20-002512SP Richard Corcoran, As Commissioner Of Education vs. Lion Of Judah Academy (4015), Lion Of Judah Academy (8827) Status: Closed Recommended Order on Tuesday, November 3, 2020.

Summary: Respondents employed a person who failed Level 2 background check and engaged in fraud as related to employee's screening and employment status; Respondents? eligibility to participate in Florida Scholarship Programs should be revoked.

background screening as required by section 1002.421(1)(m) and (p), Florida

Statutes (201 9) , and i f so, what is the appropriate remedy ; and (2) w hether

Respondent s engaged in fraud in violation of section 1002.421(3)(d) and, if so,

whether Petitioner should revoke Respondents' participation in several

Florida S cholarship P rograms. 1

P RELIMINARY S TATEMENT

On February 20, 2020, Petitioner Richard Corco ran, as Commissioner of

Education (the Commissioner or Petitioner ), issued Administrative

Complaints (Complaints) against Responden ts Lion of Judah Academy (4015)

and Lion of Judah Academy Campus 2 (8827) (collectiv ely referred to as the

Schools or Respondents ), giving notice of the Commissioner 's intent to

immediately suspend and revoke Respondents' participation in the J ohn M.

McKay Scholarships for Students with Disabilities Program, the Florida Tax

Credit Scholarship Program, the Gardiner Scholarship Program, the Hope

Scholarship Program, and the Family Empowerment Scholarship Program

(collectively referred to as the Florida Scholarship Programs). 2

The factual grounds for the intended decision to revoke scholarship

participation were set forth in both Complaints , as follows:

Disqualifying Offense: Lion Of Judah Academy

employs one Lorene Walker who has previously

been convicted of a felony violation of section 893.13, Florida Statutes. Per sections 1002.421(1)

and 435.04(2), Florida Statutes, private school

employees, owners or directors who have b een

found guilty of a felony violation of Chapter 893,

Florida Statutes, do not meet the requisite criteria

1 Unless otherwise indicated, citations to the Florida laws and administrative rules refer to

the 2019 versions.

2 Lion of Judah Academy Campus 2 (8827) did not participate in the Gardiner or Hope

Scholarship Programs.

to pass the Level 2 background screening required

by sections 1002.421(l)(m) and (p), Florida Statutes.

Fraud: Lion Of Judah Academy has knowingly and

willingly concealed its employment relationship with Lorene Walker in an effort to circumvent the requirements of law and continue the unlawful

receipt of scholarship funds. Accordingly, Lion of

Judah Academy has committed fraud as contemplated by sect ion 1002.421(3)(d), Florida

Statutes.

The C omplaints further informed Respondents that the Commissioner

may also take action if the owner "is operating or has operated an

educational institution in a manner contrary to the health, safety, or welfare

of st udents or the public, or if there is probable cause to believe that there is

fraudulent activity on the part of the school."

On March 4, 2020, Respondents' owner, Judith Shealey, filed a petition to

r einstate Ms. Walker's E mployment with the Schools (Petition) . Not h ing in

that Petition indicates Ms. Walker was still employed at the Schools.

On March 11, 2020, in response to the Complaints, the Schools submitted

for th e first time a signed copy of a termination letter dated December 9,

20 19 . As part of this same submission, Ms. Shealey sent a signed statement

indicating she had not terminated Ms. Walker, but rat her "had her work from

home." This is the first time Ms. Shealey indicated Ms. Walker was still

working for the Schools.

The Depart ment of Education (Department) eventually dismissed the

Petition with leave to amend. On April 10, 2020, the Schools filed a Motion to

Amend and Reverse Your Decision (Motion) with the Departme nt.

Subsequently, t he School s filed an Amended Petition for Ad ministrative

Hearing on May 15, 2020, which the Department received on May 18, 2020 .

On June 1, 2020, the Department transferred the matter to DOAH, as two

separate cases for each Complaint . The undersigned held a scheduling

conference on June 4, 2020, during which the parties discussed the time restraints imposed by section 1002.421(3)(c)2.c., requiring that in a scholarship program eligibility case, the hearing be conducted within 30 days

af ter DOAH's receipt of the formal written request. Neither party wished to

waive the 30 - day requirement during the scheduling conference . Therefore

the matters were consolidated and a final hearing was scheduled to be conducted by Zoom on June 23 , 2020.

O n June 17, 2020, Respondents' counsel filed a Notice of Appearance and

orally requested a continuance during a pre - hearing conference. The

Commissioner did not object and the parties waived the 30 - day requirement

to hold the final hearing.

At the final h earing on August 12, 2020, the parties offered Joint Exhibits

J1 through J8, whic h were received into evidence. Petitioner called three

witnesses to testify: RaShawn Williams, Whitney Blake, and Scott Earl e y.

Petitioner's Exhibits P1 through P21 were recei ved in evidence as well.

Respondents presented the testimony of three witnesses: Lorene Walker,

Susan Layne, and Lamar Shealey. Respondents offered no exhibits.

The final hearing T ranscript was received by the undersigned on

October 8, 2020, and an O rder imposing a deadline to file proposed

recommended orders o n October 19, 2020, was issued on that same date . The

Commissioner timely filed a P roposed R ecommended O rder , which has been

considered. Respondents ' Proposed R ecommended O rder was late - filed on

Octo ber 20, 2020. As there was no objection to the untimeliness, Respondents'

P roposed R ecommended O rder has also been considered. Prior to the hearing ,

the parties submitted an Amended Pre - Hearing Stipulation with several

stipulated facts and issues of law, w hich have been incorporated in this

Recommended Order.

F INDINGS OF F ACT

Parties, People, and Programs

1. The Department is the government agency charged with administering

numerous state scholarship programs pursuant to section 1002.421, Florida

Statutes.

2. The Department operates or has administrative responsibilities for the

Gardiner Scholarship Program, the J ohn M. McKay Scholarships for

Students with Disabilities Program, the Florida Tax Credit (FTC)

Scholarship Program, and the Family Empowerment Scholarship Program.

See §§ 1002.385, 1002.39, 1002.394, and 1002.395, Fla. Stat. The Gardiner,

McKay, FTC, and Family Empowerment scholarships defray tuition and

other qualified educational expenses for eligible students who attend charter, private , or other eligible schools in the state of Florida. The Department also

operates or administers the Hope Scholars hip Program, which provides

tuition assistance to victim s of school bullying so that they can enroll in

another school. See § 1002.40, Fla. Stat. The scholarship funds are awarded

to eligible students to be used at eligible schools.

3. The Commissioner is the agency head of the Department and has the

authority to revoke or suspend a school's eligibility to receive scholarship

monies on behalf of eligible students.

4. The Independent Education and Parental Choice Office, also referred to

as the School Choic e Office (Office), is a section of the Department which

oversees several school choice options outside Florida's public school system.

The Office also oversees the administration of various scholarships programs

under c hapter 1002. The Office is in regular contact with schools that

participate in these scholarship programs.

5. Respondents have been operating as private schools for approximately

six year s . Since the 2013/2014 school year, they have been found eligible and

participated in numerous scholarship progra ms pursuant to section 1002.421.

Respondents operate two campuses: (1) School Code No. 4015 located at 1056

N orth Pine Hills Road, Orlando, Florida (Pine Hills C ampus); and (2) School

Code No. 8827 located at 5308 Silver Star Road, Orlando, Florida (Silver Star

Campus).

6 . T he Schools serve 40 to 50 scholarship students and receive

approximately $200,000 per year in scholarship funds.

7. Judith Shealey is the owner of the Schools. She carries the title of

Executive Director, Principal, Headmistr ess, and/or Owner. Ms. Shealey has

family members who are students and teachers at the Schools.

Compliance Requirements

8 . As explained by RaShawn Williams, the Office, parents , and eligible

schools work closely together to access the scholarship funds. The parents

apply for the scholarships thro ugh the designated agency and enroll their

students directly with an eligible school. The school is responsible for enrolling the student in the scholarship program awarded to that student. Essentially, the studen t must be deemed eligible to receive scholarship funds,

and the school must be eligible to re ceive those scholarship funds. I f a private

school is deemed ineligible by the Office for participation in a scholarship

program, the students at that school do no t lose their elig ibility for

scholarship funds. Rather, they simply cannot use those funds to enroll in the ineligible school.

9. As p rivate school participants in the Florida Scholarship Programs, the

Schools were required to register with the State thro ugh the submission of a

Private School Annual Survey; and then apply for eligibility through the submission of a yearly Scholarship Compliance Form (Compliance Form).

10. The Compliance Form specifies numerous governing statutory

requirements including : ( 1) submitting background screenings for officers,

directors , or other controlling persons ; (2) certifying all staff with direct

student contact have passed an FD LE Level 2 background screening; and

(3) terminating or denying employment to all persons who cannot meet this

requirement. The Compliance Form is completed by applicant schools online,

and then a signed and notarized hard copy is mailed to the Office.

11. The relevant portions of the Compliance Form are found in "Section 4 , "

and involve background checks:

A) * Has each Owner, Operator, and Chief

Administrative Officer undergone a Level 2

background screening through the Florida

Department of Law Enforcement and submitted

the results to the Florida Department of Education

in accordance with section 1002.421(1)(m) , Florida

Statutes? (Reports must be filed with the

private school and made available for public

inspection).

* * *

C) * Have all employees and contracted personnel

with direct student contact submitted their fingerprints to the Florida De partment of Law

Enforcement for state and national background screening in accordance with section

10 02.421(1) (m), Florida Statutes?

D) * In accordance with section 1002.421(1)(m), Florida Statutes, does the school deny employment to or terminate an emplo yee or contracted

personnel with direct student contact if he or she

fails to meet the background screening standards under section 435.04, Florida Statutes?

E) * In accordance with section 1002.421(1)(m),

Florida Statutes, does the school disqualify inst ructional personnel and school administrators

from employment in any position that allows direct contact with students if the personnel or

administrators are ineligible under section 435.40,

Florida Statutes?

12. A "No" answer on any of the above q uestions would, if unresolved,

result in a private school's ineligibility for scholarship funds.

13 . The evidence establishes that the Schools answered "Yes" for sections

4A, 4C, 4D, and 4E on the notarized Compliance Forms that were submitted

on December 18, 2018 , and December 11, 2019.

14 . In addition to certifying the information above on the Compliance

Forms every year, an eligible school must submit to the O ffice screening

documentation for directors, principals, board members, administrators, and

o fficers as part of the renewal of participation in the scholarship programs.

Screening documentation related to other employees must be maintained by

the schools and is usually only reviewed by the Office during an audit or a

site visit of the school.

15 . There is no dispute that the Schools never listed Lorene Walker as an

administrator for the Schools. There is no dispute the Schools never submitted any background screening information for Ms. Walker until specifically requested by the Office in Novembe r 2019.

Employment of Lorene Walker

16 . Lorene Walker was hired by the Schools in 2013. 3 She had children

and/o r grandchildren who attend the S chools. The Schools claim Ms. Walker

was hired from an entity known as "Career Source." Although Ms. Walker beli eved that she had been cleared to work at the Schools, there is no

employment file or documentation that she had undergone the Level 2

background screening required by law before being employed at the Schools.

17. Originally, Ms. Walker worked as a "floater." As a floater , Ms. Walker

cooked, cleaned , and did whatever the school needed at the time. It is unclear

whether she had direct contact with students in this position.

3 Ms. Walker testified she began work ing there in 2015, but later stated she started in 2013.

Ms. Shealey indicate d by 2014, Ms. Walker had transitioned into the current position.

18. Regardless, in 2014 , Ms. Walker transitioned into a m o re active role at

the Schools. Although the Schools claim in response to the Complaints that

she was simply an administrative assistant to Ms. Shealey, the evidence

establishes that Ms. Walker was the Administrator for the Schools during the

time relevant to the Complaints. She reminded teachers to send out grades,

attended meetings, oversaw the lunch program, and prepared school - related

and financial documentation . Ms. Walker was also responsible for the

Schools' students' enrollment into the scholarship programs.

19. As Administrator, Ms. Walker also had authority, either explicit or

implicit, from the Schools' owner, Ms. Shealey, to represent the Schools when

dealing with the Office . She worked directly with Ms. Williams on compliance

issues, including fire safety, health inspections , and completion of the Annual

Survey and Co mpliance Form for the Schools. Ms. Walker also responded to

requests for information from Ms. Williams and others in the Department. It

was clear Ms. Walker was integral to the ope ration of the Schools.

20. Ms. Shealey and Ms. Walker were the only two individuals with access

to the Schools' email accounts that were used to correspond with the

Department. The emails from one of the email addresses usually contained

Ms. Shealey's sig nature block indicating either the title of "Principal" or

"Headmistress." Ms. W alker's signature line identified her title as

"Administrator."

21. Before being hir ed by the Schools , Ms. Walker had been arrested for

numerous offenses between 1978 and 2001 in Florida. Although most of these

offenses were dismissed, dropped, and/or abandoned, she pled nolo contend e re to and was found guilty of a 1994 charge for unlawful purchase of

a controlled substance, a second - degree felony in violation of section 8 93.13,

Florida Statutes (1993) .

22. The 1994 charge is a disqualifying offense which rendered Ms. Walker

ineligible to be a school employee. 4 There was no evidence that Ms. Walker

had obtained an exemption for this qualification.

23 . As noted above, t he Schools never disclosed Ms. Walker's importance

in their operations in their Compliance Forms . Prior to November 2019, the

Schools had never provided any screening documentation for Ms. Walker to

th e Office as part of the yearly c ompliance process .

Investigation and Complaints

24. On or around October 14, 2019, the D epartment received a complaint

from another state agency concerning possible abuse by an employee of the Sc hool at the Pine Hills campus. Although the abuse investigation was

handled outs ide of the Office, the Office opened an inquiry into the Schools '

compliance with background check requirements and other issues. Whitney Blake conducted the investigation on behalf of the Office.

25. The first step in this inquiry was a letter from Ms. B lake's supervisor,

dated October 25, 2019, requesting ( among other things ) a list of all

employees ( including both teachers and other personnel) and results of

current FDLE Level 2 background screenings for all employees.

4 Section 435.04, Florida Statutes, provides the following in relevant part:

(2) The security background investi gations under this section

must ensure that no persons subject to the provisions of this

section have been arrested for and are awaiting final

disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or gu ilty to,

or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any

of the following provisions of state law or similar law of

another jurisdiction:

* * *

(ss) Chapter 893, relating to drug ab use prevention and

control, only if the offense was a felony or if any other person

involved in the offense was a minor.

26 . On November 4, 2020, Ms. Walke r sent the Department a list of all the

Schools' staff, including herself as "Administrator," along with the results of

her background screeni ng , revealing her previous disqualifying offense .

27. On November 15, 2019, Ms. Blake attempted to contact Ms. S healey

by phone because she was concerned that Ms. Walker, who was the

disqualified employee, was the person sending the information from the

School. When she called the School s and requested to speak with the owner

(Ms. Shealey), the person who answered p urportedly claiming to be the

Schools' owner did not have a distinguishable accent. Ms. Shealey was known

to have a strong accent , whereas Ms. Walker did not . Regardless, on this call ,

Ms. Blake instructed the person on the other end of the phone line that the

Schools would need to terminate Ms. Walker immediately because of her

disqualifyi ng offense .

28. On that same day, Ms. Blake then sent a follow - up em ail to the

Schools (at both email addresses utilized by the Schools) indicating there

were o utstanding items that had not been provided as requested in the

October 25 letter . She also specifically requested proof Ms. Walker was no

longer at the Schools . Specifically, the Department stated:

Upon review of the Level 2 background screenings,

it was determined Lorene Walker has disqualifying offenses pu rsuant to section 435.04, F.S. An

employee or contracted personnel with direct

student contact means any employee or contracted

personnel who has unsupervised access to a scholarship student for who m th e private school is

responsible.

To certify compliance with this requirement, please submit a signed statement indicating Lorene Walker's employment at your school has been terminated or that individual's role with your

school no longer puts he/she in proximity to

scholarship students.

Your attention to this in the next five days will

preempt any further action on our part. (emphasis added ).

29. That same date, November 15, 2019, the Schools emailed one of the

items requested by Ms. Blake, an a buse poster, to the Office . Although

M s. Walker testified she did not send the email, it had her signature block

and was from one of the Schools' two email acc ounts to which she had access.

The undersigned finds Ms. Walker sent this email to Ms. Blake.

30. On November 18, 2019, the Schools sent another item previously

requested by Ms. Blake, the teaching qualifications for a teacher , to the

Office . Again, although Ms. Walker claimed she did not send the email, it had

her signature block and was from one of the Schools' two email acc ounts to

which she had access. The undersigned finds Ms. Walker sent this email to

Ms. Blake.

31. Ms. Blake did not receive any proof that the Schools had removed

Ms. Wal ker from her position within five days as requested in th e

November 15 email to the Schools. As a result, on November 22, 2019,

Ms. Blake emailed the S chools reiterating the requirements of sec tion

1002.421, and repeating her request for a signed statement that Ms. Walker

had been terminated or had no contact with scholarship students. Ms. Blake

also added: "Failure to turn in the requested documentation could impact

your school's ongoing participation in the Scholarship Program."

32. During this time , Ms. Blake spoke to Ms. Shealey numerous times on

the phone regarding the outstanding requests related to another teacher and the signed documentation that Ms. Walker had been removed from her

position. Ms. Shealey indicated it would be difficult to remove Ms. Walker

due to Ms. Walker's oversight of the school and her familiarity with the

scholarship student information.

33. After Ms. Blake did not receive the requested proof of Ms. Walker's

removal from the Schools and two other items related to a teacher, the Office

issued a Notice of Noncompliance on December 5, 2019.

34. On December 19, 2019, Ms. Shealey sent to Ms. Blake one of the

outstanding items related to the teacher by email. There was no mention of

Ms. Walker and no signed proof that Ms. Walker had been removed from her

position.

35. The next day, Ms. Blake wrote an email to Ms. Shealey indicating that

she did not have authority to exempt Ms. Walker from the background

screening requirements . She again asked for the outstanding information

related to the other teacher and a signed statement indicating Ms. Walker

had been removed and no longer had proximity to scholarship students.

36. On December 23, 2019, Ms. Shealey emailed Ms. Blake that the

teacher for which there was an outstanding request had resigned and no longer worked for one of the Schools. Ms. Blake responded with yet another

request for the signed statement indicating Ms. Walker had been terminated

or was no longer in proximity to scholarship students.

37. In response , Ms. Shealey sent an email to Ms. Blake with an attach ed

letter . The letter titled "Termination of your employment" and dated

December 9, 2019, indicates that Ms. Shealey terminated Ms. Walker during a meeting held on December 9, 2019. The letter is unsigned. Ms. Shealey

indicated in the text of the email that it was the ha rdest letter she had to

write.

38. Being concerned that they had not received a signed statement ,

Ms. Blake and Ms. Williams requested that a site visit be conducted at the

Pine Hills Campus. A visit was scheduled for February 5, 2020, and the Schools we re provided notice of the site visit by certified mail, email , and

telephone. Additionally, the Schools were provided a checklist of the

documents that should be provided to the inspector during the site visit.

39 . On February 5, 2020, Sc ott Earley from t he Office conducted the site

visit at the Pine Hills Campus. When he arrived, Ms. Shealey was not there

and none of the documentation previously requested had been prepared for

review. Mr. Earley testified that once Ms. Shealey arrived, she did not know

wh ere all the requested documents were, nor could she pro duce all of them .

For example, when asked about a necessary health form, Ms. Shealey indicated that Ms. Walker would k now w here the document was, but she

could not locate it.

40. Mr. Earley did not recall Ms. Shealey stating during the inspection

that Ms. Walker was working from home, but she gave Mr. Earley the

impression that Ms. Walker's background screening issue had been resolved.

Regardless, t he Site Visit Staff/Consultant Wo rksheet fi l led out for the

February 5 site visit does not disclose Ms. Walker as a member of staff or

contracted person nel with the Pine Hills Campus. Although Ms. Walker was

not at the Pine Hills Campus during the site visit, Mr. Earley believed based

on his observations and conversations with Ms. Shealey that Ms. Walker was

still employed by the Schools as a director or principal.

41. Almost t wo weeks later on February 20, 2020, Petitioner filed the

Complaints against the Schools. It was not until March 11, 2020, in response

to the Complaints that the Schools submitted for th e first time a signed copy

of a termination letter dated December 9, 2020.

42. Even after the Complaints had been served on the Schools, however, it

was unclear what Ms. Walker's involvement was with the Schools . There may

have been some confusion because Ms. Walker had been seen after her

purported termination on campus. Ms. Walker claimed she was on campus

only to pick up her children and grandchildren. Testimony from t wo of t he

Schools' teacher s indicated that they noticed Ms. Walker was no longer at the

Schools, but knew she was taking care of the Schools' paperwork from her

home. Neither teacher could establish a date certain for when M s. Walker

stopped working on campus and/ or when she began working at home.

4 3 . Prior to the filing of the Complaints in these proceedings, there was no

evidence that the Schools ever reported to the Office that Ms. Walker had

been working from home. Not hi ng in the Petition filed o n March 4, 2020,

indicates Ms. Walker was still employed at the Schools. It was not until

March 11, 2020, in response to the Complaints that the Schools submitted for

th e first time a signed copy of a termination letter dated December 9, 2020.

44. As part of the March 11 submission, Ms. Shealey sent a signed

statement indicating she had not terminated Ms. Walker, but rat her "had her

work from home." This wa s the first time Ms. Shealey indicated to the Office

that Ms. Walker was still working for the Schools.

4 5 . In the Motion filed April 10, 2020, t he Schools indicated the y were

unaware of the specifics of the Level 2 b ackground screening requirement,

and that , once aware, "we took action immediately and terminated the

employee in question." There was no indication in the body of the M otion the

Schools continued to employ Ms. Walker to work at her home. Attached to the

M otion, however, was the same letter submit ted on March 11 indicating

Ms. Walker was working from home.

4 6 . In the Amended Petition filed on May 15, 2020, the Schools state

Ms. Walker was terminated:

"I terminated Ms. Lorene Walker due to the Department's information in order to come into compliance with the Florida

Department of Education ."

"I rectified this deficiency by terminating Ms. Walker. "

" Ms. Lorene Walker was terminated on December 9, 2019 , as

advised by Whitney Blake."

47. Although the Amended Petition does not explicitly state Ms. Walker

continued to work for the Schools at home, it does leave room for this

interpretation : "As of December 9, 2019, Ms. Lorene Walker no longer works

in the Lion of Judah facility."

48 . It is unclear on what date Ms. Walker stopped work ing fro m home for

the Schools. What is clear is that at the time of the final hearing she was no

longer work ing at the Schools in any location or in any capacity.

U LTIMATE F ACTUAL D ETERMINATIONS

4 9 . The greater weight of the evidence establishes Ms. Walker , in her role

as Administrator, should have been disclosed to the Office as an "operator" or

"a person with equivalent decision making authority." The Schools were

required to send her background screening documentation to the Office as

required by the Comp liance Form and section 1002.421(1)(p), and they did

not.

50 . The Schools employed a person with a disqualifying offense in

violation of section s 1002.421(1)(m) and 435.04(2)(ss) . Specifically, the

Schools employed Ms. Walker from 2014 (if not earlier) th rough December

2019 (if not later) in a position in which she was in the vicinity of scholarship

students, knowing that she had been found guilty of a felony and without

obtaining or providing documentation related to a Level 2 background

clearance.

51 . T he Schools continued to allow Ms. Walker to remain in a position

tha t placed her in the vicinity of scholarship students after receiving

notification of her ineligibility for almost a month (if not more).

52 . The greater weight of the evidence establishes the Schools engaged in

fraudulent activity, to wit: (1) Ms. Shealey falsely represented to the Office

that the Schools complied with Section 4 of the Co mpliance Form for 2018

and 2019; (2) the Schools falsely obscured Ms. Walker's role at the School and

he r criminal background ; and (3) the Schools failed to honestly di sclose

Ms. Walker's employment status when they claimed to terminate her on

December 9, 2020, but failed to inform the Office that they had retained (or

rehired) her to work at home. The Schoo ls made these statements of material

fact either knowing they were false or in reckless disregard of the truth or

falsity of the representations, which were false.

C ONCLUSIONS OF L AW

5 3 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569, 120.57(1), and 1002.421(3)(c), Florida Statutes.

54 . The burden of establishing the grounds for suspending or revoking a

private school's participation in the scholarship programs at issue falls on the

Commissioner, who must prove the allegations by a preponderance of the

evidence. Se e S tewart v. Silva of So uth Florida, Inc. , Case No. 17 - 3898SP,

2017 WL 9285925, at *10 (Fla. DOAH Dec. 11, 2017; Fla. DOE Mar. 14, 2018)

(citing Fla. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st

DCA 1981)); see also § 120.57(1)(j), Fla. Stat.

55 . Private s c hool employees of schools participating in the Florida

Scholarship Programs are subject to certain background screening

requirements found in s ection 1002.421, which provides in relevant part:

(1) PRIVATE SCHOOL ELIGIBILITY AND

OBLIGATIONS. — A private scho ol participating in

an educational scholarship program established

pursuant to this chapter must be a private school as defined in s. 1002.01(2) in this state, be registered, and be in compliance with all requirements of this

section in addition to private school requirements

outlined in s. 1002.42, specific requirements

identified within respective scholarship program

laws, and other provisions of Florida law that apply

to private schools, and must:

* * *

(e) Annually complete and submit to the

department a notarized scholarship compliance

statement certifying that all school employees and

contracted personnel with direct student contact

have undergone background screening pursuant to

s. 943.0542 and have m et the screening standards

as provided in s. 435.04.

* * *

( m) Require each employee and contracted

personnel with direct student contact, upon

employment or engagement to provide services, to

undergo a state and national background screening,

pursuant t o s. 943.0542, by electronically filing

with the Department of Law Enforcement a complete set of fingerprints taken by an authorized

law enforcement agency or an employee of the

private school, a school district, or a private company who is trained to take fingerprints and

deny employment to or terminate an employee if he

or she fails to meet the screening standards under

s. 435.04. Results of the screening shall be provided

to the participating private school. For purposes of this paragraph:

1. An “employ ee or contracted personnel with

direct student contact” means any employee or

contracted personnel who has unsupervised access

to a scholarship student for whom the private

school is responsible.

* * *

(p) Require each owner or operator of the private

sc hool, prior to employment or engagement to

provide services, to undergo level 2 background screening as provided under chapter 435. For purposes of this paragraph, the term “ owner or

operator” means an owner, operator, superintendent, or principal of, or a person with

equivalent decision making authority over, a private school participating in a scholarship program established pursuant to this chapter. The

fingerprints for the background screening must be electronically submitted to the Department of Law En forcement and may be taken by an authorized

law enforcement agency or a private company who is trained to take fingerprints. However, the

complete set of fingerprints of an owner or operator

may not be taken by the owner or operator. The owner or operator shall provide a copy of the

results of the state and national criminal history check to the Department of Education. The cost of the background screening may be borne by the owner or operator. (emphasis added).

5 6 . A s found previously, pursuant to section 435.04(2) (ss), Ms. Walker

pled nolo contendere to a second - degree felony under chapter 893 and

therefore was disqualified from having contact with scholarship students or

serving as an operator of a private school receiving Florida Sch olarship

Program funds .

5 7 . The Commissioner is tasked with enforcing these background

screening requirements and can suspend a private school's eligibility for

participating in scholarship programs pursuant to section 1002.421, which states in relevant pa rt:

(3) COMMISSIONER OF EDUCA TION

AUTHORITY AND OBLIGATIONS. — The

Commissioner of Education:

( a) Shall deny, suspend, or revoke a private

school’s participation in a scholarship program if it is determined that the private school has failed to comply with this section or exhibits a previous

pattern of failure to comply. However, if the

noncompliance is correctable within a reasonable

amount of time, not to exceed 45 days, and if the health, safety, or welfare of the students is not threatened, the comm issioner may issue a notice of

noncompliance which provides the private school

with a timeframe within which to provide evidence

of compliance before taking action to suspend or revoke the private school’s participation in the scholarship program.

* * *

( d) May immediately suspend payment of

scholarship funds if it is determined that there is

probable cause to believe that there is:

* * *

3. Fraudulent activity on the part of the private

school.

5 8 . The Commissioner's order immediately suspending payme nts "may be

appealed" by timely filing a request for hearing pursuant to sections 120.569

and 120.57 . § 1002.39(7)(c), Fla. Stat. As explained in Stewart , the

Commissioner's decision for immediate suspension is based on probabl e

cause. In this administrati ve hearing, however, the facts must be supported

by the greater weight of the competent substantial evidence. The

Commissioner must show that more likely than not, the Schools engaged in fraudulent activity. Stewart , 2017 WL 9285925, at *12.

5

5 9 . The essential elements of a fraud claim are: (1) a false statement

concerning a material fact; (2) made (i) with knowledge that the representation is false and (ii) with the intention of inducing another's

reliance thereon; and (3) consequent injury to t he other party acting in

reliance on the false representation. See, e.g., Cohen v. Kravit Estate Buyers,

Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA 2003).

60 . "[F]raudulent intent usually must be proved by circumstantial

evidence and such circumstances may, by their number and joint

consideration, be sufficient to constitute proof." Nally v. Olsson , 134 So. 2d

265, 267 ( Fla. 2d DCA 1961). As proof of fraud , the Commissioner can show

"a series of distinct acts, each of which may be a badge of fraud and when

taken together as a whole, constitute fraud." Dep't of Rev. v. Rudd , 545 So. 2d

5 The evidentiary burden is not "clear and convincing" because scholarship participation does

not equate to a license. Unlike a licensee whose license is revoked, a school may keep its

doors open and continue to operate. Stewart , 2017 WL 9285925, at *12. Cf. Balino v. Dep't of

HRS , 348 So. 2d 349, 350 (Fla. 1 st DCA 1977) (imposing burden on State to prove by a

preponderance of evidence grounds for discontinuing, suspending, or reducing public assistance such as Medicaid benefits).

369, 372 (Fla. 1st DCA 1989) (quotations omitted) . Further, "[s]cienter, or

gui lty knowledge, [which] is an element of intentional misconduct [such as

fraud], ... can be established by showing actual knowledge, or that the

defendant was reckless or careless as to the truth of the matter asserted."

Ocean Bank of Miami v. INV - UNI Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d

DCA 1992).

61 . The undersigned has found, as recited above, that the Commissioner

carried the burden of proof regarding the allegations of Count I . Specifically,

it has established the Schools employed Ms. Walker, someon e with a

disqualifying offense, since 2014. The Schools also failed to provide a copy of

the results of Ms. Walker's criminal background screening during the 2018

and 2019 compliance process.

62 . Additionally, regarding the fraud allegations in Count II, t he evidence

taken as a whole shows the Schools knowingly and willfully concealed the

true nature of the emp loyment relationship with Ms. Walker in order to

circumvent the criminal background requirements and continue the receipt of

scholarship funds, there by committing fraud or fraudulent activity.

Ms. Shealey (who executed the Compliance Forms) and Ms. Walker ( who was

in charge of the Schools' compliance paperwork ) knew she had committe d the

disqualifying offense . Although the Schools argued they thought the

background issue had been resolved, there was no evidence that it had been.

T aken as a whole, the evidence shows that the Schools did not properly

background screen their employees, including Ms. Walker; and knowingly

allowed her to work as an Administ rator despite her disqualifying offense.

The Schools' failure to submit a timely signed statement of Ms. Walker's termination and Ms. Shealey's inconsistent statements regarding

Ms. Walker's employment status are suspect. Specifically, Ms. Shealey states

r epeatedly that Ms. Walker was terminated on December 9, 2019, but then

later states she moved Ms. Walker to work from home on December 9, 2019.

These statements contradict the testimony that Ms. Walker was fired

sometime in December and then r e - hired in Ja nuary. T he Schools' failure to

disclose Ms. Walker's role in operating the school and her employment (or

reemployment) during the site visit or at any time before the C omplaints,

further supports a finding of fraudulent activity.

63 . As such, the Commissioner is legally authorized to immediately and

indefinitely revoke the Schools' eligibility and participation in the Florida

Scholarship Programs.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

REC OMMENDED that the Commissioner enter a final order (1) upholding the suspension; and (2) revoking the eligibility of Lion of Judah Academy

(4015) and Lion Of Judah Academy (8827) to participate in the following

Florida Scholarship Programs: J ohn M. McKay S cholarships for Students with

Disabilities Program, Florida Tax Credit Scholarship Program, Gardiner

Scholarship Program, Hope Scholarship Program, and /or Family

Empowerment Scholarship Program .

D

ONE A ND E NTERED this 3rd day of November , 2020 , in Tallahassee, Leon

County, Florida.

H ETAL D ESAI

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 3rd day of November , 2020 .

C OPIES F URNISHED :

Jason Douglas Borntreger, Esquire

Department of Education

Suite 1544

325 West Gaines Street

Tallahassee, Florida 32310

(eServed)

Judith Shealey

Lion of Judah Academy

1056 North Pine Hills Road

Orlando, Florida 32808

Shawn R. H. Smith, Esquire

Law Office of Shawn R. H. Smith, P.A.

Post Office Box 547752

Orlando, Florida 32854

(eServed)

Chris Emerson, Agency Clerk

D epartment of E ducation

Turlington Building, Suite 1520

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahasse e, Florida 32399 - 0400

(eServed)

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.