STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF PINELLAS ) COUNTY, SCHOOL, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1896

)

DAVID K. WITHERSPOON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 13, 1980, in Clearwater, Florida. 1/

APPEARANCES

For Petitioner: William A. Borja, Esquire

Attorney for Pinellas County School Board

501 South Fort Harrison Avenue, Suite 204 Clearwater, Florida 33516

For Respondent: Douglas A. Mulligan, Esquire

WILLIAM AND MILTON

1327 Ninth Street South Post Office Box 13517

St. Petersburg, Florida 33733 ISSUES

The issue posed for decision herein is whether or not the Petitioner's expulsion of Respondent for the remainder of the 1980/81 and 1981/82 school years is warranted.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found.

1. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year.

   Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy.

   
   

2. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct.

   
   

3. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received.

   
   

4. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred.

   
   

5. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause.

   
   

6. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident.

   
   

7. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He

   corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male.

   
   

8. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County.

   
   

9. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. Insufficient evidence was offered to establish that Respondent committed a battery on school grounds on September 19, 1980, as alleged by the Superintendent of Schools and which provided the stated basis for Respondent's expulsion from the Pinellas County School System. This is so based on the creditable testimony of Respondent who denies any involvement on his part in the subject incident, the corroborative testimony of the other student who accompanied him following the subject football game, the failure of the two witnesses who accompanied the complaining witness to identify Respondent as having been involved in the subject incident, and Ms. Taylor's testimony to the effect that the complaining witness was dazed when left the area of the altercation. Additionally, it was noted that Detective Sitzelberger was unable to extract any admissions from Respondent regarding the subject incident, although he admitted that he was involved in another altercation which is not the subject of this proceeding. Finally, in view of the complaining witness' dazed state while at the site of altercation, coupled with his preoccupation with the well being of his fiancee and mother and his slouched position at the time he remarked "Witherspoon, I know you" cast doubt on his alleged identification of Respondent in view of the creditable testimony of the other witnesses to the incident that were not in a "dazed" condition. For all of these reasons, there is no basis upon which to recommend that the Superintendent's expulsion of Respondent from the Pinellas County School System is warranted.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System.

RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.

ENDNOTES

1/ The parties were granted leave to submit post-hearing memoranda for consideration by me in preparation of this Recommended Order. By letter dated December 11, 1980, Petitioner's counsel advised the undersigned that no further evidence would be presented.

2/ Dean Jones offered testimony to the effect that Respondent has been involved in approximately five prior incidences of misconduct during his tenure at Gibbs High School. That testimony was permitted for the limited purpose of considering any recommended penalty by the undersigned.

COPIES FURNISHED:

William A. Borja, Esq. Suite 204

501 South Fort Harrison Avenue Clearwater, Florida 33516

Douglas A. Mulligan, Esquire William and Milton

1327 Ninth Street South Post Office Box 13517

St. Petersburg, Florida 33733

Docket for Case No: 80-001896

Orders for Case No: 80-001896