STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0494

)

JERRY JULIUS GOLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on July 16, 1986, in Ft. Lauderdale, Florida. The following appearances were entered:

For Petitioner: Craig R. Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Beach, Florida 33401

For Respondent: (No Appearance)

The issue in this case is whether the Respondent's teaching certificate should be revoked, suspended or otherwise disciplined based on the allegations contained in the Administrative Complaint.

PROCEDURAL BACKGROUND

By Administrative Complaint filed January 30, 1986, Petitioner, Ralph D. Turlington, as Commissioner of Education seeks to revoke, suspend or take other disciplinary action against Respondent's teaching certificate predicated upon allegations that Respondent was guilty of conduct which seriously reduced his effectiveness as an employee of the Broward County School Board and failed to make reasonable effort to protect the students under his charge from conditions that were harmful to their learning, safety and/or health. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing.

At the final hearing, the Petitioner called seven witnesses. In addition, Petitioner's Exhibits 1 and 2 were duly offered and admitted into the record.

The Petitioner submitted post hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. At all times material hereto, the Respondent held teaching certificate number 498171, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the areas of mathematics and physics.

   
   

2. The Respondent was hired in mid-October of 1984 to teach chemistry and physics for the 1984-85 academic year at Pompano Beach High School.

   
   

3. During a science experiment at a fifth period advanced physics class on December 19, 1984, a student asked Respondent if alcohol could be brought to the class Christmas party scheduled for December 20, 1984. The Respondent replied that students could bring alcohol but that hard liquor would not be allowed.

   
   

4. Prior to December 20, 1984, the Respondent announced to his third period class that there would be a party during his fifth period class on December 20, 1984, and that students who wished to come to his fifth period class to participate in the party would be permitted to do so. The Respondent stated that, if necessary, he would write "passes" for students who wanted to attend.

   
   

5. On December 19, 1984, the Respondent announced to his seventh period class that some of his other classes were having parties the following day and that they too could have a party on December 20, 1984, and could bring beer if they wanted to do so.

   
   

6. On December 20, 1984, the Christmas party in Respondent's fifth period class went on as scheduled. During the fifth period class, several students took a collection for money which was to be used to purchase beer. After the money was collected, the Respondent allowed the students to leave the class in order to purchase the beer. The students later returned with a case of Budweiser beer in a duffle bag. Approximately seventeen students participated in drinking the beer. The Respondent also drank one of the beers. During the party, there were several students in the classroom who were not assigned to the fifth period class, but were in other classes.

   
   

7. While the party was taking place, the Respondent permitted the doors of the classroom to be locked and the window panes in the doors to be covered with paper so as to avoid detection from other faculty members and/or members of the administration. Nevertheless, the fifth period Christmas party was interrupted by the assistant principal and a security guard.

   
   

8. As a result of the fifth period Christmas party, seventeen students were suspended.

   
   

9. None of the students in the Respondent's fifth period class were of legal age to either possess or consume alcoholic beverages.

   
   

10. On January 7, 1985, after an investigation had been completed through the office of the associate superintendent for personnel, the Respondent submitted his letter of resignation. This letter of resignation was accepted by the Broward County School Board.

11. Pursuant to School Board policy, a student is allowed to be out of the class to which he is assigned only if he is called from one of the offices on the intercom to report to a different place.

    
    

12. Pursuant to School board policy, if a teacher allows a student to leave the campus, the teacher is required to have the student sign in and out at the assistant principal's office.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

14. The Education Practices Commission is charged with the responsibility of interpreting and applying the standards of professional practice established by the Board of Education. Section 231.261(7), Florida Statutes. The standard of proof in teacher certificate disciplinary proceedings is greater than that required in other forms of action involving state regulatory authority. Such proceedings are clearly penal in nature. School Board of Pinellas County vs. Noble, 384 So.2d 205 (Fla. 1st DCA 1980). In a proceeding such as this, the evidence must clearly and convincingly establish that the Respondent is guilty of the charges asserted in the Administrative Complaint. Reid vs. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Gans vs. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3rd DCA 1980). In a proceeding where the very right to practice a livelihood is at stake, the critical matters in issue must be shown by evidence which is "indubitably as substantial as the consequences." See Bowling vs. Department of Insurance, 394 So.2d 165, at 172 (Fla. 1st DCA 1981).

    
    

15. The Administrative Complaint charges that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board and failing to make a reasonable effort to protect students from conditions harmful to learning, health and/or safety. Section 231.28(1)(f), Florida Statutes, provides that:

    
    

    The Department of Education shall have the authority to suspend or revoke the certificate of any person found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the School Board and/or who otherwise violates provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

16. Rule 6B-1.06, F.A.C., Principles of Professional Conduct for the Education Profession in Florida requires that:

    
    

    The teacher shall make reasonable effort to protect a student from conditions harmful to learning or to health or safety.

    The violation of any of the Principles of Professional Conduct for the Education Profession in Florida subjects the individual to revocation or suspension of his or her teacher certificate. See Section 231.28(1)(h), Florida Statutes.

    
    

17. The Petitioner established by clear and convincing evidence that the Respondent is guilty as charged in the Administrative Complaint. The Respondent permitted students in his charge to leave the campus, purchase beer and then consume the beer on school premises during a scheduled class period. As a result, seventeen students were suspended from school. The Respondent violated school board policy by allowing students to attend the party who were not in his class and in allowing students to leave the campus without requiring them to sign in and out at the front office. Considering the entire incident as a whole, the Respondent's conduct seriously reduced his effectiveness as an employee of the Broward County School Board and was harmful to the students' learning, health and safety.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that JERRY JULIUS GOLD's teaching certificate be permanently revoked.

DONE and ORDERED this 15th day of September, 1986 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 15th day of September, 1986.

COPIES FURNISHED:

Craig R. Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Beach, Florida 33401

Jerry Julius Gold, pro se Post Office Box 941 Nederland, CO 80466

Honorable Ralph D. Turlington Commissioner of Education Department of Education

The Capitol

Tallahassee, Florida 32301

Judith Brechner General Counsel

Department of Education Knott Building Tallahassee, Florida 32301

Karen Barr Wilde Executive Director

Education Practices Commission Department of Education

Knott Building Tallahassee, Florida 32301

Marlene Greenfield Administrator Department of Education

Professional Practices Services

319 West Madison Street, Room #3 Tallahassee, Florida 32301

Docket for Case No: 86-000494

Orders for Case No: 86-000494