Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A. Suite E
The issues to be determined are whether Respondent, Cornell Lamont Steward (Respondent or Mr. Steward), violated sections 1012.795(1)(f), Florida Statutes (2012), or
sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Amended Administrative Complaint,2/ and, if so, what is the appropriate
On December 4, 2014, Pam Stewart, as Commissioner of the Department of Education (Petitioner or Commissioner),
filed a five-count Administrative Complaint against Respondent, alleging violations of sections 1012.795(1)(f), (g), and (j), and implementing rules. Respondent filed an Election of Rights form on or about December 26, 2014, disputing the allegations in counts two through five and requesting a hearing pursuant to section 120.57(1), Florida Statutes (2014). On July 16, 2015, the case was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge. An Amended Administrative Complaint adding two counts was substituted for the original Administrative Complaint by Order issued July 29, 2015.
The case was noticed for hearing on September 18, 2015, and, after changes to facilitate Respondent’s attendance, was heard through webcast technology on that date. At hearing, Petitioner presented the testimony of Respondent; Ms. Margaret Arneson, Respondent’s former attorney; Officer Tracy Moore, the resource officer at Miami Carol City Senior High School; Detective Alvin
Mr. Ja Marv Dunn, the principal at Miami Carol City Senior High School. Petitioner offered Exhibits P-1 through P-11 and P-13 through P-15, which were admitted into evidence. Proposed Exhibit P-12, a copy of a settlement agreement, was admitted subject to a later showing of relevance, but counts six and seven were later dismissed and it was not shown that the settlement agreement was relevant to the remaining counts; so, it was not admitted. Respondent testified on his own behalf and offered three exhibits, R-1 through R-3, which were admitted into evidence. On motion of Petitioner at hearing, the deadline for filing proposed recommended orders was extended to 20 days after the filing of the transcript.
The one-volume Transcript of the proceeding was filed with the Division of Administrative Hearings on October 13, 2015.
Both parties timely filed proposed recommended orders that were considered in the preparation of this Recommended Order.
The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates.
At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Steward held Florida Educator Certificate 1156507, covering the areas of biology and earth-
space science, and was employed as a science teacher at Miami Carol City Senior High School in the Miami-Dade County School District. Mr. Steward’s certificate expired on June 30, 2013.
On September 7, 2011, Mr. Steward was arrested for driving under the influence of alcohol or drugs with resulting damage to property or another person in Broward County, Florida. As Mr. Steward admitted, on April 3, 2013, he was found guilty by a jury on this charge.
On December 6, 2011, there was an altercation between a 15-year-old male student, A.C., and Mr. Steward in his classroom at Miami Carol City Senior High School. The Commissioner offered no competent evidence regarding this event other than pre-hearing admissions of Mr. Steward and his testimony at hearing.
Mr. Steward testified that he was teaching in his fifth- period class, which was a ninth-grade science class consisting of about 21 students, when there was a knock on the classroom door. A.C., who was a student with behavior and attendance problems, had moved to a seat near the door and offered to see who was there. Mr. Steward at first agreed, but then changed his mind and asked A.C. to remain seated, while Mr. Steward answered the door himself. At the door were three unknown students. A.C. then got out of his seat, stating that the unknown students were his brothers, and moved to the door to greet them.
Mr. Steward testified that the students at the door caused a great amount of disruption in the classroom, and he turned around to quiet his students. He testified that as he turned his back to the door, he felt A.C. “violently” press his groin against Mr. Steward’s buttocks, which startled and frightened Mr. Steward, so he had to “remove [A.C.] from [his] personal space.”
Mr. Steward testified that A.C. then positioned himself between Mr. Steward and his desk, which had the telephone. According to Mr. Steward, A.C. then stepped forward in a “violent motion” and threatening manner with his fists balled up and “chin checked” Mr. Steward. Detective Marin testified that “chin checking” was slang to describe a tap or touch on the chin primarily as a challenge, used to instigate a confrontation, but was not itself a punch.
Mr. Steward testified that he “removed [A.C.] from [his] presence.” Mr. Steward said that then, A.C. moved toward him again with a threatening motion, and Mr. Steward responded:
With my left hand I grabbed his right shoulder. With my left hand I grabbed his right shoulder and with my right hand I grabbed his left shoulder. With using his momentum I placed him on the ground, I did not throw him, I did not slam him, I placed him on the ground. He’s a very small person. As soon as I did that, I, I checked for my students who were in attendance to locate security. One or two of them left the class and then there began to be a stampede out of
the classroom. From that moment on–-oh, oh, while I was holding him on the ground, A.C. began to violently struggle and make motions towards me. Then also the three other students began to grab and pull at me and grab, pull and push at me. Then for my own safety I didn’t know if these children were armed. I didn’t know anything, I let A.C. go and he and the three other students fled the classroom.
Later that day, Principal Dunn was told that Mr. Steward had been in an altercation with a student. He asked the school resource officer, Tracy Moore, to investigate. The following morning, December 7, 2011, Principal Dunn called Mr. Steward to his office to discuss the incident. But for the meeting in
Mr. Dunn’s office, Mr. Steward would have reported to his classroom.
At the meeting, Mr. Steward’s behavior was a bit erratic. He was laughing, loudly and inappropriately, at the events of the previous day. Principal Dunn noticed that
Mr. Steward’s eyes were glassy. Principal Dunn suspected that Mr. Steward was under the influence of alcohol or drugs.
Mr. Steward stated that his eyes were glassy and swollen because he was up the night before thinking about the incident with A.C.
Principal Dunn called the region director and the Office of Professional Standards for advice on how to proceed. He kept Mr. Steward in his “custody,” so that Principal Dunn or the school would not be responsible if anything occurred.
Principal Dunn completed a Reasonable Suspicion Form, noting that Mr. Steward had slow or inappropriate reactions, glassy and swollen eyes, and inappropriate laughter. He determined that there was probable cause to send Mr. Steward for a drug and alcohol screen.
Mr. Steward was tested by LabCorp on December 7, 2011. The results were positive for marijuana.
Mr. Steward’s exhibit offered to show that the lab sample which was tested was actually obtained on another day is not persuasive, and his argument that the test results should not be admitted is completely rejected.
On January 5, 2012, a Conference for the Record was held with Mr. Steward, Mr. Dunn, Ms. Sherri Daniels of United Teachers of Dade, and Ms. Joyce Castro, district director. The events of December 7, 2011, and the test results were reviewed with Mr. Steward. He was given an opportunity to respond, but declined that opportunity. He was advised that a second positive drug test, refusal to submit to future drug tests, or failure to abide with rehabilitation directions could result in additional action, including dismissal.
Mr. Dunn testified that the incidents had an effect upon Mr. Steward’s effectiveness as a teacher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015).
Petitioner is responsible for filing complaints and prosecuting allegations of misconduct against instructional personnel. §§ 1012.795(1) & 1012.796(6), Fla. Stat. (2015).
Petitioner seeks to take action against Respondent’s educator certificate. A proceeding to impose discipline against a professional license is penal in nature. It is Petitioner’s burden to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking &
Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been said to require:
[T]hat 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Respondent is substantially affected by the Petitioner's intended decision to discipline his Florida educator certificate and has standing to maintain this proceeding.
COUNT ONE
Section 1012.795(1)(f), Florida Statutes (2012), provided that the Education Practices Commission may discipline the educator certificate of a person who has been convicted or found guilty of a misdemeanor, other than a minor traffic violation.
Section 316.193(3), Florida Statutes, provided that any person driving under the influence to the extent that the person’s normal faculties are impaired, who causes or contributes to causing damage to the property or person of another, commits a misdemeanor of the first degree.
Petitioner showed that on April 3, 2013, Respondent was found guilty of driving under the influence to the extent that his normal faculties were impaired and causing damage to the property or person of another.
Petitioner proved by clear and convincing evidence that Respondent violated section 1012.795(1)(f).
COUNT TWO
Section 1012.795(1)(g) provided that the Education Practices Commission may discipline the educator certificate of a person found guilty of personal conduct that seriously reduces
that person’s effectiveness as an employee of the district school board.
Principal Dunn testified generally that Mr. Steward’s effectiveness as a teacher was reduced, though he offered no specific information supporting that conclusion. Reduced effectiveness may be shown in some instances simply from the nature of the misconduct. P urvis v. Marion Cnty. Sch. Bd.U, 766
So. 2d 492 (Fla. 5th DCA 2000)(lying under oath and resisting arrest was misconduct that supported inference that effectiveness was impaired); UWalker v. Highlands Cnty. Sch. Bd.U, 752 So. 2d 127
(Fla. 2d DCA 2000)(commotion in class, including intoxicated student, showed class was out of control such that no evidence of impaired effectiveness was necessary, misconduct "spoke for itself"); USummers v. Sch. Bd. of Marion Cnty.U, 666 So. 2d 175,
175 (Fla. 5th DCA 1995)(though no specific evidence presented, it was clear that conduct must have impaired effectiveness as a teacher). It is not difficult to conclude from the evidence presented that Respondent's presence at Miami Carol City Senior High School, while under the influence of marijuana, seriously reduced his effectiveness as an employee of the district school board.
Petitioner proved by clear and convincing evidence that Respondent violated section 1012.795(1)(g).
COUNT THREE
Count three alleges that Respondent was in violation of section 1012.795(1)(j), in that he violated the Principles of Professional Conduct for the Education Profession. Counts four and five go on to allege the specific violations of these principles. Count three does not constitute a distinct disciplinary violation.
COUNT FOUR
Count four alleges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a),3/ which at the time of the alleged offense provided:
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.
The Administrative Complaint alleged that on December 6, 2011, Respondent “became involved in a physical
altercation with A.C., a fifteen-year-old, male student, whereby Respondent choked A.C. and slammed him against a wall and onto the ground.”
Respondent’s account of the events of December 6, 2011, did not show that Respondent failed to make reasonable efforts to protect A.C. or any other student in the class from conditions harmful to their mental or physical health or safety. No competent evidence was introduced that Respondent ever choked
A.C. or slammed him against the wall or onto the ground.
Respondent admitted only that he acted to “remove [A.C.] from [his] personal space” and “place him on the ground” and alleged this was a response to “violent” and “threatening” actions by
A.C. While Respondent’s account was not very credible, no other competent evidence was introduced to support findings that Respondent failed to make reasonable efforts to protect A.C.
Petitioner failed to prove by clear and convincing evidence that Respondent violated rule 6B-1.006(3)(a).
COUNT FIVE
Count five alleges that Respondent violated rule 6B- 1.006(3)(e), providing that an individual shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Again, the only competent evidence in the record as to the events of December 6, 2011, was the testimony and admissions of Respondent. The evidence did not clearly show that A.C. suffered any embarrassment or disparagement, or, if he did, that it was not necessary under the circumstances.
Petitioner failed to prove by clear and convincing evidence that Respondent violated rule 6B-1.006(3)(e).
PENALTIES
In Florida Administrative Code Rule 6B-11.007, the Education Practices Commission adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.795.
At the time of the offenses, rule 6B-11.007(2)(e)1. provided that reprimand to suspension was the appropriate range of penalties for “committing criminal acts and/or convictions in violation of Section 1012.795(1)(e), F.S.”4/
Rule 6B-11.007(2)(f) provided that probation to revocation was the appropriate range of penalties for “engaging in personal conduct which seriously reduces effectiveness as a district school board employee in violation of
Section 1012.795(1)(f), F.S.”
Rule 6B-11.007(2) also provided that the disciplinary guidelines should be interpreted to include “administrative fees and/or costs” with applicable terms thereof as additional penalty provisions.
Section 1012.796(7)(c) provides that the Education Practices Commission may also impose an administrative fine not to exceed $2,000 for each count or separate offense and may refer an offender to the recovery network program under such terms and conditions as the commission may specify.
Rule 6B-11.007(3) provided:
(K) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in
subsection (2). The Commission may consider the following as aggravating or mitigating factors:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator’s livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2) above;
Pecuniary benefit or self-gain inuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
No aggravating or mitigating circumstances are present here to the extent necessary to warrant deviation from the wide range of penalties already permitted within the guidelines.
