STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 99-2210

) FREDERICK D. SPENCE, SR., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on October 12, 1999.

APPEARANCES

For Petitioner: Bruce P. Taylor, Attorney

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Robert E. Turffs

Brann & Turffs, P.A.

2055 Wood Street, Suite 206

Sarasota, Florida 34237 STATEMENT OF THE ISSUES

The issue is whether Respondent used inappropriate discipline techniques when he pushed an unruly student against a wall and back into his seat, in violation of Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 1, 1999, Petitioner alleged that Respondent used inappropriate discipline techniques when he pushed an unruly student against a wall several times and pushed the student back into his seat. The Administrative Complaint alleges that this behavior violates Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code.

Respondent denied the allegations and requested a formal hearing.

At the hearing, Petitioner called eight witnesses and offered into evidence no exhibits. Respondent called six witnesses and offered into evidence two exhibits, which were admitted.

The court reporter filed the Transcript on October 25, 1999.

FINDINGS OF FACT

1. Respondent holds Florida Educators Certificate No. 725455. He is an assistant principal at Riverview High School. He has been a teacher for 18 years. He is in his seventh year in the Sarasota County School District. Prior to his employment with Sarasota County, Respondent was a physical education teacher and then an assistant principal in Illinois. He has never previously been the subject of disciplinary action.

2. The principal at Riverview High School testified that Respondent enjoys good rapport with the students. Respondent is

   required to deal with disciplinary issues, and the principal testified that he has always done so professionally. The principal testified that Respondent maintains his composure when disciplining students. The Administrative Law Judge credits the testimony of the principal.

3. On February 20, 1998, Respondent was summoned to a classroom being taught by Francis J. Baad, a teacher since 1948. A substitute teacher, Ms. Baad was teaching a freshman English class that had become disruptive, so she asked someone to summon an administrator to her room.

4. Ms. Baad was showing a film of Romeo and Juliet. Part of the class was trying to watch the film, but part of the class was misbehaving. Several students were talking loudly, and one student was playing with a red laser pointer. The misbehaving students ignored repeated entreaties from Ms. Baad to settle down. When she threatened to summon an administrator, some of the students told her that she could not do so.

5. When Respondent entered the classroom, the students quieted down. Respondent asked Ms. Baad to tell him the names of the students who had been misbehaving. Identification was slowed by Ms. Baad's unfamiliarity with the names of the students and the fact that several students had sat in seats assigned to other students and had given wrong names.

6. As Respondent was writing down the names of the students who had disrupted the class, C. H. objected to the listing of

   another student, G. B., whom C. H. claimed had done nothing wrong, even though Ms. Baad had named him as one of the students who had misbehaved.

7. Respondent replied to C. H. that it was none of his business. C. H. rose from his seat, and Respondent told him to sit down. Instead, C. H. said that he did not have to listen and began to walk up the aisle to leave the classroom. Respondent stepped toward C. H. and told him to return to his seat and be quiet. C. H. replied that Respondent could not tell him what to do. Saying, "Yes, I will tell you what to do," Respondent approached C. H. and backed him to his desk. Respondent then grabbed C. H.'s arms or shoulders and forced him down to his seat.

8. At one point, Respondent threatened to call the school resource officer and have C. H. arrested. However, Respondent never did so, nor did he or anyone else discipline C. H. for this incident. Instead, Respondent remained in the classroom until the bell rang.

9. Respondent did not disrupt the classroom; he restored order to the classroom so that learning could take place. Respondent did not endanger C. H.'s physical health or safety.

10. Respondent did not disparage C. H. Respondent did not unnecessarily embarrass C. H.; C. H. embarrassed himself. Respondent gave C. H. every opportunity to behave himself.

    Rather than do so, C. H. unreasonably defied Respondent's authority.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

12. Section 231.28(1)(i) authorizes the Education Practices Commission to discipline a person holding a certificate for a violation of the Principles of Professional Conduct.

    Rules 6B-1.006(3)(a) and (e) provide that each person holding a certificate:

    1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

       
       

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

       
       

13. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Petitioner failed to prove by clear and convincing evidence that Respondent committed either of the alleged violations.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Bruce P. Taylor, Attorney Post Office Box 131

St. Petersburg, Florida 33731-0131

Robert E. Turffs Brann & Turffs, P.A.

2055 Wood Street, Suite 206

Sarasota, Florida 34237

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-002210

Orders for Case No: 99-002210