STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1598

)

ALONZO BAIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on September 19, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: J. David Holder, Esquire

Berg and Holder

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Ellen L. Leesfield, Esquire

DuFresne and Bradley, P.A. 2929 Southwest Third Avenue Miami, Florida 33129

The issue involved in this case is whether the teaching certificate of the Respondent Alonzo Bain should be suspended, revoked, or otherwise disciplined for allegedly allowing alcoholic beverages to be consumed during a birthday party in his high school band classroom, failing to provide care or assistance to a student who became ill as a result of consuming alcoholic beverages, and denying to his principal that alcoholic beverages were present in his classroom when he was questioned by the principal on the day of the incident.

At the final hearing, Alonzo Gilbert, assistant principal at Miami Jackson Senior High School during the 1981-1982 school year, Pete Cookson, assistant principal at Miami Jackson during the 1981-1982 school year, Percy Oliver, principal at Miami Jackson, John Rabun, investigator for the Dade County Public Schools, Desmond Patrick Gray, Jr. executive director, Division of Personnel Control, Dade County Public Schools, Denise Cole, a student at Miami Jackson during the 1981-1982 school year and Richard A. Artmeier, supervisor, Division of Personnel Control, Dade County Public Schools, testified for the Petitioner. Norma Foss Gandes, administrative assistant to Representative Walter Young, Michael Y. Loomis, minister at Grace United Methodist Church, James Wilbert Howard, a substitute teacher at Miami Jackson during the 1981-1982 school year,

Carlos Manuel Gonzalez, Jr., a student at Miami Jackson during the 1981-1982 school year, and Alonzo Bain, testified for the Respondent. Petitioner's Exhibits 1-3 and Respondent's Exhibit 1 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Respondent Bain holds Florida teaching certificate number 480711, issued by the Department of Education, covering the area of music education.

   
   

2. During the 1981-1982 school year, the Respondent was employed as a permanent substitute teacher by the Dade County School District to teach music education at Miami Jackson Senior High School.

   
   

3. On May 21, 1982, the Respondent's students at Miami Jackson held a surprise birthday party for the Respondent. The party began during the first period and concluded during the lunch hour. Punch, cake and cookies were officially served at the party which took place in the chorus room.

   
   

4. During the course of the party, at least one student brought an alcoholic beverage into the Respondent's classroom. The Respondent became aware of the alcohol when he smelled it. Since he didn't know who had the alcohol, the Respondent told his class that "whoever has it, get it out of here because its serious consequences for you." (Tr.90) The Respondent believed that the problem had been solved by his warning since the alcohol smell subsided.

   
   

5. While the birthday party was in progress, a female student, Ophelia Garcia, entered Respondent's classroom and joined the party. Although Ophelia was not a student in any of the Respondent's classes, he wrote her a pass so that she could attend the party. Approximately ten minutes following her arrival at the party, Ophelia became ill and had to be physically assisted from the classroom. The Respondent ordered two or three students to take Ophelia to the clinic; unknown to him, however, the students instead chose to take Ophelia to a bathroom.

   
   

6. Ophelia eventually was taken to the school's administrative offices. She was described as totally intoxicated and the fire rescue squad was called to render assistance.

   
   

7. Later that day, Percy Oliver, the principal, received a call from his area office concerning a complaint from parents regarding students becoming intoxicated during a party in the chorus room.

   
   

8. Following this call, Oliver called the Respondent into his office and confronted him with the allegations that alcoholic beverages were present during the party. The Respondent repeatedly denied that any alcoholic beverages were present in his class during the party.

9. Several days later, the Respondent admitted to Oliver that alcohol was in the classroom. Based upon the Respondent's failure to take reasonable efforts to eliminate alcoholic beverages from his classroom and his initial false answers to Oliver's questions, it was recommended that the Respondent's employment with the school district be terminated.

   
   

10. Dr. Patrick Gray, executive director of the Division of Personnel Control, Dade County School District, held a conference for the record with the Respondent on August 16, 1982. During the conference, the Respondent admitted that Ophelia had become ill due to consumption of alcohol at the party; that he had used poor judgment in failing to personally assist Ophelia when she became ill; and that he had lied to his principal in order to protect students who were at his party. As a result of the conference, the Respondent was restricted from employment with the school district until November 1, 1982, and restricted from that date forward to teaching in a substitute capacity, with the proviso that his conduct would be closely monitored. As a permanent substitute teacher, the Respondent's employment automatically terminated at the conclusion of the 1981- 1982 school year.

    
    

11. In Dr. Gray's professional opinion, the Respondent's actions were such that ". . .his integrity as a professional educator and. . .the integrity of the profession. . .had been impugned and, further, that his. . .failure to exercise proper responsibility. . .is such that the continued licensure of this individual. . .should have been. . .and was investigated." In his judgment, ".

    . .those actions did constitute sufficient cause to question his retention of a teaching license." (Tr.44)

    
    

12. Norma Gandes and Reverend Michael Loomis testified as character witnesses for the Respondent. Both consider him truthful and trustworthy. Since June, 1982, the Respondent has worked for Reverend Loomis directing a church music program and serving as a church organist.

    
    

13. Other than the incident in question, the Respondent has not been involved in any other disciplinary proceedings while employed as a teacher by the school board.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. Pursuant to Section 231.28(1), Florida Statutes, the Education Practices Commission has the authority to suspend or revoke the teaching certificate of any person, or to impose any other penalty by law if it can be shown that such person is guilty of gross immorality or acts involving moral turpitude or has engaged in conduct which seriously reduces his effectiveness as an employee of the school board.

    
    

16. The Respondent is charged with violating Section 231.28, Florida Statutes, by being guilty of gross immorality or an act of moral turpitude, and personal misconduct which seriously reduces his effectiveness as an employee of the school board, and Rule 6B-1.06(3)(a), Florida Administrative Code, which requires the holder of a Florida teaching certificate to make reasonable efforts to protect students from conditions harmful to learning or to health and safety, and Rule 6B-1.06(5)(a), Florida Administrative Code, which requires teachers to maintain honesty in all professional dealings. 1/

17. The Petitioner has demonstrated by clear and convincing evidence that the Respondent Bain violated Rule 6B-1.06(3)(a), Florida Administrative Code, and Rule 6B-1.06(5)(a), by failing to take reasonable steps to protect the health and safety of Ophelia Garcia when she became ill while attending a party in the Respondent's classroom, and Rule 6B-1.06(5)(a), Florida Administrative Code, by lying to school authorities when confronted with the allegation that alcoholic beverages were present at the party.

    
    

18. Insufficient evidence was introduced to establish that the actions of the Respondent constitute gross immorality or an act involving moral turpitude or personal misconduct which seriously reduces his effectiveness as an employee of the school board.

    
    

19. It is not disputed that the Respondent exercised poor judgment in attempting to deal with the problems which arose from what under ordinary circumstances would have been a happy occasion. The penalty urged by the Petitioner, revocation of the Respondent's teaching certificate, is disportionate to the offense charged. Had the Respondent encouraged the consumption of alcohol by presumably underage minors during school hours or failed to take any steps to assist an obviously ill student, his action would clearly warrant a severe penalty. In this case however, considering all of the facts surrounding this incident and the Respondent's background, record, and character, simple fairness requires that he be given a second chance and the opportunity to place this unfortunate event behind him.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Education Practices Commission issue a Final Order finding the Respondent Alonzo Bain guilty of violating Rules 6B-1.06(3)(a) and (5)(a), Florida Administrative Code, placing a written reprimand in the Respondent's certification file as authorized by Section 231.262(7)(f), Florida Statutes.

DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1984.

ENDNOTES

1/ Rule 6B-1.06(2), Florida Administrative Code, provides that a violation of any of the rules in Rule 6B-1.06, Florida Administrative Code, shall subject the individual to revocation, suspension or other penalties as provided by law.

COPIES FURNISHED:

J. David Holder, Esquire Berg and Holder

128 Salem Court

Post Office Box 1674 Tallahassee, Florida 32302

Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 Southwest Third Avenue Miami, Florida 33129

Donald L. Griesheimer, Director Education Practices Commission Knott Building

Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 83-1598

ALONZO C. BAIN,

Respondent.

/

FINAL ORDER

Respondent, ALONZO C. BAIN, holds Florida teaching certificate number 480711. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Panel pursuant to Section 120.57(1), Florida Statutes; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on March 30, 1984 in Tallahassee, Florida to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was represented by William DuFresne, Esquire. The panel has reviewed the entire record in the case.

The Panel adopts the Findings of Fact of the Recommended Order.

The Panel concludes that these facts constitute conduct which seriously reduces Respondent's effectiveness as a school board employee. This conclusion is based on the present and future reactions of the public and the school administration to lying, failure to assist a student, and failure to correct a situation which could endanger students.

The Respondent is hereby REPRIMANDED, and copies of the letter shall he placed in his certification and personnel files.

The Respondent is hereby placed on PROBATION for one (1) calendar year, which shall begin upon his employment as a teacher. As a condition of this employment, the Respondent shall obey all laws and rules regulating his conduct as a teacher; further, he shall perform satisfactorily as a teacher and shall cause quarterly reports on his performance to be submitted to the Education Practices Commission.

DONE AND ORDERED in Tallahassee, Florida, this 9th day of April, 1984.

CAROLYN WILSON

Presiding Officer

COPIES FURNISHED:

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner, General Counsel

Marlene Greenfield, Administrator Professional Practices Services

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

William DuFresne, Esquire 2929 Southwest 3rd Avenue Fifth Floor

Miami, Florida 33129

Hon. Sharyn Smith Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

Dr. Leonard Britton Superintendent

Dade County Schools

1410 Northeast Second Avenue Miami, Florida 33132

I HEREBY CERTIFY that a copy of the Final Order in the matter of RDT v. Alonzo C. Bain has been furnished to William DuFresne, Esquire by U. S. Mail, this 12th day of April, 1984.

DONALD L. GRIESHEIMER, Clerk

Docket for Case No: 83-001598

Orders for Case No: 83-001598