STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

JENNIFER LEE BOCK,

Respondent.

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) Case No. 11-4614PL

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011), before Jessica Enciso Varn, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on January 17, 2012, by video teleconference at sites in West Palm Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Carol Buxton, Esquire

Florida Education Association

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether Respondent pushed and kicked a student as Petitioner alleges, and what disciplinary action, if any, should be taken against her educator certificate.

PRELIMINARY STATEMENT

The instant proceeding began when Ms. Bock (Bock) requested a hearing to contest the allegations that the Commissioner of Education ("Commissioner") had made against her in an Administrative Complaint filed on September 14, 2011. The Commissioner charged Ms. Bock, the holder of a valid Florida Educator Certificate, with having violated the statutes and ethical rules governing teachers based on allegations that Ms. Bock had inappropriately touched a student during a high school football

game.

Based on this allegation, the Commissioner accused Ms. Bock of

having committed three offenses. In Count One, Ms. Bock was charged with having violated section 1012.795(1)(j), Florida Statutes (2009),1/ by violating the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education. In Count Two, Ms. Bock was charged with violating Florida Administrative Code rule 6B-1.006(3)(a), by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. In Count Three,

Ms. Bock is charged with violating rule 6B-1.006(3)(e), Florida Administrative Code, by intentionally exposing a student to unnecessary embarrassment or disparagement. If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under section 1012.795(1)(i).

The hearing was held on January 17, 2012. At hearing, the Commissioner offered the testimony of Sandra Wissinger, William Murphy, and Lisa Stimmler; Commissioner's Exhibits 1-8, 14, and 15 were admitted into evidence. Respondent testified on her own behalf, and offered the testimony of Barbara Duva and Michael Esopkias; Respondent offered no exhibits into evidence. A one- volume Transcript was filed on February 6, 2012. Each party submitted Proposed Recommended Orders, which were considered in the preparation of this Recommended Order.

FINDING OF FACTS

1. Ms. Bock holds Florida educator certificate 978894, which covers the areas of Reading and Social Sciences. The certificate is valid through June 30, 2016.

2. Since 2003, and at all times material to this proceeding, Bock was employed as a Social Science teacher at Forest Hill High School in Palm Beach County, Florida. For five years, Bock was also the cheerleading coach.

3. Prior to this proceeding, Bock had never been disciplined in any manner.

   
   

4. As the cheerleading coach, Bock attended all Forest High School football games, and had the duty to supervise the cheerleaders during the games.

5. On November 6, 2009, Bock attended the Homecoming football game, and was seated a few rows up in the bleachers, facing the cheerleading squad. Her feet were resting on the bleacher in front of her.

6. While she was turned around speaking to some spectators seated behind her, she overheard a male student, M.V., yelling "faggots" and "homos" in reference to the male cheerleaders. Bock turned around to tell M.V. to stop using the terms, and accidently brushed M.V.'s head because he was seated very close to her feet.

7. Bock recognized M.V. to be the boyfriend of a former cheerleader; his girlfriend had been dismissed from the cheerleading squad because of bad grades. Bock also knew that

   M.V. was on the Forest High School soccer team.

   
   

8. Bock asked M.V. to move away from her, and he did so.

   
   

   He moved to the other end of the bleachers, near the bottom of the bleachers.

9. Later on during the football game, while the cheerleaders were performing a stunt, M.V. started to jump on the bleachers and started yelling at the cheerleaders again.

   
   

10. Bock walked over to M.V., and tapped him on the shoulder while he was jumping; M.V. apparently lost his balance and fell forward, toward a chain link fence that sat right in front of the bleachers. He became angry and yelled at Bock.

11. One parent who was present at the game, Ms. Wissinger, testified that Bock kicked M.V.; another spectator, Ms. Duva, testified that Bock only lightly touched M.V., and never kicked, pushed, or shoved M.V. The undersigned finds Ms. Duva's testimony more credible, and consistent with the greater weight of the evidence.

12. Bock did not intend to push M.V., to cause him injury, or to embarrass or disparage him. She was simply attempting to get his attention, and ask him to stop yelling at the cheerleaders. The record contains no competent evidence that

    M.V. was embarrassed or disparaged.2/

    
    

13. Bock mentioned the incident to M.V.'s soccer coach, Coach Esopkias, while still at the football game. She did so because it was routine practice to tell coaches of student- athlete misbehavior, so that coaches could be involved in addressing the misbehavior.

14. Bock received a written reprimand because she had "inappropriately touched (pushed) a student during a football game." Bock was also charged with Battery, and the charge was nolle prossed due to a plea negotiation.

    
    

15. The evidence is not clear and convincing that Bock intended to expose M.V. to unnecessary embarrassment or disparagement, or that Bock failed to protect M.V. from conditions harmful to him, as charged in the Administrative Complaint. The evidence merely establishes that Bock intended to get M.V.'s attention as he jumped on the bleachers and yelled at the cheerleaders. While Bock's actions may have inadvertently caused M.V. to fall into the chain link fence, Bock did not intend to harm M.V.

16. Likewise, as to the charges involving the Code of Professional Conduct, the evidence does not clearly and convincingly establish that Bock failed to conform to the professional standards required of an educator.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011).

18. Upon a finding of probable cause to believe that grounds exist to revoke or suspend a teaching certificate, or to impose any other appropriate penalty against a teacher, the Commissioner is responsible for prosecuting the formal administrative complaint. § 1012.796, Fla. Stat.

19. If the Commissioner proves any of the grounds for discipline enumerated in section 1012.795(1), then the Education

    
    

    Practices Commission ("EPC") is authorized to punish the certificate holder by imposing penalties that may include one or more of the following: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed five years; an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the EPC may specify.

    §§ 1012.796(7), 1012.795(1).

    
    

20. Section 1012.795(1)(j) authorizes the EPC to take disciplinary action against a teacher when it has been shown that she "[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules." This is the offense which the Commissioner has charged in Count 1 of the Administrative Complaint, with Counts 2 and 3 specifying the particular rules that Bock is alleged to have violated.

21. Rule 6B-1.006 provides in pertinent part as follows:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. 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.

       
       

       * * *

       
       

    3. 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.

          
          

          These are the rules the Commissioner has alleged Bock violated.

          
          

22. These statutory and rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Dep't of Prof'l & Occ.

    Regs., 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Whether Bock committed an offense, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney

    v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

    
    

    Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

    
    

23. For the EPC to suspend or revoke Bock's certificate, or to impose any other penalty provided by law, the Commissioner must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); McKinney, 667 So. 2d at 388. Further, the grounds proven must be those specifically alleged in the administrative complaint. See, e.g.,

    
    

    Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th

    DCA 1987)

    
    

24. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held that:

    clear and convincing evidence requires 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 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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz

    
    

    court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

25. In the instant case, the Commissioner has failed to prove the statutory and rule violations alleged in the Administrative Complaint by clear and convincing evidence. Thus,

Bock is not guilty of the violations alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Administrative Complaint against Respondent.

DONE AND ENTERED this 5th day of March, 2012, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2012.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2009 codification in effect at the time of conduct alleged in the Administrative Complaint.

2/ M.V., the alleged victim, did not testify.

COPIES FURNISHED:

Carol R. Buxton, Esquire Florida Education Association

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803 linda.smith@floridaea.org

Kathleen M. Richards, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316 charles@ctwpalaw.com

Charles M. Deal, 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

Turlington Building, Suite 224-E

325 West Gaines Street 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: 11-004614PL

Orders for Case No: 11-004614PL