The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003.
The Issue Whether 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 14-233 On December 4, 2014, the Commission received a complaint against Hadeed filed by Weeks which alleged that Hadeed violated Florida’s election laws, the Sunshine Law, and the Code of Ethics. Specific allegations in the complaint referenced a “whispered” conversation between Albert Hadeed (“Hadeed”), the County Attorney, and alternate Canvassing Board member and County Commissioner Ericksen, Jr. (“Erickson”), outside of a Canvassing Board meeting. The complaint alleged: The actions and behaviors of some county commissioners and their staff demonstrate some may have used their position for their personal gain and for the personal gain of their co-commissioners and employers. Such activities as described herein could allow voters to also believe some persons who are privy to information, change the outcome of elections when information is prematurely revealed, and that attorney Hadeed is the canvassing board attorney because he allows the laws to be bent or broken. As Supervisor of Elections I oppose and have objected to the county attorney being the canvassing board attorney. The public should be able to trust those who are responsible for canvassing our elections and at no time should how a voter voted be released, and never should election results be release [sic] prior to 7 p.m. election night. Because attorney Hadeed and county commissioners remained hushed on behavior that has been identified, it is unknown what else may have transpired that has been kept hushed, and if such occurrences will happen again knowing they will be kept hidden and unaddressed. It is also unknown how many other people attorney Hadeed and county commissioners have told about such incidents which may give the public opinion that the Supervisor of Elections condones this type of activity, and that such activity is common. It is believed candidates may receive voter's support if it is expected that when they serve on the canvassing board they will continue such practices to allow elections to be manipulated and give some candidates an advantage. The complaint also alleged that: On October 17th, 2014, I requested that alternate canvassing board member Charles Ericksen Jr step down as an alternate canvassing board member because it became known he contributed $50 to the re-election campaign of county commissioner Frank Meeker. Ericksen refused to do so at that time, but did resign on October 20th, 2014 at a Board of County Commission meeting. It was at that time alternate canvassing board member Barbara Revels was chosen to replace Ericksen. Though commissioner Revels has been under an ethics investigation for the past several months, it did not make her ineligible to serve as an alternate canvassing board member. Attorney Hadeed was responsible for representing the canvassing board and the board of county commission [sic] and failed to provide advice indicating what should be done to prevent the appearance of impropriety when serving as a canvassing board member, and what would disqualify one from being eligible to serve on the canvassing board. He therefore knowingly and willingly allowed Ericksen to remain as an alternate canvassing board member without providing any guidance to prevent the appearance of impropriety or possible violation of Florida election code. The complaint also alleged: Attorney Hadeed also failed to guide commissioner Ericksen and encourage him to step down from the canvassing board on October 17, 2014 due to his involvement in fellow Commissioner Frank Meeker's re- election campaign. Attorney Hadeed also failed to seek and disclose to the canvassing board the degree of commissioner Ericksen's involvement in fellow commissioner/candidate Frank Meeker's campaign before or after the issues was {sic] raised before the board. Attorney Hadeed had a responsibility to ethically and legally guide the canvassing board and county commissioners to prevent one from violating the Florida election code. Attorney Hadeed did nothing to prevent or stop commissioner Ericksen's involvement on the canvassing board after it was learned of his involvement in candidate Meeker's campaign. Therefore he failed those he was representing, and did not protect the integrity of the electoral process. The complaint further alleged that: The board of county commissioners is the employer of county attorney Hadeed. It is believed to be a conflict of interest for attorney Hadeed to represent both the board of county commissioner [sic] and the canvassing board. By representing both of these boards, attorney Hadeed may provide advice and guidance to his employers who are responsible for canvassing elections, and additional employers are on the ballot. The composition of the canvassing board/alternate normally consists of at least two of the county attorney's employers (county commissioners). It may have been in attorney Hadeed's best interest for commissioner Ericksen to remain as a canvassing board alternate when it was believed he was ineligible. The complaint further alleged that: County commissioner/canvassing board member George Hanns was also asked to step down from the canvassing board on November 3, 2014 because he too was involved in a fellow commissioner Frank Meeker's re-election campaign and he too refused. Attorney Hadeed did nothing again to protect the integrity of the electoral process and ensure election code was not violated. He was made aware, if he didn't already know, that an advertisement was released by fellow county commissioner Frank Meeker stating he was endorsed by county commissioner/canvassing board member George Hanns. George Hanns stated it was not an endorsement because he didn't put it in writing. Attorney Hadeed again failed to encourage commissioner Hanns to voluntarily step down from his position on the canvassing board after the endorsement was exposed and made public on November 3, 2014. Again, attorney Hadeed failed to properly represent the canvassing board. On November 4, 2014 Commissioner George Hanns was again asked to stop [sic] down from the canvassing board for the same reason, and he again refused. Attorney Hadeed still did not encourage the commissioner to voluntarily step down, and he did not provide anything on the matter to support why he should not be required to step down. Attorney Roberta Walton produced an opinion on the matter to support why he should step down. It was at that time when attorney Hadeed attempted to discredit attorney Walton's findings, but again produced nothing to prove otherwise. The county judge (canvassing board chair) reviewed the opinion attorney Walton provided and it was then when she supported the motion made by the supervisor of elections to remove commissioner George Hanns from the county canvassing board. Again, attorney Hadeed made no attempt to uphold the law, and again failed to properly represent the canvassing board and county commissioners as he failed to provide proper guidance. Guidance that would have spared tension on the canvassing board, prevented embarrassment to a county commissioner and preserved the integrity of the electoral process. The complaint also alleged: Per Florida Statute 102.141(6) the resignation of canvassing board member Charles Ericksen Jr was reflected in the Conduct of Election Report that is filed with the Florida Division of Elections following the certification of the election, as was the removal of the Chairman of the Board of County Commissioners, George Hanns. Commissioner/alternate canvassing board member Barbara Revels (Charles Ericksen's replacement) refused to sign the required Conduct of Election Report because it reflected the fact that 1 county commissioner was removed from the Canvassing Board. In fact, commissioner Revels wrote on the report "Refused to sign: Barbara Revels". Commissioner Revels stated she did not feel it was necessary that such information be reflected on the report; Supervisor Weeks disagreed as she found the matter to be material to the conduct of election. Two of the three canvassing board members (the Supervisor of Elections and County Judge) signed the report willingly. County/canvassing board attorney Hadeed failed to advise canvassing board member/ county commissioner Barbara Revels on completing the required report by placing her signature in the required area. Attorney Hadeed also failed to say whether the report would be considered incomplete due to the absence of a canvassing board members signature, and if the report lacking a signature would put the canvassing board at risk of being in violation of Florida election code. Because attorney Hadeed failed to properly guide the canvassing board members with prior issues, as well as with the issues of commissioner Revels resistance, it appeared he and county commissioners are in collusion. He never seems to address or provide guidance in areas as have been referenced, but quite often weighs in on influencing canvassing board members decisions and inserts his comments and opinions. Again, attorney Hadeed did not properly represent the canvassing board. Attorney Hadeed should have ensured and encouraged that the requirements of the canvassing board were being met. However, he spoke up on another matter regarding a voter's registration complaint and weighed in on that matter being noted on the conduct of election report. Perhaps attorney Hadeed spoke up at this time because Dennis and Janet McDonald whom the complaint was filed on are quite vocal and critical of attorney Hadeed, and his job performance. Finally, the complaint alleged: Attorney Hadeed demonstrated the same poor judgment in 2010 when he violated the Sunshine Law by being a conduit between some canvassing board members. He was successful in creating the same type of hostile environment at that time as he did in 2014 when he made great efforts to change meeting minutes from the August 6, 2010 canvassing board meeting by verbally communicating with canvassing board members, and then distributed e-mails to carry out his plan. Those meeting minutes reflected when he incorrectly advised the canvassing board as to whom the chair of the canvassing board shall by Florida Statue [sic] be when an alternate for the canvassing board chair is required to serve. Attorney Hadeed wanted the language that existed in the first paragraph of the meeting minutes to be replaced with new language; which would then remove language that reflected the incorrect advice he gave the board. 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 [Hadeed] engaged in a "whispering" exchange at a canvassing board meeting or otherwise was involved in discussions which may not have been in compliance with the Sunshine Law, that he allowed an ineligible person to remain on the canvassing board or did not provide proper advice or legal service regarding the person's being on the canvassing board, that he failed to report a crime, that he was involved in other or related conduct, and that this may have been for the purpose of benefiting himself, particular candidates, or 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 [Hadeed] has violated section 112.313(6) 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 Flagler County Canvassing Board for the 2014 Election was made up of Judge Melissa Moore-Stens, County Commission Chairman George Hanns (Commissioner Hanns), and then-Supervisor of Elections Kimberle Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Weeks alleged that Hadeed used his position as the Canvassing Board Attorney to manipulate the process to benefit Commissioner Meeker's candidacy by failing to advise Commissioner Ericksen to resign from the Canvassing Board. Weeks alleged that Hadeed failed to advise Commissioner Hanns to resign from the Canvassing Board after a political advertisement was distributed which contained an endorsement of Commissioner Meeker by Commissioner Hanns. Minutes from the October 17, 2014 Canvassing Board meeting confirm that Weeks mentioned that Commissioner Ericksen made a contribution to Commissioner Meeker's campaign and that the Department of State, Division of Elections, had advised her that the contribution was not considered to be "active participation" in a campaign. The minutes also confirm that Commissioner Ericksen was not present at the meeting. Hadeed learned from Commissioner Ericksen on the morning of October 20, 2014, prior to a scheduled County Commission meeting, that Commissioner Ericksen attended a fundraiser for Commissioner Meeker. It was at that time that Hadeed advised Commissioner Ericksen to resign as a member of the Canvassing Board. Commissioner Ericksen confirmed that he met with Hadeed on the morning of October 20, 2014, before the County Commission meeting, and that Hadeed advised him that his attendance at Commissioner Meeker's fundraiser would disqualify him from serving on the Canvassing Board. Commissioner Ericksen stated that during this consultation Hadeed advised him to resign from the Canvassing Board. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to another candidate with opposition in the election (Meeker) 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. Weeks further alleged that Hadeed failed to provide proper legal advice when he failed to advise County Commission Chairman Hanns to resign his position on the Canvassing Board after a political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns. Weeks advised that she asked Commissioner Hanns to step down from the Canvassing Board at its November 3, 2014 meeting because of the endorsement, and that he refused to do so. Weeks stated that Hadeed was present and did not provide advice regarding the situation. Hadeed related that he did not advise Commissioner Hanns to resign from the Canvassing Board because Commissioner Hanns stated that he did not endorse Commissioner Meeker's campaign. Commissioner Hanns stated that a campaign mailer was mistakenly sent to voters by Commissioner Meeker's campaign, including an endorsement attributed to Commissioner Hanns. Commissioner Meeker's campaign, Hadeed said, distributed another mailer correcting the error and notifying each of the recipients of the original mailer that Commissioner Hanns had not endorsed Commissioner Meeker's campaign. Hadeed stated that he discussed the issue at the November 4, 2014 Canvassing Board meeting and that the Division of Elections’ interpretation of the statutes involving disqualification of Canvassing Board members requires intentional, rather than perceived, action. However, Hadeed said, Weeks made a motion to remove Commissioner Hanns from the Canvassing Board, and that motion was seconded by County Judge Melissa Moore-Stens (the third member of the Canvassing Board). Minutes from the November 4, 2014 Canvassing Board meeting confirm that Commissioner Hanns stated that he did not give permission for his photo or endorsement to be used in the advertisement by Commissioner Meeker's campaign and that he did not endorse Commissioner Meeker. The minutes also confirm that Weeks made a motion to remove Commissioner Hanns from the Canvassing Board and that Judge Moore-Stens seconded that motion. The vote on the motion was two to one with Commissioner Hanns voting against it. Commissioner Hanns stated that he contacted Hadeed at the time of the mistaken endorsement, who advised him that he had done nothing wrong and was not required to resign. During the November 4, 2014 Canvassing Board meeting both Hadeed and Roberta Walton, the attorney hired by Weeks to represent her office, agreed Commissioner Hanns was not required to resign. Their opinions were informed, in part, by written opinions from the Division of Elections. Commissioner Hanns provided an October 26, 2015 Division of Elections opinion which directly addressed Weeks' desire for Commissioner Hanns to resign. The opinion stands for the proposition that mistakenly being a part of an endorsement in a political advertisement is not considered “active participation” which would require replacement of the canvassing board member. When asked about her allegation that Hadeed was involved in other or related conduct, apparently for the benefit of particular candidates or others, Weeks indicated that she 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 Hadeed violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, allowing an ineligible person to remain on the Canvassing Board by not providing proper legal services to the Canvassing Board, or by being involved in other or related conduct for the benefit of himself, particular candidates, or others. On April 20, 2016, the Commission issued its Public Report dismissing Weeks’ complaint for lack of probable cause. Weeks’ Knowledge of the Falsity of Her Sworn Allegations Weeks filed a sworn complaint against Hadeed. When signing the complaint, Weeks executed an oath that “the facts set forth in the complaint were true and correct ” Weeks served as a member of the Canvassing Board during the 2014 Election Cycle. Weeks was present at both the September 12, 2014 and the October 17, 2014 meetings of the Flagler County Canvassing Board. The Flagler County Canvassing Board makes the minutes of its meetings available to the public. Weeks had access to the minutes of the Flagler County Canvassing Board of which she was a member. Prior to filing her complaint against Hadeed, Weeks 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 Flagler County Commission is archived for public viewing on the Flagler County website. Minutes of all Flagler County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Weeks is familiar with the process of obtaining minutes of County Commission meetings by request as evidenced by her public record requests made during the pendency of this proceeding before the Division. The minutes of the September 15, 2014 meeting of the Flagler County Commission reflect the County Commission discussed whether the Canvassing Board could select its own attorney, and, ultimately, suggested the Canvassing Board affirm selection of its attorney by vote at a future meeting.9/ 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 Flagler 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. Contrary to Weeks’ allegation that Commissioner Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting, the official minutes of that meeting indicate that Commissioner Ericksen did not attend that meeting. Weeks’ allegations that Hadeed had a conflict of interest in serving as both the County Attorney and the Canvassing Board attorney were false, and were known by Weeks to be false, or were made with reckless disregard of whether they were false. Contrary to Weeks’ allegations that Hadeed failed to give proper legal advice when he failed to advise Commissioner Hanns to resign his position on the Canvassing Board after the political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns, the record revealed that Hadeed’s advice was correct and proper, notwithstanding the Canvassing Board’s ultra vires action in removing Commissioner Hanns from the Canvassing Board. When this issue was discussed at the November 4, 2014 meeting of the Canvassing Board, Roberta Walton, the attorney hired by Weeks to represent her office, agreed with the advice given by Hadeed that Commissioner Hanns was not required to resign. When asked by the Commission’s investigator whether Hadeed was involved in other or related conduct, for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. The allegations in Weeks’ complaint against Hadeed, which the Commission found material to investigate, were known by Weeks to be false or were filed by Weeks with reckless disregard for whether they were true or false. Malicious Intent to Injure Reputation 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 Weeks worked in concert with other individuals to maliciously injure the reputation of Hadeed by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies.10/ 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. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. Dennis McDonald ran against and lost to Commissioner Frank Meeker in 2012 and 2014. 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. Weeks was not a member of the Triple Rs; however, Dennis McDonald, the de facto spokesperson of the Triple Rs, frequently visited Weeks’ office, particularly in the period between the 2014 primary and general election. Weeks’ interaction with McDonald and other Triple Rs during this timeframe was so pervasive that Weeks’ husband expressed concern to McLaughlin about McDonald’s influence over Weeks. Weeks filed six complaints against various Flagler County officials, many of the same officials about whom the Triple Rs also filed complaints. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hadeed, all members of the 2014 County Commission, 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 Hadeed violated Florida’s ethics laws and the Sunshine Law, Weeks’ complaint alleged that Hadeed conspired to cover up felonious conduct by a member of the County Commission and that Hadeed violated Florida’s elections laws, specifically chapter 106, Florida Statutes, in several respects. Weeks also filed a complaint against Hadeed with The Florida Bar. That complaint tracked Ethics Complaint 14-233 in many respects and included allegations that Hadeed violated Florida’s ethics laws and the Sunshine Law, improperly altered public records, and conspired to cover up a felony. The allegations that Hadeed participated in discussions that violated the Sunshine Law, acted to allow an illegible person to serve on the Canvassing Board, altered the minutes of the Canvassing Board, gave improper legal advice, and engaged in other conduct to benefit particular candidates in the 2014 Election, were crucial to the ethics complaint which Weeks filed against Hadeed. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and ordered that it be investigated. Had Hadeed been found to have violated Florida law, it would have damaged his reputation in the community and would have jeopardized his ability to practice law. The evidence also shows a concerted effort by Weeks and the Triple Rs to continue filing new complaints after dismissal orders in order to keep Flagler County officials under constant investigation by various agencies, which kept them under a cloud of suspicion with the public. The totality of these findings, including the number of complaints, the false complaints to The Florida Bar and the Elections Commission, 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 14-233 was filed with a “malicious intent” to injure the reputation of Hadeed and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Weeks’ complaint was filed with knowledge that, or with reckless disregard for 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 Weeks showed “reckless disregard” for whether her 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 professional and political damage the complaint would cause Hadeed, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hadeed. Attorney’s Fees and Costs Upon receipt and review of the complaints filed against Hadeed 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 the 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, a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding is $350 per hour. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hour records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 115.69 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 records of the Messer Caparello law firm indicate that an additional 28.80 hours were spent in seeking costs and fees for that defense at the formal hearing and in preparing the Proposed Recommended Order. The total hours spent by the Messer Caparello law firm in defense of the Complaint against Petitioner, and in seeking costs and fees for that defense, is 144.49. The total hours spent on this case by the Messer Caparello law firm is reasonable. Costs of $1,785.03 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $1,012.44 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. Hadeed has not sought fees for his time as the County Attorney in the defense of this complaint against him. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 30.85 hours for paralegal time were spent in 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 17.10 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 before May 15, 2017, are reasonable. After May 15, 2017, no additional costs were charged by the Flagler County Attorney’s Office. 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, Hadeed has established that he incurred: (i) costs in the amount of $2,797.47 and attorneys’ fees in the amount of $50,571.50 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) costs in the amount of $168.93 and $7,144.50 for paralegal services incurred by the Flagler County Attorney’s Office in defending 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 Hadeed’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-233 in the total amount of $60,682.40. DONE AND ENTERED this 31st day of August, 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 31st day of August, 2017.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a school security monitor.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to Article IX, section 4(b), Florida Constitution and section 1001.32, Florida Statutes. At all times relevant, Respondent was employed with Petitioner pursuant to a professional services contract as a school security monitor at John F. Kennedy Middle School ("JFKMS"), a public school in Miami-Dade County, Florida. Respondent has been employed with Petitioner as a school security monitor at JFKMS since 2010. At all times relevant, Respondent's employment was governed by the collective bargaining agreement between Miami- Dade County Public Schools and the United Teachers of Dade Contract, Petitioner's rules, and Florida law. Notice of Specific Charges Petitioner's Notice of Specific Charges, which constitutes the administrative charging document in this proceeding, was filed on January 26, 2016. In the Notice of Specific Charges, Petitioner alleges that Respondent picked up J.F., a JFKMS student, and dropped him to the floor, and also alleges that Respondent grabbed J.F. by the hood of his sweatshirt in such a manner that J.F. complained of being unable to breathe. The Notice of Specific Charges charges Respondent with having committed misconduct in office, as defined in Florida Administrative Code Rule 6A-5.056(2), including violating specified rules and School Board policies incorporated therein; and with having committed gross insubordination, as defined in rule 6A-5.056(4). The Evidence Adduced at Hearing The events giving rise to this proceeding occurred on or about May 19, 2015, at JFKMS. That day, Respondent was on duty as a school security monitor. At the time of the incident giving rise to this proceeding, Respondent was monitoring the "spill-out" area at JFKMS. The spill-out area is the area outside of the cafeteria where students congregate after they have finished eating.2/ It is separated from a courtyard by a wall consisting of bars. A gate connects the spill-out area to a courtyard.3/ Respondent saw J.F. slap a student on the head and then initiate a slap-boxing episode with another student. Slap-boxing is a form of play-fighting in which the participants slap each other with open hands rather than hit each other with fists. Although it is play-fighting, slap- boxing can, and often does, escalate into real fighting if the participants are hurt or become angry. Slap-boxing is contrary to Petitioner's policies governing student conduct and discipline, including the Code of Student Conduct.4/ Respondent ordered J.F. and the other student to stop slap-boxing. Thereafter, they exited the spill-out area and went into the courtyard, where they continued to slap-box. Respondent began to close the gate separating the courtyard from the spill-out area. Thereafter, the interaction between Respondent and J.F. that gave rise to this proceeding occurred. J.F. did not testify at the final hearing. To establish that Respondent engaged in the conduct specifically alleged in the Notice of Specific Charges, Petitioner presented the testimony of Officer Delontay Dumas, an officer in Petitioner's Police Department. Dumas was assigned to, and on duty at, JFKMS on the day of the events giving rise to this proceeding. Through his school radio, Dumas heard shouting that there was a fight going on. When he arrived at the spill-out area, he observed Respondent and J.F., who, at that point, appeared to have been separated from each other by staff members and students. Dumas did not personally see the events that gave rise to this proceeding. Petitioner presented video footage recorded by two surveillance cameras, hereafter referred to as "Camera 5" and "Camera 6," located in the spill-out area. Although Dumas did not personally witness the events, he identified Respondent, J.F., and another person (D.M.) shown in the video footage. Dumas also provided some narrative description of the events depicted in the footage.5/ The quality of the video footage from both Cameras 5 and 6 generally is poor. One can reasonably assume, based on the very small size of the images in the video footage, that the cameras are located considerable distances from the specific location within the spill-out area where the incident occurred. As such, one is unable to clearly——or, in some instances, at all——see or identify who is present and what is happening. When the image is enlarged to "full size," the resolution becomes extremely poor, again making it very difficult to impossible to clearly, if at all, see or identify who is present and what is happening. No audio recording associated with the video footage from either camera was provided. Camera 5 is a panning surveillance camera.6/ As such, it does not continuously monitor or depict a specific location within the spill-out area; rather, the footage depicts a particular location for a brief period before the camera pans to another location in the spill-out area. Thus, one is not able to see a continuous sequence of events occurring in any given location within the spill-out area. The only video footage from Camera 5 that is relevant to this proceeding is that showing the gate between the spill- out area and courtyard. The following constitutes the pertinent timeline7/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 58/: 13:01:44 A person who appears to be Respondent (as identified by Dumas in connection with testimony regarding Camera 6) is standing at the gate between the spill-out area and the courtyard, and closes the gate. 13:02:49 Students are at the gate, which is open. Respondent is not at the gate. 13:03:16 Student is in the gate, which is open. Respondent is not at the gate. 13:03:52 A student in a red shirt exits gate into courtyard. Respondent is not at the gate. 13:04:26 No one is at/in the gate, which is open. 13:05:02 The gate is open and several people are standing near or in it. No one can be identified due to poor image quality. The small image is dark and distant; the "full size" image has such poor resolution that one is unable to identify the persons shown in the footage. 13:05:04 - 13:05:06 Respondent is identified from the white emblem on the back of his black shirt (as seen more clearly in the footage from Camera 6). He is standing in the open gate and is facing into the courtyard. The students near him are not and cannot be identified. It appears that Respondent closes the gate at approximately 13:05:06. 13:05:35 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate door is closed. A person can be seen on the other side of the gate door. That person cannot be definitively identified due to the poor video quality. Two other people, who cannot be identified, are standing inside the spill-out area near the Respondent. 13:06:11 A person who appears to be Respondent is standing at the gate, inside the spill out area. The gate is closed. A person can be seen on the other side of the gate door. That person may be J.F., but he or she cannot be definitively identified due to the poor video quality. 13:07:09 The gate is open and two persons are standing near each other. The person in dark clothing appears to be Respondent and the person in a white top appears to be J.F. However, neither the small nor "full-size" video images are of sufficient quality or provide sufficient resolution to definitively discern the actions of these persons. 13:07:23 Respondent is standing in the open gate facing into the courtyard, and the white emblem is visible although not legible. The student, who appears to be J.F., appears to be on the other side of the gate in the courtyard. 13:07:27 Three other persons, who are unidentified, are now standing in close proximity to Respondent. 13:07:52 The gate is open, Respondent and a student, who appears to be J.F., appear to be engaged with each other. The student appears to be moving toward or pushing Respondent. Although the image resolution is too poor on both small and "full size" to enable one to precisely see the respective positions of these persons, J.F.'s head does not appear to be covered by the hood. 13:07:53 The person who appears to be J.F. is inside the spill-out area. Respondent is in the gateway, but it is not possible to determine whether Respondent is touching J.F. or vice versa. 13:07:54 The person who appears to be J.F. is in the spill-out area, and the person who appears to be Respondent appears to be crouching next to him. However, it cannot be determined whether Respondent is touching J.F. or vice versa. The video footage for Camera 5 ends at 13:08:12. Based on the foregoing, the undersigned finds that the video footage for Camera 5 does not definitively depict, and therefore does not establish, that Respondent picked up J.F., dropped him to the floor, or grabbed the hood of his sweatshirt such that it caused J.F. to be unable to breathe, as is alleged in the Notice of Specific Charges. The poor quality of the video footage does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged.9/ Accordingly, the undersigned finds the video footage from Camera 5 unpersuasive to show that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Camera 6 is a stationary surveillance camera located in the spill-out area.10/ The following constitutes the pertinent timeline11/ of events, with a description of the events as observed by the undersigned, at the time shown on the timestamp on the relevant video footage from Camera 612/: 13:01:36 – 13:01:45 Respondent (who is identified by Dumas) appears in the video field and walks to the gate separating the spill-out area from the courtyard. At this point, the white emblem identifying him as a school security monitor can be seen on the back of his shirt but it is not legible due to the poor quality of the video footage. 13:01:46 – 13:02:13 Respondent is standing at the gate. Several students walk into and out of the spill-out area through the gate. 13:01:14 Respondent walks away from the gate, toward another part of the spill-out area. 13:02:34 Respondent is no longer visible in the video footage. 13:02:52 J.F. (identified by Dumas), who is wearing a white hooded sweatshirt and khaki shorts, appears in the video footage. He is accompanied by, and interacting with, other students. 13:03:19 J.F. and another student, who is wearing a red top and khaki pants, are interacting with each other. J.F. briefly turns around and faces the direction in which Respondent previously walked as he left the field of view. By 13:03:24, J.F. has turned back in the opposite direction and walks away from the other student. 13:03:33 Respondent reappears on the right-hand edge of the video footage, coming from the direction J.F. faced as he briefly turned, before turning back around and walking away. 13:03:48 J.F. is in close proximity to, and interacting with, the student in the red top. 13:03:50 J.F. exits the spill-out area through the gate and goes into the courtyard. By 13:03:53, the student in the red top also has exited the spill-out area into the courtyard. Respondent can be seen near the lower right- hand corner of the video footage, facing in the direction of J.F. and the student in the red top. By this time, movement in the courtyard can be seen on the left-hand edge of the video footage. Respondent begins to walk toward the gate. 13:04:24 Respondent walks toward the gate between the spill-out area and the courtyard. 13:04:33 Respondent stands at the gate. 13:04:35 Respondent is no longer visible at the gate; it appears that he moved through the gate toward or into the courtyard. 13:04:36 J.F. moves back into the spill-out area. He appears to be falling backward into the spill-out area, and in doing so, appears to fall into other students, who are walking by. Respondent is not visible. 13:04:37 J.F. appears to regain his balance and appears to stand upright or nearly upright. Respondent is not visible. 13:04:38 J.F. again appears to be falling backward, with his back facing the gate. Respondent is not visible. A person, who cannot be identified, is standing in the gate and appears to crouch down. 13:04:38 A student wearing red enters the spill-out area from the courtyard and partially obscures the view of J.F. Respondent is not visible. 13:04:39 A person wearing black, who cannot be clearly seen and cannot be identified by viewing the video footage, appears to be standing over J.F., who appears to be lying on the ground. 13:04:40 The person wearing black, who cannot be clearly seen or identified by viewing the video footage, appears to bend down over J.F., then stands up. It appears that J.F. is sitting up. The view of J.F. and the person wearing black largely is obscured by student bystanders, including the student in the red top, who is running away from the location of J.F. and the person wearing black. 13:04:41 Neither J.F. nor the person wearing black are visible in the video footage. 13:05:17 A person wearing black is standing at the gate. The person cannot be identified by viewing the video. J.F. is not visible. 13:05:17 – 13:07:00 The person wearing black is standing at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill- out area through the gate. J.F. is not visible. 13:07:01 - 13:07:56 The person in black is no longer visible at the gate. Many students walk by and stand, obscuring the view of the gate. Students exit and enter the spill-out area through the gate. J.F. is not visible. 13:07:57 Respondent (as identified by Dumas) is seen standing at the gate. A student wearing a light green or blue top is standing in a position that partially obscures the view of Respondent. J.F. is not visible. 13:08:10 J.F. (as identified by Dumas) is standing next to Respondent at or in the gate. 13:08:13 J.F. moves forward from the gate into the spill- out area and appears to be crouching or bending down. 13:08:14 J.F. swings around such that he is facing the spill-out area and appears to grasp the bars that comprise the separation wall between the spill-out area and the courtyard. Respondent appears to briefly place his arm on J.F.'s torso. 13:08:15 Respondent and J.F. are seen standing next to each other in the gate. 13:08:17 J.F. appears to have backed up and is holding onto the bars. The view of J.F. is obscured by another person wearing a white short-sleeved shirt and dark pants, previously identified as D.M. by Dumas, who stands next to J.F. Starting at 13:08:18 to the end of the video footage at 13:12:01, the notation "[No Recorded Data]" intermittently appears for brief intervals in the lower left corner of the video footage. Simultaneously with this notation, the video footage briefly freezes before resuming, causing the footage to appear jerky and to rapidly skip forward. 13:08:30 J.F. appears to be standing in the spill-out area. The view of Respondent is almost completely obscured by D.M. 13:08:34 J.F. is in the spill-out area standing next to Respondent at the gate. They do not appear to be in any physical contact with each other. The view of both J.F. and Respondent is partially obscured by D.M. 13:08:35 - 13:08:49 D.M. almost completely blocks the view of Respondent and J.F. 13:08:49 Respondent and J.F. are standing in the gate. 13:08:52 J.F. begins to move side-way into the spill-out area and appears to crouch slightly. His back is facing the camera. 13:08:54 – 13:09:00 J.F. is upright and standing in the spill-out area next to and facing Respondent, who is standing at the gate. 13:09:01 J.F. appears to be facing, and moving back away from, Respondent. He is standing up and his arms are spread away from his body. 13:09:02 J.F. is crouching forward and facing Respondent. One arm is visibly spread away from his body. 13:09:03 J.F. is standing upright in the spill-over area, facing Respondent, who is standing in the gateway. 13:09:04 J.F. has bent over, and his sweatshirt appears to have ridden up in the back such that you can see a bit of his back between the bottom of the sweatshirt and the top of his shorts. His head appears to be visible. J.F. has substantially obscured the view of Respondent. 13:09:05 J.F.'s right arm is raised, and his head is slightly lowered but still visible. J.F.'s sweatshirt is ridden up in the back. J.F. has substantially obscured the view of Respondent. 13:09:07 J.F.'s right arm is again raised and he is facing Respondent. 13:09:08 J.F. bends over, then stands upright. Respondent is standing in the gate and as J.F. stands up, he largely obscures the view of Respondent. 13:09:10 J.F. is rising up from the bent-over position. Respondent appears to grasp J.F. on his upper back and under his right arm. 13:09:10 J.F. is bent over and Respondent's hand appears to touch J.F.'s upper back. 13:09:11 J.F. bends over and spins around. J.F.'s head is not visible. The sweatshirt appears to be covering his head. 13:09:12 Respondent's arm appears to circle J.F.'s waist. J.F. twists around into an upright position. J.F.'s back is to the camera. The sweatshirt appears to be covering the back of his head. J.F. is grasping one of the bars comprising the separation wall with one hand. 13:09:12 Respondent's arm appears to circle J.F.'s waist and he slightly lifts J.F. as he attempts to move him through the gate back into the courtyard. J.F. is grasping the bars of the separation wall with one hand. 13:09:14 – 13:09:16 J.F. pulls away from Respondent and backs into the spill-out area. He appears to still be wearing the sweatshirt and his head no longer appears covered by the sweatshirt. 13:09:17 By this point, students are almost completely obscuring the view of both J.F. and Respondent. 13:09:18 The view of Respondent and J.F. is completely blocked by students. A white object, which cannot be specifically identified, is briefly seen being flung. Between 13:09:18 and 13:12:01, when the video footage ends, students have gathered, completely obscuring the view of Respondent and J.F. Although the video footage from Camera 6 appears to show that Respondent briefly touched J.F. on the torso and upper back and placed his arm around J.F.'s waist, it does not show Respondent picking up J.F., dropping him to the floor, or grabbing the hood of his sweatshirt such that J.F. was unable to breathe, as alleged in the Notice of Specific Charges. The poor quality of the video footage——specifically, the small size of the footage as originally shot by the camera and its extremely poor resolution when enlarged to "full size"——does not enable the viewer, with any reasonable certainty, to identify persons shown at numerous key points in the footage or to precisely see or determine the actions in which they are engaged. Accordingly, the undersigned finds that the video footage from Camera 6 does not constitute persuasive evidence that Respondent engaged in the conduct alleged in the Notice of Specific Charges. When Dumas spoke with J.F. after the incident occurred, he took custody of J.F.'s sweatshirt, and the sweatshirt was admitted into evidence at the final hearing. The sweatshirt has a vertical rip approximately one-half inches long at the front center of the neck. Dumas testified that J.F. told him that he (J.F.) had ripped off his sweatshirt because Respondent had grabbed the hood, which was choking him.13/ As noted above, Dumas did not witness the incident, so he did not see J.F. rip the sweatshirt. Dumas did not see the sweatshirt before J.F. gave it to him, and it was ripped when Dumas received it. Petitioner also presented the testimony of student D.C.M., who was present in the spill-out area on the day in question and saw the incident. D.C.M. saw J.F. slap-boxing with another student in the courtyard. He testified that Respondent ordered J.F. and the other student to "hurry up and get back inside" the spill- out area. However, he also testified that Respondent blocked the gate between the courtyard and spill-out area to prevent J.F. and the other student from re-entering the spill-out area14/; that they tried to get back through the gate; and that the other student ultimately made it through the gate but J.F. did not. D.C.M. testified: "[a]nd then I saw [Respondent] like ——I guess he had picked [J.F.] up and put him on the ground." D.C.M. testified that he saw J.F. get up off of the ground, laughing; that J.F. again tried to force his way back through the gate; that Respondent, who was attempting to lock the gate, blocked J.F. with his body to prevent him from coming back through the gate; and that J.F. did finally "get his body a little bit through." D.C.M. testified that "[Respondent] has him against like the gate——right there, there's like metal bars, then he had him holded [sic], so I guess he had his——had [J.F.] by the hoodie of the jacket. Then I guess [J.F.], he said, 'Let me go. I can't breathe. I can't breathe.'" D.C.M. testified that at that point, J.F. became angry, ripped off his jacket, and freed himself from Respondent's grasp. J.F. then tried to hit Respondent. D.C.M. testified that he restrained J.F. and at that point, another school security monitor responded to the incident. On cross-examination, D.C.M. testified that when J.F. tried to re-enter the spill-out area, "I guess [Respondent] had picked him up and then like put him on the ground." On balance, the undersigned does not find D.C.M.'s testimony persuasive to establish that Respondent engaged in the conduct alleged in the Notice of Specific Charges. Although D.C.M. was present and claimed to have seen the events, his testimony regarding the specific conduct with which Respondent is charged was repeatedly qualified with the preface "I guess." As such, D.C.M.'s testimony regarding Respondent's actions and conduct is equivocal and indefinite. D.C.M. did not state, unequivocally, that he saw Respondent pick J.F. up and put him on the ground or that he saw Respondent grab the hood of J.F.'s sweatshirt. As such, D.C.M.'s testimony does not persuasively establish that Respondent engaged in the specific actions with which he is charged in the Notice of Specific Charges. Respondent also testified regarding the incident. He observed J.F. and another student (who was wearing a red shirt) running around, slapping other students, and engaging in slap- boxing with each other in the spill-out area. Respondent twice directed them to stop. They exited the spill-out area and went into the courtyard, where they resumed slap-boxing. In order to isolate them in the courtyard to prevent them from engaging in further disruptive behavior involving other students in the spill-out area, Respondent walked over to close the gate between the spill-out area and the courtyard. Respondent testified, credibly, that he intended to separate them from each other once he had isolated them in the courtyard. Once Respondent began to close the gate, J.F. and the other student ran toward the gate to try to get back inside the spill-out area. The student wearing the red shirt got through the gate and back into the spill-out area. Respondent testified, credibly, that J.F. also attempted to get through the gate, but ran into him and fell down. Respondent caught J.F. under his arm, walked him back out of the spill-out area, and closed the gate in order to isolate J.F. until the class bell rang. Respondent testified, credibly, that he explained to J.F. that he was to remain in the courtyard until the class bell rang, at which point Respondent would let him back into the spill-out area. J.F. continued to try to re-enter the spill-out area. Respondent did not call for another security monitor to assist him, because, in his judgment, the situation at that point was calm and under control. J.F. then pulled on the gate with sufficient force that Respondent lost his grasp on the gate, which opened. At that point, J.F. again tried to re-enter the spill-out area. Respondent again blocked J.F. with his body to prevent him from re-entering the spill-out area. In the course of blocking J.F. from re-entering the spill-out area, Respondent testified, credibly, that he caught the back of J.F.'s hooded sweatshirt and tried to move him back outside of the gate. At that point, J.F. squeezed out of his sweatshirt, threw it at him, and started throwing punches and cursing at him. Respondent attempted to stop or deflect the punches. Until that point, Respondent had not tried to call for assistance because, in his words, "it literally went from zero to 60 like that." Respondent acknowledged that before the incident escalated to the point that J.F. threw punches at him, he had placed his hands on J.F.; however, this was after J.F. had run into him, and Respondent did so in order to guide J.F. back out of the gate. Respondent testified that he did not recall having otherwise placed his hands on J.F. Respondent also stated that he grabbed the hood of J.F.'s sweatshirt as J.F. tried to squeeze past him back into the spill-out area. However, he denied having pulled the hood of the sweatshirt with force sufficient to prevent J.F. from going through the gate because he already had blocked J.F. with his body. In response to being asked why he did not "just let [J.F.] through," Respondent responded that he did not allow J.F. to re-enter the spill-out area because J.F. already had slapped other students, was running around, and had caused a disturbance, and that allowing him back into the spill-out area would have "opened it up further to more disturbance." The undersigned finds Respondent's account of the events credible and persuasive. The video footage from Camera 6 appears to show Respondent briefly touching J.F. on his torso, upper back, and waist; however, it is noted that Respondent testified that he did "not recall" having touched J.F. other than picking him up under the arm to guide him back out into the courtyard. This apparent inconsistency with the video footage from Camera 6, as observed by the undersigned, is credited to Respondent's lack of perfect recall rather than lack of candor. Importantly, Respondent persuasively and credibly denied having picked J.F. up and dropping him on the ground and grabbing him by the hood of his sweatshirt such that he could not breathe. As described above, the video footage does not contradict Respondent's testimony on these key points. Petitioner also presented the testimony of Tremaine Morgan, another school security monitor at JFKMS who arrived at the scene of the incident involving Respondent and J.F. as it was concluding. Specifically, Morgan saw J.F. throwing punches at Respondent and he saw a student grab and try to restrain J.F. as he was doing so. He did not see the entire incident, so did not see Respondent engage in the conduct alleged in the Notice of Specific Charges. Morgan stated that he did not see or hear any calls from Respondent on his school radio, but he also acknowledged that it was loud in the spill-out area at lunchtime, so that such calls would not be able to be heard. Morgan testified regarding his understanding of the proper procedure for handling instances of slap-boxing between students. According to Morgan, the students are first to be given the directive to stop, and that if they do not respond, the school administration should be called so, as he put, it "a higher power will take care of it." He testified that in his experience, that course of action has resolved the issue. On cross-examination, Morgan acknowledged that separate instances of slap-boxing between students is not necessarily identical or similar, and that in some instances, slap-boxing can escalate into real fighting. He testified that for that reason, students are not allowed to slap-box at school. Morgan's testimony apparently was presented to establish or demonstrate the correct way that an incident of slap-boxing is to be handled by a school security monitor. However, Petitioner did not present any evidence showing that Morgan possessed any greater authority, expertise, or knowledge regarding proper procedures than did Respondent. Further, as a fine, but key, point——the alleged conduct giving rise to this proceeding did not occur as Respondent was breaking up a slap-boxing episode between J.F. and the other student. The evidence shows that by the time J.F. and Respondent had physical contact with each other, J.F. and the other student already had ceased slap-boxing, the student in the red top already had re-entered the spill-out area, and J.F. was in the process of directly disobeying Respondent's directives to remain in the courtyard by attempting to run and squeeze past him to re-enter the spill-out area. The persuasive evidence establishes that J.F., not Respondent, initiated the physical contact between them when he ran into Respondent while trying to run through the gate, then again made physical contact with Respondent as he attempted to squeeze through the gate, in direct defiance of Respondent's order to remain in the courtyard. Only after J.F. had made physical contact with Respondent twice, in direct disobedience of Respondent's directives to stay out of the spill-out area and in the courtyard, did Respondent grab J.F.'s sweatshirt by the hood. Accordingly, Morgan's testimony as to how slap-boxing incidents should be handled is not directly relevant to the specific circumstances present in this case. Further, under any circumstances, the persuasive evidence establishes that Respondent did direct J.F. and the other students to stop slap-boxing, twice, and that they disregarded his directives. Mary Kate Parton,15/ principal at JFKMS, testified that school security monitors should not place their hands on a student unless the student presents a danger to himself or others, and that whether touching of a student by a school security monitor is inappropriate depends on the specific circumstances with which the school security monitor is presented in a given situation. She concurred that students at JFKMS are not allowed to slap-box, and she acknowledged that whether a school security monitor's response to slap-boxing episodes depends on the specific circumstances and situation. Respondent previously has been disciplined for having inappropriate physical contact with students at JFKMS. Specifically, in April 2013, Respondent was reprimanded for touching a student on the shoulder as he took her to the school office after she called him a racial slur. He was directed by the then-principal of JFKMS to, among other things, refrain from any physical touching of students. However, he also was directed to follow Miami-Dade County Public Schools Procedures for Safe Restraint when necessary, which authorize the reasonable use of physical force when necessary under certain circumstances, such as to quell a disturbance threatening physical injury to others, for self-defense, or to prevent harm or injury to the student, self, or others. In November 2013, Respondent was suspended for 12 days for engaging in horseplay with a student that resulted in them falling to the ground; at the hearing, Respondent acknowledged that he had been too familiar with the student and that his conduct in that instance had been inappropriate. In addition to the previously-issued directives, Respondent was directed to adhere to the Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. Additionally, he was directed, in pertinent part, to refrain from inappropriate communication with students in a way or manner such that they would perceive his position to be a friend rather than adult and a professional; to refrain from inappropriate physical contact in a way or manner that does not directly relate to his job as a security monitor; and to be a credit to himself in his employment and in the community. These incidents are not probative of whether Respondent again engaged in inappropriate touching of a student that led to this proceeding.16/ They are relevant only to the issue of whether Respondent's actions at issue in this proceeding constitute gross insubordination. Findings of Ultimate Fact Whether Respondent committed the offenses charged in this proceeding is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Misconduct in Office Having considered the evidence, the undersigned finds that Petitioner has not established, by a preponderance of the competent, credible, and persuasive evidence, that Respondent's actions in this case constitute misconduct in office, as defined in rule 6A-5.056(2), which incorporates rule 6A-10.080, rule 6A- 10.081, and Standards of Ethical Conduct, School Board Policy 4210; the Code of Ethics, School Board Policy 4210; and the Student Supervision and Welfare Policy, School Board Policy 4213. As discussed in greater detail above, the video camera footage simply does not show, with any degree of clarity or precision, that Respondent engaged in the conduct with which he is charged in the Notice of Specific Charges——i.e., picking up J.F. and dropping him to the floor and grabbing him by the hood of his sweatshirt such that he was unable to breathe.17/ Further, as discussed above, D.C.M.'s testimony was equivocal regarding Respondent's specific actions, and, as such, was not sufficiently persuasive to find that Respondent engaged in the conduct alleged in the Notice of Specific Charges. As discussed above, the video footage does show, with some reasonable certainty, some physical contact between Respondent and J.F.18/ The undersigned finds that this contact constituted the use of reasonable force which was appropriate under the circumstances, and that Respondent's actions in attempting to physically block J.F. from re-entering the spill- out area (where he already had been disruptive and physically engaged with other students) were consistent with the JFKMS procedures for dealing with disruptive behavior by a student. Specifically, Respondent testified, credibly, that, consistent with the JFKMS protocol for dealing with disruptive student behavior, he directed J.F. and the other student to stop slap-boxing with each other. He did so twice; both times, they disobeyed those directives. Once J.F. and the other student exited into the courtyard, Respondent attempted to isolate them in that area so they would not return to the spill-out area and resume in behavior that was disruptive and potentially dangerous to themselves and other students. At that point, J.F. and the other student stopped slap-boxing and attempted to get past Respondent, with one of them actually succeeding. Respondent blocked the gate with his body, consistent with the type of reasonable force that is authorized under circumstances where the student's behavior may result in injury to himself or others.19/ As discussed above, the evidence shows that J.F. made the initial contact with Respondent by running into him, at which point J.F. fell to the ground. Thereafter, as Respondent again tried to prevent him from returning into the spill-out area——while telling him he had to remain in the courtyard until the class bell rang——J.F. again attempted to squeeze past him. At this point, Respondent was justified in holding J.F. to prevent him from re-entering the spill-out area, where he previously had engaged in disruptive behavior (which could have escalated into a real fight) and had shown no inclination to stop even after being directed twice to do so. As discussed above, Respondent did not attempt to call for the assistance of another school security monitor or administration until J.F. ripped off his sweatshirt and started throwing punches at him, because until that point, Respondent considered the situation under control. Under these circumstances, the undersigned finds that Respondent did not engage in conduct constituting misconduct in office as defined by rule 6A-5.056(2). Gross Insubordination The undersigned also finds that Respondent's actions do not constitute gross misconduct, as defined in rule 6A- 5.056(4). In connection with the April 2013 reprimand of Respondent for inappropriate physical contact with a student, the then-principal of JFKMS issued directives that included the following: "[r]efrain from any physical touching of students." Another directive appeared to temper this directive by stating: "[f]ollow MDCPS Procedures for Safe Physical Restraint when necessary." In connection with the suspension of Respondent in September 2013, for horseplay with a student, the following additional directives were issued: "[r]efrain from inappropriate physical contact with students in a way or in any manner that does not directly relate to your job as a school security monitor." Here, the evidence does not show that Respondent's actions constitute the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. With respect to the April 2013 directives, to the extent they direct Respondent, as a school security monitor, to literally refrain from any physical contact with students, they are directly contrary to School Board Policy 5630, titled "Corporal Punishment and Use of Reasonable Force," which expressly authorizes school staff members, which includes school security monitors, to, within the scope of their employment, "use and apply reasonable force to quell a disturbance threatening physical injury to others, . . . in self-defense, or for the protection of persons and property." To the extent the principal's April 2013 directives are contrary to this School Board policy, they were (and are) unreasonable. Respondent's actions also do not violate the additional directives issued in September 2013 in association with his suspension. As discussed above, Respondent's conduct under the circumstances present in this case, where J.F. had engaged in disruptive behavior having the potential to escalate into a fight that could harm or injure himself or others, constituted use of reasonable force——which consisted of blocking J.F. as he tried to re-enter the spill-out area after having been told he was to remain in the courtyard until the class bell rang, and holding J.F. when J.F. again disobeyed that directive and again made physical contact with Respondent. The evidence also shows that, consistent with the September 2013 directive, Respondent followed MDCSP Procedures for safe restraint when necessary. As discussed above, Respondent twice told J.F. and the other student to stop slap- boxing, and he also repeatedly told J.F. to remain in the courtyard until the class bell rang. He gave these directives before engaging in physical restraint of J.F. by blocking, and then holding, him when he disobeyed, ran into Respondent, and ultimately, tried to punch Respondent. Further, Respondent's actions with respect to J.F. were directly related to his job as a school security monitor. Under these circumstances, the undersigned finds that Respondent did not engage in gross insubordination under rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order dismissing the Notice of Specific Charges against Respondent, reinstating Respondent's employment as a school security monitor, and awarding Respondent back pay for the period of his suspension without pay. DONE AND ENTERED this 7th day of April, 2016, 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 7th day of April, 2015.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed chiropractic physician, holding Florida license number CH 5839. In addition to his chiropractic training, the Respondent has completed a course of study in biomechanics and has received a "Masters of Professional Studies" degree from Lynn University in Human Biomechanical Trauma. He advertised services related to "Human Biomechanical Trauma" to other chiropractic physicians practicing in the same geographic area. On November 29, 2001, a twenty-nine-year-old female (referred to hereinafter as the patient) presented herself to the Respondent's office complaining of back pain of approximately two weeks duration. The patient was a former gymnast with many years of training. Her regular exercise routine included weight lifting, and the onset of her back pain occurred while she was lifting weights. Initially the pain was in the area of her mid-back and during the subsequent weeks had progressed to her lower back, and to her upper back and neck. The patient also had a history of migraine-type headaches unrelated to the weightlifting and for which she had sought previous treatment with limited success from another physician. On November 29, 2001, the Respondent completed a medical history and performed an evaluation of the patient's condition. The Respondent provided treatment and adjustment. During the time the patient received treatment, she removed all clothing but for her underpants, at the Respondent's direction. A robe was provided inside the treatment room for her to wear after undressing and before the treatment was provided. After providing the treatment on November 29, the Respondent referred the patient to another facility for a series of x-rays. On November 30, 2001, the patient returned for additional treatment at which time the Respondent performed an adjustment to the patient's neck and back. After the treatment was completed and the Respondent exited the room, the patient began to dress, at which point the Respondent entered the room holding a digital camera. The patient testified that the Respondent removed her robe, leaving her clad only in her underpants, that the Respondent told her that the photography was a routine office practice, and that he could not continue the treatment unless the photographs were taken. The patient testified that the Respondent was aggressive while the photographs were taken, speaking with a "raised voice" and moving quickly, instructing her on how to pose, and moving her arms and legs into position. The patient testified that during the incident she was scared and in a "dazed state," and that she didn't know how many photos were taken or how much time elapsed during the photo session. She made no attempt to leave the examination room until after the photos were taken. The Respondent denied that he told the patient that the photographic evaluation was a routine office procedure. The Respondent testified that he discussed the photographic evaluation with the patient and that she permitted the photos to be taken. He testified that he both verbally directed and demonstrated by example, the positions in which he sought to photograph the patient. He further testified that some of the positions came from the patient when describing her "activities of daily living." He testified that she participated in the photography willingly and without protest. Other than the Respondent and the patient, no one else was in the room during the time the photographs were taken. The Respondent's offices consisted of a small suite of rooms located in a strip shopping center. Based on the physical structure of the offices described at the hearing, it is unlikely that voices could be raised to the point of "yelling" without others in the office being aware of the situation. There is no evidence that the patient was physically prevented from leaving the office. Although the patient signed a generic release for treatment when she began seeing the Respondent, the patient testified that the release was essentially blank at the time she signed. In addition to the generic consent for treatment form, the Respondent's office had prepared a separate "Consent Agreement Concerning Biomechanic Photographic Evaluation" which provided as follows: Dear Patient: Holistic Healthcare Centers offers Biomechanic Photographic Evaluation for the purpose of specific biomechanic assessment of the patient. The procedure will include some or all of the following: Digital photos of the patient in various positions, movements and activities. These photographs will be taken with the patient partially or completely unclothed, as determined by the physician(s). Processing and analysis of these photographs on computers either on the premises or at another location, to be determined by the physician(s). Reportage to the patient as to the results of the analyses. Restrictions on the use of these photographs include: Photographic data will be kept in password protected locations and will be accessible only by Dr. Scott Baker and Dr. Scott Drizin. Appropriate hard copies of photographs will be kept in the patient's confidential case file, if needed. The photographic data will not be published either in print or electronically without the patient's express written consent. Utilizations of photographs, data and analyses results can be used educationally while protecting the privacy of the patient. I HAVE READ, UNDERSTAND AND CONSENT TO THE ABOVE. Under the conditions indicated, I hereby place myself under your care for those procedures as described above as indicated in your professional judgment. The "Consent Agreement Concerning Biomechanic Photographic Evaluation" provided a space for the signature of the person from whom consent is being sought and for the signature of a witness. The patient did not sign the photographic consent form. At no time did the patient sign any written release specifically allowing the Respondent to take photographs. According to his note handwritten on the "Consent Agreement Concerning Biomechanic Photographic Evaluation," the Respondent became aware at some point that the patient had not signed the photo consent form. A few days after the photos were taken, the patient returned to the Respondent's office and inquired about the photographs. By that time, the digital photo files had been transferred from the camera used to take the photos to a computer located in the Respondent's office. After the patient requested to view the photos, the Respondent went to a computer where the digital photo files were stored. The Respondent and the patient reviewed the photographs for about 45 minutes. During the photo review, the Respondent made comments that could be construed as relating to the patient's posture. According to the patient's testimony, such comments included "you're standing a little to the left on this one and you should be standing more upright on this one" and "see, you're standing crooked, you should be standing straight." During the photo review, the Respondent told the patient that he and his partner, Dr. Scott Baker, were interested in writing a book and pursuing additional medical training. The patient testified that the Respondent may have used the word "biomechanics" during the photo review, but was not certain. After the photos were reviewed, the patient asked for a copy of the digital image files. Initially the Respondent declined to produce the files, but by the end of the appointment, after receiving additional therapeutic treatment and adjustments, the Respondent provided to the patient a disc containing the photo files. According to the patient, the Respondent advised the patient not to show the photographs to anyone. After the patient received a copy of the photo files, she did not again see the Respondent in a therapeutic setting. She cancelled her remaining appointments with the Respondent, obtained her X-rays from the Respondent's practice, and sought treatment elsewhere. After the patient cancelled the appointments, she received at least one call from the Respondent's secretary inquiring as to the reason for the cancellation. During the call, the Respondent spoke to the patient and inquired as to whether there were problems, at which point the patient advised that she would not return to the Respondent for treatment. At the hearing, the Petitioner presented the expert testimony of Dr. Michael Major, a Florida-licensed chiropractic physician. Although Dr. Major appears to be knowledgeable about biomechanics, he has not undertaken any advanced education in biomechanics. Dr. Major testified one of the reasons to use photography in a chiropractic setting would be to observe structural changes that could occur related to treatment. Dr. Major testified that such photos are generally taken from front, side, or rear perspectives, and utilize spinal or anatomical "landmarks" for purposes of comparing pre-treatment and post-treatment conditions. Dr. Major further testified that he has used digital photography in his practice, generally placing subjects in front of a grid-pattern marked on a wall. Dr. Major's grid system also includes a bilateral scale to identify weight-bearing issues. By using the photo of the subject in front of the grid and on the scale, a chiropractic physician is able to show to a photographic subject various spinal or postural conditions. Dr. Major has used this system in marketing services to prospective clients. Dr. Major termed photos taken from positions other than in front of, to the side of, or from behind a patient as "oblique" angle photos. Dr. Majors testified that such photos had very little analytical value because of the difficulty in accurately reproducing at a subsequent date, the angles from which the original photographs were taken, thus making comparison between the sets of photographs difficult. Dr. Major testified that, when taking a later set of photos, where the angle of camera placement relative to the body is different from the original camera placement by only a few degrees, the later photograph would offer little comparative value because the landmarks would not be located appropriately. A review of the photographs in evidence indicates that the patient was photographed in a routine examination room, posed in various positions, and unclothed but for her underpants. At the hearing, Dr. Major reviewed the photos offered into evidence and opined that although some of the photos taken by the Respondent of the patient provided appropriate diagnostic information, others did not. Dr. Major testified where the photos did not contain appropriate diagnostic information, the Respondent violated the applicable standard of care by not utilizing the best techniques in order to isolate planes of motion sufficiently to provide useful information. Dr. Major also testified that the failure to obtain the patient's consent prior to taking photographs was a violation of the applicable standard of care. Dr. Major opined without elaboration that taking the photographs without the patient's consent also constituted sexual misconduct. According to Dr. Major, the failure to have another female present in the room during an exam was not a violation of the applicable standard of care. The Respondent offered evidence related to his use of photography and the development of a "protocol" that he and his partner were creating to document biomechanical evaluations of certain patients. In addition to the Respondent's testimony, the Respondent presented the testimony of Scott M. Baker, D.C., who was in practice with the Respondent at the time of the events at issue. At some point in the mid-1990's, Dr. Baker and the Respondent became interested in continuing their education in biomechanics, and both completed the additional biomechanics training referenced herein. Part of their interests included conducting research to develop a "protocol" for biomechanical evaluation. Part of the protocol included photographic evaluations of patients. The model apparently being followed referenced radiological studies where multiple X-rays from different angles were taken of a patient during diagnostic testing. However, although the Respondent asserted that the photographs were part of the treatment offered to the patient, Dr. Baker testified that the photos were not actually taken for diagnostic purposes. The alleged purpose of the photos was to educate a patient on existing conditions with the ability to demonstrate at a later date, visible progress though the use of comparative photography. Dr. Baker testified that after the Respondent took the photos of the patient, he and the Respondent reviewed the photos and indexed them by reference to anatomical characteristics. Dr. Baker acknowledged that some of the photos "weren't useful," but that it was preferable to err towards taking too many photos rather than too few, and that the intent was to discard those photos that were not useful. The consent form specific to the photographic study also indicates that the photos may be used for educational purposes with appropriate protection of a patient's privacy. Dr. Baker acknowledged that the protocol was in preliminary stages of development and that greater specificity would be required as development continued. Prior to the patient in this case, only one other chiropractic client had been photographed based on the protocol. When the photographs of the patient were taken, the position from which each photo was taken was not recorded. Dr. Baker testified that when subsequent photos were taken for comparative purposes, the photo subject would have to be repositioned based on the earlier photograph, using an anatomical point of reference. No visible grid pattern was present in the room where the patient's photos were taken and no grid is present in the photos taken of the patient by the Respondent. In order to view the photos, the Respondent planned to use a graphics software program called "Paint Shop Pro" which could allow a grid to be superimposed on a photograph. Whether the computer imposition of a grid pattern on a photo taken subsequently would provide specific anatomical references sufficient to compare the photos is unknown. The asserted reason why the patient wore only underpants in the photos was that wearing a bra would alter the center of gravity being measured. The Respondent further testified that wearing a bra could cause a "cutaneous sensory response" that could lead to a "reflex muscle spasm which would alter the center of gravity." The evidence fails to establish why the same reasoning was not applicable to the underpants that the Respondent directed the patient to leave on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Scott Drizin, D.C., is guilty of a failure to practice chiropractic medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances, and imposing a fine of $2,500. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2005. COPIES FURNISHED: Louis Kwall, Esquire Kwall, Showers, Coleman & Barack, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 27th day of August, 2015.
