The Issue The issue in this case is whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2006), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. In accordance with the Order of Pre-hearing Instruction entered in this cause the parties submitted a Joint Pre-hearing Stipulation. Included in that document were the following stipulations of fact: Respondent holds Florida Educator’s Certificate 798852, covering the area of Athletic Coaching, which is valid through June 30, 2012. At all times pertinent to the allegations in the Administrative Complaint in this case, Respondent was employed as an Exceptional Student Education Teacher at Atlantic High School in the Volusia County School District. C. W. was a sixteen-year-old female student at Atlantic High School. On or about December 2, 2008, while C. W. was in another teacher’s geometry class, Respondent sat next to C. W. at a table toward the rear of the class. Respondent initiated an exchange of notes (sic) between himself and C. W. The note stated: Respondent: What’s your boyfriends name? Student: Don’t have one why? Respondent: I don’t believe that!! Student: Why not???? Respondent: Because you look like you should have one! Student: Why do I need one LOL no guys are attractive here . . . why do I look like I should have one? Respondent: I never said you needed one!! You just have that look and I can’t say why. Student: ooo so there’s a look that people have when they have a b/f or g/f. Why can’t you say why? Respondent: You are too sexy not to have a ton of guys chasing after you and one of the (sic) should have caught you. If I was in high school I would most definitely be one of them. Student: haha well its not like that at all. They are all UGLY Respondent: So what are you looking for? A super model? The above-referenced note between Respondent and C. W. was inappropriate. C. W. put the note away and did not respond to Respondent’s last inquiry. Respondent attempted to retrieve the note from C. W. C. W. kept the note and turned it in to school administration and reported the Respondent’s conduct. As a result of the foregoing exchange, the student, C. W., was very uncomfortable. She began to think that Respondent had been "coming on" to her. Although Respondent denied that assumption, he acknowledges that the exchange was inappropriate and in poor judgment. Further he acknowledged that the exchange had left C. W. uncomfortable. At no time has Respondent ever denied that the exchange took place and he has not attempted to avoid punishment for the incident. After the exchange and becoming aware of C. W.'s unease, Respondent made every effort to avoid C. W. so that neither would be uncomfortable. To that end the school administration moved Respondent from the classroom where C. W. was assigned, to another classroom. Respondent was disciplined by the school district and remained at Atlantic High School for the remainder of the school year. C. W.'s mother believes Respondent should have been removed from the school. When he was not, ultimately C. W. transferred to another school to complete her senior year. C. W. believes that she was treated unfavorably by students who endorsed Respondent and did not support her decision to report the note-writing incident. Respondent was previously disciplined by another school district for whom he worked. The prior disciplinary event also led to action by the Education Practices Commission. The prior act was dissimilar in facts to the instant case. Respondent is a well-educated and experienced teacher. He holds bachelor and master degrees. Respondent became a teacher in 1998 and has been continuously employed by various school districts since that time. Additionally, he taught at a detention center for youthful offenders for approximately one year. In short, Respondent should have known better than to engage in note writing with C. W., and should not have initiated the note. In addition to distracting C. W. during a class when she should have been allowed to engage in learning, Respondent's conduct in continuing the note writing was immature and contrary to meaningful teaching practices. Respondent has always achieved acceptable performance evaluations. Despite the unrelated lapses in judgment resulting in disciplinary actions, Respondent has continued in employment with the school district. At no time has Respondent ever attempted to touch C. W. inappropriately. At no time did Respondent actually verbally speak to C. W. The entire inappropriate exchange consisted of note writing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a panel of the Education Practices Commission enter a final order finding Respondent guilty of violating the standards of conduct applicable to educators in Florida, found in Florida Administrative Code Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), imposing an administrative fine in the amount of $2,000.00, and requiring a period of probation not less than one year under the terms and conditions deemed most appropriate by the panel. DONE AND ENTERED this 28th day of April, 2010 in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 28th day of April, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Joan Stewart, Esquire FEA/United 300 East Park Avenue Tallahassee, Florida 32301 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marion Lambeth, Bureau Chief Bureau of Professional Practice Service Department of Education Turlington Building, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact On November 11, 1989, Respondent forwarded a request for hearing by Petitioner to contest his suspension without pay and dismissal by the school board. Due to insufficient information being furnished, no case was opened. Subsequent administrative oversight resulted in no action being taken on this request by the Division of Administrative Hearings. By letter dated June 5, 1989, Petitioner, by and through his attorney, requested the status of the hearing requested by the school board in November 1987. In response thereto, Respondent filed the Motion to Dismiss that constituted the basis for the telephone conference call. At this conference call hearing, Petitioner conceded that all facts recited in the Motion to Dismiss are accurate and, that on May 14, 1987, Petitioner and the Florida Department of Education entered into a Stipulation for Settlement wherein Petitioner's teaching certificate was suspended for one year retroactive to April 25, 1986. Petitioner was suspended without pay by Respondent on May 14, 1986, based upon his arrest for the offense which resulted in the suspension of his teaching certificate by the Department of Education. Petitioner was subsequently terminated by Respondent on May 26, 1987, retroactive to May 14, 1986, the date he was suspended without pay. On the effective date of Petitioner's termination by Respondent, May 14, 1986, he did not hold an active teaching certificate from the State Department of Education and was not qualified to work as a teacher in any Florida public school.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Franklin B. Etheridge's request for hearing to challenge his dismissal by the School Board of Polk County be denied, and Respondent's Motion to Dismiss be granted. Entered this 18th day of August, 1989, in Tallahassee, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. COPIES FURNISHED: Dr. John A. Stewart Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 C. A. Boswell, Esquire School Board of Polk County Post Office Box 391 Bartow, Florida 33830 John F. Laurent, Esquire Post Office Box 1018 Bartow, Florida 33830
Findings Of Fact Petitioner is now, and has been employed as a teacher in the Pinellas County school District since the 1980-81 school year. Since the 1983-84 school year, he has taught biology and earth science at Tarpon Springs High school under continuing contract. In November, 1984, Petitioner applied for Associate Master Teacher Endorsement in the state Master Teacher Program for the 1984-85 school year. His application was approved, and he participated in the Master Teacher Program for the 1984-85 school year, receiving the appropriate salary incentive award of $3000. In October, 1985 Petitioner applied for continued participation in the Master Teacher Program for the 1985-86 school year. His application was again approved, and he participated in the program for the 1985-86 school year, receiving the appropriate salary incentive award of $3000. The 1986-87 school year was the third and final year of the State Master Teacher Program. The application deadline for continued participation by teachers previously endorsed as Master Teachers was November 1, 1986. According to Virginia Sasser, Petitioner meets all substantive requirements and criteria for continued participation in the program for the 1986-87 school year. However, it is the position of the Respondents that Petitioner failed to timely file his application by November 1, 1986, and therefore he was not eligible to receive a Master Teacher salary incentive award for the 1986-87 school year. The first notice that Petitioner received that he had not been approved for participation in the program for the 1986-87 school year was in August, 1987 when other Master Teachers at Tarpon Springs High School received their salary incentive awards of $3000, and he did not. Petitioner contacted the Department of Education and spoke with Virginia Sasser who told him that the Department had no record of his 1986-87 application for continued participation. No specific advice was offered by Sasser about what he should do. Subsequently, Sasser learned that the Pinellas County School District also had no record of ever receiving Petitioner's application for 1986-87. The 1986-87 application procedure required individual teachers to complete Form MT-5, and submit it to their principal for his certification and signature. The Form requires the principal to certify that he has returned a completed copy of the application to the teacher after the principal affixed his signature. Thereafter, the Form was to be forwarded by the principal to the School District Office for transmittal to the Department of Education. In January, 1987, acknowledgments were sent to teachers whose applications had been received by the Department of Education. Based upon the testimony of Petitioner, Chalmers Coe, Petitioner's principal, John Katsaris, fellow Master Teacher, and Patricia Burdette, Coe's secretary, it is specifically found that Petitioner did properly complete and submit Form MT-5 to Coe in mid-October, 1986. However, the Form was thereafter lost either in Coe's office or in transit from Tarpon Springs High School to the School District Office in Clearwater via courier. Petitioner was not responsible for, and was not aware of this loss. Although he was on the School District's list of Master Teachers from whom an application for continued participation would be expected to be received, no one from the School District Office ever contacted Coe or the Petitioner to inquire why his Form MT-5 had not been received. Petitioner reasonably assumed that Coe had properly processed the application he gave him, and that the intradistrict mail courier would deliver it to the School District personnel officer. Patricia Burdette testified that on occasion items she placed in the courier mail, or which were placed in the mail for her, were lost and never received. The testimony of Chalmers Coe, principal of Tarpon Springs High school is found to be credible and persuasive in that he clearly confirmed the following statements contained in a letter he sent to Virginia Sasser in September, 1987, after Petitioner had been informed by Sasser that his application had not been received by the Department: This is to notify you that Peter Lelekis, a teacher on our staff, did submit a completed application for the Master Teacher Program for 1986-87. This application was submitted before the deadline of November 1, 1986. I, as well as my secretary, Patricia Burdette can verify that Mr. Lelekis did comply with the instructions from the Master Teacher Division of the Department of Education. I personally signed and forwarded forms to Superintendent. The testimony of John Katsaris supports the testimony of Petitioner and Coe in that Katsaris testified he saw Petitioner take his Form MT-5 to Coe's office in mid-October, 1986, and spoke with Petitioner about the application. According to Larry Hutcheson, who administered the Master Teacher Program for the Department of Education from approximately June, 1985 to July, 1986, the Department followed a "hold-harmless philosophy" in administering the program whereby if an applicant did his part to comply with all application procedures, as verified by his principal or superintendent, an applicant whose application was not timely filed would be held-harmless for this omission and the substantive merits of his application would be evaluated. This philosophy was applied "not infrequently" according to Hutcheson. Virginia Sasser, who has continuing responsibilities for the program, confirmed this "philosophy," and stated that if the principal or superintendent conceded their error, a teacher's application would be accepted and evaluated. She further acknowledged that if an application was lost in the mail, the teacher should similarly be held- harmless for the courier's error. In this case, an error was made either by the intra-district mail courier, or by Coe in not insuring that Petitioner and the District Personnel Office received a copy and the original Form MT-5, respectively, after he signed this form. In either event, the error that was made was not made by Petitioner, and he should therefore be held-harmless in accordance with the Department's applicable "philosophy" for administering this program. Coe and Petitioner both testified that he meets all substantive requirements and criteria for continued participation for the 1986-87 school year, a fact not disputed by Respondents. Petitioner has timely sought review of the Respondents' decision, as set forth by letter dated September 17, 1987, to deny his continued participation in the State Master Teacher Program for the 1986-87 school year solely for the following reason: According to our records, a 1986-7 application was never received by our office for you. In addition, the Pinellas school district office records further confirmed that your application was not processed through their office. I regret that we cannot accept Mr. Coe's statement as evidence of your filing an application for continued participation in the program.
Recommendation Based upon the foregoing, it is recommended that the Respondents enter a Final Order approving Petitioner for continued participation in the State Master Teacher Program for the 1986-87 school year, and providing him with the appropriate salary incentive award of $3000. DONE AND ENTERED this 3rd of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Findings of Fact 4, 7, 8. Adopted in Findings of Fact 4, 11. Adopted in Findings of Fact 5, 7. Rejected and Accepted, in part, in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in Finding of Fact 8. Adopted in Findings of Fact 4, 8, 11. Adopted in Findings of Fact 4, 11. Adopted in Findings of Fact 4, 7, 10, 11. Adopted in Findings of Fact 9, 10. Rulings of Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as unnecessary. Rejected as unnecessary, and as a conclusion of law. 5-6. Rejected as unnecessary. The only issue in this case is whether Petitioner is entitled to the third year salary incentive award. Thus, the general application and renewal process is irrelevant. 7. Adopted in Finding of Fact 3. 8-9. Rejected as irrelevant and unnecessary. 10. Rejected in Findings of Fact 4, 11. 11-13. Rejected as unnecessary, irrelevant and as a conclusion of law. Generalized discussion of the Master Teacher Program does not pertain to the issue in this case. Adopted in Findings of Fact 4, 6, 7. Rejected in Findings of Fact 7, 8. The primary testimony was offered by Coe and Was confirmed and supported by Katsaris, Petitioner and Burdette. 16-18. Rejected in Findings of Fact 7, 8, 10 and otherwise Adopted in part in Finding of Fact 10, but otherwise Rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 5 but otherwise Rejected as irrelevant. Rejected in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 6. Rejected as irrelevant. 26-27. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8, 12. Rejected as irrelevant. This is a de novo hearing to determine if Petitioner did submit his application. 30-31. Adopted in part in Findings of Fact 9, 10, but otherwise Rejected as irrelevant and not based on competent substantial evidence. 32. Rejected in Finding of Fact 12. Petitioner's request for hearing was timely. COPIES FURNISHED: Ronald G. Meyer, Esquire MEYER, BROOKS & COOPER, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Charles S. Ruberg, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint issued on May 28, 2009, and, if so, what action should be taken.
Findings Of Fact No dispute exists that, at all times material hereto, the COE was charged with the duty of investigating and prosecuting complaints against individuals who hold a Florida educational certificate and who are alleged to have violated Section 1012.795, Florida Statutes. At all times material hereto, Mr. Magid held Florida Educator’s Certificate No. 936553, covering the area of Elementary Education, which is valid through June 30, 2012. During the 2006-2007 and 2007-2008 school years, Mr. Magid was employed as a kindergarten teacher with the Palm Beach County School Board (School Board) at Westwood Elementary School (Westwood). In January 2008, Mr. Magid arranged to obtain a tripod from another teacher, Janae Dean, at Westwood. On January 9, 2008, Mr. Magid contacted Ms. Dean, who was in a meeting in a classroom other than her own, to obtain the keys to her classroom in order to get the tripod from her locked classroom. Ms. Dean kept her classroom locked when she was not in the classroom. Ms. Dean gave Mr. Magid the keys to her classroom. Later, Mr. Magid returned to the classroom where the meeting was being held and returned Ms. Dean’s keys to her. After the meeting, Ms. Dean returned to her classroom and discovered that a $100 bill was missing from her purse, which was locked inside a file cabinet in her classroom. Ms. Dean called another teacher, Josette Archbold,1 a media specialist, to her (Ms. Dean’s) classroom. Ms. Dean requested Ms. Archbold to look into her (Ms. Dean’s) purse and determine if a $100 bill was in the purse; Ms. Archbold verified that no $100 bill was in Ms. Dean’s purse. Ms. Dean went to confront Mr. Magid. She discovered that he had left the Westwood’s campus and was working as a referee at a high school basketball game. She went to the basketball game and confronted Mr. Magid, who admitted to taking the money, but told her that it was a practical joke. Ms. Dean informed him that she wanted her money, and Mr. Magid wrote her a check for $100. Ms. Dean did not wish to file a criminal complaint against Mr. Magid. However, she did report the incident to the Westwood’s principal, Melvis Pender, that same evening. The following day, Mr. Pender met with Mr. Magid and Ms. Dean. Mr. Magid admitted taking the $100 bill from Ms. Dean’s purse that was secured in the locked cabinet in her classroom. However, he (Mr. Magid) indicated that it was a practical joke, which was refuted by Ms. Dean. Mr. Pender determined that the incident was not a practical joke. Mr. Pender issued a directive to Mr. Magid, characterizing Mr. Magid’s behavior as “unprofessional and inappropriate,” and directing Mr. Magid to discontinue the type of behavior in which Mr. Magid had engaged. Mr. Magid executed an acknowledgement of the directive on January 24, 2008. On March 14, 2008, Ms. Archbold was reporting to work at Westwood. As she entered the area where the circulation desk was located, which was outside of her office, a colleague approached her and immediately needed some paperwork on an audit, which the two of them were preparing. Ms. Archbold placed her wallet and other material on the circulation desk and entered her office to retrieve the paperwork that her colleague requested. Considerable time had elapsed, and Ms. Archbold noticed Mr. Magid going in and out of the media office; then she realized that she had left her wallet outside of her office on the circulation desk. Ms. Archbold had $20 in her wallet. The day before, March 13, 2008, she had gone to the bank to borrow money because her refrigerator had stopped working and food in the refrigerator had spoiled. She borrowed money from the bank to purchase another refrigerator and replace groceries that had spoiled; and, after doing that, she had only $20 remaining. Ms. Archbold went to the circulation desk and opened her wallet. The $20 was missing. Ms. Archbold’s colleague went to Mr. Magid and confronted him about the missing $20. He admitted to taking the $20 and gave Ms. Archbold’s colleague $20 to give to Ms. Archbold. Prior to the incident on March 14, 2008, Ms. Archbold had encountered other thefts involving Mr. Magid. On one occasion, he stole $100 from money being raised at a book fair at Westwood. Ms. Archbold was responsible for the money, so she replaced the $100 from her personal funds, instead of confronting Mr. Magid. None of these thefts were reported to Mr. Pender and, therefore, were not the subject of any disciplinary action. Mr. Pender was notified of theft of the $20 and went to his office. When Mr. Pender entered his office, he found Mr. Magid “cowering” behind his (Mr. Pender’s) desk. Mr. Magid admitted to Mr. Pender that he took the $20. Mr. Magid also indicated to Mr. Pender that he (Mr. Magid) was seeing a therapist for his behavior. Mr. Pender reported the theft to the Palm Beach County School District Police for investigation. Mr. Magid was placed on alternative assignment during the investigation. Before any formal action was taken by the School Board, regarding the thefts, Mr. Pender notified Mr. Magid by letter dated March 24, 2008, that he (Mr. Pender) was not recommending Mr. Magid for reappointment for the 2009-2010 school year; and that, therefore, as a non-reappointed employee, he (Mr. Magid) would be terminated from employment with the School Board at the end of his (Mr. Magid’s) contractual period Even though Mr. Pender had rated Mr. Magid as satisfactorily performing his duties as a classroom teacher, Mr. Pender had reached the conclusion that Mr. Magid had become untrustworthy and no longer wanted him (Mr. Magid) to work at Westwood. As a result, Mr. Pender recommended non-reappointment of Mr. Magid. Instead of being faced with termination proceedings, Mr. Magid resigned from employment with the School Board. Mr. Pender believes that, if Mr. Magid can successfully control his behavior, i.e., successfully control whatever is causing him (Mr. Magid) to steal money, he (Mr. Magid) could be a capable, competent teacher. Mr. Magid admits that the conduct in which he engaged was inappropriate and “very stupid.” Mr. Magid suffers from dyslexia and Attention Deficit Disorder (ADD). He contends that dyslexia and ADD have caused him throughout his life to make poor decisions in the taking of things and the situations involving the taking of money in this instant matter. No medical evidence was presented to show that dyslexia and ADD cause one, and specifically Mr. Magid, who suffers from the medical conditions to engage in the conduct in which Mr. Magid has engaged. The evidence fails to demonstrate that Mr. Magid’s dyslexia and ADD caused him to engage in the conduct in which he engaged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Eric J. Smith, as Commissioner of Education enter a final order: Finding that Bradley Joseph Magid violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and violated Florida Administrative Code Rules 6B-1.006(4)(c) and 6B-1.006(5)(a). Imposing a penalty of revocation of Mr. Magid’s certificate for five years. DONE AND ENTERED this 1st day of March 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 1st day of March, 2010.
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
