STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, ) AS COMMISSIONER OF EDUCATION,1/ )

)

Petitioner, )

)

vs. ) Case No. 07-3977PL

)

DOUGLAS S. CARROLL, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 10, 2008, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2007). The hearing proceeded by video-teleconferencing between sites in Tallahassee, Florida, and Jacksonville, Florida.2/ The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Douglas S. Carroll, pro se

901 Northwest 175th Street Miami, Florida 33169

STATEMENT OF THE ISSUE

Should discipline be imposed on Respondent's Florida Educator's Certificate No. 763156, based upon allegations in the

Administrative Complaint, Case No. 045-2762-F, before the State of Florida, Education Practices Commission?

PRELIMINARY STATEMENT

On July 27, 2006, John L. Winn, then Commissioner of Education, executed the Administrative Complaint. In reply, Respondent elected the option to proceed to a formal hearing, evidenced by a notarized document dated November 29, 2006.

Therefore, underlying allegations in the Administrative Complaint were left to be resolved through a formal hearing in accordance with Sections 120.57(1) and 1012.796(6), Florida Statutes (2006).

On August 31, 2007, the case was received by the Division of Administrative Hearings (DOAH) in the person of Robert S. Cohen, Chief Judge. In turn the case was assigned as Case No. 07- 3397PL, with the undersigned serving as Administrative Law Judge to conduct proceedings necessary to resolve the dispute.

After one continuance the hearing commenced on January 10, 2008.

The material allegations that support the Administrative Complaint state:

1. On October 2, 2004, the Respondent neglected to properly supervise students in the school band in that he left them unattended.

   
   

2. On October 6, 2004, the Respondent again neglected to properly supervise students in the school band in that he left them unattended.

3. On November 13, 2004, the Respondent yet again neglected to properly supervise students in the school band in that he left them unattended.

   
   

4. On November 15, 2004, the Respondent provided false information in an email to his Principal to explain his failure to supervise students on November 13, 2004.

Based upon this alleged conduct Respondent is accused of violating: Count 1: Section 1012.795(1)(c), Florida Statutes (2004); Count 2: Section 1012.795(1)(f), Florida Statutes (2004); Count 3: Section 1012.795(1)(i), Florida Statutes (2004); Count 4: Florida Administrative Code Rule 6B- 1.006(3)(a); Count 5: Florida Administrative Code Rule 6B- 1.006(5)(a) and Count 6: Florida Administrative Code Rule 6B- 1.006(5)(h). These counts are discussed in the Conclusions of Law.

At hearing Petitioner presented the testimony of Helene Kirkpatrick, Cora Cooper, Lauren Knopp, Scott Ensminger, Susan Butensky, and Robyn Misco. Petitioner's Exhibits numbered 1 and

2 were admitted. Respondent testified in his defense. Respondent did not present witnesses or offer exhibits.

When the hearing commenced the parties stipulated to certain facts which are related in the Findings of Fact.

A hearing transcript was prepared and filed with DOAH on February 1, 2008. Consistent with his opportunity counsel for Petitioner filed a Proposed Recommended Order on February 11, 2008, which has been considered in preparing the Recommended

Order. Respondent did not submit proposed findings of fact, orders or conclusions. § 120.57(1)(b), Fla. Stat. (2007)

FINDINGS OF FACT

Stipulated Facts

1. Respondent holds Florida Educator's Certificate

   
   

   No. 763156, covering the area of Music, Grades K through 12, valid through June 30, 2008.

   Additional Facts

   
   

2. At times relevant to the case Respondent was an employee of the Duval County School District (the District). He was assigned to Fletcher High School as band director. His principal was Helene Kirkpatrick.

3. On August 1, 2003, Respondent began work at Fletcher High School as band director.

4. Respondent had scheduled a rehearsal for the Fletcher band to commence at 9:00 a.m. on October 2, 2004, a Saturday. Notice of this session was published in advance.

5. On October 2, 2004, Ms. Kirkpatrick attended the rehearsal. She arrived on time. Respondent did not arrive until 9:45 a.m. In the meantime band students and their parents were standing in the parking lot outside the band room not certain of their choices, who was in charge and what to do. The band room was not open. Ms. Kirkpatrick was concerned that the band students, who ranged in age from those who were ninth graders through seniors in high school, were unattended by school staff

   under arrangements previously made by Respondent. Parents in attendance were not responsible for the band students in this setting. In his absence, it was necessary for Respondent to have arranged for another school staff member to be in charge. (At the commencement of each school year Ms. Kirkpatrick expressed the need for persons in charge of events such as the October 2, 2004, practice to be in attendance when students are present or make arrangements for supervision by another person on staff.

   This necessity is also set forth in handbooks provided to the faculty.)

6. The reason for Ms. Kirkpatrick's attendance at the rehearsal on October 2, 2004, was based upon difficulties in the past concerning Respondent's attendance and supervision at those types of activities.

7. Cora Cooper was a parent whose daughter Gail Cooper was a band member in the fall of 2004. On October 2, 2004,

   Ms. Cooper drove her daughter to the band practice and arrived at 9:00 a.m. She observed that Respondent came to the practice session 45-minutes late. As a consequence the band members were not being supervised. Supervision of the students was an expectation which Ms. Cooper had as a parent.

8. Lauren Knopp was a band member who attended the October 2, 2004, practice. The roll call for the practice was

   scheduled for 9:00 a.m. In Respondent's absence the band members "sat around wondering what was going on," according to Ms. Knopp.

   She called her parents to come to offer supervision in Respondent's absence.

9. On October 2, 2004, Scott Ensminger was a band member who attended the practice session. He recalls that the session was to begin at 9:00 a.m. He observed that Respondent did not arrive until approximately 9:45 a.m. In the meantime band members sat on the curb outside the band room waiting for Respondent's arrival. Students were calling their parents to tell the parents that the band director had not arrived. Some students were becoming agitated in Respondent's absence, as observed by Mr. Ensminger.

10. On October 2, 2004, Susan Butensky took her child to the band rehearsal and noted that Respondent was not in attendance at that time. Scott Ensminger is her son. Before Respondent arrived at the rehearsal Ms. Butensky was receiving telephone calls from parents who wanted to know why the parents were being called by their children concerning Respondent's absence.

11. Respondent's testimony to the effect that other band instructor(s), the middle school band director Jonathan Maerkle, the drum line instructor, Michael Gripstein, one or both, were there in his absence on October 2, 2004, is not credited.

12. On October 5, 2004, a pep rally was held at Fletcher High. The band participated. One part of the band performance was in the field house, followed by another part of the

    performance with the drum line which performed at a bonfire. Once those performances had been completed the band members were to return instruments to the band room and leave.

    Ms. Kirkpatrick and the vice-principal, Dr. Titus, stayed at the bonfire until students had departed the bonfire area. The administrators walked to the band room around 9:00 p.m. to 9:30

    p.m. Band students were still in the area. Some were waiting for rides. The band building was locked up and Respondent was not there. The band members did not have their instruments with them at the time. Eventually, Dr. Titus took the last of the children home at 10:00 p.m.

13. On October 6, 2004, when Ms. Cooper went to pick up her daughter Alice following the pep rally she found her daughter and other students waiting for rides. Respondent was not there.

14. On October 6, 2004, when Scott Ensminger returned his instrument to the band room he did not see Respondent.

15. Respondent did attend band activities related to the pep rally. He was not in attendance when those band members observed by the school administrators were still in the vicinity of the band room.

16. On November 13, 2004, the Fletcher High band was scheduled to attend a competition festival outside of Duval County, in Orlando, Florida. Respondent had told band members to assemble at the band room at 4:30 a.m. that morning. It was expected that Respondent would open the band room at that time,

    and be available for supervision of the students leading to the departure by bus after 5:00 a.m. Respondent was not at the band room at 5:00 a.m. that morning. His absence was noted by

    Ms. Kirkpatrick who was there at that time. He arrived sometime after 5:00 a.m., around 5:05 a.m. that morning. Prior to that time the band room had not been opened. Although band parents were there with the band students, they were not responsible for supervision. Respondent was responsible for supervision. No one else told Ms. Kirkpatrick that Respondent had asked that someone, a District employee be in charge pending his arrival. No other staff member was in charge during his absence.

17. On November 15, 2004, Respondent sent Ms. Kirkpatrick an e-mail discussing events of November 13, 2004. Under the heading "Departure" Respondent stated:

    I initially arrived at school around 4:15

    a.m. On the final draft for today's itinerary, I indicated that I would open the band room at 4:30 a.m. However I choose to immediately leave and go to Wal-Mart (on Beach & San Jose) to pick up a pair of pliers to fix one of the kid's tubas. I spoke with Robin [sic] Misco, chaperone/coordinator around 4:35-4:40 and told her that I was on the road to the school. . . .

    
    

18. A copy of a Wal-Mart receipt admitted as evidence within Petitioner's Exhibit numbered 2 refers to "6 pliers" at a charge of $1.88 purchased on November 12, 2004 at 23:25. The receipt related to Respondent's actions indicated a purchase of pliers the night before the band trip. By comparison the e-mail by Respondent indicated that the transaction took place on the

    morning of November 13, 2004. Respondent's testimony in which he agrees that he picked up pliers on November 12, 2004, at around 11:25 p.m. and decided to "make that run" to return the pliers because they were not appropriate to deal with his needs is not credited. Nor is the representation in the November 15, 2004,

    e-mail that he left to go to the Wal-Mart (on Beach and San Jose) to pick up pliers, after leaving the band room sometime after 4:15 a.m. on November 13, 2004. What is found is that the pliers were purchased by Respondent on November 12, 2004, at 23:25 and that alone.

19. On November 13, 2004, Scott Ensminger had arrived at the school by 4:30 a.m., the time the Respondent's printout sheet of instructions indicated for Mr. Ensminger to arrive.

20. Because the band was delayed leaving, they arrived at the competition location in Orlando, Florida, 10 minutes before their scheduled time to play, having an adverse impact on its performance. The delay created an environment of general agitation among the band members, occasioned by Respondent's tardiness.

21. Robyn Misco had a child in the Fletcher band in 2004. That child's name is Melissa Altavin. On November 13, 2004, Ms. Misco took her daughter to the school to travel to the band competition to be held in Orlando. At 5:00 a.m. when all band members were expected, Respondent had not arrived at the band room. Ms. Misco noticed his absence. Ms. Misco talked to

    Respondent by telephone after she and her daughter arrived at the school, prior to Respondent's arrival. Some discussion was held about Respondent getting directions for the buses and that he was on his way to the school. Ms. Misco recalls that Respondent arrived after 5:00 a.m. but before 5:30 a.m.

22. In Ms. Kirkpatrick's opinion, as an educator, Respondent's tardiness and failure to supervise the band members because of his absence reduces his effectiveness as an educator. This conduct created problems, to include problems with band parents and their expectation for their children's enjoyment as members of the band. Respondent's tardiness created a safety concern due to the lack of supervision of the band students.

    Ms. Kirkpatrick also expressed her concern that it was not a positive environment for the students to be exposed to Respondent's tardiness in carrying out his duties.

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction over the parties and the subject matter in accordance with Sections 120.569, 120.57(1) and 1012.796(6), Florida Statutes (2007).

24. The Education Practices Commission has authority to impose discipline against Respondent in relation to his Florida Educator's Certificate No. 763156, covering the area of music grades K through 12, valid through June 30, 2008. § 1012.795(1), Fla. Sta. (2004).

25. This is a disciplinary case, State of Florida, Education Practices Commission, Dr. Eric J. Smith, as Commissioner of Education, Petitioner vs. Douglass S. Carroll, Respondent, Case No. 045-2762-F. The case relates to an Administrative Complaint. To succeed with the prosecution, Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is explained in the case In re: Davey, 645 So. 2d 398 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

26. Based upon the material allegations in the Administrative Complaint that have been described, Respondent is charged with statutory and rules violations. They are as follows:

    COUNT 1. The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been found guilty of gross immorality or an act involving moral turpitude.

    
    

    COUNT 2. The Respondent is in violation of Section 1012.795(1)(c) Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

    COUNT 3. The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

    COUNT 4. The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety.

    
    

    COUNT 5. The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings.

    
    

    COUNT 6. The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(5)(h), Florida Administrative Code, in that Respondent has submitted fraudulent information on a document in connection with professional activities.

    
    

27. Given the penal nature of this case, statutes and rules that form the basis for the prosecution have been strictly construed. Any ambiguity favors the Respondent. See State v. Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930); and Lester v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1977).

28. Concerning Count 1, while Respondent's conduct in not providing proper supervision to his students and misleading his principal as to his whereabouts through the November 15, 2004, e-mail, describing his itinerary for November 13, 2004, is

    reprehensible, it does not rise to the level of gross immorality

    or an act involving moral turpitude. Therefore Count 1 has not been proven.3/

29. Concerning Count 2, Respondent has violated Section 1012.795(1)(f), Florida Statutes (2004), in that his pattern of tardiness for school activities on October 2 and 6, 2004, and November 13, 2004, leaving the students without proper supervision, reduces his effectiveness as an employee of the District.

30. Concerning Count 3, related to a violation of Section 1012.795(1)(i), Florida Statutes (2004), any violation of that provision is dependent upon proof pertaining to the remaining Counts 4 through 6 which describe alleged violations of the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education. Violations have been shown related to those matters as explained in the paragraphs that follow.

31. Concerning Count 4, a violation of Florida Administrative Code Rule 6B-1.006(3)(a), has been proven, to the extent that Respondent, by being late to school activities, did not make a reasonable effort to protect those students, in terms of safety concerns when they were left unsupervised by Respondent or another District employee pursuant to prior arrangement.

32. Concerning Count 5, it has been proven that Respondent violated Florida Administrative Code Rule 6B-1.006(5)(a), in his failure to maintain honesty and professional dealings, as

evidenced in the November 15, 2004, e-mail sent to

Ms. Kirkpatrick, in which he indicated that on the early morning of November 13, 2004, he went to pick up a pair of pliers at a Wal-Mart store, when in fact that purchase was made the day before. Similarly, Respondent violated Florida Administrative Code Rule 6B-1.006(5)(h) set out in Count 6, in that the fraudulent information on that e-mail was in connection with his professional activities.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Counts 2 through 6, within the Administrative Complaint, dismissing Count 1 to the Administrative Complaint, and suspending Respondent's Florida Educator's Certificate

No. 763156 for a period of one year.

DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 7th day of March, 2008.

ENDNOTES

1/ When this action began John L. Winn was Commissioner of Education. At present Dr. Eric J. Smith is the Commissioner of Education.

2/ Participants at the Jacksonville site were unable to receive video from the Tallahassee site. Notwithstanding the technical difficulty, the parties agreed to proceed to hearing.

3/ See Fla. Admin. C. Rule 6B-4.009(2) and (6).

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Douglas S. Carroll

901 Northwest 175th Street Miami, Florida 33169

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

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

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

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

Deborah K. Kearney, General Counsel Department of Education

325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400

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: 07-003977PL

Orders for Case No: 07-003977PL