STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1218

)

MICHAEL J. CUSHING, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Dunnellon, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 19, 1979.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

For Petitioner: Respondent appeared on his own behalf.

By petition for the revocation of teacher's certificate, dated May 11, 1979, petitioner alleged that "[on or about January 4, 1979, a seventh grade student, Wesley J. Baler [sic], accidentally struck [respondent] as he was walking in the class with his elbows behind his head"; that "Wesley J. Baler...apologized... [but respondent] advanced toward the student and stuck Wesley J. Baler in the face near the eye...in the presence of the entire class. The petition alleges a "violation of 231.28 and 231.09, Florida Statutes, and 6A-4.27, 6B-1 and 6B-5, Rules of the State Board of Education. "

FINDINGS OF FACT

1. Although Wesley John Baker was born on November 13, 1963, he was only in the seventh grade in January of 1979, at the Dunnellon Middle School. He was one of twenty-five students in mathematics class respondent taught right after lunch hour. One day, after about seventeen of respondents students had assembled for postprandial instruction in mathematics, and after the class bell had rung, young Wesley sauntered into the classroom with both hands atop his head. Respondent stood in front of the class waiting for the stragglers to be seated. As Wesley passed between respondent and his classmates, he let his arms drop to his sides, striking respondent in the fact with his forearm in the process. The other children laughed to see one of their number hit the teacher. Wesley said, I'm sorry." "That's not enough," answered respondent as he struck Wesley with the back of his hand. This also elicited laughter from the young mathematicians. In subsequent conversations with school officials about the incident, respondent explained, "He hit me so I hit him back."

2. When respondent hit Wesley back, the blow landed above Wesleys left eye, breaking the skin. Wesley's eye watered and hurt for the remainder of the day, and he was unable to keep his eye open. When his mother, Mrs. Ernestine Baker, saw him, she asked what had happened and took him to a doctor. No damage was done to the eye tissue, but a faint scar remained above the eye, at the time of the hearing.

   
   

3. The school board of Marion County, in which Dunnellon Middle School is located, has written policies regulating corporal punishment. These regulations require that corporal punishment "be administered only after it has been authorized by the principal in writing, designating the person who may administer the punishment, " petitioner's exhibit No.4, and that administration of corporal punishment shall be witnessed by at least one other adult." Id. School Board policy also specifies that "[no other student shall be present during the administration of corporal punishment." Petitioner's exhibit No. 4. These regulations also require that corporal punishment be administered posteriorly by striking the student below the waist and above the knees"; and that corporal punishment "not be administered with malice towards the student nor at a time when the person administering the punishment is angered or impassioned.... Petitioner's exhibit No. 4. Respondent was aware of these regulations but questioned their wisdom.

   
   

4. In the Dunnellon Middle School Registration and Information Handbook 1978-79, corporal punishment is defined as "the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules." Petitioner's exhibit No. 2.

   
   

   CONCLUSIONS OF LAW

   
   

5. The facts established that respondent failed to comply with Section 231.09(3), Florida Statutes (1977), which requires teachers to

   
   

   [t]reat pupils under their care kindly, considerately, and humanely, administer- ing discipline in accordance with regula- tions of the state board and the school board; provided, that in no case shall cruel or inhuman punishment be administered to any child attending the public schools.

   
   

   The facts did not reflect any cruelty or inhumanity; the whole episode was very human. But the evidence did show that respondent administered discipline in violation of regulaitons of the School Board of Marion County.

   
   

6. Because respondent's conduct amounted to a refusal to comply with the Code of Ethics of the Education Profession in Florida, Rule 6B-1.02(2)(b) and (c), Florida Administrative Code, and to a refusal to comply with the regulations of... the school board in the district in which he [was] employed," Section 231.28(1), Florida Statutes (1977), the Department of Education is authorized to take disciplinary action against respondent's teaching certificate.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED:

That the Department of Education suspend respondent's teaching certificate for ninety (90) days.

DONE and ENTERED this 24th day of December, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

COPIES FURNISHED:

Craig R. Wilson, Esq. Professional Practices Council

315 Third Street

West Palm Beach, Florida 33401

Mr. Michael J. Cushing 890 St. Rt. 80

Belle Glade, Florida 33430

Docket for Case No: 79-001218

Orders for Case No: 79-001218