The Issue Whether Respondent engaged in conduct that violated section 1012.795(1)(j), Florida Statutes, and/or Florida Administrative Code 1 All references to chapter 120, Florida Statutes, are to the 2020 codification. Rule 6A-10.081(2)(a)1., and if so, what is the appropriate penalty to be imposed against her Florida Educator's Certificate.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate, and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator Certificate No. 717826, which is valid through June 30, 2025, and covers the area of physical education (PE"). As of February 28, 2018, the date on which the conduct giving rise to this proceeding occurred, Respondent was employed by Petitioner in a partial assignment as a PE teacher at Coral Gables Preparatory Academy ("CGPA"), formerly known as Coral Gables Elementary School, within the Miami-Dade County School District ("District"). Respondent was simultaneously employed in a partial teaching assignment at a different school in the District. The Administrative Complaint The Administrative Complaint charges Respondent with having engaged in inappropriate conduct on February 28, 2018, consisting of throwing students' book bags, resulting in damage to electronic devices that were in the book bags. The Administrative Complaint alleges that the damage to the electronic devices was over $2,000.00. Count 1 of the Administrative Complaint charges Respondent with having violated section 1012.795(1)(j)3 by having violated the Principles of Professional Conduct for the Education Profession adopted by the State Board of Education. Count 2 of the Administrative Complaint charges Respondent with having violated rule 6A-10.081(2)(a)1.,4 by having failed to 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. Evidence Adduced at the Hearing As noted above, the incident giving rise to this proceeding occurred on February 28, 2018, at CGPA. At the time of the incident, some students were on their way out to the athletic field outside of the school for PE class, while others were on their way out to the field for recess. An indeterminate number of students left their bookbags in the walkway near the exit door to the field, despite previously having been told by Respondent to place their bookbags against a wall adjacent to the walkway in order to ensure that no one tripped over bookbags. Respondent moved the bookbags out of the walkway by "tossing" or "throwing" them.5 There is conflicting evidence regarding the force with which Respondent moved the bookbags. 3 All references to chapter 1012, Florida Statutes, are to the 2017 codification, which was in effect at the time of the alleged conduct giving rise to this proceeding. See Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)(law in effect at time of alleged violations applies in disciplinary proceedings). 4 The version of rule 6A-10.081 that was adopted by the State Board of Education on March 23, 2016, was in effect at the time of the conduct giving rise to this proceeding, and, therefore, applies to this proceeding. See Orasan, 668 So. 2d at 1063. 5 A key issue disputed by the parties is whether Respondent "tossed" or "threw" the bookbags. This dispute appears to center around Respondent's culpability because, presumably, if she "threw" them, she did so in anger, without regard to whether the contents would be damaged, thereby warranting a more severe penalty than if she had merely Student J.R. credibly testified that he saw Respondent "furiously" throwing the bookbags, including his bookbag. He testified that as a result of Respondent's actions, his iPhone, which was in the bookbag, was broken and had to be replaced. A photograph that was admitted as part of Petitioner's Exhibit No. 8 depicts J.R.'s iPhone with the glass having been shattered. J.R.'s signature and "3/14/18," the date on which he was interviewed as part of the District's investigation of the incident, are written below the photograph. J.R. also testified that his glasses, which were in his bookbag, also were damaged as a result of Respondent's conduct.6 Another student, H.B., testified, credibly, that she witnessed Respondent throwing the bookbags "really hard." She testified that as a result, her iPad and her brother's iPad, both of which were in her bookbag, were broken. Two photographs that were admitted as part of Petitioner's Exhibit No. 8 depict the damaged iPads. H.B.'s signature and the date of March 14, 2018, the date on which she was interviewed as part of the District's investigation of the incident, are written below the photographs. A.A. also testified that she saw Respondent throwing the bookbags, and that Respondent threw her bookbag with such force that it broke her water bottle, which was inside the bookbag. A.A. testified that this upset her, because the water bottle was her favorite one.7 Salvatore Schiavone, the former principal of Southside Elementary School ("SES"), testified on behalf of Respondent. Respondent is assigned to "tossed" them, and the damage to the electronics was accidental. The undersigned does not find this label dispositive of the penalty imposed in this proceeding. 6 Because the Administrative Complaint does not charge Respondent with having damaged students' property other than electronic devices, damage to J.R.'s glasses cannot form the basis of discipline in this proceeding. However, the fact that J.R.'s glasses were damaged is probative regarding the force with which Respondent threw the bookbags. 7 See footnote 3, above. Damage to A.A.'s water bottle cannot form the basis of discipline in this proceeding because it was not charged in the Administrative Complaint. However, the fact that her water bottle was broken as a result of Respondent having thrown her bookbag is probative regarding the force with which Respondent threw the bookbags. SES, and was so assigned during the time period of 2006 through 2017, when Schiavone was principal. Schiavone testified, credibly, that he viewed Respondent as "the consummate professional" and an outstanding teacher; that he had never observed her having anger issues or causing property damage; and that she was very well-liked by her students. Respondent testified that on the day of the incident, students from four classes were entering and exiting the sole doorway to and from the athletic field, and that many of them had thrown their bookbags in a pile in the walkway. She asked them more than once to move the bookbags, but most of them did not do so, so she, with help from a few students, moved them from the walkway to against the wall adjacent to the doorway exit to the athletic field. She testified, credibly, that she did not know electronic devices were in the bookbags. She denied smashing the bookbags on the ground and intentionally damaging students' property. Respondent entered into an agreement with the District under which she received a written reprimand and agreed to pay $558.00 in restitution for the damage to the electronic devices. Respondent has taught for over 27 years and has not previously been subjected to discipline. Findings of Ultimate Fact The evidence clearly and convincingly establishes that Respondent threw some students' bookbags with sufficient force to damage electronic devices inside the bookbags. This determination is based on the credible testimony of the students who testified at the final hearing. Respondent moved the bookbags from the walkway, where students were entering through, and exiting from, a doorway between the inside corridor and the outside athletic field. The evidence clearly and convincingly establishes that the bookbags had been piled in a location where they posed a potential tripping hazard. However, even if the bookbags were obstructing the walkway and presented a potential tripping hazard, and notwithstanding that Respondent had told the students to place their bookbags against the wall, that did not justify Respondent throwing the bookbags with the amount of force sufficient to damage the contents in some of the bags. Thus, the evidence clearly and convincingly establishes that in moving students' bookbags with sufficient force to damage electronic devices inside the bookbags, Respondent failed to make reasonable effort to protect the students from conditions harmful to students' mental health and safety. To this point, as discussed above, the evidence establishes that at least some of the students were distressed as a result of their electronic devices being damaged. Thus, the evidence clearly and convincingly establishes that Respondent violated rule 6A-10.081(2)(a)1. As a result of having violated rule 6A-10.081(2)(a)1., Respondent violated section 1012.795(1)(j). However, the evidence clearly and convincingly establishes that Respondent did not know that students' electronic devices were in some of the bookbags that were thrown, and the evidence does not establish that Respondent intended to damage students' property. Additionally, the evidence does not clearly and convincingly establish that Respondent's actions caused over $2,000.00 worth of damage to the electronic devices in students' bookbags. Although the evidence clearly and convincingly establishes that Respondent's actions damaged some students' electronic devices, no competent evidence was presented regarding the value of the damaged electronic devices. There was no evidence presented showing that students' physical health or safety was in any way harmed or adversely affected by Respondent's actions in throwing the bookbags.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, pursuant to section 1012.796, the Education Practices Commission issue a written reprimand to Respondent, with a copy placed in her certification file, pursuant to section 1012.796(7)(f). DONE AND ENTERED this 17th day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2021. COPIES FURNISHED: Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Peter Caldwell, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 460644, covering the areas of Educational Leadership and Social Science. The license is valid through June 30, 2001. At all times material to this proceeding, Respondent was employed as a substitute teacher at Marathon High School in the Monroe County School District. On or about November 26, 1996, Respondent submitted an application for renewal of a Professional Florida Educator's Certificate to Petitioner's Bureau of Teacher Certification. On the application, Respondent checked "no" in response to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre or had adjudication withheld in a criminal proceeding; or are there any criminal charges now pending against you. Failure to answer this question accurately could cause denial of certification. By indictment of the grand jury convened in Pickens County, South Carolina, on June 22, 1995, Respondent was charged with "Assault and Battery of a High and Aggravated Nature" and with the offense of "Disturbing Schools." Respondent pled guilty to the charge of Disturbing Schools and the lesser charge of "Simple Assault and Battery" on March 18, 1996. He received a sentence of a $200 fine and a suspended 90 days jail sentence. On or about October 6, 2000, Petitioner submitted its First Request for Admissions to Respondent. Respondent failed to answer, admit, or deny the truth of the matters asserted in the request; namely, that Respondent submitted the application for renewal of a Professional Florida Educator's Certificate in the manner and form described in paragraph 3, above, and that he pled guilty to the criminal charges described in paragraph 4, above. Pursuant to Rule 1.370(b), Fla. R. Civ. P., the truth of the matters asserted in the request is conclusively established.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate for a period of three years. DONE AND ENTERED this 22nd day of December, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of December, 2000. COPIES FURNISHED: William B. Graham, Esquire Graham, Moody & Sox, P.A. 215 South Monroe Street, Suite 600 Tallahassee, Florida 32301 Costa Lempesis 1334 Bryjo Place Charleston, South Carolina 29407 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400
