STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-3926PL

)

MOSES N. MWAURA, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this proceeding on November 16, 2000, in Moore Haven, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Ron Weaver & Associates

528 East Park Avenue Tallahassee, Florida 32301-1518

For Respondent: Moses N. Mwaura, pro se

214 Tenth Street Post Office Box 856

Moore Haven, Florida 33471

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to

rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)

PRELIMINARY STATEMENT

On August 21, 2000, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

By letter dated September 18, 2000, Petitioner referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing. The matter was assigned to the undersigned and scheduled for hearing on November 16, 2000.

At the hearing, Petitioner presented the testimony of five witnesses and submitted two exhibits for admission in evidence. Respondent presented the testimony of seven witnesses and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing filed on December 1, 2000. Petitioner timely filed its Proposed Recommended Order ("PRO") on December 21, 2000. Respondent filed his PRO on November 27, 2000.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888.

2. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the

   "school") in the Glades County School District (the "District").

3. Respondent has a long-standing practice in his classroom of disciplining male students by making them do

   push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District.

4. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books.

5. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner.

6. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP").

7. C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline.

8. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse.

9. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that

   C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible.

10. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction.

11. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted.

12. When Respondent placed books in C.W.'s arms,

    C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse.

13. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for

    C.W. to stand at the back of the class and the time when

    C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention.

14. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital.

15. The examining physician at the hospital diagnosed

    C.W. as suffering from mastoiditis. The physician admitted

    C.W. to the hospital for two days and successfully treated the medical condition.

16. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of

    Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting

    evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect

    C.W. from conditions harmful to the student's physical safety.

17. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement.

18. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent.

19. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary

    history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for

    12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.

    CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative hearing. Section 120.57(1).

21. The burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy its burden of proof by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

22. Petitioner satisfied its burden of proof for some, but not all, of the allegations in the Administrative Complaint. The evidence is clear and convincing that Respondent violated some parts of Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e).

23. In relevant part, Section 231.28(1)(i) authorizes the Florida Education Practices Commission (the "Commission") to suspend Respondent's teaching certificate if Respondent:

    1. Has violated the Principles of Professional Conduct for the Education

       Profession prescribed by the State Board of Education rules. . . .

24. Disciplinary statutes such as Section 231.28(1)(i) must be strictly construed in favor of the person to be penalized. Munch v. Department of Business and Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121, 1133 (Fla. 3d DCA 1983). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel and Restaurant Commission v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958). The terms of Rules 6B-1.006(3)(a) and (e) must be strictly construed in favor of Respondent because a violation of either rule is a violation of Section 231.28(1)(i).

25. For reasons stated in the Findings of Fact, the

    evidence is less than clear and convincing that Respondent violated Section 231.28(1)(i) by failing to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety within the meaning of Rule 6B- 1.006(3)(a). For similar reasons, the evidence is less than clear and convincing that Respondent actually imposed unauthorized methods of discipline in violation of either Rule 6B-1.006(3)(a) or (e).

26. The evidence is clear and convincing that Respondent violated Section 231.28(1)(i) by attempting to impose unauthorized methods of discipline. Respondent's attempt to impose such discipline violated Rule 6B-1.006(3)(a) and (e),

    respectively, by failing to make a reasonable effort to protect a student from conditions harmful to learning and by intentionally exposing the student to unnecessary embarrassment and disparagement.

27. Mitigating factors in this case militate against the full penalty sought by Petitioner. Conflicting evidence is less than clear and convincing that Respondent either: failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety; or actually imposed unauthorized methods of discipline beyond the requirement for

C.W. to stand at the back of the room. However, the attempt to impose unauthorized methods of discipline is tantamount to a lesser included offense that violates Rule 6B-1.006(3)(a) and (e).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months.

DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001.

COPIES FURNISHED:

Ron Weaver, Esquire

Ron Weaver & Associates

528 East Park Avenue Tallahassee, Florida 32301-1518

Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Carl Zahner, Esquire Department of Education The Capitol, Suite 1701

Tallahassee, Florida 32399

Moses N. Mwaura

214 Tenth Street Post Office Box 856

Moore Haven, Florida 33471

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 00-003926PL

Orders for Case No: 00-003926PL