STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ALAIN SANON,

Respondent.

/

Case No. 16-5935PL

RECOMMENDED ORDER

On February 6, 2017, a final hearing was held by video teleconference at sites in Miami and Tallahassee, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

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

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as

alleged in the Administrative Complaint; and, if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On or about March 9, 2015, Pam Stewart, as Commissioner of the Department of Education (Petitioner or Commissioner), filed an Administrative Complaint against Mr. Alain Sanon (Respondent or Mr. Sanon), alleging violations of section 1012.795(1)(j) and administrative rules. Respondent filed an Election of Rights form, disputing allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes, if no settlement could be reached. On February 1, 2016, the case was referred to the Division of Administrative Hearings (DOAH), where case number 16-0590PL was assigned.

Pursuant to motion, that DOAH file was administratively closed and later re-opened under case number 16-5935PL on October 14, 2016.

The case was noticed for video hearing on December 19, 2016, but was continued pursuant to joint motion of the parties. The final hearing was held as scheduled on February 6, 2017.

Through a Joint Prehearing Stipulation, the parties stipulated to certain facts, which were accepted and are included among the findings of fact below. Petitioner offered the testimony of three witnesses: Ms. Cynthia Padron, an assistant principal at the John F. Kennedy Middle School in Miami-Dade County, Florida;

Ms. Mary Kate Parton, principal at John F. Kennedy Middle School; and A.R., a former student of Mr. Sanon's at the school. Petitioner offered four exhibits, which were admitted, with the caveat that the composite exhibit of witness statements, Exhibit P-4, was hearsay, could only be used to supplement or explain other competent evidence, and was insufficient in itself to support findings of fact. Petitioner's Exhibit P-1 was a deposition of Mr. Sanon, admitted under the party admission exception to the hearsay rule. Respondent testified on his own behalf at the hearing and offered no exhibits.

The Transcript of the proceeding was filed with DOAH on February 17, 2017. Both parties timely submitted proposed recommended orders, which were considered.

FINDINGS OF FACT

1. The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates.

2. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through

   June 30, 2019.

   
   

3. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District.

   
   

4. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English.

5. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole.

6. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that

   Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed.

7. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student

   N.R. and his companions: "Why are you so happy today?"

   
   

   Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling.

   Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone."

8. The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited.

9. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement.

10. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.

    
    

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the parties and subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).

12. Petitioner is responsible for filing complaints and prosecuting allegations of misconduct against instructional personnel. § 1012.796(6), Fla. Stat.

13. Petitioner seeks to take action against Respondent's educator's certificate as provided in section 1012.795. A proceeding to impose discipline against a professional license is penal in nature, and Petitioner bears the burden to prove the allegations in the 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).

    
    

14. The Florida Supreme Court has stated that the clear and convincing standard requires that:

    [T]he 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)).

    
    

15. Respondent is substantially affected by Petitioner's intended decision to discipline his Florida educator's certificate and has standing to maintain this proceeding.

    Count 1

    
    

16. Count 1 alleges that Respondent is in violation of section 1012.795(1)(j), in that he has violated the Principles of Professional Conduct for the Education Profession. Counts 2 and 3 go on to allege the specific violations of these principles. Count 1 does not constitute a distinct disciplinary violation.

    Count 2

    
    

17. Count 2 alleges that Respondent violated Florida Administrative Code Rule 6A-10.081(3)(a), which at the time of the alleged offense provided that an educator:

    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.

    
    

18. Respondent failed to make reasonable effort to protect his students from conditions harmful to their mental health when he made comments suggesting that students were gay and when he stated that his classroom was a "no homo zone."

    
    

19. Petitioner proved by clear and convincing evidence that Respondent violated rule 6A-10.081(3)(a).

    Count 3

    
    

20. Count 3 alleges that Respondent violated rule 6A- 10.081(3)(e), providing that an educator shall not intentionally expose a student to unnecessary embarrassment or disparagement.

21. Respondent intentionally exposed a student to unnecessary embarrassment or disparagement when he made comments suggesting that the student was gay and when he stated that his classroom was a "no homo zone."

22. Petitioner proved by clear and convincing evidence that Respondent violated rule 6A-10.081(3)(e).

    Penalty

    
    

23. The Education Practices Commission adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.795 in Florida Administrative Code Rule 6B-11.007.

24. Rule 6B-11.007(2)(i)16. provided that probation to revocation was the appropriate range of penalty for "[f]ailure to protect or supervise students in violation of paragraph 6B- 1.006(3)(a), F.A.C."2/

25. Rule 6B-11.007(2)(i)22. provided that probation to revocation was the appropriate range of penalty for other violations of the Principles of Professional Conduct.

    
    

26. Rule 6B-11.007(2) provided that, in addition to penalties listed in the disciplinary guidelines, each should be interpreted to include "probation," "Recovery Network Program," "letter of reprimand," "restrict scope of practice," "fine," and "administrative fees and/or costs" as additional penalty provisions.

27. Rule 6B-11.007(3) provided:

    
    

    (3) 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:

    
    

    1. The severity of the offense;

       
       

    2. The danger to the public;

       
       

    3. The number of repetitions of offenses;

       
       

    4. The length of time since the violation;

       
       

    5. The number of times the educator has been previously disciplined by the Commission;

       
       

    6. The length of time the educator has practiced and the contribution as an educator;

       
       

    7. The actual damage, physical or otherwise, caused by the violation;

       
       

    8. The deterrent effect of the penalty imposed;

       
       

    9. The effect of the penalty upon the educator's livelihood;

       
       

    10. Any effort of rehabilitation by the educator;

        
        

    11. The actual knowledge of the educator pertaining to the violation;

        
        

    12. Employment status;

        
        

    13. Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;

        
        

    14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

        
        

    15. Actual negligence of the educator pertaining to any violation;

        
        

    16. Penalties imposed for related offenses under subsection (2) above;

        
        

    17. Pecuniary benefit or self-gain inuring to the educator;

        
        

    18. Degree of physical and mental harm to a student or a child;

        
        

    19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

        
        

    20. Any other relevant mitigating or aggravating factors under the circumstances.

    
    

28. Without minimizing any mental harm to a student, there are mitigating factors in this case. The single incident took place three and one-half years ago, and, at that time, the

Miami-Dade County School District thought it sufficient that Respondent be given a written reprimand. Evidently, no additional deterrent was necessary. There is no indication of

other discipline over a period of 12 years, either before or after the events of August 27, 2013. There is no evidence of a pattern of behavior justifying sanctions uniquely available to the Education Practices Commission in fulfilling its statewide responsibilities under section 1012.795, such as revocation of Respondent's teaching certificate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand.

DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD 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 8th day of March, 2017.

ENDNOTES

1/ All references to Florida Statutes or administrative rules are to the versions in effect in August 2013, on the date of the alleged violations, except as otherwise indicated.

2/ The penalty rule still incorrectly references the old rule, 6B-1.006, rather than the new rule, 6A-10.081(3)(a), which is substantively identical and became effective on January 11, 2013. However, a summary description of each offense is set out in the penalty rule, and Respondent was not prejudiced by the mislabeling. As has been noted before, the references in rule 6B-11.007 should be updated.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 (eServed)

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

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

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Marian Lambeth, Bureau Chief Bureau of Professional

Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 16-005935PL

Orders for Case No: 16-005935PL