PAM STEWART,
Commissioner of Education, Petitioner,
vs. EPC CASE m 17-0375-RT
DOAH CASE m 17-4214PL
JEFFREY J. VONER, PPS m 145-2692 CERTIFICATE m 1091499
Respondent. Index m: 18-304-FOF
/
This matter was heard by a Teacher Panel of the Education Practices Commission pursuant to Sections 1012.795, 1012.796 and 120.57(1), Florida Statutes, on June 14, 2018 in Altamonte Springs, Florida, for consideration of the Recommended Order entered in this case by ROBERT L. KILBRIDE, Administrative Law Judge.
Respondent was represented by counsel. Petitioner was represented by Charles T. Whitelock, Esq.
The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein by reference.
There is competent substantial evidence to support the findings of fact.
The Education Practices Commission has jurisdiction of this matter pursuant
to Section 120.57(1), Florida Statutes, and Chapter 1012, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein by reference.
Upon a complete review of the record in this case, the Commission determines that the penalty recommended by the Administrative Law Judge be ACCEPTED. It is therefore ORDERED that:
The Administrative Complaint is hereby dismissed.
This Final Order takes effect upon filing with the Clerk of the Education Practices Commission.
DONE AND ORDERED, this 28th day of June, 2018.
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE EDUCATION PRACTICES COMMISSION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.
I HEREBY CERTIFY that a copy of the foregoing Order was mailed to JEFFREY J. VONER, 7370 South Oriole Boulevard, Unit 102, Delray Beach, FL 33446, Carol R. Buxton, Esq., 1516 Hillcrest Street, Suite 109, Orlando, FL 32803-4714 and Mark Wilensky, Esq. 1200 Corporate Way, Suite 200, Wellington, FL 33414 by Certified U.S. Mail and by electronic mail to Darby Shaw, Deputy General Counsel, Suite 1232, Turlington Building, 325 West Gaines Street, Tallahassee, Florida 32399-0400 and Charles
T. Whitelock, Esq., 300 Southeast 13th Street, Suite E, Ft. Lauderdale, FL 33316 this 28th day of June, 2018.
COPIES FURNISHED TO:
Office of Professional Practices Services Bureau of Educator Certification
Superintendent
Palm Beach County Schools
3300 Forest Hill Blvd., Room C316 West Palm Beach, FL 33406-5869
Chief Personnel Officer Palm Beach County Schools 3300 Forest Hill Boulevard, Room A-152
West Palm Beach, FL 33406-5870
Lee Ann Gustafson
Senior Assistant Attorney General
ROBERT L. KILBRIDE
Administrative Law Judge
Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Claudia Llado, Clerk
Division of Administrative Hearings
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAM STEWART, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
JEFFREY VONER,
Respondent.
/
Case No. 17-4214PL
RECOMMENDED ORDER
This case was heard by Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings on January 17 and 18, 2018, via video teleconference with sites in West Palm Beach and Tallahassee, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316
For Respondent: Mark S. Wilensky, Esquire
Dubiner & Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 STATEMENT OF THE ISSUES
Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended
Administrative Complaint; and, if so, what discipline is
appropriate.
PRELIMINARY STATEMENT
In February 2016, Pam Stewart, as Florida Commissioner of Education, filed an Administrative Complaint against Jeffrey Voner, seeking to take disciplinary action against his Florida Educator's Certificate.
Respondent timely requested a formal hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, and the matter was referred to the Division of Administrative Hearings for assignment to an Administrative Law Judge.
On October 20, 2017, Petitioner requested and was granted leave to file an Amended Administrative Complaint against Jeffrey Voner adding additional factual allegations and charges.
A formal evidentiary hearing was conducted on January 17 and 18, 2018. At the hearing, Petitioner called the following witnesses to testify: Susan Dick Stark, Nicole Ben-Hamo,
Mary Elizabeth Hall, David Clark, and Sarah Beth Borah. The testimony of Shannon Lewis was presented through her deposition. Petitioner offered exhibits 1 through 11, which were admitted into evidence.
Respondent testified on his own behalf and presented the testimony of Iliana Gertman and Alvaro Rodriguez. Respondent's exhibit 3 was admitted into evidence.
The Transcript was filed with the Division of Administrative Hearings on March 5, 2018. After an agreed extension was granted, both parties timely submitted proposed recommended orders, which were considered by the undersigned in preparation of this Recommended Order.
References to the Florida Statutes are to the versions in effect at the time of the incident(s), unless otherwise stated.
FINDINGS OF FACT
The undersigned makes the following findings of relevant and material facts:
Respondent holds Florida Educator's Certificate
No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016.
The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate.
Respondent is an experienced teacher, having taught for
22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education.
Respondent began his career teaching emotional behavioral students, and did that for a few years. He later
worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students.
Respondent decided to teach Special Education students because he had himself been a Special Education student.
The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support.
Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn.
His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community.
In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including:
Violations of the Principles of Professional Conduct.
Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety.
Unreasonably restraining a student from independent action in pursuit of learning.
Intentionally exposing a student to unnecessary embarrassment or disparagement.
The factual allegations underlying these violations were as follows:
During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock.
On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities.
Facts Regarding Aggressive Handling and Improper Restraint of T.C.
Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student.
The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed.
Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup.
T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup.
She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup.
Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock."
Pet. Ex. 2.
In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand.
In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup.
She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/
Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C.
In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2.
In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2.
Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened.
Because she felt that the incident was not "proper interaction," she reported it to an assistant principal.
Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/
Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others.
While they were seated, she saw T.C. grab Respondent's coffee cup off the table.
In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours."
Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception."
She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C.
Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident.
Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally
explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C.
Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy.
They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident.
According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other.
Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else.
After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded.
Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C.
Hall observed several paraprofessionals in the room.
None intervened, or put down their cell phones during the incident.
According to Hall, T.C. was not harmed in any way.
Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort.
Hall never saw Respondent mistreat T.C. in any way.
Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom.
Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C.
He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds.
T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old.
T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things.
For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities.
Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles."
On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away.
Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again.
T.C. reached and got his hand on Respondent's cup.
While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup.
Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand.
As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth.
Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged.
Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat.
The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat.
In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C.
Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between
T.C. and Respondent is rejected as unpersuasive and implausible.5/
The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint.
Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's
allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup.
Allegations Reported by Shannon Lewis
Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11.
She described T.C. as being 6'5" tall and weighing
250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it.
Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/
According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/
Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro
St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C.
Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No."
No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3.
However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/
St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on.
St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances.
He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent.
Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper.
Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him.
Another paraprofessional, Alvaro Rodriguez testified.
He was also identified by Lewis as being present during the door- biting incident.
He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him.
Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/
Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor.
Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other.
Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking.
Respondent testified that he never grabbed T.C. by the cheeks and squeezed.
Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible.
There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took
T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C.
Incident Involving P.M.
Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere.
Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/
One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/
She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone.
St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision.
Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds.
There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him.
Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program.
Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom.
Respondent testified that there were times that he would transition back from a class and P.M. would be in his room
using his sensory equipment, but he would always be with St. Jacques.
One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break.
During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period.
The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence.
The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding.
Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement
Lewis further testified that there was an incident involving students who wanted to use calculators during math
class. J.M. wanted to use the calculator, but Respondent would not let her use it.
The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator.
There were two other students who Respondent also did not allow to use the calculator.
In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom."
There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/
Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d
489 (Fla. 1st DCA 1996).
Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid."
Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed
that St. Jacques was in the room when Respondent called the girls stupid and heard him say it.
St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca.
St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them.
Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators.
Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student
The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive.
The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
ULTIMATE FINDING OF FACT
While there was conflicting evidence concerning many of the incidents alleged, the undersigned finds that the more credible and persuasive evidence indicates that Petitioner did not prove by clear and convincing evidence the factual or material allegations contained in the Amended Administrative
Complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).
Petitioner seeks to take action against Respondent's Educator's Certificate as authorized by sections 1012.795 and 1012.796, Florida Statutes.
A proceeding to impose discipline against a professional license or Educator's Certificate is penal in nature, and Petitioner bears the burden to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. See generally Dep't of Banking & Fin. v. Osborne Stern
& Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.
2d 292 (Fla. 1987); and Evans Packing Co. v. Dep't of Agric. & Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA 1989). See also
§ 120.57(1)(j), Fla. Stat.
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, and the testimony must be precise and lacking in confusion as to the facts at issue. In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
The evidence must be of such a 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. (quoting with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Section 1012.795 of the Florida K-20 Education Code is a disciplinary or penal statute. As such, it must be strictly construed, with any ambiguity construed against the agency. Elmariah v. Dep't of Prof'l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg., 534 So. 2d 782, 784 (Fla.
1st DCA 1988).
Further, in proceedings of this nature, which are penal, the Education Practices Commission is required to prove the charges by clear and convincing evidence. McKinney v.
Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995).
Whether Respondent committed the charged offense(s) is a question of ultimate fact to be decided by the undersigned in the context of each alleged violation. Holmes v. Turlington, 480
So. 2d 150, 153 (Fla. 1st DCA 1985); Bush v. Brogan, 725 So. 2d 1237 (Fla. 2d DCA 1990).
In summary, the material factual allegations against Respondent in the Amended Administrative Complaint are as follows:
During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock.
On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities.
The material violations outlined against Respondent
are as follows:
STATUTE VIOLATIONS
COUNT 1: The Respondent is in violation of Section 1012.795(1)(j), Florida Statues, in that Respondent has violated the Principles of Professional Conduct for the Education
Profession prescribed by State Board of Education rules.
RULE VIOLATIONS
COUNT 2: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(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 3: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(b), Florida Administrative Code, in that Respondent has unreasonably restrained a student from independent action in pursuit of learning.
COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent shall not intentionally expose a student to unnecessary embarrassment or disparagement.
It is well settled that discipline may be imposed only on grounds specifically alleged in the Amended Administrative Complaint. See 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); Hunter v. Dep't of Prof'l Reg., 458 So.
2d 842, 844 (Fla. 2d DCA 1984). It is on these grounds alone that the case proceeds. Id.
A corollary to this rule is that the specific facts alleged must be proven. See generally Delk v. Dep't of Prof'l
Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992)(It is a basic tenet
of common law pleading that "the allegata and probata must correspond and agree."); Lusskin v. State Ag. for Health Care Admin., 731 So. 2d 67 (Fla. 4th DCA 1999)([T]he proof at trial or
hearing [must] be that conduct charged in the accusatorial document).
Section 1012.795 and Florida Administrative Code Rule 6A- 10.081(3)(a)
There was not clear and convincing evidence that Respondent violated the statutes or rules cited by Petitioner in the Amended Administrative Complaint. More specifically, under the facts and circumstances credited by the undersigned and the record developed at this hearing, there was no clear and convincing proof that Respondent (1) violated the Principles of Professional Conduct for the Education Profession, or (2) failed to make reasonable efforts to protect T.C. from conditions harmful to learning, T.C.'s mental health, or T.C.'s physical health or safety.
Rule 6A-10.081(3)(b)
Under the facts and circumstances credited by the undersigned, those facts did not prove by clear and convincing evidence that Respondent unreasonably restrained T.C. from independent action in T.C.'s pursuit of learning.
Rule 6A-10.081(3)(e)
Under the facts and circumstances credited by the undersigned, those facts did not prove by clear and convincing evidence that Respondent intentionally and unnecessarily embarrassed or disparaged any students. Langston v. Jamerson,
653 So. 2d 489 (Fla. 1st DCA 1995).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner.
DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida.
S
ROBERT L. KILBRIDE
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 30th day of April, 2018.
ENDNOTES
1/ Her description of this grappling and reaching by both was unclear, uncertain, and not convincing. Her description of the physical contact between both did not prove that Respondent put
T.C. in a traditional "headlock" (forearm and bicep wrapped around the head applying pressure to the head and/or neck area).
2/ In her written statement she made a star or asterisk to emphasize that she did not feel that Respondent was abusing the student intentionally.
3/ None of those witnesses personally observed the incident. None of them presented testimony regarding the allegations, other than to explain what was reported to them, and how the investigation was conducted, none of which is at issue in this matter.
4/ Some amount of proper and therapeutic physical contact was normal between T.C. and Respondent.
5/ Several other staff members observed the incident, and none intervened. The failure by other adults in the room to act is not consistent with the description and perception of the event by Ben-Hamo. It is consistent with, and bolsters, the testimony of both Respondent and Hall.
6/ Apparently, this was a frequent habit by T.C. due to his emotional disability. The staff was concerned that T.C. could injure himself. However, Respondent would not let him do so.
7/ There was no persuasive evidence that T.C. fell hard, was thrown down or hit the ground with any force. Likewise, there was no persuasive evidence that this was done in a violent or aggressive manner.
8/ The affidavit testimony is admissible as it supplements or explains the testimony of Lewis and the testimony of Respondent on the issue.
9/ This comment presumably relates to the gymnasium/door-biting incident.
10/ T.C. had actually chipped his front tooth doing so. Part of the education plan included his mother's request to teach T.C. not to bite metal as he walked the halls.
11/ Despite this unpersuasive and conclusory claim, there was no proof offered to support a finding that P.M. was "assigned" to Respondent. Specifically, there was no evidence offered to confirm an official assignment of P.M. to Respondent during lunch, by the school administration.
12/ However, there was no persuasive evidence presented to prove that P.M. had been left "unattended in the classroom for
20 minutes" while Respondent used the bathroom. There simply was no proof offered to show how long P.M. had been left unattended.
13/ This is the specific allegation in paragraph 4 of the Amended Administrative Complaint.
COPIES FURNISHED:
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education Turlington Building, Suite 316
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316 (eServed)
Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 28, 2018 | Agency Final Order | |
| Jun. 28, 2018 | Agency Final Order | |
| Apr. 30, 2018 | Recommended Order | The Commissioner did not prove by clear and convincing evidence the allegations in the Amended Complaint that the Respondent improperly restrained a student, through him to the floor, left a student unattended or embarassed students. |
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