STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, ) CASE NO. 84-1631

)

vs. )

)

ANTHONY G. ACITO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on October 15, 1984, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

Suite 204, 315 Third Street West Palm Beach, Florida 33401

For Respondent: A. W. Chuck Parker, Esquire

219 Clematis Street

Suite 406, Comeau Building West Palm Beach, Florida 33401

PRELIMINARY STATEMENT

By Administrative Complaint filed with the Division of Administrative Hearings May 7, 1984, Petitioner, Department of Education, Education Practices Commission, State of Florida, charges that on December 1, 1983, in violation of 232.27 and 231.28(1)(f), Fla. Stat., and Rule 6B-1.06(3)(a) and (e) F.A.C., Respondent, Anthony G. Acito, administered corporal punishment and/or otherwise used excessive physical force upon the persons of Scott Collins, Danny Urbaniak, Keith Cojocar, and Norman Bishop, students under his charge.

At the final hearing Petitioner called Scott Collins, Keith Christian Cojocar, Daniel Adam Urbaniak, Norman Allen Bishop, Deann Lincoln Delong, George Bruce Mitchell, Jr., Suzanne Marie Wunsch, and Beverlyann B. Barton, as witnesses. Petitioner offered Exhibits 1 through 9, and they were received into evidence. Respondent waived his right to personal appearance at the final hearing in this cause and chose to appear through his attorney of record, A. W. Chuck Parker, Esquire. Respondent did not call any witnesses, but offered Exhibits 1 through 3, and they were received into evidence for the limited purposes stated on the record.

Petitioner has submitted proposed findings of fact and conclusions of law.

No proposed findings of fact and conclusions of law have been submitted on behalf of the Respondent. The Petitioner's proposed findings and conclusions, unless expressly set out in the Findings of Fact which follow, are specifically rejected as not supported by the evidence, irrelevant to the issues presented for determination, or legally erroneous.

FINDINGS OF FACT

1. Respondent, Anthony G. Acito, holds and at all times material hereto held, Teacher's Certificate No. 529895 issued by the State of Florida, Department of Education. Petitioner is certified to teach social studies and elementary education.

   
   

2. At all times material hereto Mr. Acito was employed as a teacher with the School Board of Palm Beach County.

   
   

3. For the 1982-83 school year Mr. Acito was assigned to Crestwood Middle School where he taught social studies. His teacher's evaluation for that school year reflects an above-satisfactory to outstanding performance.

   
   

4. For the 1983-84 school year, Mr. Acito was again assigned to Crestwood Middle School to teach social studies. At this time, due to increased enrollment, additional teacher units were mandated at Crestwood, which included additional physical education classes. Mr. Acito requested and was assigned to teach three physical education classes scheduled for the third, fifth, and seventh periods. The four counts lodged against Mr. Acito in this case deal with corporal punishment and/or excessive use of force by Respondent upon the persons of Scott Collins, Danny Urbaniak, Keith Cojocar, and Norman Bishop, then students in Mr. Acito's seventh hour physical education class, and the incidents complained of all occurred on December 1, 1983, during that class period.

   
   

5. At the time of the incidents in question Collins, Urbaniak, Cojocar, and Bishop were, respectively, 13, 12, 12, and 13 years of age.

   
   

6. By the complainants' own testimony, it is clear that the students in Mr. Acito's seventh hour physical education class, including the four complainants, were not marvels of decorum and that the class as a whole was quite disruptive. On December 1, 1983, as on other school days, the students changed into their physical education clothing and awaited Mr. Acito on the athletic field until he, also, had the opportunity to change. When Mr. Acito exited the locker room and blew his whistle to signify the commencement of class, the students, ideally, were to form into squads and pay attention.

   
   

7. On December 1, 1983, as on other occasions when Mr. Acito blew his whistle and asked for their attention, the students did not quiet down or stop talking, but rather, continued "horsing around" and being disruptive.

   
   

8. Scott Collins, although directed to get in his squad, left the formation to get a ball from behind Mr. Acito. Mr. Acito grabbed Collins by the arm and put him back in line. Mr. Acito told Collins, and the rest of the class, to sit down. By Collins' own testimony he was not grabbed hard by Mr. Acito or hurt. He was simply "put back in line."

   
   

9. Danny Urbaniak, upon Mr. Acito's direction had formed up into his squad but continued talking to the student in front of him even though he admits Mr. Acito was at that very moment blowing his whistle at another squad trying to get

   them quiet. Mr. Acito grabbed Urbaniak by the arm, pulled him out of line because of his continued talking, and pushed him back behind the line of squads. Mr. Acito then kicked Urbaniak in the shin and pushed him away.

   
   

10. Keith Cojocar entered the seventh hour class late and heard r. Acito arguing with Urbaniak. Even at this point the students were still "fooling around." Consequently, because they were "bad," the students were directed to do exercises rather than play soccer. Mr. Acito directed everyone to do push- ups but Cojocar did not do any, he just "lay there." Mr. Acito took Cojocar by the ear and led him away, put a loose neck hold on him from behind, and asked "if he'd ever do it again,"--to which Cojocar replied "No." Mr. Acito did not harm Cojocar.

    
    

11. Norman Bishop, at the conclusion of the seventh hour physical education class, was in the locker room changing into his school clothes. At that time Bishop was speaking with a classmate and opined, regarding the events of that day, that "If he would of hit me, I would of hit him back." Unbeknownst to Bishop, Mr. Acito was standing behind him at the time he made his statement. Mr. Acito grabbed Bishop, turned him around, and pushed him against the lockers with his hand at Bishop's throat and advised Bishop not to tell anyone about what had happened that day.

    
    

12. Mr. Acito used such force in pushing Bishop against the locker that Bishop experienced pain in his jaw, swelling in his neck, and headaches. Bishop was examined by Drs. Jerry Tankersley and Douglas J. Phillips. Dr. Phillips' initial diagnosis was that Bishop's temporomandibular joints were dislocated and that he would require orthodontic and therapeutic care estimated to cost approximately $5,000.

    
    

13. An investigation into the incidents of December 1, 1983, was commenced December 2, 1983, after the parents of Norman Bishop complained to the principal at Crestwood Middle School. The investigation was abruptly terminated when Mr. Acito submitted his letter of resignation dated December 4, 1983.

    
    

14. Prior to the events of December 1, 1983, Mr. Acito was well liked and effective as a teacher. As a consequence of the events of that day, however, he was no longer so regarded.

    
    

15. As a consequence of his actions toward Collins, Urbaniak, Cojocar, and Bishop, criminal battery charges were filed against Mr. Acito, in the County Court of the Fifteenth Judicial Circuit, Criminal Division, in and for Palm Beach County, Florida, Case No. 84-699 MMA02. On September 12, 1984, a not guilty verdict was entered.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. The allegations in this case are that the Respondent, Anthony G. Acito, violated 232.27 and 231.28(1)(f) Fla.Stat., and Rule 6B-1.06(3)(a) and (e), F.A.C.

    
    

18. Section 232.27, Fla.Stat., provides, in pertinent part:

    
    

    Subject to law and to the rules of the district school beard, each teacher or

    member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of

    students. If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:

    1. The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not neces- sary for each specific instance in which it is used. The principal shall prepare guide- lines for administering such punishment which identify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific per- sonnel on the school staff authorized to administer the punishment.

    2. A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.

       
       

19. Section 231.28(1)(f), Fla.Stat., provides:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certifi- cate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions

       of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, pro- vided it can be shown that such person:

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

       
       

20. Rule 6B-1.06, F.A.C., provides, in pertinent part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Con- duct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall

       subject the individual to revocation or suspension of the individual's teacher's certificate, or

       the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          (e) Shall not intentionally expose a student to unnecessary embarrassment or dis- paragement.

          
          

21. At the commencement of the final hearing, Respondent, by and through his counsel, A. W. Chuck Parker, Esquire, moved to dismiss the administrative complaint on the ground that the Division of Administrative Hearings did not have jurisdiction to determine whether Mr. Acito committed a battery on Collins, Urbaniak, Cojocar, and Bishop, and that Mr. Acito had been previously acquitted of any charge of criminal battery against these same students.

    
    

22. Respondent's Motion to Dismiss is denied. Respondent is not being tried before the Hearing Officer for the crime of battery. He is, rather, being charged with a violation of 232.27 and 231.28, Fla.Stat., and Rule 6B-1.06,

    F.A.C. Further, whether Mr. Acito was acquitted of criminal battery charges has no bearing on the jurisdiction of this tribunal, nor the ultimate disposition of these proceedings. The standards of proof in a criminal proceeding and this proceeding are not the same. Consequently, the verdict rendered in the criminal proceeding is not dispositive of, nor a bar to, the ultimate resolution of the administrative complaint.

    
    

23. Respondent, as is his right, chose not to testify or to cross-examine any witness. Consequently, with the exception of Respondent's Exhibits 1 through 3, the Hearing Officer is left with Petitioner's uncontested case.

    
    

24. In dealing with license disciplinary proceedings, however, the Hearing Officer must be ever mindful of the stringent requirements established by Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). In Bowling the court stated:

    
    

    In a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term "substantial competent evidence" takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120.

    Although all questions of fact as dis- tinguishable from policy are determinable through the Administrative Procedure Act by substantial competent evidence

    we differentiate between evidence which "substantially" supports conventional

    forms of regulatory action and evidence which is required to support "substantially" a retrospective characterization of conduct requiring suspension or revocation of the actor's license. Evidence which "is sub- tantial" for one purpose may be less so on another, graver occasion. . .

    
    

    Id. at 171.

    
    

    . . . The violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially"

    on a scale suitable for evidence as a penalty does on a scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof

    be as serious minded as the intended penalty is serious.

    
    

    Id. at 172.

    
    

25. Respondent's conduct on December 1, 1983, as it relates to Keith Cojocar and Scott Collins, was not in violation of 232.27 and 231.28, Fla.Stat., nor Rule 6B-1.06, F.A.C.

    
    

26. Respondent's conduct in kicking Danny Urbaniak and pushing Norman Bishop against the locker were in violation of 232.27 and 231.28(1)(f) , Fla.Stat., and Rule 6B-1.06(3)(a) F.A.C. Respondent administered corporal punishment contrary to the provisions of 232.27, Fla.Stat. As a consequence of his conduct, Respondent seriously reduced his effectiveness as an employee of the school board in violation of 231.28(1)(f) Fla.Stat. Finally, Respondent's conduct was in violation of Rule 6B-1.06(3)(a), F.A.C., since he failed to make any reasonable effort to protect the students in his charge from conditions harmful to their health or safety.

    
    

27. A finding that Respondent's conduct, as heretofore set forth, violates

    232.27 and 231.28(1)(f), Fla.Stat., and Rule 6B-1.06 (3)(a), F.A.C., does not depend on any retrospective characterization of that conduct. It was violative of those provisions when done, and should have been known to have been violative when done.

    
    

28. The evidence, evaluated in accordance with the mandate of Bowling, establishes that the violations are not founded on any loose interpretation or problematic evidence but, rather, upon clear and conclusive evidence which weighs as "substantially" on a scale suitable for evidence as the penalty hereinafter recommended weighs on a scale of penalties.

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

1. A final order be entered dismissing Counts II and IV of the Administrative Complaint.

2. A final order be entered on Counts I and III of the administrative complaint holding the Respondent in violation of 232.27 and 231.28(1)(f), Fla.Stat., and Rule 6B-1.06(3)(a), F.A.C., and that the teaching certificate of the Respondent, Anthony G. Acito, be suspended for a period of two (2) years.

DONE AND ENTERED this 26th day of November, 1984, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of November, 1934.

COPIES FURNISHED:

Craig R. Wilson, Esquire Suite 204, 315 Third Street

West Palm Beach, Florida 33401

A. W. Chuck Parker, Esquire

319 Clematis Street

Suite 406, Comeau Building West Palm Beach, Florida 33401

Donald L. Griesheimer Executive Director

Education Practices Commission Department of Education

Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. FINAL ORDER

DOAH CASE NO. 84-1631

ANTHONY G. ACITO,

Respondent.

/

Respondent, ANTHONY G. ACITO, holds Florida Teaching Certificate Number 529895. 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), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on February 28, 1985, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by Craig Wilson, Esquire. The Respondent was not represented and did not appear. The panel has reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law and Recommendation of the Recommended Order; however, the panel specifically finds, based upon the facts found in the record, including the circumstances of the case and Respondent's acquittal on the charges of criminal battery, that the two year suspension period commence on the date the Recommended Order issued, November 26, 1984, rather than upon the date this Order is rendered.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED this 18th day of April, 1985.

RICHARD RICH, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Anthony G. Acito

has been furnished to A. W. Chuck Parker, Esquire by U.S. Mail, this 24th day of April, 1985.

KAREN B. WILDE, Clerk

COPIES FURNISHED TO:

Marlene Greenfield, Administrator Professional Practices Services

Susan Tully, Esquire Attorney General's Office

Judith Brechner, General Counsel Craig Wilson, Esquire

A. W. Chuck Parker, Esquire

219 Clemantis Street Suite 406

Comean Building

West Palm Beach, Florida 33401

William J. Kendrick, Hearing Officer, Division of Administrative Hearings, The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. Thomas Mills, Supt. Palm Beach County Schools 3323 Belvedere Road

West Palm Beach, Florida 33401

Docket for Case No: 84-001631

Orders for Case No: 84-001631