STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0649

)

JEAN BAPTISTE GUERRIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on May 30 and June 27, 1995, in Miami, Florida, by video teleconference.

APPEARANCES

For Petitioner: J. David Holder, Esquire

1408 North Piedmont Way Tallahassee, Florida 32312

Ronald G. Stowers, Esquire Department of Education Suite 1701, The Capitol

Tallahassee, Florida 32399-0400

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A. 2929 SW Third Avenue

Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether Respondent is guilty of the violations set forth in the Administrative Complaint, and if so, whether Respondent's teaching certificate should be disciplined.

PRELIMINARY STATEMENT

On November 29, 1994, Petitioner issued an Administrative Complaint against Respondent, Jean-Baptiste Guerrier, alleging violations of Sections 231.28(1)(c) and (i), Florida Statutes, and Rules 6B-1.006(3)(a), (e), and (g), Florida Administrative Code. Respondent requested a formal hearing. The case was forwarded to the Division of Administrative Hearings on February 13, 1995. On February 24, 1995, Petitioner requested an extension of time to file a response to the Initial Order. By order entered March 6, 1995, the time to file a

response to the Initial Order was extended to March 15, 1995. The final hearing was scheduled for May 30, 1995, by video teleconference.

The final hearing was commenced on May 30, 1995, but because of mechanical problems with the video teleconferencing, the hearing was continued to June 27, 1995. At the portion of the final hearing held on May 30, 1995, Petitioner called Keitonia Hyppolite as a witness. Counsel for Petitioner finished his direct examination of Ms. Hyppolite, and counsel for Respondent began his cross examination but was unable to complete it due to transmission difficulties.

When the hearing was reconvened on June 27, 1995, Ms. Hyppolite, although under subpoena, failed to appear. Another witness subpoenaed by Petitioner also failed to appear at the hearing on June 27. Petitioner was granted leave to either take the depositions of the two witnesses or to apply to circuit court to enforce the subpoenas.

Counsel for Petitioner, David J. Holder, filed a Motion to Withdraw as counsel, stating that his contract with Petitioner ended on June 30, 1995, and that he would have no authority to represent Petitioner after that date. The motion is GRANTED. On July 11, 1995, Ronald G. Stowers filed Petitioner's Notice of Appearance and Substitution of Counsel.

On July 11, 1995, Petitioner filed Status Report and Request for Recommended Order, advising that Ms. Hyppolite had refused to give further testimony. Petitioner elected not to seek to enforce the subpoena.

Additionally, Petitioner elected not to take the deposition of the other witness who was unable to appear on June 27. Counsel for Petitioner advised in the status report that he would not oppose a motion to strike the testimony of Ms.

Hyppolite and that he would not file a proposed recommended order.

On July 13, 1995, Respondent gave notice that he waived filing a proposed recommended order. Also on July 13, 1995, Respondent filed a Motion to Strike the Testimony of Keitonia Hyppolite. The motion to strike was granted by order dated July 19, 1995.

At the final hearing, Petitioner called John Alverez and Desmond Patrick Gray, Jr. as witnesses. Petitioner's Exhibits 1-3 were admitted into evidence. Respondent testified in his own behalf and called Nancy F. Graham-Guerrier, Ricardo Anthony Plummer, Aldene B. Longley, and Annette Yvonne Burks as witnesses. Respondent submitted no exhibits.

The last volume of the transcript of the hearing was filed on July 17, 1995.

FINDINGS OF FACT

1. Respondent, Jean-Baptiste Guerrier (Guerrier), holds Florida Teaching Certificate No. 59692 covering the area of English which is valid through June 30, 1995. Guerrier was employed as a teacher at Miami Edison Middle School during the 1992-93 school year.

   
   

2. On September 20, 1993, the following disciplinary action was taken by the Dade County School System against Guerrier for conduct unbecoming a school employee:

   
   

   1. Directives were issued to Respondent to refrain from making inappropriate remarks.

   2. Respondent was issued a letter of reprimand.

   3. Respondent was placed on prescription.

   4. Respondent received an unacceptable rating for Category VII and an overall summary rating of unacceptable on his 1992-93 TADS Annual Evaluation.

      
      

3. On November 29, 1994, the Commissioner of Education issued an Administrative Complaint against Guerrier alleging that he made inappropriate comments of a sexual nature to three eighth grade female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not make such comments.

   
   

4. The Administrative Complaint alleged that Guerrier engaged in inappropriate behavior of a sexual nature with two eighth female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not engage in such behavior.

   
   

5. A teacher at Miami Edison Middle School observed Guerrier putting his arm around female students during the changing of classes. He did not identify the students. During these occasions, Guerrier's back was turned towards the teacher. The teacher characterized Guerrier as a gregarious teacher.

   
   

6. During the 1992-1993 school year, Guerrier had three female cousins who were attending Miami Edison Middle School. Guerrier would put his arm around his cousins' shoulders when he would see them at school. Guerrier did not put his arm around any other female students.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

   
   

8. In an action to revoke or suspend a professional's license, the Petitioner must prove the allegations against the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Petitioner has failed to establish by any evidence that Respondent committed the allegations of misconduct as alleged in the Administrative Complaint relating to inappropriate comments of a sexual nature. The only evidence presented was unsubstantiated hearsay, and as such, cannot be considered. Petitioner has failed to present clear and convincing evidence that Guerrier engaged in inappropriate behavior of a sexual nature as alleged in the Administrative Complaint. Thus, Petitioner has failed to establish that Respondent violated Sections 231.28(1)(c) and (i), Florida Statues, and Rules

6B-1.006(3)(a), (e), and (g), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Jean-Baptiste

Guerrier be DISMISSED.

DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 24th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-649

Neither Petitioner nor Respondent filed proposed findings of fact.

COPIES FURNISHED:

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Ronald G. Stowers, Esquire Department of Education Suite 1701, the Capitol

Tallahassee, Florida 32399-0400

William Du Fresne, Esquire

2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129

Kathleen M. Richards, Administrator Professional Practices Services

352 Fla. 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.

Docket for Case No: 95-000649

Orders for Case No: 95-000649