STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0045

)

ORION LIKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above

case on July 7, 1993, in Jacksonville, Florida. The following appearances were entered:

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: Orion C. Likins, Pro Se

2144 Southside Boulevard

Jacksonville, Florida 32216 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated September 21, 1992, Petitioner informed Respondent of the filing of Petitioner's Administrative Complaint which charges Respondent with misconduct constituting violations of Section 231.28.(1)(f) and Section 231.28(1)(h), Florida Statutes; and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(e), Florida Administrative Code.

Respondent requested a formal administrative hearing on the charges contained in the Administrative Complaint. The matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Charges of the Administrative Complaint, if proven by clear and convincing evidence, constitute grounds for imposition of discipline against Respondent's professional certification pursuant to Section 231.28(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of five witnesses and four exhibits. Respondent testified on his own behalf and presented five exhibits.

The transcript of the final hearing was filed with the Division of Administrative Hearings on August 18, 1993. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent holds Florida teaching certificate number 310960, covering the areas of elementary education, social studies, metal work, and administrative supervision. The certificate is valid through June 30, 1995.

   
   

2. Respondent was employed as a teacher in the Duval County School District in 1980. In August of 1991, Respondent resigned from the school system. Following his resignation, Respondent was placed on the Duval County roster of available substitute teachers.

   
   

3. Respondent was serving as a substitute teacher on February 21, 1992, at Fort Caroline Elementary School in Duval County. He was assigned to a combined fourth/fifth grade Special Learning Disabilities (SLD) class. During the class, an incident occurred involving Respondent and a fourth grade student, M.A.

   
   

4. Student M.A. had previously been subjected to oral surgery, following a recreational accident where he suffered the lost of a front tooth. The tooth had been re

   authorities by written note on February 18, 1993, of this matter and the need to restrict M.A.'s activities to prevent further injury to M.A.'s mouth. When Respondent assumed responsibility for the class on February 21, 1993, he was aware of M.A.'s condition, having been informed of that fact by the teacher's assistant, Ms. Majorie Ring.

   
   

5. When Respondent assumed responsibility for the class on February 21, 1993, he had taken a prescribed tranquilizer, and in his words, felt "relaxed". Ms. Ring, who had been conducting class activity, left the room to work in a different classroom. Respondent noticed that the students were misbehaving, running around the room and talking. At a loss to control the class, Respondent began reading aloud to the students.

   
   

6. M.A.'s assigned seat was near the teacher's desk. He left the desk and crawled under the front of the teacher's desk to retrieve a pencil. Respondent asked the student to come out from under the desk. When M.A. refused to come out, Respondent grabbed M.A.'s feet which were protruding out from under the desk. Respondent pulled M.A. out from under the desk. As Respondent pulled M.A. from under the desk, the back of M.A.'s head hit the underside of the front wall of the desk. The force with which the back of M.A.'s head hit the desk resulted in driving M.A.'s face into the floor and inflicting a severe injury upon the child's mouth.

7. Following the impact of M.A.'s face against the floor, evidence of his injured mouth was immediate. His mouth began bleeding almost immediately. M.A. began crying and was visibly upset. Other students went to the next portable classroom and found Ms. Ring who accompanied M.A. to the school office. Ms. Ring estimated that she was absent from the room approximately 15 minutes before the children summoned her back with news of M.A.'s injury.

   
   

8. M.A.'s mother was notified and immediately transported M.A. to the dentist where she learned that M.A. was now missing two front teeth: the tooth that had previously been re

   tooth was later found in the classroom and that tooth was not re-implanted.

   
   

9. Because of the severity of the injury to M.A.'s mouth, extensive repair will be required. In the interim, M.A. has a gap in the front of his mouth where the two teeth were formerly located.

   
   

10. The lost of the two teeth has changed M.A.'s physical appearance. His self-esteem has been affected, as evidenced by his reluctance to smile for school pictures taken after the incident. Other children have also teased M.A. about his appearance.

    
    

11. Under the measures contained in the discipline policy at Fort Caroline Elementary School, student misconduct is to be dealt with in a progressive fashion by giving students a verbal warning first, then time out, then a referral to the principal's office.

    
    

12. Only a principal or principal's designee may administer corporal punishment at Forth Caroline Elementary School. Students should not be grabbed or sized by teachers simply to stop misbehavior. A teacher's restraint of a student's action by placing hands on the student is appropriate only to prevent that student from injuring himself or others. Even on those occasions, use of physical force to control a student by pulling or dragging the student is not appropriate.

    
    

13. As established by testimony of the school principal, Respondent's action of dragging M.A. from under the desk was unnecessary. Respondent should have called for assistance.

    
    

14. As a result of the incident with M.A., Respondent has been removed from the list of authorized substitute teachers. Respondent's inability to control the class and his conduct with regard to M.A. establishes his lack of effectiveness as a substitute teacher.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. The Administrative Complaint in this case contains four counts. The first count charges Respondent with personal conduct reducing his effectiveness as a school board employee in violation of Section 231.28(1)(f), Florida Statutes; the second count with a violations of the provisions of law or rules of the State Board of Education as proscribed by Section 231.28(1)(h), Florida

    Statutes; the third count with violation of Rule 6B

    Administrative Code, which requires teachers to make a reasonable effort to protect students from conditions harmful to learning or health and safety; and the fourth count with violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent is alleged to have intentionally exposed a student to unnecessary embarrassment or disparagement.

    
    

18. Section 231.28(1), Florida Statutes, provides, in pertinent part:

    
    

    1. The Education Practice Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period

       of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any

       person, thereby denying that person the right to teach for a period of time not to exceed

       10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       * * *

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       * * *

       (h) Has otherwise violated provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

       
       

19. Rule 6B-1.006(3), Florida Administrative Code, which lists certain principles of professional conduct for individuals in the education profession in Florida, provides, in pertinent part:

    
    

    1. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

20. Petitioner has alleged that Respondent's personal conduct seriously reduces his effectiveness as a substitute teacher in the school system for Duval County. Respondent has been removed from the list of available substitute teachers by the County. This action coupled with the lack of insight displayed

    by Respondent at the final hearing regarding appropriate methodology for dealing with students establishes Respondent's guilt of the allegation contained in the first count of the Administrative Complaint.

    
    

21. Respondent is guilty of the second count of the Administrative Complaint in that his conduct also violated a rule of the State Board of Education in contravention of Section 231.28(1)(h), Florida Statutes. Counts three and four of the Administrative Complaint deal with alleged rule violations and are set forth below.

    
    

22. The evidence supports a conclusion that Respondent failed to act rationally in the furtherance of school disciplinary policy by grabbing M.A. by the feet and pulling the child from under the teacher's desk, an action that resulted in the injuries sustained by M.A. Respondent is guilty of the third count of the administrative complaint, violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that he failed to protect M.A. from conditions harmful to a learning atmosphere by actually creating those conditions, however unintentional.

    
    

23. Petitioner has not shown that Respondent's actions were intentionally calculated to expose M.A. or other students to embarrassment or disparagement. Accordingly, Respondent is not guilty of the fourth count of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of the first, second, and third counts of the Administrative Complaint, and suspending Respondent's teaching certificate for a period of two years, followed by a probationary period of three years upon reasonable terms and conditions to be established by Petitioner, including:

1. A requirement that Respondent make arrangements for his immediate supervisor to provide Petitioner with quarterly reports of Respondent's performance, including compliance with school rules and school district regulations and any disciplinary actions imposed upon Respondent;

   
   

2. A requirement that Respondent make arrangements for his immediate supervisor to provide Petitioner with a true and accurate copy of each written performance evaluation prepared by his supervisor, within 10 days of issuance;

   
   

3. A requirement Respondent successfully complete two college courses or equivalent in-service training courses in the area of disciplinary techniques and classroom management, with progress and completion to be monitored by Petitioner.

   
   

4. A requirement that Respondent submit, prior to reemployment as a licensed educator, a clearance from a licensed psychiatrist, psychologist or mental health counselor, certifying that Respondent is capable of performing his duties in a satisfactory manner and is capable of interacting in an acceptable manner with students. The mental health professional evaluating Respondent shall be apprised of the facts of this proceeding prior to conduct of such evaluation.

DONE AND ENTERED this 23rd day of September, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-00045

In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties:

Petitioner's proposed findings

1. Accepted.

2. Rejected, relevance. 3.-11. Accepted.

12. Rejected, it is not clear that two teeth were actually knocked out by the incident. Two teeth were later found to be missing.

13.-22. Accepted.

23. Accepted in essence.

Respondent's proposed findings

1.-3. Accepted, but not verbatim.

1. Rejected, unnecessary.

2. Accepted, but not verbatim. 6.-8. Rejected, relevance.

9. Rejected, legal conclusion not a factual finding.

COPIES FURNISHED:

Margaret E. O'Sullivan, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Orion C. Likins

2144 Southside Boulevard

Jacksonville, Florida 32216

Karen Barr Wilde Executive Director

Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practice Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sidney 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: 93-000045

Orders for Case No: 93-000045