STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1391

)

LAWRENCE GERALD PERCIVAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on May 30, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Craig R. Wilson

Suite 315

1201 U.S. Highway 1 North Palm Beach, Florida 33408-3581

For Respondent: William DuFresne

DuFRESNE AND BRADLEY

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated December 20, 1989; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 20, 1989, when the Petitioner, Betty Castor, as Commissioner of Education, on behalf of the Education Practices Commission (Commission) filed an administrative complaint against the Respondent, Lawrence Gerald Percival, and alleged that the Respondent had violated provisions of Section 231.28, Florida Statutes. Such allegations related to a period of time when Respondent was employed by the School Board of Dade County, Florida, and specified that Respondent had failed to make reasonable efforts to protect students from conditions harmful to learning or to health or safety and/or that the Respondent had intentionally exposed students to unnecessary embarrassment or disparagement.

Respondent filed an election of rights which denied the allegations of the administrative complaint and requested a formal hearing in connection with the charges. The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 1, 1990.

At the hearing, the Commission presented the testimony of the following witnesses: Anette DuQuesne, Mike Quintana, Gievan Rodriquez, Roger Perez, Stephanie DeOliveira, Maritza Balato, Ingrid Fernandez, Isabel Ballesdas, and Melissa Miller, students formerly enrolled in Respondent's class; Mary Quintana, Mike's mother; William McCauley, a physical education instructor at Cypress Elementary School; Dorothy Symonette, a guidance counselor at Cypress Elementary; Maria Nela Valdez, an assistant principal at Cypress Elementary; Judith Martin, principal at Cypress Elementary; and Patrick Gray, assistant superintendent for the Office of Professional Standards for the Dade County Public Schools. The Commission's exhibits numbered 1 and 2 were admitted into evidence.

The following witnesses testified on behalf of the Respondent: Basia Prula, a student formerly enrolled in Respondent's class; Sonia Maria Casteneda, Stephanie DeOliveira's mother; and Lawrence Gerald Pervical. The Respondent's exhibits numbered 1 and 2 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on June 21, 1990. The parties waived the requirements of Rule 28-5.402, Florida Administrative Code, by agreeing to submit their proposed recommended orders more than ten days after the filing of the transcript. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. At all times material to the allegations of the administrative complaint, the Respondent has held teaching certificate number 390667. That certificate was issued by the Department of Education and covers the areas of driver education, physical education, and kindergarten through eighth grade. Respondent's current teaching certificate expires on June 30, 1991.

   
   

2. At all times material to the allegations of the administrative complaint, the Respondent was an annual contract teacher employed by the School Board of Dade County, Florida (Board). Respondent began teaching in the public school system upon employment by the Board in 1986. Prior to that time Respondent had pursued other career options.

   
   

3. At the beginning of the 1988/89 school year, Respondent was assigned to West Homestead Elementary School where he taught physical education. Subsequent to an investigation regarding allegations at that school, Respondent was administratively reassigned to teach a half day at Cypress Elementary School.

   In the mornings, Respondent taught at another school, then he went to Cypress Elementary for the remainder of the day.

4. Prior to assuming his teaching responsibilities at Cypress Elementary in October, 1988, Respondent met with Judith Martin. Ms. Martin, the principal at Cypress Elementary, instructed Respondent that he was not to touch the students assigned to his classes. Ms. Martin advised Respondent that she expected him to exhibit professional conduct and to show respect toward the children. Respondent acknowledged that he understood he was to refrain from improper conduct, and asserted that he was a very good teacher.

   
   

5. In January, 1989, Ms. Martin received complaints from female students in Respondent's class that he had inappropriately touched them on the back or arms. When Ms. Martin met with Respondent regarding the allegations and made him aware of the students' discomfort with his conduct, he explained that he is a "touchy" person and that his manner of teaching sometimes required putting his hands on a student but that it was not done in an inappropriate way or intended to make them uncomfortable.

   
   

6. At that time, Ms. Martin reminded Respondent that he was not to touch students or to embarrass them.

   
   

7. Anette DuQuesne was a sixth grade student in Respondent's class during the 1988/89 school year. On one occasion, Respondent directed Anette to remove her jacket when she did not wish to take it off. The jacket did not interfere with her play and she did not wish to remove it since her shirt was too big and she felt she would be exposed. Respondent insisted that she remove her jacket and told her that there was nothing (referring to her breasts) there to see.

   The comment was made in front of Anette's classmates and embarrassed and angered her.

   
   

8. Mike Quintana, Gievan Rodriguez, and Roger Perez were fourth grade students assigned to Respondent's class during the 1988/89 school year. On one occasion, Respondent directed the students, who were engaged in a tug-of-war, to let go of the rope. When the students continued to pull, Respondent went down the rope separating the students from the rope. To accomplish that separation, Respondent struck Mike, Gievan, and Roger in the chest area with his hands, forearms, or elbows. The students were not seriously injured but were hurt to the point of tears by the blows struck by Respondent.

   
   

9. The activity described in paragraph 8 occurred after Respondent had been directed for a second time to refrain from touching students. Respondent presented no credible explanation for why it was necessary to separate the students from the rope in such a manner. Respondent admitted that Gievan (who was crying) approached him regarding the incident and complained about being struck by Respondent's elbow.

   
   

10. The physical education grounds at Cypress Elementary are immediately adjacent to a Dade County public park. On one occasion, park employees removed a malalucca tree which was next to the park's tennis courts. A backhoe used to pull the tree stump repeatedly came onto school property and crossed the Cypress track.

    
    

11. During the tree removal process, Mr. McCauley, a physical education teacher at Cypress Elementary, observed that students from Respondent's class were running the track in an area dangerously close to the backhoe. Mr. McCauley observed that one of Respondent's students dodge the backhoe at a close range. Mr. McCauley advised Respondent of the problem so that he could take corrective measures. Despite being made aware of the dangerous condition, Respondent allowed and, in fact, directed his students (all of whom were

    elementary school ages) to continue running the track. Respondent's warning to the students (to be aware of the backhoe and to run further in) was inadequate given their ages and the alternatives available to Respondent. After a second warning from Mr. McCauley, Respondent continued to allow his students to run the track. Subsequently, Mr. McCauley reported the incident to a school administrator.

    
    

12. Following an investigation of the allegations against him, school officials removed Respondent from Cypress Elementary in April, 1989. Respondent was given a non-student contact assignment at an area office. When his contract with the Board expired in June, 1989, Respondent was not offered a contract for the following school year.

    
    

13. Respondent did not intentionally touch female students to make them feel uncomfortable. However, touchings did occur after Respondent was directed to refrain from such conduct. Respondent maintained that pats on the back or shoulder were done out of praise for something well done and that boys and girls were treated similarly.

    
    

14. Since June, 1989, Respondent has been self- employed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 231.28, Florida Statutes, provides, in pertinent part:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person 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 that person 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, provided it can be shown that such person:

       * * *

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       * * *

       (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

17. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

18. Rule 6B-1.006, Florida Administrative Code, provides, in part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct 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 teacher's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       (a) 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.

       
       

19. In the instant case, the Commission has established by clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from conditions harmful to learning or to health or safety. Consequently, Respondent violated Rule 6B-1.006, Florida Administrative Code. The incidents with the backhoe and tug-of-war establish that Respondent did not conduct his class in a manner that would reasonably assure that students would not be hurt. Respondent disregarded a reasonable warning from a colleague and allowed elementary age students to run a track within a dangerous area. Further, Respondent's acts to remove the boys from the tug-of-war rope were inappropriate and further demonstrate Respondent's indifference. While such acts might be reasonable on a high school football practice field, under the circumstances of this case such acts were unjustified. Respondent is therefore subject to the disciplinary alternatives authorized by Section 231.28, Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Education Practices Commission enter a final order suspending the Respondent's teaching certificate for a period of one year.

DONE and ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1990.

APPENDIX TO CASE NO. 90-1391

RULINGS ON THE PROPOSED FINDINDS OF FACT SUBMITTED BY THE COMMISSION:

1. Paragraphs 1 through 4 are accepted.

2. With regard to paragraph 5 it is accepted that the Respondent struck the students. Whether he did so with his hands or his forearms or elbows is unclear; however, the blows were of a sufficient force to cause the students to cry.

3. Paragraph 6 is rejected as irrelevant.

4. Paragraphs 7 through 9 are rejected as recitation of testimony, repetitive, or irrelevant.

5. To the extent that paragraph 10 describes Respondent's admission that he went through the tug-of-war line separating the students off the rope, it is accepted; otherwise rejected as irrelevant.

6. Paragraph 11 is accepted.

7. Paragraph 12 is accepted but is irrelevant.

8. Paragraphs 13 through 15 are accepted.

9. To the extent addressed in findings of fact paragraphs 10 and 11, paragraphs 16 and 17 are accepted; otherwise rejected as irrelevant.

10. Paragraphs 18 and 19 are rejected as argument, comment, or irrelevant.

11. Paragraph 20 is accepted but is irrelevant.

12. To the extent addressed in findings of fact paragraph 7, paragraphs 21 and

    22 is accepted; otherwise rejected as irrelevant or recitation of testimony.

13. Paragraph 23 is rejected as not supported by the weight of the evidence. It is accepted that the children complained about Respondent, but it is not found that Respondent committed the acts complained of with an intention to embarrass or disparage the students nor for some other inappropriate purpose.

14. Paragraphs 24 through 27 are accepted but see findings of fact paragraph

1. It is not found that Respondent actually was touching the students in an inappropriate way or for an inappropriate reason; it is not disputed that the students perceived that Respondent was acting inappropriately. The accuracy of those perceptions has not been established by clear and convincing evidence.

   1. Paragraph 28 is rejected as irrelevant.

   2. The first two sentences of paragraph 29 are accepted; otherwise rejected as irrelevant or hearsay.

   3. The last sentence of paragraph 30 is accepted; otherwise rejected as irrelevant.

   4. Paragraphs 31 and 32 are accepted.

   5. Paragraph 33 accurately recites Dr. Gray's opinion, but is rejected since the factual basis for that opinion has not been established in total, by clear and convincing evidence. Dr. Gray's opinion has been considered to determine a recommendation since the Commission has established by clear and convincing evidence a violation of law or rule.

   6. Paragraph 34 is accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraph 1 is accepted but is irrelevant.

2. Paragraph 2 is rejected as contrary to the weight of credible evidence.

3. Paragraph 3 is accepted.

4. With the exception of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 4 is accepted.

5. Paragraph 5 is accepted.

6. Paragraph 6 is accepted.

COPIES FURNISHED:

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399

Martin Schaap, Administrator Professional Practices Services

325 West Gaines Street Room 352

Tallahassee, Florida 32399

Craig R. Wilson Suite 315

1201 U.S. Highway 1

North Palm Beach, Florida 33408-3581

William DuFresne DuFRESNE AND BRADLEY

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

Docket for Case No: 90-001391

Orders for Case No: 90-001391