STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 04-4586PL

)

DEANNA CAROL JONES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Notice was provided and on March 14, 2005, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2004). The hearing was conducted by video- teleconferencing between sites in Tallahassee, Florida, and Pensacola, Florida. The Administrative Law Judge participated from Tallahassee, Florida. The remaining participants were in Pensacola, Florida. The hearing commenced at 10:00 a.m.

Central Time. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: J. David Holder, Esquire

4421 Commons Drive, East, Suite 432

Destin, Florida 32541-3487

For Respondent: Mary F. Aspros, Esquire

Meyer and Brooks, P.A. 2455 Blairstone Pines Drive Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

Should discipline be imposed on Respondent's Florida Educator's Certificate No. 878226, based upon the allegations in the Amended Administrative Complaint, Case No. 034-0140-Q, before the State of Florida, Education Practices Commission?

PRELIMINARY STATEMENT

On March 18, 2004, Jim Horne, then Commissioner of Education, executed the Amended Administrative Complaint previously described.1/

On April 9, 2004, the Education Practices Commission (EPC) received an executed form explaining Respondent's election of her rights. Respondent contested all material allegations in the Amended Administrative Complaint and the related charges. Respondent sought a settlement option, to be followed by a formal hearing if settlement was not achieved.

A settlement was not entered into with the EPC. Therefore, that left to be considered the factual allegations in paragraph 3 as they pertain to Counts 1 through 3 in the Amended Administrative Complaint.

On December 23, 2004, the Division of Administrative Hearings (DOAH) received the case for conduct of an

evidentiary hearing pursuant to Section 1012.796(6), Florida Statutes (2004).

The case was assigned the DOAH Case Number and the matter proceeded before the undersigned.

At hearing, Petitioner presented the testimony of Rasheed Middleton, Isaiah Baker, and Lisa Beasley. Petitioner's Exhibit numbered 1, a composite exhibit was admitted as evidence. Respondent testified in her own behalf and presented Daniel Ackerman as her witness. Respondent's Exhibit numbered 1 was admitted as evidence.

Respondent did not contest the jurisdictional allegations in the Amended Administrative Complaint. Therefore they are deemed established and will be reported in the facts found in the Recommended Order. Additionally, the parties complied with the pre-hearing order calling for a stipulated statement of facts upon which the parties could agree. The stipulated facts are accepted and are reported in the fact finding in the Recommended Order.

On March 25, 2005, a hearing transcript was filed with DOAH.

The parties filed proposed recommended orders which have been considered in preparing the Recommended Order.

FINDINGS OF FACT UNCONTESTED FACTS

1. Respondent holds Florida Educator's Certificate No. 878226, covering the areas of chemistry, which is valid through June 30, 2004.2/

2. At all times pertinent hereto, the Respondent was employed as a science teacher at Gulf Coast High School Charter, in the Escambia County School District. STIPULATED FACTS

3. Gulf Coast High School (GCHS) conducted a field trip to Pensacola Beach on May 10, 2002.

4. No certified lifeguards were employed by GCHS for the May 10, 2002 beach field trip.

5. GCHS conducted a similar field trip to Pensacola Beach in April 2001.

6. For the April 2001 (trip), GCHS claims it employed two certified lifeguards.

7. Fifty-eight students attended the May 10, 2002 beach field trip.

8. The following eight GCHS employees accompanied the students to the beach:

   Russell D. Bourne, Transportation Supervisor

   --"Mr. Bo"

   Deanna Jones, Science Teacher Felicia Churchwell, English Teacher

   Anthony Bassett, Social Studies Teacher

   Alphonso Lewis, Behavioral Tech

   Minnie Robertson, Secretary/Attendance Clerk

   Ray Steven White, Student Services Specialist

   Melvin Burnett, Behavioral Tech

   
   

9. Mr. Burnett left the field trip around lunch time, before the drowning took place.

10. For each student attending the beach field trip, parents signed a field trip authorization form and attached a

    $5.00 payment for expenses.

    
    

11. The beach field trip form specifically stated the student would be going to the beach and that a "certified lifeguard would be on duty."

12. Although the field trip was planned by Assistant Principal Kevin Jones, the person in charge at the beach was Felicia Churchwell, a second-year English teacher.

13. Ms. Deanna Jones took no part in planning the field trip.

14. Both Assistant Principal Kevin Jones and Trip Supervisor Churchwell attended last year's beach trip (the 2001 trip) and knew lifeguards were on duty at that time.

15. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled students to ascertain whether students could or could not swim.

16. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled employees to ascertain whether

    the employees attending the field trip could or could not swim.

17. Prior to leaving the school on May 10, 2002, the fifty-eight students were shown the safety video: A Safe Visit to the Beach.

18. The video described the meaning of the beach flag system and provided information on how to manage dangerous surf conditions such as rip tides.

19. Aside from a viewing of the video, Assistant Principal Kevin Jones' only other precautionary instruction to the students was that they were not to go into the water deeper than their navels.

20. The students boarded two GCHS buses and were taken to the gulf side of the beach near the entrance to Fort Pickens.

21. They arrived at the beach at approximately 10:30

    
    

    a.m.

    
    

22. Ms. Deanna Jones immediately advised Ms. Churchwell

    
    

    and other staff that no lifeguards were on duty and yellow flags were flying.

23. Ms. Churchwell stated that she was not concerned that a lifeguard was not present.

24. Students remained in the water for nearly an hour and a half before being called out of the water for a lunch break.

25. All students left the water for lunch.

    
    

26. The students were permitted to return to the water following the lunch break at approximately 12:45 p.m.

27. Two staff members, Ms. Deanna Jones and Mr. Alphonso Lewis, stayed at the pavilion. Mr. Lewis was cleaning up from lunch and Ms. Jones was watching the students who were still eating. The remaining staff members returned to the beach to monitor the students who were either sitting or standing near the water's edge observing the students.

28. Some students began to go out into deeper water, venturing beyond the sandbar approximately ten to fifteen yards from shore.

29. At that time Social Science teacher Anthony Bassett began to yell to the students to get out of the water.

30. Students Isaiah Baker, Colan White, Johnny Smith, Ryan Dumas and the decedent, Earl Beasley, were together in the water.

31. No staff person observed the decedent in any danger.

    
    

32. No staff person observed the decedent drown.

33. Staff at the beach determined the decedent was missing only after students leaving the water indicated the decedent was missing.

34. Initially GCHS staff believed the decedent could have been in the rest room.

35. When the decedent could not be located, Anthony Bassett called 911.

36. No GCHS personnel, except Alphonso Lewis, entered the water to search for the decedent.

37. Mr. Lewis traveled to the sand bar, but was discouraged from going further by another GCHS employee due to the dangerous surf.

38. Mr. White searched the water visually through the zoom feature on his camera.

39. Rescue personnel arrived with jet skis about ten minutes after the 911 call was made.

40. The decedent's body was found submerged ten to fifteen minutes later approximately fifty yards off shore.

41. Rescue personnel performed CPR at the scene and Life Flight took the decedent to Gulf Breeze Hospital.

42. Earl Beasley was pronounced dead thirty minutes later.

    ADDITIONAL FACTS

    
    

43. On February 26, 2002, Respondent commenced her employment at GCHS.

44. During employment at GCHS Respondent had not been told about school policies in relation to serving as a chaperone on a field trip for the student body.

45. The persons responsible for planning the May 10, 2002 outing for the school were Kevin Jones, the assistant principal, and Felicia Churchwell, an English teacher.

46. Mr. Jones and Ms. Churchwell did not delegate to Respondent any planning or organizational responsibilities associated with the field trip. In that connection, Respondent was not called upon to determine whether the students could swim. Respondent was not called upon to arrange for a lifeguard to be in attendance at the outing.

47. Assistant Principal Jones did not attend the field trip. Ms. Churchwell was placed in charge of the field trip and served as supervisor at the beach. Respondent had no supervisory authority or control over other persons who served as chaperones on the field trip.

48. Respondent was required by Assistant Principal Jones to attend the field trip as a chaperone. Assistant Principal Jones had informed Respondent of the duty to act as chaperone a couple of days before the field trip.

49. It was the intent of Assistant Principal Jones that all students who would participate in the field trip watch the video on safety. After the students watched the video Mr. Jones told the students that they should not go deeper in the water than their belly buttons.

50. Earl Beasley did not view the safety video. But he was allowed to go on the field trip. There is no indication in the record that Respondent participated in the decision to allow Mr. Beasley to participate in the outing without a knowledge of the instruction presented in the safety video.

51. When the party arrived at the beach, there was a lifeguard stand but no lifeguard. The lifeguard stand had a sign displayed indicating that the lifeguard was not on duty. A yellow flag was displayed reminding swimmers to proceed with caution. When Respondent told other chaperones, to include Ms. Churchwell about the absence of the lifeguard, those other persons responded that they knew that the lifeguard was not on duty.

52. Before lunch Respondent spent time down by the water watching students in her role as chaperone. Some students were in the water, others were not. Some students were observed violating the assistant principal's instruction not to go deeper than their belly buttons. Respondent called out to those students who exceeded the depth allowed. The

    students came closer to the shore where they could understand what was being said. Respondent then told them that Mr. Jones had said that they could not go above their belly buttons.

    Beyond the time at which she had offered this reminder to stay within the bounds for depth, Ms. Churchwell allowed the students to return to the deeper water.

53. Later in the morning Respondent reminded the students another time to not go so deep in the water. By that point the water was becoming more choppy. A short time later the students were called for lunch.

54. The students went to a location behind the sand dunes away from the beach, where a picnic area was located to have their lunch. The students were required to remain out of the water for a period of time beyond the point in time when they ate their lunch. From the picnic area, one could not see the immediate shoreline because of the dune height.

55. Respondent remained in the picnic area after lunch to watch some students who had remained in that area.

56. Respondent became aware that Earl Beasley was missing when people began to approach the picnic area by coming across the boardwalk that topped the dune. These persons were trying to find the missing student in the restroom areas adjacent to the picnic area. Respondent was

    told words to the effect that Earl Beasley was in the water and in distress.

57. Having been told about Mr. Beasley's circumstances, Respondent returned to the beach. She observed that the water was even rougher than it had been before. Respondent was prepared to assist in the attempt to rescue Mr. Beasley. She decided against this course given the water conditions. The efforts of others to save Mr. Beasley were not successful.

    CONCLUSIONS OF LAW

    
    

58. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding in accordance with Sections 120.569, 120.57(1) and 1012.796(6), Florida Statutes (2004).

59. The Amended Administrative Complaint in its factual allegations states:

    On or about May 10, 2002, Fifty-eight students, chaperoned by four teachers and four other adults employed at the school, attended a beach field trip at Pensacola Beach. The Respondent was one of the teacher/chaperones. Prior to the trip, permission slips were sent home to the students for parent signature. The permission slips indicated that a lifeguard would be present on the beach during the field trip. However, when the group arrived at the beach, no lifeguard was present. Yellow flags on the beach indicated that there was a possibility of an undertow. No determination was made of which students knew how to swim and which students did not. Only one of the chaperones was trained in CPR. Despite

    knowledge of these facts, the Respondent allowed the field trip to go forward as planned, thus failing to take reasonable precautions to ensure the safety of students. Late in the afternoon, a male student drowned. The Respondent was terminated, then reinstated and given a ten

    (10) day suspension without pay.

    
    

60. Based upon this alleged conduct Respondent is accused of the following violations:

    COUNT 1: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.

    
    

    COUNT 2: The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

    COUNT 3: The allegations of misconduct set forth are 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 health and/or safety.

    
    

61. Petitioner bears the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995). The definition of clear and convincing evidence is

    found in the case Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

62. Related to Count 1, Respondent is not guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board in violation of Section 1012.795(1)(f), Florida Statutes (2002). Nothing in her actions may properly be considered as reducing her effectiveness as an employee of the Escambia County School Board.

63. Related to Count 2, Respondent did not violate Section 1012.795(1)(i), Florida Statutes (2002), by violating the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules, as would be made manifest by reference to Count 3.

64. Related to Count 3, Respondent did not violate Florida Administrative Code Rule 6B-1.006(3)(a). Contrary to the allegations, Respondent made reasonable attempts to protect the students, to include Earl Beasley, from conditions that were harmful to their physical health and safety.

65. Whatever the failings of others charged with the protection of the physical health and safety of the students in preparing for the field trip and during the field trip, Respondent acted appropriately. She was not the supervisor in charge responsible for the preparation for and participation

in the outing. That is what distinguishes her from the Respondent in Bradley v. Duval County School Board, DOAH Case N0. 99-3311. As a participating chaperone she performed her duties with proper attention to the details, even to the extent of advising the supervisor in charge at the beach concerning the lack of a required lifeguard. Respondent discharged her responsibilities by warning students when they had exceeded the limits placed upon them when entering the water. She was not at the beach when the drowning occurred. She could not view the scene from where she was located. Her location at the picnic area was in relation to her duties as a chaperone, not some attempt to avoid her responsibilities in that capacity.

RECOMMENDATION

Upon consideration of the Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That a final order be entered dismissing Counts 1 through

3 of the Administrative Complaint, upon a finding that Respondent has not violated Section 1012.795(1)(f) and (i), Florida Statutes (2002), nor has she violated Florida Administrative Code Rule 6B-1.006(3)(a).3/

DONE AND ENTERED this 13th day of April, 2005, in Tallahassee, Leon County, Florida.

S

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 13th day of April, 2005.

ENDNOTES

1/ Subsequently, Jim Horne was replaced as Commissioner of Education by John L. Winn, the present Commissioner of Education.

2/ It is presumed that the certificate remains in effect. 3/ Should the EPC reject the conclusions of law and

interpretation of administrative rules, Section 120.57(1)(l),

Florida Statutes (2004), then it is reminded of the discipline imposed against Felicia Churchwell upon the same material allegations. EPC Case No. 04-0041-RT. That discipline was less than what has been proposed here, for reasons not apparent and without support. To impose stronger discipline against this Respondent would be to act inconsistently without cause or justification. See Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43 (Fla. 1st DCA 1983).

COPIES FURNISHED:

J. David Holder, Esquire

4421 Commons Drive, East, Suite 432

Destin, Florida 32541-3487

Mary F. Aspros, Esquire Meyer and Brooks, P.A.

2455 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

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: 04-004586PL

Orders for Case No: 04-004586PL