STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3830

)

LEWIS JACOBS, )

)

Respondent. )

)

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 4, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Joseph Egan, Esquire

Egan, Lev & Siwica 918 Lucerne Terrace Post Office Box 2231

Orlando, Florida 32802 STATEMENT OF THE ISSUES

The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 23, 1993. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of nine witnesses and submitted five exhibits for admission in evidence. Respondent testified in his own behalf and called nine witnesses. Respondent submitted one exhibit for admission in evidence. The identity of witnesses and exhibits and the rulings concerning each are recorded in the transcript of the formal hearing filed on September 14, 1994.

Petitioner timely filed her proposed recommended order ("PRO") on November 2, 1994. Respondent timely filed his PRO on November 1, 1994. Proposed findings of fact in the PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education.

   
   

2. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center.

   
   

3. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes.

   
   

4. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him.

   
   

5. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved.

1. Physical Force Against Students

   
   

   1. At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton.

      
      

   2. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around.

      
      

   3. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes.

      
      

   4. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort.

      
      

   5. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings.

      
      

   6. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford.

   7. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24.

      
      

   8. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades.

      
      

   9. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34.

      
      

   10. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35.

       
       

   11. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him.

       
       

   12. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students.

       
       

2. Attendance And Inadequate Supervision

   
   

   1. During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission.

      
      

   2. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students.

      
      

   3. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students.

   
   

3. Transfer To Vo-Tech

   
   

   1. On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School.

   2. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position.

   
   

4. Deferred Prosecution Agreement

1. On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses.

   
   

2. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing.

   
   

3. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary.

   
   

4. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

6. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the appropriateness of the penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Administrative Complaint contains four counts against Respondent.

   
   

7. The First Count in the Administrative Complaint alleges that Respondent violated Section 231.28(1)(f) 1/ by engaging in misconduct which seriously reduced Respondent's effectiveness as an employee of the District. Respondent is currently employed by the District as the Dean of Students at a vocational school. The position of Dean of Students is a responsible employment position with the District.

   
   

8. Respondent is an effective employee of the District. Respondent performs the duties and responsibilities of Dean of Students effectively. Assuming arguendo that Respondent engaged in misconduct, it has not seriously reduced Respondent's effectiveness as an employee of the District.

   
   

9. The Second Count in the Administrative Complaint alleges that Respondent violated Section 231.28(1)(h) by engaging in misconduct which violated a law or rule of the State Board of Education for which revocation of Respondent's teaching certificate is an authorized penalty. For the reasons

   stated in the preceding paragraph, Respondent can be guilty of the allegations in the Second Count only if he is guilty of the allegations in the Third or Fourth counts.

   
   

10. The Fourth Count in the Administrative Complaint alleges that Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(e) by intentionally exposing students to unnecessary embarrassment or disparagement. Respondent's physical contact with students did not expose them to unnecessary embarrassment or disparagement. The one student who testified that Respondent's physical contact hurt him and made him mad was not embarrassed or disparaged.

    
    

11. The Third Count in the Administrative Complaint alleges that Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(a) by failing to make a reasonable effort to protect students from conditions harmful to learning, health, or safety. Respondent made every reasonable effort to protect students from conditions harmful to their health and safety.

    
    

12. Respondent was an expert in martial arts and had more than adequate control to assure the health and safety of his students. Respondent never lost that control in his classes.

    
    

13. The health and safety of Respondent's students was not in fact harmed. One student testified that Respondent hurt him approximately four years earlier when the student was in the first or second grade. It is not necessary to disregard the testimony of that lone student in order to conclude that Respondent made every reasonable effort to protect his students from conditions harmful to their health and safety.

    
    

14. In a proceeding under a statute that is penal in nature, the requirement for competent and substantial evidence takes on vigorous implications that are not present in other proceedings under Chapter 120. Robinson v. Florida Board of Dentistry, Department of Professional Regulation, Division of Professions, 447 So.2d 930, 932 (Fla. 3d DCA 1984). In Robinson, the court held that the testimony of one interested witness does not "even begin to approach the level of 'competent substantial evidence.'" Robinson, 447 So.2d at 932.

    
    

15. The undersigned does not doubt the student who testified against Respondent felt hurt and mad. However, that testimony does not rise to the level of clear and convincing evidence that

    
    

    Respondent failed to make a reasonable effort to protect students from conditions harmful to their health and safety.

    
    

16. In order for evidence to be clear and convincing:

    
    

    . . . evidence must be found to be credible,

    facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to the facts in issue.

    The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983).

    
    

17. The requirement for competent and substantial evidence that is clear and convincing also applies to allegations that Respondent left his class unattended. The few times that Respondent was absent from class and did not advise school personnel is not clear and convincing evidence that Respondent violated statutes or violated rules that have the effect of law.

    
    

18. Respondent's attendance record was no worse than other teachers at the school. Such a record does not make Respondent guilty of the charges in any of the four counts in the Administrative Complaint.

    
    

19. Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(a) by failing to make a reasonable effort to protect students from conditions harmful to learning. Respondent's frequent use of physical contact to gain the attention of male students was ineffective for a subset of the male students taught by Respondent.

    
    

20. For the population of male students who did not respond well to physical contact, Respondent's technique diverted attention and was disruptive. It resulted in anger, confusion, fear, criticism, two administrative proceedings involving allegations of abuse, and reprimands from Respondent's employer. Respondent's continued use of physical contact, and his disregard of the proven potential for adverse results, was not a reasonable effort to protect all of his male students from conditions harmful to learning.

    
    

21. Respondent is guilty of two violations alleged in the Administrative Complaint. First, Respondent failed to make a reasonable effort to protect students from conditions harmful to learning. That failure is also the basis of Respondent's guilt under the Second Count of the Administrative Complaint. Violation of the two counts is deemed to be one violation.

    
    

22. The second violation arises from Respondent's failure to comply with the Deferred Prosecution Agreement in a timely manner. The untimeliness of Respondent's compliance was the result of a good faith belief that his transfer to a position outside of the classroom made it unnecessary for him to take courses on classroom techniques. After Respondent learned that his assumption was mistaken, he complied with the agreement as expeditiously as possible.

    
    

23. Respondent has a history of prior discipline by the District. Allegations that formed the basis of that disciplinary history are also the subject of this proceeding.

    
    

24. The only history of prior discipline by Petitioner is the Deferred Prosecution Agreement. That agreement is the precursor to this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order

finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed

$750.

RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida.

DANIEL MANRY

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 22d day of November, 1994.

ENDNOTE

1/ All section and chapter refererences are to Florida Statutes (1993) unless otherwise stated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3830

Petitioner's Proposed Findings Of Fact. 1.-2. Accepted in substance

3.-5. Accepted in substance, but the terms "struck" or "punched" are rejected as inconsistent with the students' testimony

11.-12. Accepted in substance

13. Rejected as not supported by clear and convincing evidence

Respondents' Proposed Findings Of Fact. 1.-10. Accepted in substance

1. Accepted except that the characterization of the motives of the students in the second sentence is not supported by credible and persuasive evidence

2. Accepted in substance

3. Accepted except that the reference to the attendance record of other teachers is irrelevant and immaterial

4. Accepted in substance

5. Accepted except that Respondent's legal problems are irrelevant and immaterial to his effectiveness as a teacher. The relevant inquiry is his conduct, not his legal problems.

16.-18. Accepted in substance

COPIES FURNISHED:

Barbara J. Staros, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Forida 32399-0400

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street, #301 Tallahassee, Florida 32399-0400

Kathleen M. Richards Administrator

Professional Practices Commission

352 Florida Education Center

325 Gaines Street

Tallahassee, Florida 32399-0400

Robert J. Boyd, Esquire 2121 Killearney Way Suite G

Tallahassee, Florida 32308

Joseph Egan, Esquire Egan, Lev & Siwica 918 Lucerne Terrace

P.O. Box 2231

Orlando, Florida 32802

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: 93-003830

Orders for Case No: 93-003830