14-001006SP Hodge Pavilion Stem Academy (6402) vs. Pam Stewart, As Commissioner Of Education Status: Closed Recommended Order on Tuesday, June 17, 2014.

Summary: Denial of petition to participate in scholarship program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HODGE PAVILION STEM ACADEMY

(6402),

Petitioner,

vs. Case No. 14 - 1006SP

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 13, 2014, an administrative hearing in this case was

held by video tele conference in Tampa and Tallahassee, Florida,

before William F. Quattlebaum, Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Kennet h L. Williams, Esquire

Atlantic Justice Law Group, PLLC

Suite 106

118 East Jefferson Street

Orlando, Florida 32801 - 1839

For Respondent: Bonnie A nn Wilmot , Esquire

Florida Department of Education

Turlington Building, Suite 1244

325 Wes t Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue in th is case is whether the Application to

Participate in Educational Scholarship Programs submitted by the

Petitioner, Hodge Pavilion Stem Academy (6402), should be

appro ved.

PRELIMINARY STATEMENT

On October 30, 2013, the Petitioner, through its

administrator Arthur Jenkins, filed an Application to Participate

in Educational Scholarship Programs for the 2013 - 14 school year.

By letter dated January 8, 2014, Commission er of Education Pam

Stewart (Respondent) notified Mr. Jenkins that the application

was denied.

The Petitioner challenged the decision through a Petition

for Administrative Hearing filed with the Respondent. On

March 5, 2014, the Respondent forwarded the Peti tion to the

Division of Administrative Hearings. The hearing was initially

scheduled to commence on April 3, 2014, and, based on the

unopposed motion of the Respondent, was rescheduled for May 13,

2014.

At the hearing, the Petitioner presented the testi mony of

four witnesses and had Exhibits 1 through 10 admitted into

evidence. The Respondent presented the testimony of five

witnesses and had Exhibits 1 through 13 admitted into evidence.

A T ranscript of the hearing was filed on May 20, 2014. Both

part ies filed pro posed r ecommended o rder s that ha ve been reviewed

in the preparation of this Recommended O rder.

FINDING S OF FACT

1. The John M. McKay Scholarships for Students with

Disabilities Program (McKay) and the Florida Tax Credit

Scholarship Program (FT C) provide state funds to pay private

school tuition to qualified students.

2. Private schools must apply to, and obtain approval from,

the Respondent to participate in the scholarship programs.

Approval of an application authorizes the private school to

receive the scholarship funds. Individual scholarship checks are

made payable to the parent of each qualified student and the name

of the studentÓs private school. The parent endorses the check

and provides it to the school.

3. In the spring of 201 3, Mr. Jenkins and an associate,

Ayesha Hackman, founded a private school identified as the

ÐHarmon - Hodge STEM School.Ñ

4. The Harmon - Hodge STEM School submitted an application to

participate in the McKay and FTC programs. The Respondent

approved the a pplication.

5. Not long after the Harmon - Hodge STEM School was founded,

Mr. Jenkins and Ms. Hackman began to disagree about the direction

of the school. When Ms. Hackman sought to obtain control over

the school, Mr. Jenkins announced to her that he was severing his

ties with the school. At Ms. HackmanÓs request, Mr. Jenkins

agreed to continue his employment with the school.

6. During the summer of 2013, Mr. Jenkins and an associate,

Tami Robinson, began to organize another private school, the

Petiti oner in this proceeding.

7. By August of 2013, Ms. Hackman consolidated her control

of the Harmon - Hodge STEM School. She amended the corporate

documents to designate herself as the chief executive officer , to

identify Mr. Jenkins as the school principa l, and to delete the

hyphen from the school name (now identified as the ÐHarmon Hodge

STEM School.Ñ)

8. Students began attending the Harmon Hodge STEM School in

August of 2013.

9. One month later, the school started accepting

scholarship checks payab le to the ÐHarmon - Hodge STEM School.Ñ

10. Mr. Jenkins came into possession of an FTC scholarship

check for $1,183.40 , made payable to the parent of an enrolled

student and to the Harmon - Hodge STEM School.

11. In early October of 2013, Mr. Jenkins opene d an account

at a Wells Fargo bank in the name of Harmon Hodge STEM School and

deposited the check into the account. Mr. Jenkins designated

only himself as the authorized signatory on the account and did

not advise Ms. Hackman that he had opened the accou nt.

12. Very shortly after the account was opened, Wells Fargo

notified Mr. Jenkins that the account was being closed.

13. At the hearing, Mr. Jenkins testified that the account

closure was related to a previous incident of identity theft

involving his personal bank account.

14. Wells Fargo returned the deposited funds to Mr. Jenkins

in the form of cash.

15. At the hearing, Mr. Jenkins testified that he used some

of the cash to pay Harmon Hodge STEM School vendors who , he said,

had not been paid by the school. No documentation was offered to

support the testimony. Mr. Jenkins testified that the vendors

did not present bills for services , and no receipts for payment

were obtained from the vendors. Mr. Jenkins Ó testimony is not

credible.

16. Mr. J enkins testified that he retained the remainder of

the cash because he believed it was owed to him. There was no

credible evidence that the Harmon Hodge STEM School owed

Mr. Jenkins any funds or that he was entitled or authorized to

retain any state schol arship funds for his personal use.

17. After the Wells Fargo account was closed, Mr. Jenkins

came into possession of two FTC scholarship checks totaling

$2,400 that were payable to the parents of enrolled students and

to the Harmon - Hodge STEM School.

1 8. Mr. Jenkins then opened a bank account at Bank of

America in October of 2013, again in the name of Harmon Hodge

STEM School.

19. Mr. Jenkins again designated only himself as the

authorized signatory on the account and did not advise

Ms. Hackman of the account.

20. As was the case with the Wells Fargo account, Bank of

America notified Mr. Jenkins shortly after the account was opened

that the account was being closed.

21. Mr. Jenkins testified that this account closure was

also related to a previous incident of identity theft involving

his personal bank account.

22. Bank of America returned the deposited funds to

Mr. Jenkins in the form of a bank check made payable to Harmon

Hodge STEM School.

23. Using the Bank of America bank check, Mr. Jenkins

opened a third account, still in October of 2013, in the name of

Harmon Hodge STEM School, this time at Chase Bank.

24. Mr. Jenkins again designated only himself as the

authorized signatory on the account and did not advise

Ms. Hackman of the account.

25. Mr. Jenkins used a debit card issued on the Chase

account to withdraw cash from the account and to spend the funds

in the account.

26. Mr. Jenkins again testified that he used some of the

cash withdrawn from the Chase account to pay Harmon Hodge STE M

School vendors. No documentation was offered to support the

testimony. Mr. Jenkins Ó testimony is not credible.

27. Mr. Jenkins testified that he retained the remaining

Chase deposit because he believed it was owed to him. There was

no credible evide nce that the Harmon Hodge STEM School owed

Mr. Jenkins any funds or that he was entitled or authorized to

retain any state scholarship funds for his personal use.

28. Towards the end of October, Ms. Hackman became aware of

the unauthorized banking activi ty and filed a report with local

law enforcement. Criminal charges were filed against Mr. Jenkins

related to some of the banking activities referenced herein. The

charges were pending at the time of the hearing.

29. On October 30, 2013, Mr. Jenkins sub mitted an

application on behalf of the Petitioner seeking approval to

participate in the McKay and FTC scholarship programs.

30. By letter dated January 8, 2014, the Respondent, aware

of the banking activities referenced herein, notified Mr. Jenkins

that the application was denied.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.56 and 120.57, Fla. Stat. (2013). 1/

32. The Petitioner has the burden of establis hing by a

preponderance of the evidence that it is entitled to approval of

the application. Fl a. D ep Ó t of Transp . v. J.W.C. Co . , Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981) ; Balino v. Dep Ó t of HRS ,

348 So. 2d 349 (Fla. 1st DCA 1977). The evidence fails to

e stablish that the Application to Participate in Educational

Scholarship Programs, filed by Mr. Jenkins on behalf of the

Petitioner, should be approved.

33. Section 1002.39 , Florida Statutes, establishes the

McKay P rogram . Section 1002.39(7) provides tha t the C ommissioner

of E ducation may deny a private schoolÓs participation in the

McKay program if the C ommissioner determines that the owner or

operator of the school has operated an educational institution

Ðin a manner contrary to the health, safety, or w elfare of the

public.Ñ

34. Section 1002.395 establishes the FTC P rogram. Section

1002.395(11) provides that the C ommissioner of E ducation may deny

a private schoolÓs participation in the FTC program if the

C ommissioner determines that the school has fai led to comply with

the requirements set forth therein. Section 1002.395(11)(a)2.

provides that the C ommissioner may deny participation if the

owner or operator of the school has operated an educational

institution Ðin a manner contrary to the health, safe ty, or

welfare of the public.Ñ

35. The evidence establishes that without authorization by

the Harmon Hodge STEM School or by any person acting in an

official capacity with the school, Mr. Jenkins opened bank

accounts in the name of the school. He obtain ed scholarship

checks of students enrolled in the Harmon Hodge STEM School and

deposited them into the accounts he had opened. The evidence

fails to establish that Mr. Jenkins was authorized to deposit the

scholarship funds into the accounts he created or entitled to use

the funds for any purpose.

36. The banking activities referenced herein were contrary

to the welfare of the public and are sufficient to warrant denial

of the application filed by Mr. Jenkins on behalf of the

Petitioner to participate in the McKay and FTC scholarship

programs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commissioner of Education enter a

final order denying the Petitioner's Application to Participate

in Educat ional Scholarship Programs.

DONE AND ENTERED this 17th day of June , 2014 , 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

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June , 2014 .

ENDNOTE

1/ All references to Florida Sta tutes are to the 2013

modification, unless otherwise noted.

COPIES FURNISHED:

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Depa rtment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Kenneth L . Williams, Esquire

Atlantic Justice Law Group, PLLC

Suite 106

118 East Jefferson Street

Orlando, Florida 32801 - 1839

Bonnie A nn Wilmot , Esquire

Florida Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 3 2399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.