STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,1/

Petitioner,

vs.

KEITH RENAUD FRANKLIN,

Respondent.

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) Case No. 12-2332PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Edward T. Bauer, an Administrative Law Judge of the Division of Administrative Hearings, on March 20, 2013, by video teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

For Respondent: Emily Moore, Esquire

Florida Education Association

213 South Adams Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On November 29, 2011, Petitioner filed a four-count Administrative Complaint against Respondent, Keith Renaud Franklin. Each charge rests on the allegation that, on April 8, 2011, Respondent "grabbed fifteen-year-old male student D.P. by the neck in a choking manner and pushed D.P. down onto the desk." Respondent timely requested a formal hearing to contest the charges, and, on July 11, 2012, the matter was referred to the Division of Administrative Hearings ("DOAH") and assigned to Administrative Law Judge John G. Van Laningham.

Thereafter, on December 18, 2012, Petitioner filed a Motion to Amend the Administrative Complaint, wherein it sought leave to add the following factual allegations:

Respondent, following the incident, falsely reported that the student had positioned himself in a "FIGHTERS STANCE" to "hit" the Respondent, who restrained the student out of fear for his safety. Respondent filed a victims [sic] affidavit to prosecute the student, who was subsequently charged with a criminal violation of Florida Statute 784.011.

Petitioner further moved, in connection with the foregoing allegations, to charge four additional rule violations.

Subsequently, on March 14, 2013, Judge Van Laningham granted Petitioner's motion. This matter was transferred to the undersigned the following day for further proceedings.

As noted above, the final hearing was held on March 20, 2013, during which Petitioner called six witnesses: Robert Levinsky,2/ an assistant principal at Dillard High School; and students D.P., S.H., A.A., R.B., and A.P. Petitioner introduced Exhibits 1-6 and 9-13 in their entirety, as well as portions of Exhibits 7 and 8.3/ Respondent testified on his own behalf and called five other witnesses: student T.F.; Officer Edward Jackson; Bobby Jackson; Johanna Davidson; and Noel Buhagiar.4/ Respondent also introduced two exhibits into evidence, numbered 1

and 2.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates.

   2. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014.

      
      

2. The Events

   
   

   1. The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students.

   2. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed

      D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item.

   3. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up.

      
      

   4. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.")

   5. It is at this point that the witness' accounts diverge:

      
      

      D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area.

      
      

      Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks.

   6. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration.

   7. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school.

      
      

   8. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away.

   9. Subsequently, Officer Jackson conducted an interview of

      
      

      D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified:

      The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs.

      
      

      I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you.

      
      

      And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him.

      
      

      And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all.

      
      

      Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/

3. Ultimate Findings

1. It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's

   
   

   property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor.

2. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction

      
      

3. DOAH has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof

      
      

4. This is a disciplinary proceeding in which Petitioner seeks to discipline Respondent's professional license. As such, Petitioner must prove the allegations contained in the Amended Administrative Complaint ("Amended Complaint") by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987).

5. Regarding the standard of proof, in Slomowitz v.

   
   

   Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would

   
   

   need to contain "both qualitative and quantitative standards." The court held that:

   [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the 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.

   
   

   Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re

   Davey, 645 So. 2d 398, 404 (Fla. 1994).

   
   

   1. The Education Practices Commission's Authority to Discipline Teaching Certificates; The Charges Against Respondent

   
   

6. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.

7. In its Amended Complaint, Petitioner lodges a host of charges10/ against Respondent, each of which is predicated upon one or both of the following allegations: that Respondent "grabbed . . . D.P. by the neck in a choking manner and pushed

D.P. down onto the desk"; and that Respondent's subsequent report of the incident——i.e., that he acted to defend himself against

D.P.'s aggressive conduct, which caused him (Respondent) to fear for his safety——was untruthful. However, and as explained previously, Petitioner has failed to prove these allegations by clear and convincing evidence. Thus, all of the charges against Respondent necessarily fail, as a matter of fact. Due to this dispositive failure of proof, it is not necessary to render additional conclusions of law. See St. Lucie Cnty. Sch. Bd. v.

Woodcock, Case No. 12-2755TTS, 2013 Fla. Div. Adm. Hear. LEXIS 30, *13 (Fla. DOAH Jan. 24, 2013).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2013.

ENDNOTES

1/ This disciplinary action was brought in the name of Gerard Robinson, who was the Commissioner of Education at the time the Administrative Complaint was issued. As of this writing,

Dr. Tony Bennett holds the office; the undersigned has amended the style to reflect this succession.

2/ Mr. Levinsky's name is misspelled as "Lovinsky" in the Transcript.

3/ The following pages of Petitioner's Exhibits 7 and 8 were received in evidence: pages 91-94, 98, 101-102, and 104 of

Exhibit 7; and pages 35-38 and 43-46 of Exhibit 8.

4/ Mr. Buhagiar's name is misspelled as "Buhaghar" in the Transcript.

5/ See Final Hearing Transcript, pp. 97-98 & 114.

6/ See § 784.011, Fla. Stat. (2011).

7/ The record is silent regarding the disposition of D.P.'s assault charge.

8/ See Final Hearing Transcript, p. 18, lines 17-18; p. 125, lines 3-4.

9/ See Final Hearing Transcript, p. 17, lines 7-9.

10/ Respondent's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

COPIES FURNISHED:

Emily Moore, Esquire

Florida Education Association

213 South Adams Street Tallahassee, Florida 32301

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

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 244-E

325 West Gaines Street 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: 12-002332PL

Orders for Case No: 12-002332PL