STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6174

)

MILLARD E. LIGHTBURN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a formal hearing was conducted in this case at Miami, Florida, on January 26, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.

PRELIMINARY STATEMENT

At the hearing on January 26, 1993, the Petitioner presented the testimony of six witnesses. The Respondent presented the testimony of one witness and also testified on his own behalf. The Respondent also offered one exhibit, which was received in evidence. At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript of the formal hearing within which to file their proposed recommended orders.

The transcript of the formal hearing was filed with the Hearing Officer on February 19, 1993. Thereafter, both parties filed timely proposed recommended

orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case.

   
   

2. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying.

   
   

3. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic.

   
   

4. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria.

   
   

5. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork.

   
   

6. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett.

   
   

7. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community.

8. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. In a case of this nature, in order to prevail the Petitioner must prove the essential allegations of the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The evidence in this case is insufficient to meet that standard. To the contrary, the greater weight of the evidence is to the effect that the Respondent did not at any time touch the student, M. A., in an inappropriate or offensive way.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, and 5: Accepted in substance.

Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A.

Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A.

Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant.

Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence.

Paragraph 10: Accepted in substance.

Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A.

Paragraph 13: First line rejected for reasons stated immediately above.

The remainder of this paragraph is accepted in substance.

Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question.

Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A.

Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details.

Paragraph 26: Accepted in substance.

Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details.

Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence.

Findings submitted by Respondent:

Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance.

Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant.

Paragraph 12: Accepted in substance.

COPIES FURNISHED:

Margaret E. O'Sullivan, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William Du Fresne, Esquire Du Fresne and Bradley, P.A.

2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006174

Orders for Case No: 92-006174