STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6678

)

FRED J. MILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 4, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: No appearance.

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated May 23, 1991, petitioner charged that respondent, a certified teacher in the State of Florida, had inappropriately disciplined his students and, therefore, violated the provisions of Section 231.28(1)(h), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code. In response, Respondent filed an election of rights disputing the allegations of the administrative complaint and requested a formal hearing. By letter of October 15, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called S.B., A.S., and Shirlee Shatteen as witnesses, and its exhibits 1 and 2 were received into evidence. 1/ Neither the respondent nor anyone on his behalf appeared at hearing.

The transcript of hearing was filed February 14, 1992, and the parties were granted leave until February 24, 1992, to file proposed findings of fact.

Petitioner elected to file such proposals and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Fred J. Miller, currently holds Florida teaching certificate number 150969, covering the areas of elementary education, business education and administration, which is valid through June 30, 1992.

   
   

2. At all times material hereto, respondent was employed as a teacher at Miami Park Elementary School in the Dade County School District.

   
   

3. In the summer of 1990, S.L., a minor female student, was in respondent's fourth grade class at Miami Park Elementary School. On one occasion during such term, respondent observed that S.L. was not doing her school work and was instead drawing, contrary to instructions he had given earlier in the day. In response, respondent grabbed the paper upon which S.L. was drawing, crumpled it up and directed S.L. to stand in the corner. S.L. then opened the top of her desk to put her books away, and while her head was under the desk top respondent pushed the top down striking the back of S.L.'s head. Such contact apparently hurt S.L., since she then began to cry, but there was no compelling proof offered at hearing from which any reasonable conclusion could be drawn regarding the severity of the blow or any injury sustained.

   
   

4. S.B. a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. On two occasions during such term, respondent made physical contact with S.B. The first occasion arose when S.B. and the other students in the class were lined up to go to lunch. During such time, S.B. was apparently talking and whispering to other students and respondent grabbed him by the arm, above the elbow, yanked him out of the line, and made him walk on the side of the line. S.B. averred at hearing that such action hurt and embarrassed him; however, there was no compelling proof regarding the severity of any harm or the degree of any embarrassment beyond what one would reasonably expect from having been disciplined. The second occasion arose when S.B. was apparently not doing his school work and was instead drawing. In response, respondent tore up the drawing, grabbed S.B. by the ear, pulled him up from his seat, and made him stand in the corner. Again, there was no compelling proof regarding the degree of harm, if any, occasioned by such contact, and S.B. offered no testimony that such action on respondent's part caused him to suffer any embarrassment.

   
   

5. A.S., a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. At hearing, A.S. offered testimony regarding two occasions on which respondent made physical contact with him. The first occasion arose when A.S. was talking when he should not have been, and respondent pulled him by the ear and made him stand in the corner. There was, however, no proof at hearing that such conduct harmed or embarrassed A.S. The second occasion arose when the respondent "jacked up" A.S.; a phrase used to describe respondent grabbing the front of A.S.'s shirt and pulling him up. No proof was offered regarding the circumstances which surrounded this incident, and no showing of harm or embarrassment to A.S.

   
   

6. In addition to the foregoing incidents, S.B. and A.S. also offered testimony regarding other occasions during the summer of 1990 when respondent made physical contact with other students in their fourth grade class. In this regard, S.B. offered testimony that respondent "snatched . . . [E.W.] . . . out of line about two times and yanked his ear too." And, A.S. offered testimony

   that respondent also "jacked up" other students when they misbehaved in class. There was, however, no proof offered regarding the circumstances surrounding these incidents, and no showing that such students were harmed or embarrassed by respondent's conduct.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

   
   

8. Where, as here, petitioner seeks to revoke a professional license, it bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

   
   

   We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remem-bered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds, at page 958, the following:

   
   

   "Clear and convincing evidence" is an inter-mediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

   
   

9. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Section 231.28(1)(h), Florida Statutes, and Rules 6B- 1.006(3)(a) and (e), Florida Administrative Code. Section 231.28, Florida Statutes, provides:

   
   

   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:

      * * *

      (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.

      
      

      And, Rule 6B-1.006, Florida Administrative Code, provides:

      
      

   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:

      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.

         
         

10. Here, considering the standard of proof, it cannot be concluded, with the exception of the S.L. incident, that respondent violated the provisions of Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, and therefore Section 231.28(1)(h), Florida statutes. Succinctly, the proof fails to support the conclusion that respondent's conduct toward these students was harmful to their learning, health or safety, or that they were unnecessarily embarrassed by such conduct. With regard to the S.L. incident, the proof does support the conclusion that respondent hurt S.L. when he pushed the desk top down on her head, although the severity of any such harm was not demonstrated at hearing. Accordingly, it may be concluded that, with regard to the S.L. incident, respondent did violate the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code.

    
    

11. In its proposed recommended order petitioner observes that respondent's conduct is not serious enough to warrant a suspension or revocation of his teaching certificate, but is sufficient to warrant a letter of reprimand and three years probation. However, such recommendation was premised on petitioner's contention that, contrary to the conclusions reached in this recommended order, respondent's conduct toward all the students constituted a violation of law. Considering the facts as found in this recommended order and the potential penalties described by Section 231.262(6), Florida Statutes, it is concluded that an appropriate penalty for respondent's violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, and therefore Section 231.28(1)(h), Florida Statutes, with regard to S.L., is a written reprimand, an administrative fine of $500.00, and a one-year term of probation subject to respondent successfully completing one college course or an equivalent in-service training course in the area of assertive discipline.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which finds respondent guilty of having violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and thereby Section 231.28(1)(h), Florida Statutes, with regard to his conduct toward S.L.; which imposes the penalty recommended in paragraph 5 of the

foregoing conclusions of law; and, which dismisses all other charges against respondent.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of February 1992.

WILLIAM J. KENDRICK

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 27th day of February 1992.

ENDNOTES

1/ The students in respondent's class are identified by initials in this recommended order. Their full names may be discerned from the record.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6678

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3 & 16. Rejected as not relevant. 4-6. Addressed in paragraph 4. 7-9. Addressed in paragraph 5.

10 & 11. Addressed in paragraph 3. 13-15. Rejected as not relevant.

COPIES FURNISHED:

Margaret O'Sullivan, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Mr. Fred J. Miller

2 Sponderhen Road Naples, Florida 33961

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center,

325 West Gaines Street, Tallahassee, Florida 32399-0400

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006678

Orders for Case No: 91-006678