STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice a final hearing was held in this case on January 15, 2008, before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: Frederick M. Rogers, pro se

Post Office Box 5331 Hudson, Florida 34674

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the act alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(c) and (i), Florida Statutes (2003), and Florida Administrative Code Rule

6B-1.006(3)(a) and (e); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.

PRELIMINARY STATEMENT

On April 19, 2006, Petitioner, John L. Winn, then Commissioner of Education ("Petitioner"), issued a four-count Administrative Complaint against Respondent, Frederick M. Rogers ("Respondent"). Respondent disputed the allegations and filed an Election of Rights seeking a formal hearing. The matter was referred to the Division of Administrative Hearings on November 19, 2007, and was scheduled for hearing as indicated above.

The Administrative Complaint includes the following single material allegation:

On or about April 15, 2004, the Respondent utilized inappropriate discipline and excessive force with a minor male student in that he became upset with the student and pushed the student backward onto a table, causing him to fall to the floor.

Based on the foregoing allegations, the Administrative Complaint alleged two statutory and two rule violations.

Count one alleges that Respondent violated Subsection 1012.795(1)(c), Florida Statutes (2003),1/ in that he "has been [found] guilty of gross immorality or an act involving moral turpitude." Count two alleges that Respondent violated Subsection 1012.795(1)(i), Florida Statutes, in that he violated

the Principles of Professional Conduct for the Education Profession ("Principles of Professional Conduct").

Counts 3 and 4 allege specific violations of the Principles of Professional Conduct. Count 3 alleges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) in that he "failed to make reasonable effort to protect student from conditions harmful to learning and/or to the student's mental and physical health and/or safety. Count 4 alleges that Respondent violated Florida Administrative Code Rule

6B-1.006(3)(e) in that he "intentionally exposed a student to unnecessary embarrassment or disparagement."

At hearing, Petitioner presented the testimony of Jason Joens, J.W., M.M. and D.L. Petitioner's Exhibits 1 and 2 were admitted into evidence. Respondent testified on his own behalf and Respondent's Exhibit 1 was received into evidence.

The Transcript of the hearing was filed with the Division of Administrative Hearings on February 5, 2008. At the conclusion of the hearing, at the request of Petitioner, the time for filing proposed recommended orders was 15 days after the transcript was filed. Respondent did not file a proposed recommended order. Petitioner timely filed his Proposed Recommended Order, which has been considered in preparation of this Recommended Order.

In this Recommended Order, students will be referred to by their initials, rather than their name, in order to protect their privacy rights.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at hearing and the entire record in this proceeding, the following Findings of Fact are made:

1. At all times pertinent to this proceeding, Respondent held a Florida Educator's Certificate No. 891417.

2. Respondent was first employed as a teacher at River Ridge Middle School ("River Ridge") in the Pasco County School District in August 2003, under a ten-month contract. During the 2003-2004 school year, Respondent taught sixth-grade geography at River Ridge.

3. On April 15, 2004, during the five-minute period while classes were changing and before the fourth-period class started, Respondent left his classroom to go to the faculty bathroom. Prior to leaving the classroom, Respondent announced to the class that there would be a "pop quiz" that day and told them to sit down, study their notes, and/or read the book. Respondent was gone no longer than five minutes.

4. When Respondent returned to the classroom, M.M. and one of his friends, another student, were standing up "play

   fighting." This "play fighting" involved the two students pushing each other.

5. Upon observing the two students pushing each other, Respondent reasonably, but mistakenly, believed the two students were fighting and took immediate action consistent with that belief. Respondent approached M.M. and the other student and yelled at them, "Break it up!" Respondent then pushed or grabbed M.M.'s shoulder, pivoting him around Respondent, in an attempt to separate him from the other student. Immediately thereafter, while Respondent was turning toward the other student, he heard a commotion, which presumably was M.M. falling on the floor.2/

6. Immediately after Respondent grabbed or pushed M.M., he (M.M.) fell on the floor. Prior to landing on the floor, M.M.'s back hit the corner of a nearby table.3/

7. As a result of hitting the table, M.M. testified that he had a bruise on his back. However, there was no evidence to substantiate this claim, including evidence as to the severity of that alleged injury or whether it required medical attention.

8. When M.M. got up from the floor, Respondent walked M.M. over to his seat. At first, M.M. sat in his assigned seat, but then he got up from his seat and "got in Respondent's face." During this confrontation, Respondent told M.M. that he was tired of dealing with him and to go to the principal's office.

   Initially, M.M. didn't move, but just stood there facing Respondent. Eventually, M.M. left the classroom and went to the principal's office. However, before he left the classroom, M.M. told Respondent, "I'll get you."

9. M.M. was embarrassed by the incident.

   
   

10. When M.M. arrived at the principal's office, he told John Joens, the school principal, that Respondent had pushed him down. In addition to M.M.'s verbal account of the incident, he also gave Principal Joens a written statement concerning the incident.4/

11. After Principal Joens listened to M.M.'s account of the incident, he also discussed the incident with Respondent. Respondent told Principal Joens that he was trying to break up a confrontation between M.M. and another student. To do so, Respondent explained that he grabbed M.M. by the shoulders, pivoted the student around behind him [Respondent] to move M.M. behind him, and then turned back to the other student.

12. In discussing the incident with Principal Joens, Respondent also reported that after M.M. fell to the floor, he told M.M., "I know you're embarrassed but you have to go sit down." Finally, with regard to students who may have seen the incident, Respondent told Principal Joens that given the seating arrangement in the classroom, most of the students could not have had a clear vision of what happened.

13. After listening to Respondent's explanation about the incident, Principal Joens' primary question to Respondent was how the student ended up on the floor. However, Respondent was unable to answer that question, because he was not sure how M.M. ended up on the floor.

14. After listening to Respondent's explanation, Principal Joens could not understand or determine how M.M. had ended up on the floor. Therefore, in an effort to ascertain what had actually happened, Principal Joens decided to identify and interview as many students as possible who were eyewitnesses to the incident.

15. As part of his investigation of the subject incident, Principal Joens interviewed 16 or 17 students who were in Respondent's fourth-period class on April 15, 2004. He also had the students to prepare and give him written statements about what, if anything, they observed relative to the incident.

16. After Principal Joens completed his investigation, which consisted of input from M.M., information provided in student interviews, and Respondent's explanation and responses, he still could not determine how M.M. landed on the floor.

17. On the day of the incident, except for two student desks and two tables, where a total of four students sat, the front of all of the student desks faced south; the backs of those desks faced north, which was the area of the classroom

    where the incident occurred. Therefore, in order to observe the incident, the students sitting at their desks would have had to get up from their seats or turn around in their seats.

18. Two of the students who were in Respondent's fourth- period class on April 15, 2004, testified at this proceeding. Both students were credible witnesses. However, given the lapse of time since the incident (almost four years) and the proximity of their desks to the area where the incident occurred, it is understandable that there were details that they could not clearly recall, if they ever knew those details, or the sequence of the events.

19. J.W., a student in Respondent's fourth-period class on April 15, 2004, recalled that when Respondent entered the classroom that day, he approached M.M. and two other students who were pushing each other around and told them, "Break it up!"

    J.W. also testified that "they [presumably Respondent and M.M.] were arguing and Respondent pushed M.M. down and M.M. fell on the floor."

20. When J.W. observed the incident, he was sitting at his desk, which was three rows from the area of the classroom where the incident occurred. J.W. testified that in order to see the incident, he had to turn around in his seat or look over his left shoulder, since the back of his desk faced the area where the incident occurred.

21. D.L., a student in Respondent's fourth-period class on April 15, 2004, testified that she recalled that Respondent pushed M.M. on the shoulder area and then M.M. hit the table and then fell to the chair. She did not recall M.M. falling or ending up on the floor. Furthermore, D.L. did not know the reason Respondent pushed M.M. or even if there was a reason for pushing him.

22. When D.L. observed the incident, she was sitting at her desk, which was in the last of five rows of desks in Respondent's classroom and the row farthest from the area in the classroom where the incident occurred. The back of D.L.'s desk faced the area where the incident occurred, and in order to see the incident, she had to turn around.

23. According to Principal Joens, the only reason an adult "gets between two students is to provide . . . [for] the safety of that student or the other student's [safety]." In this case, Principal Joens testified that he does not believe that any student's safety was in danger and, thus, there was no need for Respondent to touch M.M. and "use that force."

24. Two days after the incident, Respondent resigned from his teaching position at River Ridge.

25. During the eight months that Respondent was teaching at River Ridge, Principal Joens observed Respondent while he was teaching and interacting with the students. Principal Joens

    described Respondent's interactions with students during those observations as positive. Moreover, two former students who were in Respondent's fourth-period class on April 15, 2004, testified that Respondent was a good teacher.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2007).

27. Subsection 1012.796(6), Florida Statutes, authorizes the Commissioner of Education to file a formal complaint and prosecute the complaint against a teacher's certificate pursuant to the provisions of Chapter 120, Florida Statutes.

28. License revocation and discipline proceedings are penal in nature. In the Administrative Complaint, Petitioner has sought, among other penalties, the revocation or suspension of Respondent's teaching certificate. Therefore, Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

29. Clear and convincing evidence has been defined as evidence which:

    [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses 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.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

30. Subsection 1012.795(1), Florida Statutes, gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.

31. The Administrative Complaint alleges that Respondent violated Subsection 1012.795(1)(c) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (e).

32. Section 1012.795, Florida Statutes, provides in pertinent part:

    Education Practices Commission; authority to discipline.--

    
    

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or

       1. 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); may

          revoke the educator 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); may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

          
          

          * * *

          
          

          (c) Has been guilty of gross immorality or an act involving moral turpitude.

          
          

          * * *

          
          

          (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

          
          

33. Florida Administrative Code Rule 6B-1.006 contains the Principles of Professional Conduct and provides, in pertinent part, the following:

    1. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

    2. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

    * * *

    
    

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

    
    

34. The terms "gross immorality" and "moral turpitude," are not defined in any statute or rule applicable to the Education Practices Commission in license disciplinary cases. However, the definitions in Florida Administrative Code Rule 6B-4.009, which relate to the suspension and dismissal of

    teachers by school districts, are instructive in defining terms as used by the Education Practices Commission in revocation actions.

35. Florida Administrative Code Rule 6B-4.009 provides the following definitions that are pertinent to this proceeding:

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    * * *

    
    

    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

36. Petitioner failed to establish by any sufficient evidence the single material factual allegation asserted in the Administrative Complaint. The evidence failed to show that Respondent utilized inappropriate discipline and excessive force with a minor child in that he (Respondent) became upset with the student and pushed the student backward onto a table.

37. First, Petitioner failed to present any evidence that Respondent's action of grabbing or pushing the student was any type of discipline. Rather, the undisputed evidence and credible evidence established that the action was taken to break up what Respondent reasonably believed to be a fight between two students. Second, there was no clear and convincing evidence that Respondent grabbed or pushed the student because he was upset with the student. Again, the undisputed evidence established that Respondent's actions were reasonable in light of what he observed--two students pushing and shoving each other. Finally, no clear and convincing evidence was presented that Respondent pushed the student onto a table, causing him to fall on the floor.

38. Petitioner did not prove by clear and convincing evidence the single factual allegation upon which the Administrative Complaint is based and, thus, failed to establish by such evidence the charged violations.

39. For the reasons stated herein, Petitioner did not meet its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint.

DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 30th day of April, 2008.

ENDNOTES

1/ All references are to 2003 Florida Statutes, unless otherwise indicated.

2/ M.M. concedes that Respondent probably thought M.M. and his friend were fighting. In describing what happened on April 15,

2004, after he entered Respondent's classroom, M.M. testified as follows:

I saw my friend B., and we were just saying hi to each other, like play fighting kind of. Then Mr. Rogers [Respondent] came over and I guess he thought we were fighting, and he pushed me.

3/ At that time, M.M. was about 5 feet 4 inches tall and weighed about 130 pounds.

4/ This written report was not in evidence.

COPIES FURNISHED:

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

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

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

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

Frederick M. Rogers Post Office Box 5331 Hudson, Florida 34674

Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

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: 07-005268PL

Orders for Case No: 07-005268PL