STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, )

as Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6925

)

EMMAMARIA SILVA, )

)

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 March 17, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: William T. Jackson, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

By administrative complaint dated October 15, 1992, petitioner charged that respondent, a certified teacher in the State of Florida, violated the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. The gravamen of petitioner's charge is the contention that during the 1990-91 school year, while employed as a kindergarten teacher at South Miami Heights Elementary School in the Dade County School District, respondent used inappropriate techniques or physical force to discipline or control students. In response, respondent executed an election of rights which disputed such allegations of fact, and 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, as witnesses: Eric Lluis, Adrian Gonzalez, Alexander DuQue, Richard San Martin, Indira Siles, Aldo Morales, Joyce Annunziata, accepted as an expert in administration and supervision of instructional personnel, and Ana Gonzalez. Petitioner's exhibits 1-3 were received into evidence. Respondent testified on her own behalf and called Maria Gonzalez as a witness. Respondent's exhibit 1 was received into evidence.

The transcript of the hearing was filed March 29, 1993, and the parties were granted leave until April 8, 1993, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings.

   
   

2. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude.

   
   

3. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression.

   
   

4. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed.

   
   

5. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In

   her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline.

   
   

6. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited

   
   

7. As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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.

   
   

9. In a case of this nature, the petitioner 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 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 intermediate 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).

   
   

10. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Sections 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.

          
          

11. Applying the foregoing standards to the facts of this case demonstrates that respondent's act of "tying up" Eric to demonstrate the impropriety of his having tied up Adrian, and to a much lesser degree her wrapping the jump rope around students as punishment for not staying in their seats, violated the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. Respondent was not, however, shown to have committed any other impropriety.

12. In crafting an appropriate penalty to impose upon respondent, due consideration has been given to her years of dedication to her profession, the esteem with which she is held by her peers, her recognition that the techniques she employed were inappropriate, and the punishment that has already been imposed by her employer. 1/ Given the circumstances, an appropriate penalty in the instant case would be a written reprimand.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of

violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993.

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 19th day of April 1993.

ENDNOTE

1/ Among those who know of her, respondent is considered a dedicated, caring and conscientious teacher.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6925

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

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3-9. Addressed in paragraphs 4 and 5.

10-12. Addressed in paragraph 6.

13-15. Subordinate or unnecessary detail.

16-18. Addressed in paragraph 5, otherwise unnecessary detail. 19-21. Addressed in paragraph 7, otherwise unnecessary detail.

22 and 23. Addressed in paragraph 2 and 4.

24 and 24 (sic). Not relevant or addressed in paragraphs 4-6.

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

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3 and 4. Addressed in paragraphs 4 and 5.

5. Addressed in paragraph 6.

6-10. Addressed in paragraphs 4-6, otherwise rejected as contrary to the proof or subordinate.

11. Adopted in paragraph 5.

COPIES FURNISHED:

William T. Jackson, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One

2929 Southwest Third Avenue Miami, Florida 33129

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie General Counsel

The Capitol - Plaza Level 08 Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street 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 ten 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.

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AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, CASE NO. 92-203-RT DOAH CASE NO. 92-6925

vs. EPC INDEX NO. 93-083-FOF

EMMAMARIA SILVA,

Respondent.

/

FINAL ORDER

Respondent, EMMAMARIA SILVA, holds Florida educator's certificate no. 466263. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on April 19, 1993 was forwarded to the Commission pursuant to Section 120.57(1), F.S., (copy attached to and made a part of this order).

A panel of the Education Practices Commission (EPC) met on June 21, 1993 in Lake Buena Vista, Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Esquire. Respondent was represented by William DuFresne, Esquire. The panel reviewed the entire record in the case.

Petitioner filed exceptions to the Recommended Order. The exceptions are attached to and incorporated by reference.

RULINGS ON EXCEPTIONS

1. Petitioner's Exception Number 1 is rejected as to the Findings of Fact.

   
   

2. Petitioner's Exception Number 2 is rejected as to the Findings of Fact.

   
   

3. Petitioner's Exception Number 3 is rejected as to the Conclusions of Law.

   
   

4. Petitioner's Exception. Number 4 is accepted as a request to increase the penalty.

The Commission made a complete review of the record and finds the evidence beginning on page 56 of the hearing transcript and running through page 59, the testimony of Dr. Joyce Annunziata, showed that the local district intended to reprimand the teacher, issue directives to Ms. Silva to refrain from physical discipline, and require a prescription for TADS Category 7 for her. There is competent, substantial evidence in the record that Ms. Silva was not placed on prescription. Therefore, the Conclusion of Law, paragraph 12, "the punishment that has already been imposed by her employer," is factually incorrect and not a proper mitigating factor.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact the Hearing Officer's Findings of Fact, paragraphs 1-7 in the Recommended Order.

CONCLUSIONS OF LAW

The Commission adopts as its Conclusions of Law the Hearing Officer's Conclusions of Law, paragraphs 8-12, except as paragraph 12 was modified by the Ruling on Exceptions.

PENALTY

The Commission rejects the Hearing Officer's Recommendation on Penalty based on the erroneous mitigation finding. Respondent shall receive a written reprimand. In addition, her educator's certificate shall be placed on one year probation. The terms of probation shall be, that upon employment in a position requiring a Florida educator's certificate, Respondent shall notify EPC immediately upon employment as an educator in any public or private school in the State of Florida; arrange for her immediate supervisor to submit performance reports to the EPC at least every three months; submit true copies of all formal observation/evaluation forms within ten days of issuance; and all costs incurred in fulfilling terms of probation shall be borne by the Respondent.

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 10th day of July, 1993.

GREGORY DICK, Presiding Officer

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services

Ann Cocheu, Esquire Attorney General'S Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Octavio J. Visiedo, Supt. Dade County Schools

1450 N. E. 2nd Avenue Miami, Florida 33132

Dr. Patrick Gray

Executive Asst. superintendent Office of Professional standards Dade County schools

1444 Biscayne Blvd., Suite 215

William J. Kendrick, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Margaret O'Sullivan, Esquire Department of Education 1701, The Capitol

Tallahassee, Florida 32399

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Emmamaria Silva was mailed to William DuFresne, Esq., 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 this 14th day of July, 1993, by U.S. Mail.

KAREN B. WILDE, Clerk

Docket for Case No: 92-006925

Orders for Case No: 92-006925