 1988, after seeing the Respondent's advertisement in a newspaper, Sonia Watson took her eight-month-old daughter, Jessica, to Respondent's agency for the purpose of procuring modeling work. At that time Mrs. Watson and her infant daughter were beginners to the talent industry. Because she was a beginner, Mrs. Watson went to the Respondent's agency primarily for the purpose of obtaining information. Mrs. Watson met with Art Feldman. Mr. Feldman was very encouraging about the modeling prospects for Mrs. Watson's child and he told Mrs. Watson the agency would have no problem finding jobs for her daughter and that Mrs. Watson should not worry about the money for the agency's service or for the photographs because she would be able to make it back easily. Mr. Feldman told Mrs. Watson she would have to pay a $30.00 registration fee, a $15.00 fee for a "portfolio" photograph, and a $300.00 fee for photographs and for hiring the agency to find jobs for her daughter. During the first visit Mrs. Watson paid the $30.00 registration fee and the $15.00 "portfolio" fee. She later made an appointment to have the photographs taken and paid half of the money for the photographs. Thereafter, half of the photographs were taken by Bill Daniels, who was described by Mr. Feldman as "our photographer." About two months later, Mrs. Watson returned and paid the remaining half of the money for the photographs and Bill Daniels took the other half of the photographs. Mrs. Watson paid all of the money to Mr. Feldman. Mrs. Watson was supposed to receive five 8 x 10 photographs of her child. The photographs were never provided to her. Mrs. Watson signed a contract after she paid all of the money. She did not receive a copy of the contract she signed. Before agreeing to have Bill Daniels take her child's photographs, Mrs. Watson had found a photographer who would do a photographic "portfolio" of her daughter for $90.00 or $95.00. When she told Mr. Feldman about that possibility, Mr. Feldman advised against it and told her she should use the agency's photographer because the photographer knew the companies the agency dealt with, knew the positions and things the companies were looking for, and, also, that the $300.00 fee included hiring him as her agent. Mrs. Watson's child never received any work through the Respondent's agency. Facts regarding Counts Fifty and Fifty-one--Mr. and Mrs. Trent On or about August 12, 1989, after seeing the Respondent's advertisement in a newspaper, Mr. V. G. Trent took his two daughters, Gayle and Shirene, to Respondent's agency for the purpose of procuring modeling work for Gayle and Shirene. At that time, Mr. Trent and his two daughters were all beginners to the talent industry. The Trents met with Art Feldman. Mr. Feldman said that, because of their tall and exotic looks, the two girls would be working in no time. Mr. Feldman told them that they would need photographs and that the agency would take the photographs for them. Mr. Trent was not advised of any other options regarding the photographs. Mr. Feldman told Mr. Trent it would be in the best interest of the girls for the agency to take the photographs because the agency would be representing the girls and the agency would know what pictures to select. Mr. Trent agreed to Mr. Feldman's suggestions regarding the photographs and agreed to pay $760.00 to have both girls registered with the Respondent's agency and to have both girls photographed by Bill Daniels. The registration was $30.00 for each girl and the photography was $350.00 for each girl. During the first visit Mr. Trent paid a down payment towards the $760.00 and the balance was paid by his wife during a subsequent visit. Neither of Mr. Trent's daughters ever received any work through the Respondent's agency. Facts regarding Counts Fifty-four and Fifty-five--Helena Jackson On or about February 25, 1988, Helena Jackson, also known as Helena Steiner-Hornsteyn, and her teenage daughter, Annika, went to Respondent's agency for the purpose of procuring modeling and/or acting work for Annika. Following conversations with Art Feldman and the Respondent, Mrs. Jackson and her daughter ultimately paid to register with the Respondent's agency and to have photographs taken by Bill Daniels. There is no clear and convincing evidence as to what representations were made to Mrs. Jackson and her daughter by Mr. Feldman or the Respondent. Facts regarding photography needs of beginners In the opinion of experts in the talent agency business, beginning talent should spend as little as possible for photographs until they learn more about the business, decide whether they like the business, or begin to receive regular bookings. In the case of infants and children up to the age of about 10 or 12 years of age, it is sufficient for beginning talent to use snapshots that have been enlarged up to about 5 x 7 inches. An adequate supply of such enlargements can be obtained for approximately $40.00. Everyone in the talent industry is aware of the fact that babies and young children change in appearance quite rapidly and they are not expected to submit professional photographs for castings. In the opinion of experts in the talent agency business, it is sufficient for beginning talent to limit their photography expense to obtaining an 8 x 10 glossy headshot. As one expert explained, ". . . to go beyond an 8 x 10 glossy headshot, to me, is ridiculous. And, I think is a waste of money." A photo session limited to headshots is available from Bill Daniels for $125.00 and is available for less from other photographers in the area of the Respondent's agency. In the opinion of experts in the talent agency business, inexperienced talent are very susceptible to suggestions made by talent agents and have a tendency to follow agents' suggestions due to their inexperience. Because of this tendency, it constitutes undue influence for a talent agent to recommend a specific photographer to a beginning talent without also advising the talent that there are other less expensive alternatives available. Allegations on which no evidence was submitted In DOAH Case No. 90-5328 there is no competent substantial evidence of the Respondent's conduct alleged in either Count One or Count Two, both concerning Elizabeth Kingsley. In DOAH Case No. 90-4799 there is no competent substantial evidence of the facts alleged in any of the following counts: Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane Count Twenty-one, concerning Julie Lane Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff Count Thirty-eight, concerning Kathryn Bischoff Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke The Respondent has prior violations of Chapter 468, Florida Statutes. In DPR Case Number 102652, the Respondent entered a Settlement Stipulation agreeing to pay a fine in the amount of two hundred dollars for a violation of Section 468.412(6), Florida Statutes (1988), regarding advertising by a talent agency. In DPR Case Numbers 0110491 and 0106073, DOAH Case Number 89-5521, the Respondent was found to have violated Section 468.410(3), Florida Statutes, on three (3) counts and Section 468.402(1)(t), Florida Statues, on two (2) counts. The Respondent was ordered to pay a fine in the amount of two thousand dollars.
Recommendation Based on all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: In Case No. 90-5328, dismissing all charges in the Administrative Complaint for failure of proof. In Case No. 90-4799, dismissing the charges set forth in the following counts of the Administrative Complaint for failure of proof: Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty, Twenty-one, Thirty, Thirty-one, Thirty-two, Thirty-seven, Thirty-eight, Forty-five, Forty-six, Forty-seven, Forty- eight, Forty-nine, Fifty-two, Fifty-three, Fifty-four, Fifty-five, Fifty-six, Fifty-seven, Fifty-eight, Fifty-nine, and Sixty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(s), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty- five, Thirty-nine, Forty-one, Forty-two, and Fifty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(t), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty- six, Forty, Forty-three, and Fifty-one. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(b), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four. In Case No. 90-4799, imposing the following penalties for the violations described above: An administrative fine in the amount of $400.00 for each of the 28 violations found above, for a total of administrative fines in the amount of $11,200.00. Revocation of the Respondent's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March 1993. APPENDIX The following are my specific rulings on the proposed findings of fact submitted by all parties. The following general observations are made in order to facilitate an understanding on the basis for the findings of fact that have been made as well as the basis for the findings of fact that have been rejected. There is no great dispute about most of the basic facts in these cases. There is quite a bit of dispute about numerous details, as well as disputes about what inferences should be drawn from the facts. In resolving these differences I have, for the most part, been more persuaded by the versions described by the Petitioner's witnesses than by the versions described by the Respondent and her witnesses. In resolving such differences I have especially considered such matters as any motive or bias of each witness, the apparent candor or lack of candor of each witness, the extent to which the testimony of each witness appeared to be logical or illogical, and the extent to which the evidence of each witness appeared to be consistent or inconsistent with other evidence in these cases. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting conclusions of law, rather than proposed findings of fact. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance, but with some details corrected. Paragraphs 13, 14, 15, and 16: Accepted. Paragraph 17: Accepted in substance. Paragraph 18: First sentence accepted; second sentence rejected as not supported by clear and convincing evidence. Paragraph 19: Accepted. Paragraph 20: Accepted. Paragraphs 21 and 22: Accepted in substance. Paragraphs 23, 24 and 25: Accepted. Paragraph 26: First sentence rejected as unnecessary details. Second sentence accepted. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Accepted. Paragraph 31: Rejected as containing numerous inaccurate details. Some somewhat similar findings have been made. Paragraph 32: Accepted in substance. Paragraphs 33 and 34: Accepted in substance. Paragraph 35 First sentence accepted. First half of second sentence rejected as not supported by clear and convincing evidence. Second half of second sentence accepted. Paragraphs 36, 37, and 38: Accepted in substance. Paragraphs 39 and 40: Accepted. Paragraph 41: Accepted in substance. Paragraph 42: Accepted. Paragraph 43: Accepted in substance. Paragraph 44: Accepted Paragraph 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Rejected as not fully supported by the evidence and as, in any event, subordinate and unnecessary details. Paragraph 48: Accepted in substance. Paragraphs 49, 50, 51, 52, 53, and 54: Accepted. Paragraph 55: Accepted in substance. Paragraphs 56 and 57: Accepted. Paragraphs 58 and 59: Accepted that Mrs. Jackson paid to register herself and her daughter and to have Bill Daniels photograph her and her daughter. The remainder of these paragraphs are rejected as irrelevant details or as not supported by clear and convincing evidence. Mrs. Jackson was a difficult witness, both on direct examination and on cross-examination. She was often argumentative, unresponsive, rambling, and disjointed during her testimony. Her testimony was far from clear and was not convincing. Paragraphs 60, 61, and 62: Accepted in substance. Paragraph 63: Rejected as not fully supported by the record and as, in any event, irrelevant to the issues in this case. Paragraph 64: Accepted in substance, with additional details. Findings proposed by Respondent: With regard to the proposed findings of fact submitted by the Respondent, it is first noted that the Respondent's proposals are virtually impossible to address with specificity because, for the most part, they are comprised of summaries of testimony (testimony both favorable and unfavorable to the Respondent), rather than being statements of the specific facts the Respondent wishes to have found. In this regard it is perhaps sufficient to note that most of the Respondent's summaries of the testimony are essentially accurate summaries of the testimony at hearing, even where the summaries contain assertions that conflict with each other. As noted above, I have resolved most of those conflicts in favor of the versions put forth by the Petitioner's witnesses. Inasmuch as the Respondent has chosen to summarize testimony rather than make proposals of specific facts to be found, it would serve no useful purpose to embark upon a line-by-line discussion of all of the summaries. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gregory F. Esposito, Esquire Suite 9 8000 Wiles Road Coral Springs, Florida 33065 Anna Polk, Executive Director Board of Talent Agencies Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as amended, and, if so, what disciplinary action should be taken.
Findings Of Fact Preliminary matters At all times material hereto, respondent, Eston Mansfield, held Florida teaching certificate number 691581, covering the area of middle grades mathematics, grades 5 through 9. Such certificate expired June 30, 1995. At the time of the incidents at issue, respondent was, from time to time, employed as a substitute teacher by the School Board of Dade County, Florida, and the School Board of Broward County, Florida. Moreover, during such times, respondent was also self-employed, as a professional photographer. The incident in question In or about February 1993, A. E., a fifteen year old female, was referred to respondent, who she understood to be a professional photographer. 2/ At the time, A. E. was entertaining an interest in modeling, and had need for a modeling portfolio. A. E. and respondent spoke by telephone, and respondent agreed to do the photographs for the portfolio, and quoted a price between $1,500 and $2,000. When A. E. told respondent she could not afford the cost, respondent countered by telling her that he was looking for a model to practice some nude photography and that if she would agree to pose for the photographs he would do the photographs for the portfolio at no charge. A. E. agreed to the trade. At the time A. E. spoke with respondent, she was not a student, having "legally withdrawn" from school, was sharing an apartment with her older sister, age 18, and their respective boyfriends. A. E.'s boyfriend at the time was older than A. E., and A. E., although underage, was not a stranger to alcohol. Although A. E. and respondent had no personal contact prior to their telephone conversation, respondent had visited with her sister in the past, in an effort to interest her in a wedding portfolio, and was aware of A. E. and her living arrangements. Respondent was further aware that A. E. was the younger of the two sisters and knew, before the photography session hereinafter discussed, that A. E. was 15 years of age. In February or March, 1993, A. E., together with her friend, Wendy Colvin, went to respondent's home for the anticipated photography session. As described at hearing, respondent's home included an area that was suitably equipped for professional photography and the session, based on the persuasive proof, appears to have been conducted in a professional manner. 3/ Before the session began, respondent offered and A. E. accepted an alcoholic drink to help her "relax". Thereafter, A. E. posed in several sets of lingerie that she had brought for the session, and then posed for a number of nude photographs. Apart from the observation that some of the lingerie A. E. wore was her sister's wedding lingerie, the record is devoid of any descriptive observations from which one could draw any reliable, as opposed to speculative, conclusion as to its character. Likewise, the record is largely devoid of any descriptive observations of the lingerie or nude photographs, such that one cannot draw any reliable, as opposed to speculative, conclusion regarding their character or content. Notably, the photographs were not exhibited or offered at hearing, and only the vaguest of descriptions elicited from the witnesses. In A. E.'s opinion, some of the photographs "were tasteful, some were not." In respondent's opinion, some of the photographs that might be described as "tasteless" did not meet "a professional standard," which he attributed to A. E.'s amateur status and unfamiliarity with proper positioning or posing. 4/ Given the paucity of proof concerning the character or content of the photographs, it cannot be concluded that the photographs, in whole or in part, offended contemporary community standards by predominantly appealing to prurient, shameful or morbid interest, that the photographs were without any serious artistic value, or that the photographs were otherwise obscene, as that term is commonly understood. Moreover, there was no proof offered, by student, teacher, or otherwise, that respondent's practice of nude photography, albeit with a 15-year-old girl, otherwise offended community values or reduced his effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be rendered dismissing the charges filed against respondent. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue The issue is whether the comprehensive plan amendment adopted by Ordinance No. 96-28 is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Petitioners are residents of Tarpon Springs. By stipulation, Petitioners have standing. This case arose out of a final order sustaining a challenge to a land development regulation adopted by Respondent City of Tarpon Springs (Tarpon Springs). The land development regulation allowed the construction of swimming pools and enclosures up to within eight feet of seawalls, despite Plan requirements of a 15-foot buffer along all wetlands and a 30-foot setback for all shoreline construction outside of the Sponge Dock Area. In Jeff and Laura Johnson and Department of Community Affairs v. City of Tarpon Springs, Case No. 95-6206GM, the Administrative Commission determined that the land development regulation was inconsistent with provisions of Tarpon Springs' comprehensive plan (Plan). However, the Administrative Commission withheld sanctions, as long as Tarpon Springs repealed the land development regulation, amended the land development regulation to make it consistent with the Plan, or amended the Plan to make it consistent with the land development regulation. Choosing the third option, Tarpon Springs amended its Plan by adopted Ordinance No. 96-28 on August 5, 1997. The ordinance revises Policy 2 of the Coastal Zone and Conservation Element (Conservation) of the Plan. Petitioners have challenged Conservation Policy 2, as amended by Ordinance No. 96-28. With the new language underlined, Conservation Policy 2 declares that the policy of Tarpon Springs is to: Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area and accessory structures on parcels where an existing seawall has effectively eliminated the natural function of the shoreline. Accessory structures are defined as those detached from the principal building located on the same lot and customarily incidental and subordinate to the principal building or use. Accessory structures shall not include any structure having an impervious roof supported by columns or walls and intended for the shelter, housing, or enclosing of any individual, animal, process, equipment, goods, or materials of any kind[.] (Objectives 1 and 11) The Plan contains several other relevant provisions, which were not the subject of the amendment. In general, Tarpon Springs has taken a comprehensive approach to comprehensive planning by adopting, as part of its Plan, supporting data and analysis and even provisions of Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). For instance, the Conservation Element recites each provision of Chapter 9J-5 requiring a goal, objective, and policy. As for objectives, various parts of the Conservation Element state, "It is the objective of the City of Tarpon Springs to . . .," and the Plan restates individual provisions of Rule 9J-5.012(3)(b). Responding to each objective reprinted from the rule, the Plan states various planning provisions. Eight Conservation policies follow Rule 9J-5.012(3)(c)1, which requires a policy identifying regulatory or management techniques for: "Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems." The eight policies provide: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2, and 11) [This is Conservation Policy 2 cited above. Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11) Identify design alternatives and funding sources for bayou erosion control; (Objective 3) Utilize wetlands for stormwater filtering in accordance with the discussion under Section II.D.5, FDER, SWFWMD, and Chapter 17-25 requirements for water quality, quantity, and use; (Objectives 1, 6) Restrict seawalling along the Gulf Coast shoreline, and require the replacement of seawalls in the Coastal High Hazard Area with stabilization techniques as exhibited by Figure 9 of this element in the event they are destroyed in excess of 50% of their replacement cost; (Objectives 1, 2, 3) Require all development or redevelopment adjacent to wetlands or upland natural areas to assess the impact upon wildlife in order to evaluate and eliminate or minimize adverse impacts; (Objectives 1, 2, 11) Require that post development runoff shall not exceed pre-development runoff for the 25 year frequency storm, 24 hour duration[,] in order to limit adverse impacts of water quantity and quality resulting from development or redevelopment; (Objectives 1, 2, 4 and 6 Other Conservation provisions are: Goal 2. Reduce shoreline conflicts through the land use planning process. Policy 11. Include the restoration and utilization of wetlands as a part of the Master Drainage Plan[.] (Objectives 4, 6) Policy 14j. Existing hazard mitigation programs that include shoreline restoration and enhancement, building code and floodplain regulations, development management techniques such as land regulations, development management techniques such as land use, zoning, and subdivision regulations, and other applicable hazard mitigation measures[,] shall continue to be implemented. These mitigation programs shall be amended, as necessary, to remain consistent with federal and state requirements. Policy 22. All hurricane evacuation routes will be clearly posted within the City of Tarpon Springs by the Tarpon Springs Fire Department[.] (Objective 14) Petitioners and Respondents dispute the meaning and effect of Conservation Policy 2. It is necessary to interpret Conservation Policy 2 before considering specific challenges to whether it is in compliance with various provisions of Chapter 163, Florida Statutes (Chapter 163), and Chapter 9J-5. The obvious purpose of adding the accessory-structure exception to Conservation Policy 2 was to liberalize land uses within the 30-foot aquatic lands setback. Petitioners argue that the amendment also liberalizes land uses within the separate 15-foot wetlands buffer. This argument is incorrect; the amendment does not affect the restrictions accompanying the 15-foot wetlands buffer. Before and after the amendment, the 15-foot wetlands buffer applies a separate land use restriction whose effect is not in any way dependent upon the existence of the 30-foot aquatic lands setback. Regardless of the amendment, if a proposed land use is within the 15-foot wetlands buffer, the land use is subject to the restrictions imposed by the buffer. The Future Land Use Element contains the following definition of "buffer": "A reserved area attractively landscaped and perpetually maintained as common open space, free of structures, impervious surface, roadways, storage, and other enclosures or appurtenances." The 15-foot wetlands buffer thus prohibits the conversion of open space to other uses, which would include swimming pools. The accessory-structure exception in no way lessens the restrictions imposed by the 15-foot wetlands buffer. After consideration of the definition of "buffer," it is clear that the accessory-structure exception would only allow the installation of a swimming pool in the portion of the 30-foot aquatic lands setback that is outside of the 15-foot wetlands buffer. Petitioners contend that the phrase, "existing seawall," is vague and ambiguous. The Plan fails to define these two words. As for the meaning of "seawall," the record contains some evidence that Tarpon Springs officials may have difficulty determining whether a deteriorated seawall constitutes an "existing seawall" or, effectively, riprap. Less likely, there may be some confusion as to whether a seawall fronted by riprap constitutes a seawall. However, it is at least fairly debatable that Conservation Policy 2 is not so vague or ambiguous as to be unenforceable with respect to its definition of an "seawall." The word, "existing," is not entirely free of ambiguity. The two best alternative interpretations are that "existing" refers to seawalls in existence when the subject Plan amendment becomes effective or that "existing" refers to seawalls in existence when the landowner files an application for a building permit for the accessory structure or when Tarpon Springs grants the permit application. The better interpretation of "existing" is that it refers to seawalls in existence when the landowner files his or her application or Tarpon Springs grants the application. Conservation Policy 2 addresses the installation of accessory structures, not seawalls. Although the accessory-structure exception is dependent on the presence of a seawall, the exception directly addresses accessory structures, not seawalls. Absent an explicit attempt to regulate seawall construction, nothing in the accessory-structure exception in Conservation Policy 2, or the policy itself, suggests an attempt to grandfather in only those seawalls in existence at the time of the adoption of the Plan amendment. The focus of the accessory- structure exception in Conservation Policy 2 is not on limiting the construction of seawalls, but on assuring that landowners will install accessory structures only behind functional seawalls. The more natural and practical reading of "existing" is thus that it applies to seawalls in existence as of the time of the filing or granting of the application. An interpretation that requires that the seawall be in existence as of the time of the granting of the permit serves the practical purpose of assuring that the seawall is in place when the accessory structure is installed. This important practical effect is not assured by the grandfathering-in interpretation, unless Tarpon Springs artificially stretches its interpretation of "existing" to mean only those seawalls in existence as of the effective date of the subject amendment and continuing in existence from that time through the date of the granting of the application. Lastly, Petitioners contend that the clause, "effectively eliminated the natural function of the shoreline," is meaningless. This contention is legitimate. No seawall effectively eliminates the natural function of a shoreline, if "effectively" means "completely" or even "substantially completely." There is no fairly debatable definition of "effectively," "eliminate," "natural function," or "shoreline" that can assign meaning to this clause. Tarpon Springs apparently intended to use the "effectively eliminated" clause to limit the applicability of the accessory-structure exception to uplands immediately landward of some, but not all, seawalls. However, the record offers no real guidance as to the grounds on which Tarpon Springs would distinguish between these two classes of seawalls. Undoubtedly, the natural functions of a shoreline can be substantially reduced by a seawall, but a seawall cannot eliminate all of the numerous natural functions of a shoreline. Two examples should suffice. Biologically, the installation of a seawall does not eliminate all of the organisms occupying the shoreline ecotone, including the seawall. Physiographically, the installation of a seawall does not eliminate the natural function of a shoreline as a geographic line of demarcation between uplands and open waters. However, the shortcomings of the "effectively eliminated" clause do not render Conservation Policy 2 meaningless. This attempt to differentiate between functional and nonfunctional seawalls is merely an attempt to create a nonfunctional-seawall exception to the accessory-structure exception. If the "effectively eliminated" clause were disregarded as meaningless, Tarpon Springs could continue to apply the accessory-structure exception without regard to the functional status of the seawall. Although, as far as this case is concerned, Tarpon Springs may attempt to distinguish between those seawalls that it believes have effectively eliminated the natural function of the shoreline and those seawalls that have not done so, the remainder of this recommended order will consider Conservation Policy 2 as though it would apply to all seawalls. Crucial subsidiary issues in this case involve the effect of the amendment on various natural resources. Given the proximity of the area affected by the 30-foot aquatic lands setback to wetlands and open waters, the environmental issues primarily involve the effect of stormwater runoff on nearby wetlands and open waters. In analyzing the stormwater runoff issue, the first issue involves the extent to which the accessory-structure exception may cause the conversion of pervious to impervious surface. However, the record fails to reveal two important pieces of information: the extent of the affected area that is presently pervious and the extent of this pervious area that will likely become impervious. In considering the extent to which pervious area will likely become impervious, due to the accessory-structure exception, it is necessary to consider the types of accessory structures that landowners will likely construct. Although it is possible that the accessory-structure exception may facilitate paving, which obviously creates an impervious surface, swimming pools are the most likely structures to be installed under the accessory-structure exception, which prohibits roofed structures. Where a swimming pool replaces pervious surfaces, the pool could adversely affect stormwater runoff. If one were able to project the pervious surface area annually to be converted to swimming pools, possibly one could model progressively more intense storm events and durations (but not in excess of the design storm event) to determine whether (and, if so, to what extent) the typical swimming pool would receive runoff, rather than divert it around the pool, as is normal construction practice. Other calculations would need to consider the capacity of the typical pool to collect additional water prior to discharging the water and the input received by wetlands and open waters, in relevant storm events, directly from rainfall and, if applicable, indirectly from runoff. The record contains no such analysis, nor is the issue so clearcut as to permit an inference that swimming pools, or other accessory structures, would, in storm events up to the design storm event, adversely affect the quality, quantity, rate, or hydroperiod of the runoff through nearby wetlands and into nearby open waters. The absence of a demonstrated relationship between the accessory-structure exception and adverse environmental effects is independent of the area of land affected by the accessory- structure exception. The absence of such a demonstrated relationship is further underscored, though, by the relatively small area of uplands that would likely be converted annually to swimming pools. Although the record contains varying estimates of the amount of land involved, Petitioners have failed to demonstrate that the area of affected land is more than minimal. In terms of water quality, the record does not establish the net effect of converting the pervious portion of the affected area into pool areas. If grassy or planted, the pervious area may receive undisclosed infusions of insecticides, herbicides, and fertilizers. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in runoff, leading to adverse environmental effects. The pool areas probably will receive undisclosed infusions of pool chemicals. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in spillage and indirectly through evaporation and atmospheric deposit, leading to adverse environmental effects. The state of the record precludes findings, at a level of probability as to exclude fair debate, with respect to which land use would likely have a greater impact on water quality. Other environmental issues raised by Petitioners are insubstantial. For instance, the record does not disclose the significance of the loss of assertedly contiguous wildlife corridor following the conversion into swimming pools of 15-foot wide strips of backyards running parallel to the shoreline starting at a distance of about 15 feet from the edge of the wetlands. On these facts, Petitioners cannot show, to the exclusion of fair debate, that Tarpon Springs' planning decision to adopt the accessory-structure exception to the 30-foot setback is inconsistent with the various environmental and planning criteria of Chapters 163 and 9J-5. This deferential evidentiary standard acknowledges the basically political or legislative nature of the process by which local governments plan land uses. In general, to overturn this political or legislative process, Petitioners must make a more definitive showing of environmental or planning harm caused by the adoption of the subject Plan amendment that will allow landowners to construct swimming pools in their backyards relatively close to open water. The absence of such a showing generally precludes a determination that the subject Plan amendment is inconsistent with the relevant criteria of Chapters 163 and 9J-5--such as supporting data and analysis, internal consistency, and other specific provisions. For instance, on the basis of the present record, it is impossible to determine whether the conversion of pervious surfaces to swimming pools would be environmentally harmful, especially on the scale reasonably envisioned by Tarpon Springs. This state of the record precludes a finding that Petitioners have shown, to the exclusion of fair debate, the alleged environmental inconsistencies that they must show in order to prevail. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with Sections 163.3177(6)(g)1-5 and 10, and Rules 9J-5.012(3)(b)6 and 8 and (c)2, 3, and 7. These criteria require local governments to adopt plan provisions serving various planning, environmental, aesthetic, and public-safety criteria. No plan amendment addressing a single topic, like the accessory-structure exception, is required to address all of the criteria contained in Chapters 163 and 9J-5. It is possible that the effect of a plan amendment addressing a single topic may be to cause the plan, as amended, to fail to satisfy certain criteria. If so, the more likely challenge would be that the plan amendment is internally inconsistent with the various plan provisions that, prior to the amendment, satisfied the criteria in question. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with the criterion of Sections 163.3177(8) and (10)(e) and 163.3178(2)(b) and Rule 9J-5.005(2). As previously found, the data and analysis contained in the record would support a planning decision to adopt the accessory-structure exception, even without the functional-seawall exception, or to reject the accessory-structure exception. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is internally inconsistent with Conservation Goal 2 or Conservation Policies 2, 3, 6, 11, 14j, and 22. As already noted, there is no inconsistency between Conservation Policy 2, as amended, and Conservation Policy 3, which imposes the 15-foot wetlands buffer. To the extent that Petitioners have adequately raised an issue of internal inconsistency between the subject Plan amendment and Plan provisions governing the coastal high hazard area, the record does not support a finding that the accessory-structure exception would result in a material increase of either persons or property in the coastal high hazard area. Petitioners also assert that the process by which Tarpon Springs adopted the subject amendment was inconsistent with the criterion of public participation. In challenging the process by which Tarpon Springs adopted the subject amendment, Petitioners assert that Tarpon Springs failed to comply with the Plan Administration Element, which Tarpon Springs adopted as part of its Plan. As described by Petitioner Constance S. Mack in her proposed recommended order, this element generally requires that Tarpon Springs notify all landowners affected by a proposed amendment, encourage public participation, and consider and respond in writing to comments from the public. The record reveals an imperfect planning process. Tarpon Springs probably considered some erroneous data and analysis. Tarpon Springs ultimately adopted a Plan amendment containing the meaningless nonfunctional seawall exception to the accessory-structure exception. Petitioners correctly contend that little real dialogue took place between them and Tarpon Springs officials during the planning process. Communications between the two sides were less than ideal. By the end of the planning process, relations between the opposing parties deteriorated to the point that the Tarpon Springs planning director was, at times, treating legitimate attempts by Petitioners to participate in the planning process as unreasonable attempts at interference, and Petitioners were, at times, equating an unfavorable planning decision as a denial of public participation. But Tarpon Springs nonetheless satisfied the minimum criteria involving public participation. Petitioner Constance S. Mack accurately concedes in her proposed recommended order that Tarpon Springs allowed public participation at a "minimal level." The record reveals that Tarpon Springs complied with all state law governing public participation. Tarpon Springs also materially complied with all local law governing public participation. Any shortcomings in individual notice notwithstanding, published notice effectively put the community of Tarpon Springs on notice of the proposed amendment. The origin of this planning exercise was in a prior case that had been recently concluded. Tarpon Springs is a small community that, as evidenced by Petitioners' presentation of a petition with over 225 signatures protesting the proposed amendment, was in fact well informed of the ongoing planning process involving accessory structures. The record reflects that Tarpon Springs entertained Petitioners' objections, and the record supports the inference that Tarpon Springs considered these objections. In a perfect planning process, Tarpon Springs would have opened a dialogue with Petitioner Lisa Mack and responded to her carefully developed aesthetic vision of the future of Tarpon Springs' waterfront with an aesthetic vision of its own. In a better planning process, Tarpon Springs would have given more thoughtful consideration to Petitioners' objections to the language of the accessory-structure exception and eliminated some of the ambiguities present in the subject Plan amendment. In the end, the planning process resulted in a decision by Tarpon Springs to allow waterfront landowners to build swimming pools in their backyards, relatively close to the water. Petitioners worked hard during the planning process to achieve a different result. However, these facts, together with the shortcomings in the planning process, do not describe a planning process that is inconsistent with the criterion of public participation. Petitioners thus did not prove, to the exclusion of fair debate, that Tarpon Springs failed to give Petitioners reasonable notice of the proposed amendment and a reasonable opportunity to participate in the planning process. Petitioners failed to prove to the exclusion of fair debate that the adoption process failed to satisfy the public- participation criteria of Sections 163.3181(1) and (2) and Rule 9J-5.004.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that the subject Plan amendment is in compliance. DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 1st day of June, 1999. COPIES FURNISHED: Laura Johnson 30 Central Court Tarpon Springs, Florida 34689 Sam H. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas R. Cuba Qualified Representative Post Office Box 3241 Saint Petersburg, Florida 33731 Marika Samarkos 944 Bayshore Drive Tarpon Springs, Florida 34689 Lisa L. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas J. Trask Frazer Hubbard Post Office Box 1178 Dunedin, Florida 34698 Karen Brodeen Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
Findings Of Fact Ethics Complaint 15-174 On August 17, 2015, the Commission received a complaint against George Hanns (“Hanns”) filed by McDonald which alleged that Hanns, as a member of the Flagler County Commission (“County Commission”) and the Flagler County Canvassing Board (“Canvassing Board”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Code of Ethics”). Specific allegations in the complaint included that: A Special Canvassing Board meeting was held on September 12, 2014 in the Supervisor of Elections office bringing in a record crowd of voters. Commissioner Hanns and other county commissioner's behaviors and actions towards the Supervisor of Elections were criticized by Joe Kubusky. George Hanns became argumentative, stood up (in a threatening manner) and very unprofessionally verbally lashed back yelling at the public in a threatening manner. Many of the individuals present recorded the meeting, as did the Supervisor of Elections. Following the September 12, 2014 Special Canvassing Board meeting a scheduled County Commission meeting was held. It was at this time County Commission Chair/Canvassing Board member George Hanns brought up at the end of the County Commission meeting issues faced during Canvassing Board meetings. The alternate canvassing board member Barbara Revels and county attorney/canvassing board attorney Albert Hadeed were present. A discussion then took place at the County Commission meeting about the appointment of a canvassing board attorney along with other election related topics; all which were captured on audio by the staff member of the Clerk of the Court. It is believed that none of the election related topics were reflected on the meeting agenda, advertised to the public or reflected in the Board of County Commission meeting minutes. Furthermore, the other canvassing board members (including the Supervisor of Elections) were not noticed and provided the opportunity to be present to participate in the discussions. It would not be expected that election Canvassing Board issues be discussed at a Board of County Commission Meeting with only a canvassing board member and canvassing board alternates present. During the Board of County Commission meeting it was stated that action was to take place at the next scheduled election canvassing board meeting (October 17, 2014) for the county attorney Albert Hadeed (the board of county commissioners attorney) to be appointed the official canvassing board attorney, which in fact did occur during the October 17, 2014 Canvassing Board meeting as had been stated at the County Commission meeting and Commissioner George Hanns was the one to make the motion on the matter. From my perspective and other public attendees it seemed that this voting in of Hadeed had been prearranged! No such topic was discussed during the September 12th Special Canvassing Board meeting or at any other prior Canvassing Board meetings, therefore, it is believed a violation of the Florida Sunshine Law occurred. It was unknown by the Canvassing Board Agenda that a vote was going to take place at the October 17, 2014 canvassing board meeting as to who the canvassing board attorney would be. This September 12, 2014 Board of County Commission meeting appeared to be the prime opportunity for collaboration between commissioners (canvassing board member and alternates) and their staff to poll support from one another to manipulate and conquer the events of election canvassing board meetings to their advantage and liking, and to undermine and attack the supervisor of elections who is a constitutional elected officer who is independently elected by the people to preserve the integrity of the elections process.[9/] The complaint also alleged that: The County Commission also discussed election related issues on or about October 20, 2014 at a regularly scheduled Board of County Commission meeting, which too is believed to be a violation of the Sunshine Law as it was not advertised, was not on the meeting agenda, nor were other canvassing board members noticed or provided the opportunity to participate in the discussions. These occurrences of discussing the Canvassing Boards business take place with Commissioner George Hanns, Chair of the County Commission leading the meetings, and are done at the end of Board of County Commission meetings where the public would not expect such events. All discussions are captured on meeting audio though they may not be reflected in the Board of County Commission meeting minutes. The complaint further alleged that: The actions of George Hanns, the other county commissioners, and their staff have been done willingly, intentionally and with knowledge. They have used their position for personal gain- to remain in office, and to benefit other fellow commissioners to get re-re-elected so they too could remain in office to carry out agendas collectively. In the last two election cycles four of these commissioners have been narrowly elected. Hanns was a five term incumbent but won by 318 votes to a first time candidate, that was less than 1% but more than the .5% required to recount. Ericksen won by 120 votes and Meeker survived by 209 votes. They together retaliated against the supervisor of elections by conspiring together to harm the Supervisor of Elections reputation and their actions impacted our elections. Chair Commissioner George Hanns used his county employees to carry out his agenda relating to unethical practice and attacking the Supervisor of Elections for exposing his wrong doing and his dislike for being requested to remove himself from the county canvassing board. Commissioner Hanns and his fellow Commissioners are responsible for the actions and behaviors of the county administrator Craig Coffey and County Attorney Albert Hadeed. The removal of Commissioner George Hanns from the Canvassing Board left him powerless in the canvassing process and an embarrassment to our County. Discussions regarding the canvassing board took place at least twice at board of county commissioner meetings following the September 12, 2014 special canvassing board meeting and again on October 20, 2014. It is believed that both times canvassing board member and others have violated the Sunshine Law, and it is believed that those involved that are not canvassing board members or alternates were being a conduit to certain canvassing board members who were present. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that the [Hanns] and other members of the Board [of County Commissioners] or members of the canvassing board were involved in discussions which may not have been in compliance with the Sunshine Law, in order to manipulate canvassing board members or canvassing board conduct, that the Respondent was involved in placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the Respondent was involved in other or related conduct, including retaliation against the Supervisor of Elections, apparently for the benefit of a particular candidate the Respondent had endorsed, or for the benefit of others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hanns] has violated section 112.313(6), Florida Statutes, as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the 2014 Election was made up of Hanns (then-County Commission Chair), Judge Melissa Moore-Stens, and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Minutes from the September 15, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The minutes indicate that County Attorney Albert Hadeed advised that it would be the Canvassing Board's decision as to who its legal counsel should be; and that County Administrator Craig Coffey suggested that the Canvassing Board resolve the issue at its next meeting. Current Flagler County Supervisor of Elections Kaiti Lenhart advised that her records indicate that either the County Attorney or an attorney from the County Attorney's Office has served as the Canvassing Board Attorney since 1998. Records preceding the 1998 election are not available. County Attorney Hadeed indicated that the County Attorney, or someone from the County Attorney’s Office, had served as the Canvassing Board Attorney for the past 25 years. Minutes from the October 17, 2014 Canvassing Board meeting indicate that Weeks made a motion that she be given authority to select the Canvassing Board attorney and that her motion died for lack of a second. The issue of Commissioner Ericksen's contribution to a candidate in the subject election was raised at the October 17, 2014 Canvassing Board meeting by Weeks. Commissioner Ericksen was not present at the meeting. Hanns indicated at the meeting that he would bring the issue to the attention of the County Commission at its next regular meeting, which was scheduled for October 20, 2014, thus alerting the members of the Canvassing Board that the issue would be publicly discussed by the County Commission. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to Meeker, who had opposition in his upcoming reelection, and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. All discussions by the County Commission regarding the Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly noticed County Commission meetings. The only members of the Canvassing Board present at the October 20, 2014 County Commission meeting were Hanns and alternate member Commissioner Ericksen. The minutes from the October 20, 2014 County Commission meeting indicate that the County Commission reached a “consensus” to authorize the County Administrator to request the observer for the remainder of the election cycle. This request resulted from Hanns’ observations, while a member of the Canvassing Board, regarding the handling of absentee ballots by Weeks, whom he believed had close connections to at least one candidate in the election. County Administrator Coffey raised these concerns at the October 20, 2014 Commission meeting and requested County Commission permission to request an observer from the Division of Elections. County Administrator Coffey's October 21, 2014 letter to the Secretary of State, requesting an observer, indicates that the County Commission voted unanimously to authorize him to pursue the request. County Administrator Coffey stated in the letter that the community's confidence in the elections process is low due to both recent and past events involving the Supervisor of Elections. When asked about his allegation that Hanns was involved in other or related conduct, apparently for the benefit of particular candidates or others, McDonald indicated that he had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, or other related conduct regarding appointment of the County Attorney as attorney for the Canvassing Board in order to manipulate Canvassing Board members or to carry out a planned agenda for the benefit of particular candidates or others. In addition, the Commission Advocate recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by retaliating against the then-Supervisor of Elections for her efforts to remove two County Commissioners from the Canvassing Board. On April 20, 2016, the Commission issued its Public Report dismissing McDonald’s complaint against Hanns for lack of probable cause. McDonald’s Knowledge of the Falsity of His Sworn Allegations McDonald filed a sworn complaint against Hanns. When he signed the complaint, McDonald executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against Hanns, McDonald had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. All meetings of the Canvassing Board are publicly noticed and open to the public and its records are open for public inspection. When asked by the Commission’s investigator whether Hanns was involved in other or related conduct, for the benefit of particular candidates or others, McDonald indicated he had no information regarding that allegation. The allegations in the McDonald’s complaint against Hanns, which the Commission found material to investigate, were known by McDonald to be false, or filed by McDonald with reckless disregard for whether they were true or false. Malicious Intent to Injure Hanns Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that McDonald worked in concert with other individuals to maliciously injure the reputation of Hanns by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies. This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. McDonald ran against and lost to Meeker in the 2012 and 2014 elections. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. McDonald was the de facto spokesperson of the Triple Rs. McDonald was such a frequent visitor to Weeks’ office between the 2012 and 2014 election cycles that Weeks’ husband expressed concern to Commissioner McLaughlin about McDonald’s influence over her. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hanns, all members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hanns violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that Hanns violated Florida’s campaign finance law in several respects. The allegations that Hanns discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selected the Canvassing Board attorney, and advanced a hidden agenda were crucial to the ethics complaint which McDonald filed against Hanns. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and order that it be investigated. Had Hanns been found to have violated Florida ethics and elections law, it would have damaged his reputation in the community. The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 15-174 was filed with a “malicious intent” to injure the reputation of Hanns, and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that McDonald’s complaint was filed with knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that McDonald showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Hanns, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hanns. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Hanns and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, $350 per hour is a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.54 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law firm indicate that a total of 58.33 hours were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $1,919.21 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $424.90 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 13.20 hours of attorney time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 22.20 hours of paralegal time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and a total of 2.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office law through May 15, 2017, are reasonable. Costs of $292.00 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hanns established that he incurred: (i) reasonable costs in the amount of $2,346.11 and reasonable attorneys’ fees in the amount of $46,154.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) reasonable costs in the amount of $461.92 and reasonable attorneys’ fees in the amount of $10,080.00 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanns’ Petition for Costs and Attorneys’ Fees relating to Complaint 15-174 in the total amount of $59,042.53. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 21st day of September, 2017.
The Issue The issue in this case is whether just cause exists for Petitioner, Broward County School Board, to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days without pay.
Findings Of Fact The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes.2/ Respondent has been employed as a teacher with Petitioner since 1992, and has been employed as an art teacher at Western High School ("Western") since 2009. Evidence Adduced at the Final Hearing During the 2018—2019 school year, Respondent was assigned to teach Creative Photography I, an elective course, at Western. The 2018—2019 school year was the first year this course was taught at Western. In May 2018, Respondent requested that textbooks be ordered for the Creative Photography I course. As of the first few weeks of the 2018—2019 school year, the textbooks for the course had not yet arrived. Respondent testified, credibly, that she did not have access to any textbooks from which to plan her instruction during the time she was waiting on the arrival of the textbooks. During the planning period before the first week of school, Respondent contacted photography teachers at other schools in the Broward County Public School District ("District") to obtain materials to use until her textbooks arrived. For a variety of reasons, much of the material she received from other teachers was not suitable for her course. According to Respondent, Christine Malin, who taught a photography course at another public high school in the District, assisted her by providing materials. Much of what Malin provided was not suitable because Respondent's class did not have access to cameras for student use. Malin also told Respondent about two videos on photography that she had found on the internet, and that Malin's description of the content of the videos sounded suitable for Respondent's course. Respondent testified that Malin told her that she had reviewed the videos. However, when asked whether Malin told her the videos were appropriate to show to a high school class, Respondent acknowledged that "[s]he didn't say anything about that." Respondent previewed one video in its entirety. She testified that "when it came to the second one, I did not preview it as closely as I did the first one because the first one I said, okay, this isn't bad." According to Respondent, she previewed the second video after school in the evening while she was working on school paperwork. She testified "[s]o I was doing that along with listening to the video and watching the video and I was doing some other stuff." Respondent showed the videos to her first period class on August 23, 2018. One of the videos contained a total of 11 images of nude men and women on seven slides. Two of the images, shown twice during the video, depicted the models in sexually suggestive poses with their genitalia clearly visible. One of the six images depicted a nude male, which, while not depicting genitalia, was accompanied by an audio narrative referencing a dominant sexual partner. The first nude images were shown in the interval from 3:02 to 3:13 in the video. Additional nude, sexually explicit images appeared in the interval from 3:14 to 3:21 and 3:21 to 3:36 in the video. All of these images were again shown in the interval from 3:36 to 3:43 in the video. The last nude images appeared in the interval from 5:08 to 6:25 in the video, accompanied by the sexually explicit narrative. The images comprised approximately two minutes of the nearly 13—minute long video. Respondent testified that she did not realize that the video contained nude images until she saw the first nude image, at which point she tried to turn the projector off. According to Respondent, she was "fumbling," but did eventually stop the projection of the nude images, albeit not before the students saw the additional nude images. Respondent also showed the video to her second period class. According to Respondent, as soon as she saw the first nude image, she shut the projector lens off and fast—forwarded past the other images, so that the students only saw one nude image. According to Respondent, she was able to use the portions of the video that did not contain nude images for instructional purposes in her first and second period classes. Six students in Respondent's class testified about what they saw in the video shown in Respondent's class that day. The students who testified were 15— and 16—years—old at the time of the incident. All six students who testified also had provided handwritten statements to Western assistant principal Derek Gordon as part of Petitioner's investigation into the incident. Four of the six students who testified were in Respondent's first period class. They each testified to the effect that they had viewed all of the nude images in the video. Some of these students, either in testimony or in their written statements, characterized the images as "inappropriate" or "disturbing." Two of the students who testified were in Respondent's second period class. They testified to the effect that they had seen more than one nude image and had heard sexually explicit audio narrative accompanying the last nude image in the video. One of these students, in a written statement provided during the investigation, characterized the images as "inappropriate." Respondent acknowledged that she did not obtain prior approval from the principal of Western or his designee, her department head, before showing the video to her class. She also acknowledged that she had previewed the video only three days, at most, before she showed it to her classes, and that she had not watched the entire video because she was multitasking. When questioned about when she prepared her lesson plan for August 23, 2018, she responded: "I wound up doing it that Monday, Tuesday, Wednesday because I was told I was getting my textbooks, they didn't come in and I know I needed an assignment. . . . I didn't plan for two weeks because I was expecting to get the textbooks in so we could use the textbooks." She acknowledged that it was her responsibility to thoroughly preview the video before she showed it to the students, and that she had not vetted it to the extent she should have before she showed it in her classes. After her second period class on August 23, 2018, Respondent reported to Derek Gordon that she had shown a video containing nude images in her first and second period classes. Gordon initiated the investigation that culminated in Petitioner proposing to suspend Respondent for three days without pay. Respondent's timely challenge to that proposed action is the subject of this proceeding. According to Gordon and Western Principal Jimmy Arrojo, many parents contacted the school regarding the incident, some of whom wanted their children removed from Respondent's class. Arrojo testified that the incident also was widely reported in the news. Following this incident, and apart from serving her three—day suspension, Respondent taught the Creative Photography I course at Western for the remainder of the 2018—2019 school year. Respondent currently is serving as a teacher facilitator for an online class at Western. She is not teaching the Creative Photography I course at Western for the 2019—2020 school year. School Board Policy and Faculty Handbook Requirements Petitioner and the administration at Western each have adopted relevant standards and requirements governing the use of audiovisual materials in classroom instruction. Specifically, school board policy 6100, titled "Audiovisual Materials Use Policy," requires audiovisual materials to be previewed "in their entirety" before being shown to students by the teacher using the material to ensure that the language, theme, level of violence, and content are consistent with the maturity level of the students who will be viewing the material. The policy adopts the Motion Picture Association of America's ("MPAA") ratings as the guidance standards for determining whether audiovisual materials are age-appropriate. The MPAA rating rule for the PG—13 category states, in pertinent part: "[m]ore than brief nudity will require at least a PG—13 rating, but such nudity in a PG—13 rated motion picture generally will not be sexually oriented." By contrast, the MPAA rating rule for R—17 states, in pertinent part: [a]n R—rated motion picture may contain adult themes, adult activity, . . . sexually—oriented nudity, or . . . other elements, so that parents are counseled to take this rating very seriously. Children under 17 are not allowed to attend R—rated motion pictures unaccompanied by a parent or adult guardian." Additionally, the Western High School Faculty & Staff Handbook for the 2018—2019 school year ("Faculty Handbook") includes several provisions relevant to the charges at issue in this proceeding. Specifically, the section of the Faculty Handbook titled "Movies" states, in pertinent part, that "[a]ll instructional resources, including audiovisual materials, must: be consistent with School Board of Broward County policies[,] [and] [r]eflect the best teaching practices based on age— appropriateness and instructional relevance, meant to support instruction[,] not replace it." Additionally, the Faculty Handbook requires faculty who intend to use audiovisual materials for class instruction to "[c]omplete a Movie Request Form of corresponding assignment [and] [s]ubmit Request Form to department chair for approval." The Faculty Handbook also states that each teacher is required to keep his/her lesson plans one week in advance, and specifies the components that each lesson plan must contain. The purpose of this requirement is to ensure that each lesson is prepared a sufficient time in advance so that classroom instruction is organized and effective. The Faculty Handbook does not contain, and Arrojo confirmed the absence of, an exemption to the lesson plan preparation requirement for situations when a textbook on order has not arrived by the time the course begins. To this point, the Florida Department of Education has ratified the Curriculum Planning and Learning Management System ("CPALMS"), which is the "State of Florida's official source for standards information and course descriptions." CPALMS provides "an online toolbox of information, vetted resources, and interactive tools to help educators effectively implement teaching standards." As Arrojo explained, CPALMS is the "go—to site" for every course that is offered. For the Creative Photography I course, there are 460 vetted and approved course— specific resources that are available to teachers on the CPALMS website for use as instructional material.3/ Respondent's History of Prior Discipline Respondent previously has been subjected to disciplinary action while employed by Petitioner. Specifically, Respondent's disciplinary history consists of the following: a written reprimand in February 1997 for using inappropriate language in class; a written reprimand in April 1997 for making inappropriate comments in class; a three— day suspension in 2009 for using inappropriate language in class; a verbal reprimand in 2014 for intentionally exposing a student to unnecessary embarrassment and disparagement; a written reprimand in November 2017 for inappropriately touching and yelling at students; and a written reprimand issued by the State of Florida Education Practices Commission in October 2018 for failure to make reasonable effort to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and safety. Findings of Ultimate Fact As discussed in greater detail below, Respondent has been charged in this case with misconduct in office, incompetency, and willful neglect of duty under Florida Administrative Code Rule 6A—5.056, and with violating Broward County School Board policies 6100 and 4008.4/ Whether a charged offense constitutes a violation of applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but is instead an ultimate fact). Misconduct in Office under Rule 6A—5.056(2) Based on the foregoing findings, it is found, as a matter of ultimate fact, that Respondent engaged in conduct constituting misconduct in office, as defined in rule 6A—5.056. Respondent's conduct violated several provisions of Florida Administrative Code Rule 6A—10.081, the Principles of Professional Conduct for the Education Profession in Florida, which has been incorporated into rule 6A—5.056(2). Specifically, in failing to adequately prepare her lesson plans a week in advance and failing to preview the video in its entirety, Respondent failed to exercise best professional judgment, as required by rule 6A—10.081(1)(b). As a result of her failure to exercise best professional judgment, she exposed the 15— and 16—year—old students in her classes to images that they found "inappropriate" and "disturbing." In doing so, she failed to make a reasonable effort to protect her students from conditions harmful to learning and their mental health, in violation of rule 6A—10.081(2)(a)1. Furthermore, even after Respondent became aware during her first period class that the video contained nudity and sexually explicit images, she nonetheless continued to show it, thereby exposing the students to additional nude, sexually explicit images and narrative that they otherwise would not have seen or heard. In doing so, she intentionally exposed the students in her first period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's failure to exercise best professional judgment was further compounded when, after learning of the images and narrative, she nonetheless chose to show the video to her second period class. Although she testified that she skipped over almost all of the nude content, the students' testimony established that, at minimum, they were exposed to the first two nude images at 3:02 in the video and the last image, with its sexually explicit narrative, starting at 5:08 in the video. In choosing to show the video despite being aware of its contents, Respondent intentionally exposed the students in her second period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's conduct also negatively affected the confidence and respect of her students' parents, in violation of rule 6A—10.081(1)(c), which establishes a standard to achieve and sustain the highest degree of ethical conduct. To this point, Arrojo and Gordon both testified, credibly, that they had received numerous calls from parents, requesting that their children be removed from Respondent's class. For the reasons discussed below, it is also found, as a matter of ultimate fact, that Respondent engaged in conduct that violated school board policies 6100 and 4008; thus, she violated rule 6A—5.056(2)(c). For the reasons discussed in detail above, it is found, as a matter of ultimate fact, that Respondent engaged in conduct that disrupted her students' learning environment, in violation of rule 6A—5.056(2)(d). Respondent's conduct also reduced her ability to effectively perform her teaching duties, in violation of rule 6A—5.056(2)(e). Specifically, as a result of Respondent's conduct, many parents requested to have their children removed from her class. This significant consequence evidences that Respondent's ability to effectively perform her teaching duties was reduced during the 2018—2019 school year. Incompetency under Rule 6A—5.056(3) It is also found, as a matter of ultimate fact, that Respondent's conduct constitutes incompetency due to inefficiency, in violation of rule 6A—5.056(3)(a). Specifically, in showing the video to her classes, Respondent violated school board policies and State Board of Education rules, and, thus, failed to perform her teaching duties as prescribed by law. By showing the video containing content that was not appropriate for her students to see and hear, she also failed to communicate appropriately with her students. Further, as a direct result of her disorganization in failing to adequately and timely prepare her lesson plans for August 23, 2018, including completely previewing both videos that she intended to show that day, the welfare of her students was diminished. The undersigned finds, as a matter of ultimate fact, that Respondent's conduct does not constitute incompetency due to incapacity. Although Respondent was not adequately prepared for her August 23, 2018, class, and, as a result, showed a video that was age—inappropriate for her students, the evidence does not establish that she lacked adequate command of her area of specialization. To the contrary, the evidence establishes that she taught the Creative Photography I course for the entire 2018— 2019 school year, and that, apart from her three—day suspension, incurred no further disciplinary action due to lack of preparation or use of inappropriate instructional materials. Willful Neglect of Duty under Rule 6A—5.056(5) It is found, as a matter of ultimate fact, that Respondent's conduct constitutes willful neglect of duty, in violation of rule 6A—5.056(5). As discussed above, once Respondent became aware, during her first period class, of the nude and sexually explicit images in the video, she nonetheless chose to continue showing the video to her first period class, thereby recklessly5/ exposing the students to additional nude images and sexually explicit content. Violation of School Board Policy 6100 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 6100. Specifically, by showing the video in her classes, Respondent violated policies 6100(1)(d) and (2)(a), which require that audiovisual materials selected for student instruction be age—appropriate. The evidence definitively establishes that the nude and sexually explicit images and narrative were not age— appropriate for the students enrolled in the class. The students who testified at the final hearing were 15— and 16—years—old. Pursuant to the MPAA ratings, which have been incorporated into school board policy 6100, audiovisual materials depicting sexually—oriented nudity——such as that depicted in multiple images in the video——would warrant an R—rating, indicating that they are inappropriate for viewing by children younger than 17 years old. Respondent's conduct also violated policy 6100(2)(b). She did not personally preview the video depicting the nude images that she showed in her class on August 23, 2018, and the video was neither part of Western's school audiovisual collection nor reviewed or recommended in professional literature. Additionally, Respondent's conduct violated policy 6100(3)(a), because she did not obtain prior approval from Arrojo or her department head before showing the video containing the nude images to her classes. Respondent's conduct also violated policy 6100(3)(c), because she did not preview, in its entirety, the video containing the nude images before she showed it to her students. Consequently, she did not pay due attention to assure that content was consistent with the maturity level of the students in her class. Violation of School Board Policy 4008 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 4008. Specifically, as discussed above, Respondent's conduct violated several provisions of rule 6A—10.081, and, thus, violated policy 4008(B)(1). Respondent also violated policy 4008(B)(1) by failing to effectively use the materials provided by the District or State in her class instruction on August 23, 2018. Although she could have chosen from the 460 units of material available on the CPALMS website——all of which were State—approved for use in Creative Photography I——she instead chose to show a video that that she had not previewed, that was not part of Western's audiovisual collection, and that had not been approved for instructional use by Arrojo or his designee. In doing so, she failed to employ sound teaching practices and methods. Respondent violated the directive in policy 4008(B)(3) to infuse responsibility in the classroom, by failing to adequately prepare for her class, and, consequently, showing nude, sexually explicit images that were inappropriate for her students to view. Because it is determined that Respondent violated provisions of rules 6A—5.056 and 6A—10.081, and school board policy 6100, it is found that she also violated school board policy 4008(B)(8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order determining that just cause exists to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days, without pay. DONE AND ENTERED this 21st day of January, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2020.
