STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 85-4357

) DANIEL WILFORD PASONAULT, a/k/a ) DANIEL WILFORD PAZONALLT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Rearing Officer, W. Matthew Stevenson, held a formal hearing in the above-styled case on September 11 and 12, 1986, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

215 Fifth Street, Suite 302

West Palm Beach, Florida 33401T

For Respondent: David Rappaport, Esquire

265 Northeast 26th Terrace Miami, Florida 33137

The issue in this case is whether the Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined based on the allegations contained in the Administrative Complaint.

PROCEDURAL BACKGROUND

By Administrative Complaint filed on November 25, 1985, Petitioner seeks to revoke, suspend, or take other disciplinary action against Respondent's teaching certificate predicated upon allegations that Respondent was guilty of conduct which seriously reduced his effectiveness as an employee of the Dade County School Board, intentionally exposed a student to unnecessary embarrassment or disparagement and/or failed to make reasonable

effort to protect the students under his charge from conditions that were harmful to their learning, safety, and/or health. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing.

At the final hearing, the Petitioner called ten witnesses.

In addition, Petitioner's Exhibits 1, 2, 3 and 4 were duly offered and admitted into evidence. The Respondent testified in his own behalf and called three witnesses. In addition, Respondent's Exhibit 2 was duly offered and admitted into evidence. The parties have submitted post hearing Proposed Findings of Fact. A ruling has been made on each Proposed Finding of Fact in the Appendix A to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher.

   
   

2. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school.

   
   

3. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children.

   
   

4. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141.

   
   

5. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr.

   Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures.

   
   

6. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class.

   
   

7. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board.

   
   

8. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141.

   
   

9. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent.

   
   

10. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials.

    
    

11. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys.

    
    

12. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although

    D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two

    other students went back and stood on the stool at the same time or whether they went back separately.)

    
    

13. The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet.

    
    

14. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984.

    
    

15. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984.

    
    

16. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches.

17. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk.

    
    

18. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981.

    
    

19. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984.

    
    

20. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms.

    Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff."

    
    

21. The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

23. The Administrative Complaint charges that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, failing to make a reasonable effort to protect students from conditions harmful to learning, health, and/or safety and/or intentionally exposing a student to unnecessary embarrassment or disparagement. Section 231.28(1)(f), Florida Statutes, provides that:

    
    

    The Department of Education shall have the authority to suspend or revoke the certificate of any person found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board and/or who otherwise violates provisions of law or rules of the state board of education, the penalty for which is the revocation of the teaching certificate.

    
    

    Rule 6B-1.06, F.A.C., principles of professional conduct for the education profession in Florida, requires that the teacher:

    
    

    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 disparagement.

       
       

       The violation of any of the principles of professional conduct for the education profession in Florida subjects the individual to revocation or suspension of his or her teaching certificate. See Section 231.28(1)(h), Florida Statutes.

       
       

24. The standard of proof in teacher certificate disciplinary proceedings is greater than that required in other forms of action involving state regulatory authority. Such proceedings are clearly penal in nature. School Board of Pinellas County vs. Noble, 384 So. 2d 205 (Fla. 1st DCA 1980). In a proceeding such as this, the evidence must clearly and convincingly establish that the Respondent is guilty of the charges asserted in the Administrative Complaint. Reid vs. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2nd DCA 1966); Gans vs. Department of Professional and Occupation Regulation, 390 So. 2d 107 (Fla. 3rd DCA 1980). In a proceeding where the very right to practice a livelihood is at stake, the critical matters in issue must be shown by evidence which is "indubitably as substantial as the consequences." See Bowling vs. Department of Insurance, 394 So. 2d 165, at 172 (Fla. 1st DCA 1981).

    
    

25. The Petitioner failed to establish by clear and convincing evidence that the Respondent intentionally exposed the students to unnecessary embarrassment or disparagement, failed to make reasonable effort to protect any student from conditions harmful to learning, health and/or safety and failed to establish that the Respondent was guilty of personal conduct which seriously reduced his personal effectiveness as an employee of the school board. Upon taking roll during sixth period on October 30, 1984, the Respondent determined that there should have been eight students present in the class room. Although there was testimony that there may have been several students in the class room who were not assigned to that class, there was no testimony that there were ever more than eight students in the class room at any one time. Thus, the presence of the unassigned students in the class room was not shown to be a matter which the Respondent would necessarily have been aware of. The Respondent, being unfamiliar with the students who were regularly assigned to the class, could only rely on responses of students to the roll as it was taken. Secondly, due to the position of the closet and the position of the teacher's desk, the Respondent could not have been immediately aware that students entered the closet. Further, the Respondent was unaware that there was a walk-in closet in the rear of the classroom. Because of the nature of the class, students were from time to time standing up, walking

    around, comparing their projects and getting items out of supply cabinets in the front portion of the room.

    
    

26. The Petitioner has failed to show by clear and convincing evidence that the Respondent's management, control and supervision of the sixth period class at Nautilus Junior High School on October 30, 1984, was so unreasonable under the circumstances as to subject his teaching license to disciplinary action. The testimony as to how many students were in the closet at any one time, and the duration of time that they either remained in the closet or were around the closet was too vague and nebulous to assess personal liability on the Respondent for the activities which took place while D. W. was in the closet. Rather than establishing that the incident which occurred in the classroom was an open and flagrant act, the evidence was equally as compelling that the incident was carried out in a surreptitious manner by the students involved with the intent of avoiding detection. The Respondent is not guilty of intentionally exposing the students in his charge to unnecessary embarrassment or disparagement, not guilty of failing to make reasonable effort to protect any student from conditions harmful to their learning, safety and/or health and not guilty of personal conduct which seriously reduced his personal effectiveness as an employee of the school board.

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in

Tallahassee, Florida.

W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986.

COPIES FURNISHED:

Craig R. Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Beach, Florida 33401

David Rappaport, Esquire

265 Northeast 26th Terrace Miami, Florida 33137

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Karen B. Wilde Executive Director

Education Practices Commission

215 Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Rejected as subordinate.

   
   

2. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony.

   
   

3. Rejected as a recitation of testimony.

   
   

4. Rejected as argument and/or a recitation of testimony.

   
   

5. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony.

   
   

6. Adopted in Finding of Fact 141.

   
   

7. Adopted in substance in Finding of Fact 8.

   
   

8. Rejected as a recitation of testimony.

   
   

9. Rejected as a recitation of testimony.

   
   

10. Rejected as not supported by competent substantial evidence and/or a recitation of testimony.

    
    

11. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony.

    
    

12. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony.

    
    

13. Rejected as a recitation of testimony.

    
    

14. Rejected as a recitation of testimony.

    
    

15. Rejected as subordinate and/or a recitation of testimony.

    
    

16. Rejected as subordinate.

    
    

17. Adopted in Finding of Fact 15.

    
    

18. Rejected as a recitation of testimony.

Rulings on Proposed Findings

of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

   
   

2. Adopted in Finding of Fact 19.

   
   

3. Adopted in Finding of Fact 4.

4. Adopted in Findings of Fact 4 and 6.

   
   

5. Rejected as subordinate.

   
   

6. Adopted in Finding of Fact 3.

   
   

7. Rejected as subordinate and/or unnecessary.

   
   

8. Rejected as a recitation of testimony.

   
   

9. Adopted in Finding of Fact 9.

   
   

10. Adopted in Finding of Fact 10.

    
    

11. Adopted in substance in Finding of Fact 10.

    
    

12. Adopted in Finding of Fact 16.

    
    

13. Adopted in Finding of Fact 17.

    
    

14. Rejected as a recitation of testimony.

    
    

15. Rejected as subordinate.

    
    

16. Rejected as subordinate.

    
    

17. Rejected as a recitation of testimony.

    
    

18. Adopted in substance in Finding of Fact 20.

    
    

19. Adopted in substance in Finding of Fact 21.

    
    

20. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate.

    
    

21. Rejected as subordinate and/or unnecessary.

    
    

22. Rejected as a recitation of testimony.

    
    

23. Rejected as a recitation of testimony.

    
    

24. Rejected as a recitation of testimony.

    
    

25. Rejected as a recitation of testimony.

    
    

26. Rejected as a recitation of testimony.

    
    

27. Rejected as a recitation of testimony.

28. Rejected as subordinate and/or unnecessary.

Docket for Case No: 85-004357

Orders for Case No: 85-004357