STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1456
)
BLONDELL WILLIAMS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 19, 1988 in Miami, Florida.
APPEARANCES
For Petitioner: Frank R. Harder, Esquire
Fontainebleau Park Office Plaza
175 Fontainebleau Boulevard, Suite 2A-3 Miami, Florida 33172
For Respondent: Lorraine C. Hoffman, Esquire
2929 Southwest Third Avenue, Suite One Miami, Florida 33129
BACKGROUND
By letter dated March 19, 1987, petitioner, School Board of Dade County, advised respondent, Blondell Williams, a continuing contract teacher, that she was dismissed from employment with petitioner effective March 18, 1987 "for misconduct in office, willful neglect of duty and gross insubordination." Thereafter, by letter dated March 26, 1987 respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on April 6, 1987, with a request that a Hearing Officer be assigned to conduct a hearing. On February 12, 1988, as amended on February 13, 1988, petitioner issued a three count Notice of Charges which provided greater detail concerning the charges. In Count I, petitioner alleged that during school years 1984-85, 1985-86 and 1986-87, respondent "exhibited excessive tardiness and excessive absenteeism," and during school year 1986-87 she committed various acts of misconduct in office. In Count II it was charged that during the same school years, Williams committed various acts of gross insubordination. The final count alleged that respondent was guilty of incompetency as defined in Rule 6B-4.009(1), Florida Administrative Code (1987), by virtue of repeated failure to perform prescribed duties, repeated failure to communicate with students so as to deprive them of a minimal educational experience, and a lack of emotional stability.
By notice of hearing dated May 1, 1987 a final hearing was scheduled on July 17, 1987 in Miami, Florida. At the request of petitioner, the matter was continued to August 19, 1987. Petitioner again requested a continuance and the matter was rescheduled to October 15, 1987. The matter was again continued at petitioner's request to February 19, 1988 at the same location. At final hearing, petitioner presented the testimony of Terrance Armbruister, P. J. Harden, Lawrence H. Crawford, Delois West Parker, Mary White Blue, Silvia Munoz, Nena Brown, Henry Horstmann, Dr. Felicia Gil and Dr. D. Patrick Gray. It also offered petitioner's exhibits 1-9. All exhibits were received into evidence.
Respondent testified on her own behalf and offered respondent's exhibit 1. The exhibit was received in evidence.
The transcript of hearing was filed on March 10, 1988. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on March 24 and 25, 1988, respectively. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.
At issue is whether respondent should be dismissed from her job for the conduct described in the Amended Notice of Charges.
Based upon all of the evidence, the following finding of fact are determined:
FINDINGS OF FACT
Introduction
At all times relevant hereto, respondent, Blondell Williams, was a fifth grade teacher at Poinciana Park Elementary School (PPES) in Miami, Florida. She was under a continuing contract as an elementary teacher for petitioner, School Board of Dade County (Board). She has been a teacher in the school system since 1981.
On March 18, 1987 the Board voted to suspend Williams without pay effective that date for "misconduct in office, willful neglect of duty and gross insubordination." Its decision resulted in Williams requesting an administrative hearing. She has remained suspended from her job without pay during the pendency of this proceeding. The charges are based upon three counts of alleged illicit misconduct as set forth in the Amended Notice of Charges issued on February 13, 1988. The alleged illicit conduct generally includes consumption of an alcoholic beverage on campus, sleeping in class, fraudulently obtaining a lunch, excessive tardiness and absenteeism, repeatedly failing to follow various orders, and demonstrating incompetency in the classroom. These charges will be discussed separately hereinafter.
Consumption of Alcoholic Beverages
On February 2, 1987 respondent left campus during lunch hour to visit her father who was ill. When she returned, she was required to sign in on a roster which was in the reception area outside the principal's office. Williams entered the office area and went to the sign-in roster maintained by the principal's secretary, Delois Parker. Sitting next to Parker was Nena Brown, a system aide, and Mary White Blue, a teacher's aide. Williams was carrying a clear plastic cup containing a light pink beverage which she had brought from her car. The cup was then approximately one-quarter filled. After signing in, and while turning around, Williams accidentally spilled the beverage on Brown's leg and hand and on the carpet. Although Brown did not detect the nature of the
beverage, Blue and Parker immediately detected the smell of alcohol. Another teacher, Silvia Munoz, then entered the room and also detected the smell of alcoholic beverages. At about the same time, Parker called the principal, Lawrence H. Crawford, out of his adjoining office to observe the incident.
After examining the carpet, Crawford concluded that the beverage contained alcohol. Thereafter, he questioned Williams, who admitted she had drunk about a quarter of a cup of "White Mountain Cooler" taken from a bottle in her car.
Crawford instructed Williams to bring the bottle to his office, and after examining the label on the bottle, he confirmed it was an alcoholic beverage.
At hearing, Williams acknowledged that she had brought a cup of the beverage on campus during school hours and consumed a small amount. According to Williams, the bottle had been left in her car by a friend from the night before, but she denied knowing it contained any alcohol. This contention is not accepted as being credible since the beverage had an alcoholic odor, the label on the bottle reflected its alcoholic content, and Williams acknowledged she knew it was an alcoholic beverage at a conference for the record held on February 3, 1987. Accordingly, it is found that Williams was in the possession of, and consumed, an alcoholic beverage on campus during duty hours. However, the charge that Williams was "under the influence of an alcoholic beverage" while on duty was not established.
Sleeping in Class
On a warm spring day morning in 1986, the assistant principal of PPES, Terrance Armbruister, had an occasion to visit Williams' classroom. His visit was prompted by Crawford who had directed Armbruister to check out complaints that Williams was sleeping in class. After knocking on her classroom door, he unlocked it, entered and observed Williams with her head resting on her desk. He approached her but Williams did not move. Finally, she raised her head in a startled fashion as if she had just awoken. Armbruister then instructed her to wash her face and refresh herself.
On or about March 28, 1986 P. J. Harden, an assistant principal in charge of curriculum at PPES, was monitoring the classroom next to Williams.
The two classrooms were divided by a partition. Because of noise caused by students in Williams' classroom, Harden had difficulty monitoring the class. He pulled the partition open and observed Williams with her head on her desk asleep. He watched her sleep for approximately five minutes until a student shook Williams and awoke her. Williams apologized to Harden and promised it would not happen again. According to Harden, this was respondent's reply on every occasion that she was caught sleeping.
On the afternoon of November 11, 1986 Harden again had an occasion to visit Williams' classroom while escorting a prospective teacher around the school. He found her asleep even though she was supposed to be teaching a class. To avoid embarrassment, Harden declined to allow the guest to enter the classroom. He then awoke Williams and told her to report to the principal's office.
Harden stated that he found Williams sleeping in her classroom on a number of other occasions although he was unable to give specific dates. On each occasion, she was sent to the principal's office and an administrator would be assigned to cover her classroom. At no time did Williams ever give an excuse to Harden for her actions other than saying she had a second job which prevented her from getting a regular night's sleep.
No Free Lunches
The Amended Notice alleges that during school year 1986-87, Williams was guilty of "fraudulently obtaining and consuming school provided, student lunches." This charge stems from an incident on or about December 11, 1986 when respondent approached the cashier at the school cafeteria and told the cashier to give her a lunch without charge and to record it as being a free lunch given to a student. The cashier complied with Williams' instructions. By chance, the principal learned of this and confronted respondent with the charge. Williams admitted she had obtained an unauthorized free lunch. Her only excuse was that she was short of funds and had seen another teacher do it on one occasion. At Crawford's direction, Williams reimbursed the school for the meal.
Excessive Tardiness and Absenteeism
The school day at PPES began at 8:15 a.m. each day and lasted until 3:20 p.m. Teachers were expected to be in their classrooms by 8:20 a.m. so that they could greet their students before classes began at 8:30 a.m. Williams was aware of this requirement and was reminded of it from time to time by her supervisors. In addition, teachers were given thirty minutes for lunch. If a teacher left campus during lunch hour, he or she was expected to sign in and out on an attendance roster maintained in the principal's office. Even if a teacher left campus during lunch hour, the lunch period was still only thirty minutes, and any additional absence by a teacher required authorization from the principal's office. Williams was aware of this policy and understood that a failure to comply with these instructions was a violation of school policy.
Under school policy, and in accordance with instructions in the teacher's handbook, a teacher was obligated to call the principal's secretary if he or she was going to be late to school. This call was expected to be made prior to 8:00 a.m. so that the principal could assign an administrator or other teacher to the classroom until the teacher reported to work. In addition, if a teacher knew he would be absent from school the following day, he was expected to telephone the principal's secretary before 2:00 p.m. on the day prior to the absence. If the absence was not known until after 2:00 p.m., the teacher was expected to telephone an assigned number between 7:00 p.m. and 10:00 p.m. that evening, or at 7:00 a.m. on the day of the absence. This enabled the school administration to timely obtain a substitute teacher. Williams was aware of these requirements.
During school year 1984-85, Harden was the assistant principal in charge of curriculum at PPES. His responsibilities included counseling and meeting with teachers who were tardy or absent. On or about October 19, 1984 Harden met with Williams concerning her "continuous" tardiness in reporting to school each morning. She was told that the school day for teachers began at 8:15 a.m. Despite this warning, Williams was late to work on October 19, November 29 and December 4, 1984. This prompted another meeting by Harden and respondent on December 4, 1984. Williams was given a memorandum advising her that she had to be at school by 8:15 a.m. each morning. At the meeting, Williams explained she had a second job which lasted late into the night and enabled her to catch only a "catnap" in the early morning hours. Harden instructed her to set her priorities in order and to adhere to the school attendance requirements.
Because of continuing tardiness and absences from work, Williams received another memorandum from Harden on January 24, 1985. The memorandum cited Williams for leaving campus on January 12 and 17, 1985 without
authorization and being late to work on January 17. The two held a conference for the record on January 31, 1985 concerning these problems.
On March 7, 1985 Crawford sent Williams a memorandum stating that he had "serious concerns about (her) tardiness and (her) habit of illegally leaving the campus during the school day." Another conference for the record was held on March 15. At the conference Williams again gave an excuse of having a second job as well as having problems with a boyfriend. She was told that she must comply with attendance requirements and not let the second job interfere with her primary job of teaching.
On July 18, 1985 Williams received a memorandum from Harden for reporting late to work on July 17 and missing a homeroom assignment. The memorandum advised her to immediately remedy the situation and offered to help her if assistance was needed.
Despite her poor attendance record, Williams was given an "acceptable" rating and recommended for employment in her annual evaluation rendered on May 17, 1985. There was, however, a comment that a "conference for the record for tardies" had been held during the school year.
Williams' attendance and punctuality record did not improve the following school year. She was given at least five memoranda between July, 1985 and January, 1986 concerning her tardiness or absences. She was counseled by Armbruister on October 22, 1985 and specifically told to review the faculty handbook concerning attendance requirements. Armbruister spoke with her again concerning the same problems on November 12, 1985. Because the problem persisted, school officials felt compelled to hold a conference for the record on January 27, 1986. At that time, Williams attributed her difficulties to a second job, problems with a boyfriend, a "peeping tom" in the neighborhood who kept her from sleeping, and no telephone. She admitted she was wrong and indicated she would try to do better. Despite this meeting, Williams took an unauthorized leave at lunch on January 31. This prompted a conference with Armbruister the same day to discuss the latest incident. Williams was given a memorandum advising her to review a summary of the conference for the record held four days earlier and to follow the school's recommendations.
In school year 1986-87, Williams' erratic attendance and lack of punctuality continued. As of December 16, 1986, which was roughly halfway through the school year, Williams was late or absent forty-three out of seventy- five workdays. Because of this continuing pattern, a conference for the record was held by respondent and Crawford on October 9, 1986. Williams was found to be deficient in the area of professional responsibility and placed on prescription until December 19. This meant she had to fulfill certain conditions by the end of the prescriptive period. Among other things, Williams was required to arrive daily at work by 8:00 a.m., to timely telephone the office about any absences, to submit a written statement explaining each absence, to report to an administrator or office staff member upon arrival to school each morning, to have up-to-date emergency lesson plans, and to read the teacher contract and teacher assessment handbook.
In the month of January, 1987, Williams was tardy on eleven mornings and absent from work on six days. In February, she was tardy the morning of February 2. This was also the day that Williams brought the alcoholic beverage on campus during lunch hour. An emergency conference for the record was held the following day, which was her last day at PPES.
Failure to Follow Orders
The Amended Notice alleges that, during school years 1984-85, 1985-86 and 1986-87, Williams committed
acts of gross insubordination, including
. . . repeatedly failing to follow ordered procedures . . . for reporting absences,
. . . procedures concerning her morning arrivals at school, . . . procedures documenting absences, . . . procedures concerning lesson plans, records and student report cards, . . . orders to stay awake while (performing) . . . assigned duties,
. . . orders concerning tardiness after lunch, (and) . . . orders to not leave the school campus other than during her lunch period.
After being placed on prescription on October 10, 1986, Williams was required to fulfill certain requirements enumerated in finding of fact 18. However, she failed to notify an administrator or office staff member upon arrival at school each morning from October 13 through December 15 except for the week of October 13. She also failed to submit a written explanation of her absences on October 27 and 29, November 3, 18, 24 and 25, and December 2 and 3, 1986. She failed further to timely advise the school of absences on October 21 and 29, November 24 and December 2 and 3, 1986. All such failures were in direct contravention of the written prescription. Although Williams contended such violations were not willful, it is found they were intentional.
Other than a reference to Williams' failure to timely prepare lesson plans during an undisclosed part of school year 1985-86, and a prescription requiring her to prepare emergency lesson plans in October, 1986, the Board did not establish that Williams repeatedly failed to prepare lesson plans, report cards and other unnamed "records."
Williams was observed sleeping in class on two specific occasions during the school years in question. On a third occasion, an administrator observed her with her head down on her desk as if asleep but could not say for sure that she was sleeping. Assistant principal Harden also said Williams was caught sleeping on a number of other occasions but did not identify the dates. There being only three specific times on which Williams was found sleeping, it is found that no direct disobeyel of orders occurred on the part of respondent as to sleeping in class.
Williams was given repeated instructions since 1984 to be punctual for work each day. Despite these orders, she continued to be late on numerous occasions between September 1984 and February, 1987. She also failed to timely advise the school concerning her absences or tardiness on many occasions in spite of specific instructions to do so. Finally, after having received a number of oral and written directives, she nonetheless left school on several occasions for more than thirty minutes during the lunch hour without authorization.
Incompetency
Respondent taught a Chapter One class at PPES. This class is comprised of students needing additional training and instruction in basic skills such as reading and mathematics. It is smaller than a regular class so that the teacher may give the students added instruction and attention. Because of respondent's repeated absenteeism and tardiness over the course of the school years, the children in respondent's class were denied the continuity of their instructional program. This also meant the lesson plans could not be carried out as prepared on those days on which she was late. Therefore, the students continually received a reduced period of instruction. This in turn impaired her effectiveness as a teacher.
Respondent's Case
In 1982, respondent's father became gravely ill and was thereafter bedridden at her mother's home until his death in 1987. According to Williams, her mother cared for him during the day and Williams took her turn at night. She also visited him on occasion during her lunch hour. As a result, she was required to spend long waking hours during the night with her father and to overextend her lunch hour while visiting him during the day. Williams attributed her attendance problems and her falling asleep to the demands of her father. However, Williams never told her superiors of this problem nor did she obtain authorization to leave campus during lunch hour.
Just prior to her separation from PPES Williams acknowledged to school officials that she had a drinking problem. She also agreed to attend a clinic for problem drinkers. At hearing she denied having such a problem and said her earlier admission was given solely for the purpose of saving her job. However, she acknowledged attending a drinking clinic for a few days in early 1987. At the school's request, she also took a physical examination in February, 1987. The results are not of record.
Williams contended that other teachers were late but were not written up. However, no proof as to this contention was submitted.
The Teacher Assessment and Development System (TADS) is the standard measure of teacher performance in Dade County. There was no evidence of any negative TADS evaluation of respondent despite her repeated tardiness and absences from school. Respondent's last TADS evaluation covered the period up to and including March 25, 1986.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Where, however, an employer seeks only to terminate the employment of a licensee, and not to revoke the professional license, a less stringent standard of proof is appropriate. Accordingly, the Board must prove its allegations by a preponderance of the evidence.
Respondent, a continuing contract teacher, is charged with (a) misconduct in office (Count I), (b) gross insubordination (Count II), and (c)
incompetency (Count III). The underlying conduct is alleged to have occurred during school years 1984-85, 1985-86 and 1986-87 while employed as a teacher at PPES. Misconduct in office, gross insubordination and incompetency are defined in Rule 6B-4.009, Florida Administrative Code (1987), as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extend that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
* * *
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
* * *
Taking the individual counts in sequential order, the preponderance of the evidence reflects that Williams did, on one occasion, possess and consume an alcoholic beverage while on duty at PPES. Further, she was found sleeping on
several occasions in her classroom. She also improperly obtained and consumed one free lunch by advising the cashier to record it as a free student lunch.
The other contentions cited in Count I of the amended notice of charges have not been established and must accordingly fail.
To constitute misconduct, Rule 6B-4.009(3) requires that the conduct
(a) violate both Rule 6B-1.001 and Rule 6B-1.006, and (b) be so serious as to impair the individual's effectiveness in the school system. The notice of charges does not specify which portion of Rules 6B-1.001 and 6B-1.006 have allegedly been violated. However, the undersigned concludes that, by sleeping in class, consuming an alcoholic beverage on campus, and improperly obtaining a freed lunch, respondent has violated sections (2) and (3) of the code of ethics as set forth in Rule 6B-1.001. Further, she has violated the principles of professional conduct in Rule 6B-1.006(3)(a) and (5)(a). The testimony establishes further that, because of such conduct, respondent's effectiveness as a teacher has been impaired. Therefore, the charge of misconduct in office has been proven.
As to Count II, the preponderance of the evidence reflects that respondent repeatedly failed to follow specific prescriptive instructions given to her on October 10, 1986. More specifically, she (a) failed to notify an administrator or office staff member upon arrival at school each day, (b) failed to submit a written explanation of her absences, and (c) failed to timely notify the school of various absences. In addition, she repeatedly disobeyed orders by failing to be punctual to work, to call in when late or absent, and to obtain authorization for leaving campus. The remainder of the charges are not substantiated. Even so, respondent's proven conduct equates to gross insubordination since there was "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
With respect to Count III, the preponderance of the evidence reflects that respondent's students were deprived of a minimum educational experience because of her continued tardiness and absence during the school years in question. This constitutes inefficiency which in turn equates to incompetency under Rule 6B-4.009(1). Therefore, the final charge has been established.
Under Subsection 231.36(4)(c), Florida Statutes (1987), if charges of misconduct in office, incompetency and gross insubordination are sustained, a school board may "either. . . dismiss the employee or fix the terms under which he may be reinstated." Given the nature of the violations, and their continuing pattern, dismissal is appropriate.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office, gross
insubordination and incompetency as set forth in this Recommended Order and that
she be dismissed as an employee of petitioner.
DONE AND ORDERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1456
Petitioner:
Rejected as being unnecessary.
Covered in finding of fact 1.
Covered in findings of fact 5, 17 and 25.
Covered in findings of fact 12-15 and 25.
Covered in findings of fact 12-19.
Covered in findings of fact 12-19.
Covered in findings of fact 12-19.
Covered in finding of fact 9.
Covered in finding of fact 3.
Covered in finding of fact 25.
Covered in findings of fact 25 and 27.
Respondent:
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 26.
Covered in finding of fact 26.
Covered in finding of fact 26.
Covered in finding of fact 26.
Rejected as being unnecessary.
Accepted to the extent the same is covered in the findings; the remainder is rejected as being contrary to the more credible and persuasive evidence.
Covered in finding of fact 29.
Covered in finding of fact 29.
Covered in finding of fact 29.
Covered in finding of fact 29.
Covered in finding of fact 29
Rejected as being contrary to the more credible and persuasive evidence.
Rejected since respondent's deficiencies constituted incompetency.
Rejected as being irrelevant.
Rejected since respondent admitted knowing that the
beverage was alcoholic in nature.
Partially covered in finding of fact 3.
Rejected as being contrary to the evidence.
Covered in finding of fact 27.
Covered in finding of fact 27.
Covered in finding of fact 27.
Rejected since respondent admitted having a drinking problem during her conference with Dr. Gil on February 3, 1987.
Rejected since the Board's basis for dismissing respondent was based on other factors.
Rejected as being contrary to the more credible and persuasive evidence.
Rejected as being contrary to the more credible and persuasive evidence.
COPIES FURNISHED:
Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3
175 Fontainebleau Boulevard Miami, Florida 33172
Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One
Miami, Florida 33129
Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Karen Barr Wilde, Executive Director Education Practices Commission
Room 418, Knott Building Tallahassee, Florida 32399
Issue Date | Proceedings |
---|---|
Apr. 04, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Apr. 27, 1988 | Agency Final Order | |
Apr. 04, 1988 | Recommended Order | Consumption of alcohol, sleeping and disobeying instructions while on duty grounds for terminating teacher |
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