STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5694

)

JOHN A. BLUMBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 10, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

Bond & Boyd

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Joseph Egan, Jr., Esquire

Egan, Lev & Siwica, P.A. Post Office Box 2231

918 Lucerne Terrace

Orlando, Florida 32802 STATEMENT OF THE ISSUES

The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on July 23, 1993. Respondent timely requested a formal hearing.

At the formal hearing, the parties agreed on the record to the admission of certain factual allegations in the Administrative Complaint. Petitioner called two witnesses and submitted four exhibits for admission in evidence. Respondent testified in his own behalf, called 14 witnesses, and submitted four exhibits.

Testimony, exhibits, and rulings are reported in the transcript of the formal hearing filed on September 9, 1994.

The parties timely filed proposed recommended orders ("PROs") on September 30, 1994. Petitioner's proposed findings of fact are accepted in this

Recommended Order. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Admitted Facts 1/

   
   

   1. Respondent holds Florida teaching certificate 534707. The certificate authorizes Respondent to teach social studies. It is valid through June 30, 1994.

      
      

   2. Respondent is employed as a Social Studies Teacher at Osceola High School in Osceola County, Florida. He has been so employed at all times material to this proceeding, except for a suspension of five days without pay.

      
      

   3. The five-day suspension and a letter of reprimand were imposed by the Osceola County School District pursuant to a Disciplinary Agreement between Respondent and the District. The conduct that led to the Disciplinary Agreement is the same conduct that is at issue in this proceeding.

      
      

   4. In November, 1992, Respondent's classes studied the assassination of President John F. Kennedy. Tim Dodson ("Dodson") was a male student in one of those classes.

      
      

   5. Dodson told Respondent that Dodson's father owned a replica of the rifle used to assassinate President Kennedy. Respondent sent a note to Dodson's father requesting that Dodson bring the rifle to Respondent's class.

      
      

   6. Dodson brought the rifle to Respondent's class during the week of November 16, 1992. On November 18, 1992, Respondent took his class outside to the football field. Dodson climbed to the top of an observation tower and fired two rounds of live ammunition at a target located on the ground.

      
      

2. Purpose

   
   

   1. The purpose of firing the rifle from the observation tower was to simulate the angle of fire from Lee Harvey Oswald to President Kennedy in 1963. The firing time was not part of the simulation. Out of concern for safety, Respondent did not permit Dodson to fire the rifle in the same time that Oswald fired his rifle.

      
      

   2. The three story observation tower on the football field was lower than the fifth story of the book depository in Dallas, Texas. However, the distance from the observation tower to the target was also shorter than the distance from the book depository to President Kennedy. Respondent determined that the angle created by the lower tower and shorter distance in the simulation approximated the actual angle of fire in the assassination of President Kennedy.

      
      

   3. The target was a metal military helmet resting on a two- by-four board. The target was set at approximately the same height that President Kennedy was positioned in 1963.

      
      

   4. Prior to November 18, 1992, Respondent's students studied the assassination of President Kennedy and watched the "Zapruder" film of the assassination. On November 18, 1992, students witnessed the simulation and inspected the target after the simulation. They then wrote papers on the assassination and the "lone gunman" theory.

3. Procedure

   
   

   1. The simulation was originally scheduled for November 16, 1992. Respondent cancelled that simulation because of trouble with the bolt action in the rifle and because of rain.

      
      

   2. On November 18, 1992, Respondent prescribed specific procedures to be followed during the simulation. Dodson carried the rifle. A second student carried the bolt action. A third student carried the ammunition.

      
      

   3. A fourth student was designated as a "backup shooter" in the event Dodson missed the target. Both Dodson and the backup shooter were excellent shots and had significant experience with firearms.

      
      

   4. Respondent, the three students carrying the rifle parts and ammunition, and the backup shooter climbed to the top of the tower. The tower platform was approximately 48 square feet.

      
      

   5. Respondent instructed Dodson to shoot only on Respondent's command. Respondent also instructed Dodson not to shoot if Dodson saw anyone in the vicinity.

      
      

   6. Respondent descended the observation tower and remained on the ground with the rest of the students in his class. Respondent and the students on the ground stood behind the shooter and the observation tower. The three students who remained on the platform with Dodson stood behind Dodson.

      
      

   7. Dodson assembled the rifle and loaded it. On Respondent's command from the ground, Dodson fired two shots at the target. One round hit the target; the other hit the ground.

      
      

   8. Dodson took the bolt action from the rifle and handed it to the designated student. Dodson and the other three students descended the tower. They inspected the target with the students on the ground and returned to class with the other students.

      
      

   9. Neither Respondent, any other school official, nor any other competent adult was on the tower platform with Dodson and the other three students.

   Dodson and the other three students on the platform were not supervised immediately before, during, and after Dodson fired the rifle.

   
   

4. Vicinity

   
   

   1. The observation tower was located approximately 400 feet west of the nearest campus building; in a vacant football field-track-and-parking complex (the "complex"). The complex is approximately 500 feet wide, east to west, and approximately 1,200 feet long, north to south. The observation tower was situated approximately 300 feet west of the east boundary, midway between the north and south boundaries, and 200 feet east of the west boundary.

      
      

   2. The west boundary of the complex is formed by a drainage ditch that runs the entire 1,200 feet between the complex's north and south boundaries. At its closest point, the drainage ditch was approximately 200 feet west of the observation tower.

   3. The target was located approximately 250 feet southwest of the observation tower. It was approximately 10 feet in front of the drainage ditch.

      
      

   4. The drainage ditch is approximately 25 feet deep. On the west side of the drainage ditch, and adjacent to it, is a line of trees, shrubs, and a six foot chain link fence (the "ditch and tree line").

      
      

   5. West of the ditch and tree line are athletic fields used only in the Spring. West of the athletic fields are vacant lands owned by the airport.

      
      

   6. On November 18, 1992, students and maintenance workers had access to the complex where the observation tower was located. Respondent investigated the complex surrounding the observation tower up to the ditch and tree line. Respondent correctly determined that no one was present in the area Respondent inspected.

      
      

   7. Students and maintenance workers also had access to the athletic fields west of the ditch and tree line. Although Respondent did not inspect that area, no students were in fact present in the uninspected area.

      
      

   8. Unknown to Respondent and his students, three maintenance workers were present in the uninspected area. The workers parked their trucks on the softball field between first and second base. They were parked approximately

      500 feet west of the ditch and tree line.

      
      

   9. The maintenance workers were not in the line of fire. They parked their trucks approximately 700 feet due west of the observation tower and approximately 600 feet northwest of the target. The target was approximately

      250 southwest of the observation tower and east of the ditch and tree line.

      
      

   10. Approximately two minutes after parking their trucks on the softball field, the three maintenance workers heard a shot. Two of the maintenance workers left their vehicle. They walked over to the ditch and tree line to investigate the shot.

       
       

   11. One of the workers walked to a clear spot in the tree line. He tried to look over the top of "some pretty good-sized brush" growing in the clear spot. He saw "three or four kids' heads" on top of the observation tower. The workers found nothing else, returned to their trucks, and completed their duties.

   
   

5. Embarrassment And Disparagement

   
   

   1. Petitioner did not intentionally expose a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e). 2/ Dodson was proud of his role in the simulation. Students uniformly considered the simulation to be a positive learning experience.

      
      

   2. Although the simulation received significant notoriety in the community through local media coverage and community attention, no student felt embarrassed or disparaged by either the notoriety or the simulation. The notoriety that did occur and any embarrassment or disparagement that may have occurred, if any, was not intended by Respondent.

6. Learning Experience And Mental Health Or Safety

   
   

   1. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to learning or to students' mental health or safety within the meaning of Florida Administrative Code 6B-1.006(3)(a). 3/ The simulation was a positive learning experience.

      
      

   2. Students described the learning experience as "great" and "interesting." Almost two years after the simulation, students involved in the simulation were excited about their experience and remembered what they had learned about a significant episode in American history.

   
   

7. Physical Health Or Safety

   
   

   1. Respondent failed to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Florida Administrative Code 6B-1.006(3)(a). The effort made by Respondent was not reasonable, and it failed in fact to protect students from conditions harmful to their physical safety and to their physical health.

      
      

      1. Unreasonable Effort

         
         

   2. The effort made by Respondent was unreasonable in three respects. First, it was not reasonable for Respondent to conduct the simulation in the absence of prior notice to, and written authority from, the appropriate school and law enforcement officials. Second, it was not reasonable for Respondent to sanction the possession of a rifle and the firing of live ammunition on campus. Finally, it was not reasonable for Respondent to conduct the simulation without appropriate supervision on the tower platform.

      
      

      7.01(a) Prior Notice And Consent

      
      

   3. Prior notice to school and law enforcement officials would have given those officials an opportunity to determine if the simulation was appropriate under any circumstances. If those officials determined that the simulation was appropriate, they would then have had the opportunity to determine the level of supervision required to conduct the simulation in a manner that protected students from conditions harmful to their physical health and safety.

      
      

   4. By unilaterally determining that the simulation and attendant conditions were appropriate, Respondent denied school and law enforcement officials the opportunity make their own decisions and exposed those officials to potential liability for any actual harm to the students that may have occurred. It was unreasonable to expose those officials to such liability without their prior knowledge and consent.

      
      

      7.01(b) Sanctioned Use Of Firearms

      
      

   5. The sanctioned use of a rifle and live ammunition on campus was unreasonable. It creates a risk that students will draw an incorrect inference from the simulation.

      
      

   6. Respondent testified in the formal hearing that he was under the mistaken impression that it was okay to permit firearms on campus. He based his impression on the fact that the principal had previously condoned the presence of a firearm in Respondent's class, that Respondent had seen ROTC members and

      police liaison officers present on campus with guns, and that Respondent had also previously witnessed civil war reenactments on campus and mistakenly assumed that the participants used live ammunition.

      
      

   7. Respondent drew an incorrect inference from the sanctioned presence of firearms on campus. If a person of Respondent's education, experience, and intelligence can draw an incorrect inference from the sanctioned presence of firearms on campus, there is at least an equal risk that Respondent's youthful and inexperienced students will draw a similar inference from the use of a firearm that is sanctioned by Respondent. Respondent's failure to consider this factor rendered his effort unreasonable. 4/

      
      

      7.01(c) Inadequate Supervision

      
      

   8. Respondent's effort to protect his students from harmful conditions was also unreasonable because Respondent failed to provide adequate supervision for students on the tower platform. The failure to have, at a minimum, at least one school official, law enforcement official, or other competent adult on the tower platform with Dodson and his companions was not a reasonable effort to protect students on the platform and students on the ground from harmful conditions.

      
      

      1. Harmful Conditions

      
      

   9. The effort actually made by Respondent failed, in fact, to protect students from conditions harmful to their physical safety. The effort created unsafe conditions including the possession and discharge of a rifle, loaded with live ammunition, by an unsupervised high school student, positioned on top of a three story tower, accompanied by three other students who were also unsupervised, while Respondent and the other students observed from the ground three stories below. Those conditions were unsafe and, therefore, failed to protect students from conditions harmful to their physical safety.

      
      

   10. The conditions of the simulation threatened harm to the students physical health by creating a risk of actual harm. The conditions were, therefore, harmful to the students' physical health for purposes of Florida Administrative Code Rule 6B-1.006(3)(a).

       
       

   11. The harm that students were threatened with included serious injury or death. A misfire could have resulted in serious injury or death to any of the students on the ground or on the platform. Similarly, a fall from a height of three stories could have resulted in serious injury or death to any of the four students on the platform.

   
   

8. Mitigating Factors

   
   

   1. The physical health of any one student was not in fact harmed as a result of the simulation. The angle of the rifle to the target, the depth of the ditch, and the density of the tree line made it unlikely that a bullet fired at the target would hit anything except the target, the ground, or the ditch and tree line.

      
      

   2. Dodson and the "backup shooter" had substantial experience with firearms and were expert marksmen. Those factors diminished the possibility of a misfire and the possibility that bullets fired at the target would hit anything other than the target or the ditch. The bullets, in fact, struck only the target or the ditch.

   3. No students other than those involved in the simulation were present in the complex. No students were present in the uninspected area west of the ditch and tree line.

      
      

   4. No person who was not a student was injured as a result of the simulation. The maintenance workers were not in the line of fire and were not in fact harmed.

      
      

   5. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to their physical health or safety before and after the simulation. Respondent gave Dodson specific instructions before Dodson brought the rifle to school.

      
      

   6. Pursuant to Respondent's instructions, Dodson removed the bolt action from the rifle, put the rifle in his car, locked the rifle in his car, and went to class. Respondent and Dodson immediately retrieved the rifle from the car and carried the separate parts of the rifle and the ammunition back to the classroom.

      
      

   7. Respondent followed adequate safety precautions before and after the simulation. The unloaded rifle, the bolt action that had been removed from the rifle, and the ammunition were kept locked in Respondent's closet in his classroom.

      
      

   8. The only times that the rifle was not locked in the closet was during the simulation and when Respondent permitted his students to view the rifle when it was first brought to school. The only time that the rifle was harmful was on the platform immediately before, during, and after it was fired.

      
      

   9. Earlier in the school year, school officials condoned the presence of a World War II rifle brought into Respondent's class without notice to school officials and without their prior consent. The school principal entered Respondent's classroom on other business and saw Respondent and other students inspecting the rifle. The principal did not object to the presence of the rifle and joked about students wanting to get rid of the principal.

      
      

   10. The school principal encouraged Respondent to use simulations. At a meeting of social studies teachers conducted in the beginning of the school year, the school principal encouraged those teachers to take teaching risks and to use new and unconventional methods for reaching students. Simulations were included in the methods suggested by the principal. 5/

       
       

   11. Respondent is highly regarded by students. They give him high marks for bringing his subject matter to life. He frequently uses films, demonstrations, and simulations to capture students' interest through visual history. Students in Respondent's classes learn, enjoy learning, and retain what they learn. Other students try to get into Respondent's classes.

       
       

   12. Respondent is highly regarded by his employer. The Assistant Principal of Osceola High School testified:

       
       

       He is a very good teacher, very effective. Kids love him. He works very hard. He loves teaching. He is passionate with his subject.

       When I . . . observe him, I get so involved that I don't want to leave.

       Respondent's employment assessment for the last two years has been "excellent."

       
       

   13. The abilities and skills that Respondent brings to the classroom are significant resources for students and provide them with substantial benefits. School officials arranged for Respondent to complete his five-day suspension so that he did not miss any time in the classroom.

       
       

   14. Respondent is highly respected by the school faculty. Respondent's role in the simulation conducted on November 18, 1992, did not diminish the respect Respondent has earned from his peers.

       
       

   15. The faculty at Osceola High School voted Respondent teacher of the year for the 1993-94 school year. Respondent was runner-up for teacher of the year in the 1992-93 school year, the year that Respondent conducted the simulation.

       
       

   16. Respondent is a well educated public school teacher. Respondent received his undergraduate degree from Central Michigan University, a teachers college. He received a master's degree in education, curriculum, and instruction from Michigan State University.

       
       

   17. Respondent received a specialist degree in leadership (i.e., administration) from the University of Central Florida. A specialist degree is awarded to persons who hold a master's degree and successfully complete all of the requirements for a doctorate except the dissertation. Respondent is presently a doctoral student in leadership at the University of Central Florida.

       
       

   18. Respondent has significant teaching experience. He has been teaching public school children for over 16 years, including 10 years at Osceola High School, a time at Winter Park Junior High School in Orange County, Florida, and six years in DeWitt, Michigan, a suburb of Lansing, Michigan. Respondent has been an adjunct teacher at Valencia Community College and the University of Central Florida.

       
       

   19. While Respondent taught public school children, he was also involved in assisting students in their extra curricular activities. Respondent was a head basketball coach for junior varsity and freshman basketball, a high school football coach, and a varsity and junior varsity baseball coach.

       
       

   20. Respondent coached youth leagues for girls softball and boys baseball. He coached in summer basketball camps put on by Michigan State University and worked for the Milwaukee Bucks in coaching basketball clinics for them. Respondent also teaches religious education and is the head of a youth group.

       
       

   21. Respondent has no prior disciplinary history against his teaching certificate. The Disciplinary Agreement entered into between Osceola High School and Respondent, as a result of the simulation conducted on November 18, 1992, is the only disciplinary action taken against Respondent during his considerable teaching career.

       
       

   22. One of the elements of The Disciplinary Agreement involved a period of probation. Respondent was returned to a Needs Improvement status and evaluated by school officials at the end of his probationary period. Respondent successfully completed the probation, was evaluated "excellent," and returned to his regular status.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1). The parties were duly noticed for the formal hearing.

       
       

   24. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint, and, if so, the penalty, if any, that should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Factual Allegations In Administrative Complaint

   
   

   1. Respondent admitted all of the material allegations of fact in the Administrative Complaint (the "Complaint"). Responses to Petitioner's Request For Admissions admitted all of the factual allegations except three. Two of those allegations are immaterial to the issues to be determined in this proceeding. The remaining allegation was admitted in testimony during the formal hearing.

      
      

   2. Responses to the Request For Admissions stated that Respondent is without knowledge of the allegation, in paragraph four, that Dodson's father told Dodson he could not bring the rifle to school. The responses also denied the allegation, in paragraph five, that Respondent requested Dodson to display the rifle to the class. Both of those allegations are immaterial to the issues for determination in this proceeding.

      
      

   3. Responses to the Requests For Admissions denied the allegation, in paragraph five, that Respondent kept the rifle in a locked closet. During his testimony at the formal hearing, however, Respondent admitted that he kept the rifle in a locked closet. Transcript at 246.

   
   

10. Charges In Administrative Complaint

    
    

    1. The Complaint charges that the factual allegations admitted by Respondent violate Section 231.28(1)(i), Florida Statutes. 6/ Section 231.28(1)(i) authorizes the Educational Practices Commission to impose any one or more of the penalties enumerated in Section 231.28(1) if the Commission can show by clear and convincing evidence that Respondent violated an administrative rule for which revocation is an authorized penalty.

       
       

    2. The only administrative rules that Respondent is charged with violating by committing the acts alleged in the Complaint are Florida Administrative Code Rules 6B-1.006(3)(a) and (e). Revocation is an authorized penalty for violation of either rule. Rule 6B-1.006(2).

       
       

       1. Embarrassment Or Disparagement

          
          

    3. Florida Administrative Code Rule 6B-1.006(3)(e) provides that Respondent:

       
       

       Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

       The Complaint contains no factual allegations that Respondent intended to expose students to embarrassment or disparagement or that any student was embarrassed or disparaged. Nor does Petitioner's Proposed Recommended Order contain any

       proposed finding of fact that Respondent had the requisite intent or that any student was embarrassed or disparaged.

       
       

    4. The overwhelming weight of evidence in this proceeding shows that Petitioner did not expose any student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B- 1.006(3)(e). Any notoriety over the simulation, or resulting embarrassment or disparagement to students, was not intended by Respondent.

       
       

    5. Although not required by Respondent's burden of going forward with the proof, the evidence that Respondent did not violate Florida Administrative Code Rule 6B-1.006(3)(e) is clear and convincing. Evidence to the contrary, if any, is de minimis, and, in any event, less than clear and convincing.

       
       

       1. Learning Experience And Mental Health Or Safety

          
          

    6. Florida Administrative Code Rule 6B-1.006(3)(a) provides that Respondent:

       
       

       Shall make a reasonable effort to protect

       the student from conditions harmful to learning or to health or safety.

       
       

       The Second Count of the Complaint charges that Respondent:

       
       

       . . . failed to make a reasonable effort to protect students from conditions harmful to learning, or the students' mental or physical health or safety.

       
       

    7. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to learning or to students' mental health or safety within the meaning of Florida Administrative Code 6B-1.006(3)(a). The simulation was a positive learning experience for students and did not create a condition harmful to their mental health or safety.

       
       

    8. Students regarded the learning experience as "great" and "interesting." Students were excited about the learning experience and retained what they learned about a significant episode in American history.

       
       

    9. Evidence that Respondent did not violate this part of Florida Administrative Code Rule 6B-1.006(3)(a) was clear and convincing. Evidence to the contrary, if any, was de minimis, and, in any event, less than clear and convincing.

       
       

       1. Physical Health Or Safety

       
       

    10. Respondent failed to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Florida Administrative Code 6B-1.006(3)(a). Respondent thereby violated Section 231.28(1)(i), Florida Statutes.

        
        

    11. Respondent's effort to protect his students was unreasonable in three respects. First, Respondent failed to give prior notice to school and law enforcement officials and failed to obtain prior consent from those officials. Second, Respondent failed to consider the risk that students would draw an incorrect inference from the sanctioned use of a rifle and live ammunition on

        campus. Third, Respondent failed to provide adequate supervision for the simulation.

        
        

    12. The actual effort made by Respondent failed, in fact, to protect his students from conditions harmful to their physical health and safety. Those conditions were unsafe, in fact. They also threatened students with physical harm by creating a risk of serious injury or death to one or more of the students. They were, therefore, conditions harmful to students' physical health and safety within the meaning of Florida Administrative Code Rule 6B- 1.006(3)(a).

    
    

11. Mitigating Factors And Penalty

1. There are many mitigating factors in this proceeding. They were discussed in the findings of fact and will not be repeated here except to say that the mitigating factors are significant, both separately and cumulatively. They should not be disregarded.

   
   

2. The penalty imposed in this proceeding is designed to balance the violations committed by Respondent against the mitigating factors. The penalty recognizes that Respondent's effort to protect his students from harmful conditions was unreasonable, failed to achieve its objective, and threatened his students with physical harm that included serious injury and death. For all of those reasons, Respondent's violation of Florida Administrative Code Rule 6B- 1.006(3)(a) is serious.

   
   

3. The penalty also gives weight to the mitigating factors in this proceeding. Among other mitigating factors, the penalty recognizes that no student, or any other person, was in fact harmed.

   
   

4. Teachers possessing the training, talent, and skills held by Respondent are rare and valuable resources for students in public schools today. A penalty that denied students access to those resources would ultimately punish the students. The penalty imposed to punish Respondent should not "harm" students in that manner when the simulation itself did not harm students in any way.

   
   

5. The penalty recognizes the simulation as a single isolated incident in a long and distinguished career void of any other disciplinary history; and the desire of students and officials at Osceola High School for Respondent to continue teaching there. The welfare of students and the needs of the school system are salient factors in defining the scope of the appropriate penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission (the "Commission")

enter a Final Order finding Respondent:

1. not guilty of intentionally exposing a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e);

   
   

2. not guilty of failing to make a reasonable effort to protect students from conditions harmful to learning or to their mental health or safety within the meaning of Rule 6B-1.006(3)(a); and

3. guilty of failing to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Rule 6B- 1.006(3)(a) and Section 231.28(1)(i), Florida Statutes.

It is further recommended that the Final Order impose the following penalty:

1. a letter of reprimand filed in Respondent's teaching certificate file;

   
   

2. the completion, at Respondent's expense and within one year of the date of the Final Order, of an appropriate course in classroom safety which shall not exceed one, three hour college level class; and

   
   

3. suspension of Respondent's teaching certificate for not more than 30 days to be carried out in a manner that will not preclude students at Osceola High School from receiving regular classroom instruction from Respondent, will not preclude the automatic reinstatement of Respondent's teaching certificate at the conclusion of the period of suspension, and will not have an adverse effect for Respondent's current employment status at Osceola High School and any attendant benefits such as medical insurance and retirement benefits; or

   
   

4. either at the election of Respondent or in the event it is not feasible to implement suspension subject to the limitations stated herein, an administrative fine not greater than $1,000 to be paid in lieu of suspension of the teaching certificate.

The actual term of suspension or the actual amount of the fine, if elected, shall be determined by the Commission subject to the limits established in this Recommended Order. Respondent may elect to pay the fine at any time prior to the first day of the actual suspension determined by the Commission. Subject to the limits established herein, any fine elected by Respondent shall be imposed in accordance with the provisions of Section 231.262(6)(c), Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1994.

DANIEL MANRY

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 31st day of October, 1994.

ENDNOTES

1/ "Admitted Facts" are those admitted in the responses to Petitioner's Request For Admissions and further agreed to by the parties during the formal hearing.

2/ The Third Count in the Administrative Complaint charges that Respondent violated Fla. Adm. Code Rule 6B-1.006(3)(e) when Respondent:

. . . intentionally exposed a student to unnecessary embarrassment or disparagement.

3/ The Second Count in the Administrative Complaint charges that Respondent violated Fla. Admin. Code Rule 6B-1.006(3)(a) when Respondent:

. . . failed to make a reasonable effort to protect students from conditions harmful to learning, or the students' mental or physical health or safety.

4/ The use of a firearm and live ammunition in a public school, even though used for a positive learning experience, sends a mixed message to students at a time when the presence of weapons in public schools is a critical concern to parents, students, and school officials throughout the state.

5/ Urging teachers to take risks obviously referred to teaching risks and not risks to the physical health or safety of students. However, if Respondent believed, albeit unreasonably, that the simulation presented no risk to the physical health or safety of his students, the urging of school officials to take teaching risks could have been a significant factor in resolving any doubt in Respondent's mind that it was appropriate to conduct the simulation. The simulation was well intended and provided a positive learning experience for his students.

6/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

The Complaint charges Respondent with violating "Sec. 231.28(1)(h)." Prior to July, 1993, the text of Sec. 231.28(1)(i), Fla. Stat. (1993), appeared in Sec. 231.28(1)(h) (1991). The Complaint was executed on July 23, 1993, after the effective date of Sec. 231.28(1)(h), Fla. Stat. (1993).

Sec. 231.28(1)(h), Fla. Stat. (1993), authorizes the Educational Practices Commission to impose disciplinary action against a person's teaching certificate provided that the person:

(h) Has been the subject of a court order directing the Education Practices Commission to suspend the certificate as a result of a delinquent child support obligation.

This proceeding has nothing to do with delinquent child support.

Sec. 231.28(1)(h), Fla. Stat. (1991), authorized the Educational Practices Commission to impose disciplinary action against a person's teaching certificate provided that the 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.

The text of former Sec. 231.28(1)(h), Fla. Stat. (1991), now appears in Sec. 231.28(1)(i), Fla. Stat. (1993). The text of those two sections is the subject of this proceeding. The reference in the Complaint to "Sec.

231.28(1)(h)" is deemed to refer to the provisions in Sec. 231.28(1)(h), Fla. Stat. (1991) and Sec. 231.28(1)(i), Fla. Stat. (1993).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5694

Respondent's Proposed Findings of Fact

1. 7. Accepted as stipulated fact

8.-9. Accepted in part and rejected in part. The fact that Dodson had his father's permission to bring the rifle to school is irrelevant to the unreasonableness of Respondent's efforts to protect his students from harmful conditions and to the failure of Respondent to in fact protect his students from such conditions.

10.-26. Accepted in substance

27. Rejected as not supported by credible and persuasive evidence.

29.-31. Accepted in substance

1. Rejected as to the characterization

2. Accepted in substance

3. Accepted in part and rejected, in part, as irrelevant and immaterial

4. Accepted in substance

5. Rejected as irrelevant and immaterial

6. Accepted in substance

COPIES FURNISHED:

Barbara J. Staros, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Karen Barr Wilde Executive Director

301 Florida Education Center

325 Gaines Street

Tallahassee, Florida 32399-0400

Kathleen M. Richards Administrator

Professional Practices Commission

352 Florida Education Center

325 Gaines Street

Tallahassee, Florida 32399-0400

Robert J. Boyd, Esquire Bond & Boyd

2121 Killearney Way, Suite G Tallahassee, Florida 32308

Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A.

P.O. Box 2231

918 Lucerne Terrace

Orlando, Florida 32802

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.

================================================================= AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

DOUG JAMERSON, as

Commissioner of Education, Petitioner,

vs. EPC CASE NO. 93-128-RT

DOAH CASE NO. 93-5694

JOHN A. BLUMBERG, PC INDEX NO. 94-226-FOF

Respondent.

/

FINAL ORDER

Respondent, JOHN A. BLUMBERG, holds Florida educator's certificate no.

534707. 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 be fore a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on November 2, 1994, was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on December 6, 1994, in DeLand, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Attorney at Law. Respondent was represented by Joseph Egan, Jr., Attorney at Law. The panel reviewed the entire record in this case.

Respondent filed exceptions to the Recommended Order. Copies of those exceptions are attached to and incorporated by reference.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. Exception number 1 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

2. Exception number 2 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

3. Exception number 3 is accepted; there is no competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

4. Exception number 4 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

5. Exception number 5 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

6. Exception number 6 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

7. Exception number 7 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

8. Exception number 8 is rejected; there is competent substantial evidence in the record to support the Finding of Fact at issue.

   
   

9. Exception number 9 is rejected; there is competent substantial evidence in the record to support the Conclusion of Law at issue.

   
   

10. Exception number 10 is rejected; there is competent substantial evidence in the record to support the Conclusion of Law at issue.

    
    

11. Exception number 11 is rejected; there is competent substantial evidence in the record to support the Conclusion of Law at issue.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 37, 39-67 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 68 through 88 in the

hearing officer's Conclusions of Law as its Conclusions of Law.

The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S.

Based upon the foregoing findings of fact, Respondent is guilty of violating Section 231.28(1)(i), F.S., by having violated Rule 6B-1.006(3)(a), F.A.C., by having failed to make a reasonable effort to protect students from conditions harmful to learning or safety; and 231.28(2), F.S., by having been found guilty of the aforestated violations which constitute prima facie grounds for revocation of a teaching certificate; for all of which the Commission may impose discipline pursuant to Sections 231.262(6), and 231.28, F.S.

Because the panel sustained Respondent's Exception number 3 and thereby found that the Hearing Officer's finding of fact number 38 was not supported by competent substantial evidence, the panel is justified in reducing the Hearing Officer's recommended penalty.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Section 231.28(1)(i), Florida Statutes, by having violated Rule 6B-1.006(3)(a), F.A.C.

It is further ORDERED that the following penalty is imposed:

1. a letter of reprimand shall be filed in respondent's teaching certificate file and in his personnel file in Osceola County;

   
   

2. the Respondent shall complete, at Respondent's expense and within one year of the date of the Final Order, an appropriate course in classroom safety which shall not be less than one, three-hour college level class.

This Order becomes effective upon filing.

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 thirty days of the date of filing.

DONE AND ORDERED, this 19th day of December, 1994.

COPIES FURNISHED TO:

Aaron Wallace, Presiding Officer Kathleen Richards, Program Director

Professional Practices

Rivers Buford, Jr. I HEREBY CERTIFY that a copy of Attorney General's Office the foregoing Order in the matter

of Jamerson vs. John A. Blumberg, Florida Admin. Law Reports was mailed to Joseph Egan,

Esquire, PO Box,2231, Orlando , Chris Columbo, Supt. Florida 32802, this 22nd day of Osceola County Schools December, 1994, by U.S. Mail.

817 Bill Beck Blvd. Kissimmee, Florida 34744

William H. Vogel Asst. Supt. for Personnel KAREN B. WILDE, Clerk

Osceola County Schools

Robert J. Boyd Attorney at Law

2121 Killarney Way Suite G Tallahassee, Florida 32308

Docket for Case No: 93-005694

Orders for Case No: 93-005694