STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION,1/ )

)

Petitioner, )

)

vs. ) Case No. 02-4775PL

)

MICHAEL R. JACOBS, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

Notice was provided and on February 27, 2003, a formal hearing was held in this case at the Alachua County Courthouse,

201 East University Avenue, Gainesville, Florida. Authority for conducting the hearing is set forth in Sections 120.569, and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ginger L. Barry, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street Tallahassee, Florida 32301

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Should the State of Florida, Education Practices Commission (EPC), impose discipline against Respondent, who

holds Florida Educator's Certificate No. 292611, for the alleged violations set forth in EPC Case No. 001-0121-A?

PRELIMINARY STATEMENT

On February 13, 2002, Charlie Crist, as Commissioner of Education, brought an Administrative Complaint in EPC Case No. 001-0121-A against Respondent. The material allegations in that complaint were as follows:

During the spring of 2000, Respondent sexually harassed female students.

Respondent told the girls that the shorter their shorts were, the higher their grades would be. During March 2000, Respondent inappropriately touched M.H., a 16-year- old, female student, by lifting up her shirt to look at her tan. Further, Respondent commented to M.H. that he would watch her butt to make sure it did not get too big. Respondent also made inappropriate comments, which included sexual innuendo, to E.C. and L.B. both 15- year-old, female students. On or about May 30, 2000, Respondent's assistant principal issued him a letter of reprimand for his conduct.

Based upon this alleged misconduct Respondent was accused of violating Sections 231.2615(1)(c) and 231.2615(1)(i), Florida Statutes, as well as Rules 6B-1.006(3)(a) and 6B- 1.006(3)(e), Florida Administrative Code, representing counts one through four to the Administrative Complaint.

By an election of rights officially received on March 15, 2002, Respondent asked for a period of time to discuss possible settlement. If the settlement was not obtained

Respondent requested a formal hearing. A settlement was not reached.

On December 11, 2002, the case was referred to the Division of Administrative Hearings for formal hearing. The case was assigned and the hearing ensued.

Petitioner presented the witnesses L.B., E.C., Loretta J. Shane, Lamar Simmons, and Sandi Anusavice. Respondent testified and presented the witness F.T.B.

The parties prepared a response to a pre-hearing order. In that response they stipulated to certain facts as reported in the Findings of Fact to the Recommended Order.

On March 26, 2003, the hearing transcript was filed. Subsequently the parties filed proposed recommended orders which have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts:

1. Respondent holds a Florida Educators Certificate (FEC), number 292611, in the areas of General Science, Physical Education, and Middle Grades.

2. Respondent's FEC is valid through June 30, 2005.

   
   

3. At all times relevant to this proceeding, Respondent was employed as Physical Education Teacher at Sante Fe High School (Sante Fe) in the Alachua County School District.

   Additional Facts:

   
   

4. During his career Respondent has been employed by the Alachua County School Board as part of the instructional staff. His career spans 33 years. Respondent taught physical education at Sante Fe from 1974 through 2001. In the last two years he has taught at Bucholz High School in drivers education.

5. The physical education curriculum at Sante Fe, to include the spring of 2000, emphasized physical activity for the students three days a week. Two days a week were devoted to classroom instruction. The physical fitness instruction emphasized cardio vascular conditioning and building endurance in the participants' muscles. The physical activity took place both inside the gymnasium and outside on the school grounds. The physical activity involved stretching before engaging in the prescribed activity.

6. A typical physical fitness class taught by Respondent would have had 35 to 48 students. In the spring of 2000 two of the students taught physical education by the Respondent were E.C. and L.B., who were ninth graders.

7. On the whole, the proof is not clear and convincing that Respondent inappropriately stared at the students E.C. and L.B. when they were doing their exercises in the physical education class in the spring of 2000, as they claim.

8. During the spring of 2000 E.C. and L.B. went to Respondent's office to exchange a basketball which was flat for one that was not. After the students asked for a new basketball Respondent replied "well that's not the only thing that's flat" while looking in the direction of the students. The students took this remark to be intended as sexual innuendo concerning the chest of the student E.C. but their impression was gained outside the context of another remark made at that time directed to those students referring to them as a "bunch'a airheads." When the set of remarks are considered together they do not constitute remarks that are perceived as sexual harassment or sexual innuendo as alleged in the Administrative Complaint. To refer to students as "airheads" is not appropriate, however that remark is not the subject of the Administrative Complaint. The comments made by Respondent directed to E.C. and L.B. were overheard by a male student, F.T.B.

9. M.H., whom one can infer was a student at Sante Fe,

   
   

   showed Respondent her midriff where she had been sunburned. Respondent commented "M., you need to put sunscreen on.

   You're going to get burnt up." No other facts were established concerning Respondent and the student M.H.

10. Contrary to the material allegations in the Administrative Complaint, no proof was presented concerning

    the allegation that Respondent told female students in his class that the shorter their shorts were, the higher their grades would be.

    CONCLUSION OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. Petitioner bears the burden to prove the material allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Count I to the Administrative Complaint alleges misconduct in violation of Section 231.2615(1)(c), Florida Statutes, now Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. That allegation has not been proven.

14. Count II to the Administrative Complaint alleges that Respondent has engaged in misconduct by violating Section 231.2615(1)(i), Florida Statutes, now Section 1012.795(1)(i), in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education. The specific provisions within

    the Principles of Professional Conduct for the Education Profession in Florida are addressed in Count III and Count IV to the Administrative Complaint.

15. Count III to the Administrative Complaint alleges misconduct in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical safety. That allegation has not been proven.

16. Count IV to the Administrative Complaint alleges misconduct in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. That allegation has not been proven.

17. Having failed to prove the allegations in Counts III and IV, Petitioner has also failed to prove the allegations in Count II.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered dismissing the Administrative Complaint in all its counts.

DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 23rd day of April, 2003.

ENDNOTE

1/ This case commenced before the State of Florida, Education Practices Commission, Charlie Crist, as Commissioner of Education, Petitioner vs. Michael R. Jacobs, Respondent, Case No. 001-0121-A. Since that time Charlie Crist was elected Attorney General in Florida and Jim Horne became the Commissioner of Education. The style of the case before the Division of Administrative Hearings has been corrected to reflect that change.

COPIES FURNISHED:

Ginger L. Barry, Esquire McFarlain & Cassedy, P.A.

305 South Gadsden Street Tallahassee, Florida 32301

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

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

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-004775PL

Orders for Case No: 02-004775PL