STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNATH A. WYNN, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1910

)

SCHOOL BOARD OF PINELLAS )

COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 13, 1980, in Clearwater, Florida.

APPEARANCES

For Petitioner: Mrs. Margaline Wynn, Parent

1527 Scranton Street South

St. Petersburg, Florida 33711

For Respondent: William A. Borja, Esquire

Suite 204, 501 South Fort Harrison Avenue Clearwater, Florida 33516

PROCEDURAL BACKGROUND

Whether or not the Respondent's expulsion of Petitioner for the remainder of the 1980/81 and 1981/82 school years is warranted.

FINDINGS OF FACT

1. Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. By letter dated October 1, 1980, Respondent's mother was advised by Gus Sakkis, Superintendent of Schools, that her son was being temporarily suspended from the Pinellas School System and that he (Sakkis), was further recommending that her son be expelled from the public schools for the remainder of the 1980/81 and the 1981/82 school years for the stated reason that Petitioner committed a battery while on school grounds on September 19, 1980 following a high school football game at Gibbs Senior High School. (Joint Exhibit 1) At that time, Ms. Wynn was also advised of the availability of counselling and alternative placement for Petitioner in an educational facility in Pinellas County.

3. In support of the suspension, Respondent presented witness David Anderson, A fifteen year old student who attends Gibbs Senior High School. Anderson testified that following the football game on September 19, 1980, while leaving the area near the Band room, he was struck with a black umbrella on the back of his neck by Petitioner. There were no witnesses to this incident and Anderson has not been involved in other incidents with Petitioner.

   
   

4. Paula Sitzelberger, a Detective with the St. Petersburg Police Department investigated the subject incident and interviewed Anderson to determine the sequence of events. Student Anderson reiterated the events as stated above and also noted that Petitioner was accompanied by a group of at least two other students. Detective Sitzelberger also interviewed Petitioner who denied any involvement with or commission of a battery upon their person of student Anderson and also related that Petitioner indicated that he left the game and attended a party.

   
   

5. Petitioner, testifying on his own behalf, left the game in the company of Tondrea Givens and Leroy Jones. Petitioner attended a party on 12th Street immediately following the game and attended a party. Petitioner denied striking David Anderson with an umbrella, as charged.

   
   

6. Hope Wynn, Petitioner's sister, also attended the subject game and observed that Petitioner was accompanied by Tondrea Givens and Leroy Jones. Ms. Wynn observed Petitioner leaving the game immediately following the end of the fourth quarter, and later witnessed Petitioner with Givens and Jones at a party on 12th Street.

   
   

7. Ella Jones, the sister of Leroy Jones, also appeared at the hearing and indicated that Petitioner was with Tondrea Givens and her brother Leroy Jones during and immediately following the game.

   
   

8. Tondrea Givens also appeared and confirmed that he accompanied Petitioner following the subject game to the 12th Street party following the game. Givens also denied that Petitioner was involved in any physical contact with David Anderson.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

11. Insufficient evidence was offered to establish that the Petitioner committed a battery while on school grounds following the September 19, 1980, football game as alleged and relied upon by the Superintendent in its Notice of Suspension (Expulsion) of Petitioner from the Pinellas County School System. This is so based on the corroborative testimony of witnesses Wynn, Ella Jones, and Tondrea Givens, to the effect that Petitioner was not involved in the commission of a batter upon the person of David Anderson.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent's expulsion of Petitioner be revoked and the student be permitted and afforded an opportunity to make up the school work missed as provided for in Chapter 4(b) (1) (h), Code of Student Conduct, adopted by the Pinellas County School Board.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of January, 1981.

COPIES FURNISHED:

Mrs. Margaline Wynn

1527 Scranton Street South St. Petersburg, Florida 33711

William A. Borja, Esqiure Suite 204

501 South Fort Harrison Avenue Clearwater, Florida 33516

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Collins Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.

Docket for Case No: 80-001910

Orders for Case No: 80-001910