The Issue Whether Petitioner demonstrated entitlement to a Florida educator’s certificate.
Findings Of Fact Respondent, Pam Stewart, as Commissioner of Education, is authorized to issue Florida educator’s certificates to persons seeking certification to become school teachers in the state of Florida. Petitioner, Robert Grimsley, is a high school teacher who teaches liberal arts and algebra. He is in his first year of teaching and currently teaches at Washington High School in Pensacola, Florida. He seeks to obtain an educator’s certificate to continue teaching. On June 6, 2016, Petitioner submitted an on-line application for a Florida Educator’s Certificate in mathematics (grades 6-12). The application included a section for “Criminal offense record(s) (Report any record other than sealed or expunged in this section.)” Under that section, was the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” In his application, Petitioner answered affirmatively that he had entered into a pretrial diversion program related to a criminal offense. Based on the fields provided in the application, he disclosed the following criminal offense as indicated below: City Where Arrested State Date of Arrest Charge(s) Disposition Tallahassee FL 1/2015 Less Than 20 Grams Community Service Petitioner did not disclose any other offenses in the application. There was no definition of “arrest date” provided in the application. Mr. Kossec, program director of Professional Practices Services, testified that Petitioner could have included the dates for his Notice to Appear. However, the application did not indicate that such an option was available to applicants. On August 3, 2016, Professional Practices Services sent Petitioner a letter requesting additional information regarding his criminal offenses so it could conduct an investigation of his criminal history. He submitted documents reflecting two offenses for which he completed a pretrial diversion program. The submissions included the “No Information” for each offense, which disclosed the following: Case No. 14-000004MMA (related to January 31, 2013 offense); Disposition: No Information due to completed Misdemeanor Diversion Program (filed on February 24, 2014). Case No. 15MM00158 (related to January 20, 2015 offense); Disposition: No Information due to completed Diversion Program (filed on March 6, 2015). The parties stipulated to the following facts regarding Petitioner’s criminal history and application: On or about December 31, 2013, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, the Applicant was issued a Notice to Appear by law enforcement for a criminal violation. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about January 20, 2015, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, law enforcement arrested Applicant for possessing marijuana. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about June 6, 2016, Applicant submitted an application for an educator’s certificate. In said application, Applicant was asked the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” Applicant failed to disclose the fact that he entered into a pre-trial [sic] diversionary program for the December 31, 2013--Marijuana Possession arrest. There is no dispute that Petitioner had two criminal offenses for which he participated in a pretrial diversion program. At hearing, Petitioner testified that he did not list the December 2013 offense on the application because he received a Notice to Appear for that offense. Petitioner testified that he did not understand that being released with a Notice to Appear1/ was an arrest because he was not physically arrested. The two officers involved in the respective arrests testified at hearing and described their detainment of Petitioner. On December 31, 2013, Lt. King stopped Petitioner’s vehicle for driving in excess of the posted speed limit. He ultimately found marijuana in the vehicle. Lt. King read Petitioner his rights, issued him a Notice to Appear, and released him. Lt. King did not handcuff Petitioner at any point during the traffic stop. Lt. King testified that he explained to Petitioner that although he was not being physically handcuffed and transported to the local jail, he was placed under arrest. Petitioner did not recall any explanation that a Notice to Appear is still an arrest. Lt. King’s offense report, completed on the same date as the incident, did not reference any explanation to Petitioner that the Notice to Appear was an actual arrest. Petitioner’s testimony is found to be credible. The detainment for the second incident was different from the first. On January 20, 2015, Officer Andre Buckley, a FSU police officer, responded to a complaint of the smell of burnt marijuana coming from a restroom on the campus of FSU. Officer Buckley arrived at the suspected restroom and confirmed the smell of burnt marijuana. After discovering Petitioner in the restroom and in possession of marijuana, Officer Buckley placed Petitioner in handcuffs. Another officer transported Petitioner to the Leon County jail for booking. Despite Petitioner’s mistaken belief regarding the December 2013 arrest, he was indeed arrested. The facts here demonstrate that Petitioner did not understand that he was arrested for the December 2013 offense and, as a result, was confused regarding whether he should include the offense in the application. There was no effort to conceal his participation in the pretrial diversion program for the December 2013 offense because he submitted documents reflecting the information upon request. The undersigned finds that he simply made an error when completing the application. Both misdemeanor criminal offenses occurred while Petitioner was a college student. Since completing the diversion programs, he has earned his Bachelor of Science degree in Statistics. In his letter to the Professional Practice Services dated July 20, 2016, he indicated that he has discontinued using drugs. Further, he has taught for approximately one year without incident. Petitioner’s actions demonstrate that Petitioner had no intent to conceal his record, engaged in no fraudulent conduct in completing the application, and did not fail to maintain honesty in the submission of the application so as to warrant denial of an educator’s certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Robert Eugene Grimsley’s, application for a Florida educator’s certificate. DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 20th day of April, 2017.
Findings Of Fact Ozell Barnes applied for a license as an armed and unarmed guard. He was granted an unarmed guard license. Barnes is employed as a caretaker/gardener at a nursing home for the elderly. Barnes' employer has no requirement for an armed guard, and Barnes' duties do not require him to be armed. Barnes is a remarkable man who, as a black deaf-mute, supports himself and his family in a regular competitive job. Because of his deafness, his written communication is often initially unclear to those not familiar with it; however, having met Mr. Barnes and having observed him during the hearing, the Hearing Officer finds that he is intelligent, well-oriented, and perceptive. Barnes qualified with a pistol; however, his instructor was not approved by the Department of State, Division of Licensing, as required by the statutes and rules. Barnes suffers from hypertension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's application for licensure as an armed guard be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of December, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W.J. Gladwin, Jr., Esq. Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ozell Barnes 3009 Carver Street Fort Pierce, Florida 33450
Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent is qualified to hold a certificate as a correctional officer in the State of Florida, by failure to successfully complete the required training, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 29, 1993, as a corrections officer, and was issued Certification Number 141634. On August 17, 1992 the Respondent signed up for and attended orientation for the Public Safety Recruit/Corrections course conducted by the Lake County Area Vo-Tech Center in Eustis, Florida. The contents of the Public Safety Recruit Manual was explained to the class and Respondent received a copy of the manual. The academic grading policy in the manual provides that the minimum passing grade that a student must achieve on each exam is a score of 75 percent. A student may fail only one exam and still remain in good standing at the academy. Respondent signed a Student Acknowledgment of School of Public Safety Requirements and Rules of Conduct. He acknowledged that he had read and understood them and agreed to comply with the standards. Respondent failed the Criminal Justice Standards and Training Commission defensive tactics practical examination with a score of 66. On October 27, 1992, Respondent was notified orally and in a written memorandum from the program coordinator that he had failed the examination. However, he was given until July 29, 1993 to remediate and requalify. Respondent did not take any steps to requalify in this area. On November 10, 1992, Respondent failed Block Test 1 with a score of 59. On November 13, 1992, Respondent was notified orally and in writing of his second examination failure. He was then advised that in accordance with the Master Plan of Instruction and the grading policy of the school that he was terminated from the program. Respondent's final grade for the Public Safety Program was listed as an Incomplete. Respondent was advised that he would be required to retake the entire recruit program in order for him to receive certification. A CJSTC 67 Training Report Form was completed by the Lake County Area Vo-Tech Center for the Public Safety Recruit/Corrections course sequence number 15-92-502-02 and was forwarded to the Florida Department of Law Enforcement, Division of Standards and Training in Tallahassee. The Training Report form reflects that forty-six recruits attended the course. Thirty-nine were listed as having passed and seven were listed as failed or incomplete. Respondent was listed as having failed the program. The Training Report for Respondent's class was received by the Department of Law Enforcement, Division of Standards and Training on April 12,1993. Due to a programmer's error, the Florida Department of Law Enforcement, Division of Standards and Training's Automated Training Management System (ATMS) computer system automatically generates a certificate and certificate number when an individual who is employed is entered into the system regardless of the grade achieved. The procedure in place at the time required a Department employee to visually scan the certificates being generated and remove the ones for those persons who had failed or did not complete the program. Respondent was employed at the time his name was entered into the ATMS. The ATMS generated a certificate with Respondent's name on it, Certificate Number 141634. Respondent was certified as a corrections officer as of January 29, 1993 and the certificate was forwarded to him. Respondent was certified by the Criminal Justice Standards and Training Commission in error and the certification should be revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent has failed to complete a commission-approved basic recruit training program, as required by Subsection 943.13(9), Florida Statutes (1993), and that Respondent's certification must be REVOKED. DONE AND ENTERED this 16th day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of November, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1 - 17 Respondent did not submit proposed findings of fact. COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Karen Simmons, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 John Dubose 242 West 6th Street Apopka, Florida 32702
Findings Of Fact Admitted Facts 1/ Respondent holds Florida teaching certificate 534707. The certificate authorizes Respondent to teach social studies. It is valid through June 30, 1994. Respondent is employed as a Social Studies Teacher at Osceola High School in Osceola County, Florida. He has been so employed at all times material to this proceeding, except for a suspension of five days without pay. The five-day suspension and a letter of reprimand were imposed by the Osceola County School District pursuant to a Disciplinary Agreement between Respondent and the District. The conduct that led to the Disciplinary Agreement is the same conduct that is at issue in this proceeding. In November, 1992, Respondent's classes studied the assassination of President John F. Kennedy. Tim Dodson ("Dodson") was a male student in one of those classes. Dodson told Respondent that Dodson's father owned a replica of the rifle used to assassinate President Kennedy. Respondent sent a note to Dodson's father requesting that Dodson bring the rifle to Respondent's class. Dodson brought the rifle to Respondent's class during the week of November 16, 1992. On November 18, 1992, Respondent took his class outside to the football field. Dodson climbed to the top of an observation tower and fired two rounds of live ammunition at a target located on the ground. Purpose The purpose of firing the rifle from the observation tower was to simulate the angle of fire from Lee Harvey Oswald to President Kennedy in 1963. The firing time was not part of the simulation. Out of concern for safety, Respondent did not permit Dodson to fire the rifle in the same time that Oswald fired his rifle. The three story observation tower on the football field was lower than the fifth story of the book depository in Dallas, Texas. However, the distance from the observation tower to the target was also shorter than the distance from the book depository to President Kennedy. Respondent determined that the angle created by the lower tower and shorter distance in the simulation approximated the actual angle of fire in the assassination of President Kennedy. The target was a metal military helmet resting on a two- by-four board. The target was set at approximately the same height that President Kennedy was positioned in 1963. Prior to November 18, 1992, Respondent's students studied the assassination of President Kennedy and watched the "Zapruder" film of the assassination. On November 18, 1992, students witnessed the simulation and inspected the target after the simulation. They then wrote papers on the assassination and the "lone gunman" theory. Procedure The simulation was originally scheduled for November 16, 1992. Respondent cancelled that simulation because of trouble with the bolt action in the rifle and because of rain. On November 18, 1992, Respondent prescribed specific procedures to be followed during the simulation. Dodson carried the rifle. A second student carried the bolt action. A third student carried the ammunition. A fourth student was designated as a "backup shooter" in the event Dodson missed the target. Both Dodson and the backup shooter were excellent shots and had significant experience with firearms. Respondent, the three students carrying the rifle parts and ammunition, and the backup shooter climbed to the top of the tower. The tower platform was approximately 48 square feet. Respondent instructed Dodson to shoot only on Respondent's command. Respondent also instructed Dodson not to shoot if Dodson saw anyone in the vicinity. Respondent descended the observation tower and remained on the ground with the rest of the students in his class. Respondent and the students on the ground stood behind the shooter and the observation tower. The three students who remained on the platform with Dodson stood behind Dodson. Dodson assembled the rifle and loaded it. On Respondent's command from the ground, Dodson fired two shots at the target. One round hit the target; the other hit the ground. Dodson took the bolt action from the rifle and handed it to the designated student. Dodson and the other three students descended the tower. They inspected the target with the students on the ground and returned to class with the other students. Neither Respondent, any other school official, nor any other competent adult was on the tower platform with Dodson and the other three students. Dodson and the other three students on the platform were not supervised immediately before, during, and after Dodson fired the rifle. Vicinity The observation tower was located approximately 400 feet west of the nearest campus building; in a vacant football field-track-and-parking complex (the "complex"). The complex is approximately 500 feet wide, east to west, and approximately 1,200 feet long, north to south. The observation tower was situated approximately 300 feet west of the east boundary, midway between the north and south boundaries, and 200 feet east of the west boundary. The west boundary of the complex is formed by a drainage ditch that runs the entire 1,200 feet between the complex's north and south boundaries. At its closest point, the drainage ditch was approximately 200 feet west of the observation tower. The target was located approximately 250 feet southwest of the observation tower. It was approximately 10 feet in front of the drainage ditch. The drainage ditch is approximately 25 feet deep. On the west side of the drainage ditch, and adjacent to it, is a line of trees, shrubs, and a six foot chain link fence (the "ditch and tree line"). West of the ditch and tree line are athletic fields used only in the Spring. West of the athletic fields are vacant lands owned by the airport. On November 18, 1992, students and maintenance workers had access to the complex where the observation tower was located. Respondent investigated the complex surrounding the observation tower up to the ditch and tree line. Respondent correctly determined that no one was present in the area Respondent inspected. Students and maintenance workers also had access to the athletic fields west of the ditch and tree line. Although Respondent did not inspect that area, no students were in fact present in the uninspected area. Unknown to Respondent and his students, three maintenance workers were present in the uninspected area. The workers parked their trucks on the softball field between first and second base. They were parked approximately 500 feet west of the ditch and tree line. The maintenance workers were not in the line of fire. They parked their trucks approximately 700 feet due west of the observation tower and approximately 600 feet northwest of the target. The target was approximately 250 southwest of the observation tower and east of the ditch and tree line. Approximately two minutes after parking their trucks on the softball field, the three maintenance workers heard a shot. Two of the maintenance workers left their vehicle. They walked over to the ditch and tree line to investigate the shot. One of the workers walked to a clear spot in the tree line. He tried to look over the top of "some pretty good-sized brush" growing in the clear spot. He saw "three or four kids' heads" on top of the observation tower. The workers found nothing else, returned to their trucks, and completed their duties. Embarrassment And Disparagement Petitioner did not intentionally expose a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e). 2/ Dodson was proud of his role in the simulation. Students uniformly considered the simulation to be a positive learning experience. Although the simulation received significant notoriety in the community through local media coverage and community attention, no student felt embarrassed or disparaged by either the notoriety or the simulation. The notoriety that did occur and any embarrassment or disparagement that may have occurred, if any, was not intended by Respondent. Learning Experience And Mental Health Or Safety Respondent did not fail to make a reasonable effort to protect students from conditions harmful to learning or to students' mental health or safety within the meaning of Florida Administrative Code 6B-1.006(3)(a). 3/ The simulation was a positive learning experience. Students described the learning experience as "great" and "interesting." Almost two years after the simulation, students involved in the simulation were excited about their experience and remembered what they had learned about a significant episode in American history. Physical Health Or Safety Respondent failed to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Florida Administrative Code 6B-1.006(3)(a). The effort made by Respondent was not reasonable, and it failed in fact to protect students from conditions harmful to their physical safety and to their physical health. Unreasonable Effort The effort made by Respondent was unreasonable in three respects. First, it was not reasonable for Respondent to conduct the simulation in the absence of prior notice to, and written authority from, the appropriate school and law enforcement officials. Second, it was not reasonable for Respondent to sanction the possession of a rifle and the firing of live ammunition on campus. Finally, it was not reasonable for Respondent to conduct the simulation without appropriate supervision on the tower platform. 7.01(a) Prior Notice And Consent Prior notice to school and law enforcement officials would have given those officials an opportunity to determine if the simulation was appropriate under any circumstances. If those officials determined that the simulation was appropriate, they would then have had the opportunity to determine the level of supervision required to conduct the simulation in a manner that protected students from conditions harmful to their physical health and safety. By unilaterally determining that the simulation and attendant conditions were appropriate, Respondent denied school and law enforcement officials the opportunity make their own decisions and exposed those officials to potential liability for any actual harm to the students that may have occurred. It was unreasonable to expose those officials to such liability without their prior knowledge and consent. 7.01(b) Sanctioned Use Of Firearms The sanctioned use of a rifle and live ammunition on campus was unreasonable. It creates a risk that students will draw an incorrect inference from the simulation. Respondent testified in the formal hearing that he was under the mistaken impression that it was okay to permit firearms on campus. He based his impression on the fact that the principal had previously condoned the presence of a firearm in Respondent's class, that Respondent had seen ROTC members and police liaison officers present on campus with guns, and that Respondent had also previously witnessed civil war reenactments on campus and mistakenly assumed that the participants used live ammunition. Respondent drew an incorrect inference from the sanctioned presence of firearms on campus. If a person of Respondent's education, experience, and intelligence can draw an incorrect inference from the sanctioned presence of firearms on campus, there is at least an equal risk that Respondent's youthful and inexperienced students will draw a similar inference from the use of a firearm that is sanctioned by Respondent. Respondent's failure to consider this factor rendered his effort unreasonable. 4/ 7.01(c) Inadequate Supervision Respondent's effort to protect his students from harmful conditions was also unreasonable because Respondent failed to provide adequate supervision for students on the tower platform. The failure to have, at a minimum, at least one school official, law enforcement official, or other competent adult on the tower platform with Dodson and his companions was not a reasonable effort to protect students on the platform and students on the ground from harmful conditions. Harmful Conditions The effort actually made by Respondent failed, in fact, to protect students from conditions harmful to their physical safety. The effort created unsafe conditions including the possession and discharge of a rifle, loaded with live ammunition, by an unsupervised high school student, positioned on top of a three story tower, accompanied by three other students who were also unsupervised, while Respondent and the other students observed from the ground three stories below. Those conditions were unsafe and, therefore, failed to protect students from conditions harmful to their physical safety. The conditions of the simulation threatened harm to the students physical health by creating a risk of actual harm. The conditions were, therefore, harmful to the students' physical health for purposes of Florida Administrative Code Rule 6B-1.006(3)(a). The harm that students were threatened with included serious injury or death. A misfire could have resulted in serious injury or death to any of the students on the ground or on the platform. Similarly, a fall from a height of three stories could have resulted in serious injury or death to any of the four students on the platform. Mitigating Factors The physical health of any one student was not in fact harmed as a result of the simulation. The angle of the rifle to the target, the depth of the ditch, and the density of the tree line made it unlikely that a bullet fired at the target would hit anything except the target, the ground, or the ditch and tree line. Dodson and the "backup shooter" had substantial experience with firearms and were expert marksmen. Those factors diminished the possibility of a misfire and the possibility that bullets fired at the target would hit anything other than the target or the ditch. The bullets, in fact, struck only the target or the ditch. No students other than those involved in the simulation were present in the complex. No students were present in the uninspected area west of the ditch and tree line. No person who was not a student was injured as a result of the simulation. The maintenance workers were not in the line of fire and were not in fact harmed. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to their physical health or safety before and after the simulation. Respondent gave Dodson specific instructions before Dodson brought the rifle to school. Pursuant to Respondent's instructions, Dodson removed the bolt action from the rifle, put the rifle in his car, locked the rifle in his car, and went to class. Respondent and Dodson immediately retrieved the rifle from the car and carried the separate parts of the rifle and the ammunition back to the classroom. Respondent followed adequate safety precautions before and after the simulation. The unloaded rifle, the bolt action that had been removed from the rifle, and the ammunition were kept locked in Respondent's closet in his classroom. The only times that the rifle was not locked in the closet was during the simulation and when Respondent permitted his students to view the rifle when it was first brought to school. The only time that the rifle was harmful was on the platform immediately before, during, and after it was fired. Earlier in the school year, school officials condoned the presence of a World War II rifle brought into Respondent's class without notice to school officials and without their prior consent. The school principal entered Respondent's classroom on other business and saw Respondent and other students inspecting the rifle. The principal did not object to the presence of the rifle and joked about students wanting to get rid of the principal. The school principal encouraged Respondent to use simulations. At a meeting of social studies teachers conducted in the beginning of the school year, the school principal encouraged those teachers to take teaching risks and to use new and unconventional methods for reaching students. Simulations were included in the methods suggested by the principal. 5/ Respondent is highly regarded by students. They give him high marks for bringing his subject matter to life. He frequently uses films, demonstrations, and simulations to capture students' interest through visual history. Students in Respondent's classes learn, enjoy learning, and retain what they learn. Other students try to get into Respondent's classes. Respondent is highly regarded by his employer. The Assistant Principal of Osceola High School testified: He is a very good teacher, very effective. Kids love him. He works very hard. He loves teaching. He is passionate with his subject. When I . . . observe him, I get so involved that I don't want to leave. Respondent's employment assessment for the last two years has been "excellent." The abilities and skills that Respondent brings to the classroom are significant resources for students and provide them with substantial benefits. School officials arranged for Respondent to complete his five-day suspension so that he did not miss any time in the classroom. Respondent is highly respected by the school faculty. Respondent's role in the simulation conducted on November 18, 1992, did not diminish the respect Respondent has earned from his peers. The faculty at Osceola High School voted Respondent teacher of the year for the 1993-94 school year. Respondent was runner-up for teacher of the year in the 1992-93 school year, the year that Respondent conducted the simulation. Respondent is a well educated public school teacher. Respondent received his undergraduate degree from Central Michigan University, a teachers college. He received a master's degree in education, curriculum, and instruction from Michigan State University. Respondent received a specialist degree in leadership (i.e., administration) from the University of Central Florida. A specialist degree is awarded to persons who hold a master's degree and successfully complete all of the requirements for a doctorate except the dissertation. Respondent is presently a doctoral student in leadership at the University of Central Florida. Respondent has significant teaching experience. He has been teaching public school children for over 16 years, including 10 years at Osceola High School, a time at Winter Park Junior High School in Orange County, Florida, and six years in DeWitt, Michigan, a suburb of Lansing, Michigan. Respondent has been an adjunct teacher at Valencia Community College and the University of Central Florida. While Respondent taught public school children, he was also involved in assisting students in their extra curricular activities. Respondent was a head basketball coach for junior varsity and freshman basketball, a high school football coach, and a varsity and junior varsity baseball coach. Respondent coached youth leagues for girls softball and boys baseball. He coached in summer basketball camps put on by Michigan State University and worked for the Milwaukee Bucks in coaching basketball clinics for them. Respondent also teaches religious education and is the head of a youth group. Respondent has no prior disciplinary history against his teaching certificate. The Disciplinary Agreement entered into between Osceola High School and Respondent, as a result of the simulation conducted on November 18, 1992, is the only disciplinary action taken against Respondent during his considerable teaching career. One of the elements of The Disciplinary Agreement involved a period of probation. Respondent was returned to a Needs Improvement status and evaluated by school officials at the end of his probationary period. Respondent successfully completed the probation, was evaluated "excellent," and returned to his regular status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission (the "Commission") enter a Final Order finding Respondent: not guilty of intentionally exposing a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e); not guilty of failing to make a reasonable effort to protect students from conditions harmful to learning or to their mental health or safety within the meaning of Rule 6B-1.006(3)(a); and guilty of failing to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Rule 6B- 1.006(3)(a) and Section 231.28(1)(i), Florida Statutes. It is further recommended that the Final Order impose the following penalty: a letter of reprimand filed in Respondent's teaching certificate file; the completion, at Respondent's expense and within one year of the date of the Final Order, of an appropriate course in classroom safety which shall not exceed one, three hour college level class; and suspension of Respondent's teaching certificate for not more than 30 days to be carried out in a manner that will not preclude students at Osceola High School from receiving regular classroom instruction from Respondent, will not preclude the automatic reinstatement of Respondent's teaching certificate at the conclusion of the period of suspension, and will not have an adverse effect for Respondent's current employment status at Osceola High School and any attendant benefits such as medical insurance and retirement benefits; or either at the election of Respondent or in the event it is not feasible to implement suspension subject to the limitations stated herein, an administrative fine not greater than $1,000 to be paid in lieu of suspension of the teaching certificate. The actual term of suspension or the actual amount of the fine, if elected, shall be determined by the Commission subject to the limits established in this Recommended Order. Respondent may elect to pay the fine at any time prior to the first day of the actual suspension determined by the Commission. Subject to the limits established herein, any fine elected by Respondent shall be imposed in accordance with the provisions of Section 231.262(6)(c), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1994. DANIEL MANRY 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 31st day of October, 1994.
The Issue The issue in this case is whether the Education Practices Commission (EPC) should discipline the Respondent, Bruce R. Ferko, on charges set out in an Administrative Complaint that he was alcohol intoxicated on and off the job as an elementary school teacher, was convicted of driving under the influence of alcohol (DUI), once falsely represented to the administration at his school that he was unable to teach because he was in the emergency room of a hospital when he was in fact in the county jail on (DUI) charges, and was guilty of personal conduct which seriously reduced his effectiveness as a teacher, in violation of Section 231.28(1)(c), (e), (f) and (h), Fla. Stat. (1989).
Findings Of Fact The Respondent, Bruce R. Ferko, held teaching certificate number 553660 issued by the Florida Department of Education, covering elementary education, at all times material to the allegations of the Administrative Complaint, until it expired on June 30, 1990. From approximately August, 1986, until approximately March, 1990, the Respondent was employed as a teacher at Southern Oak Elementary School in the Pinellas County School District. On July 11, 1988, the Respondent was arrested for driving under the influence of alcohol (DUI), fleeing and eluding a police officer, and driving with a suspended license. He pled guilty to the charges on August 30, 1988, and was sentenced to 30 days in the county jail, which was suspended, was fined a total of $382, was ordered to pay a total of $425 of court costs, was required to attend DUI school, and was placed on six months probation on two of the charges, to run concurrently. On several occasions during the 1988/1989 and 1989/1990 school years, the Respondent arrived at school with a smell of alcohol on his breath that was strong enough for at least four different employees at the school to have noticed on different occasions. When the smell was brought to the Respondent's attention, he sometimes would excuse himself to brush his teeth. On or about May 24, 1989, a fellow teacher with whom the Respondent team taught third grade in the 1988/1989 school year, noticed a very strong smell of alcohol on the Respondent's breath. The teacher was concerned and reported it to the school's assistant principal. The assistant principal consulted with the School District's chief personnel officer, who advised the assistant principal to have a conference with the Respondent about it this time. The Respondent admitted that he had been drinking the night before, had about five drinks, and did not eat breakfast. (Later, the assistant principal learned that he had been out until 2:00 a.m. that morning.) The assistant principal decided to send the Respondent to get something to eat and had to make arrangements to cover the Respondent's classroom responsibilities in the meantime. The Respondent often was late for school, especially during the 1988/1989 and 1989/1990 school years. Sometimes, he would take a shower at school when he arrived; sometimes, he would brush his teeth when he arrived at school. Once, after arriving late, the Respondent told an improbable tale of how his car broke down, requiring the Respondent to jump out and fall on his knee (although his white pants showed no evidence of this). Later the same day, the Respondent lay on top of another teacher's desk, in front of the teacher, and acted as if he was going to sleep. On January 17, 1990, the Respondent came to school late with the strong smell of alcohol on his breath and brushed his teeth when he arrived. While leading his class either to or from physical education class, the Respondent was heard singing "at the top of his lungs" This inappropriate behavior disrupted the classes being held nearby. The evidence was insufficient to causally connect the unusual behavior described in Finding 6, above, to the Respondent's use of alcohol. On the morning of October 12, 1989, the Respondent called the school office to arrange for a substitute classroom teacher to take his place for the morning. He reported that he was in the hospital emergency room and was spitting blood. The Respondent was asked if he was sure he only needed a substitute for the morning and was asked to call again if he would not be able to be in that afternoon. The Respondent neither called nor appeared for work the rest of the day, and last minute attempts had to be made to find a substitute for the Respondent for his afternoon classes. That evening, between 10:00 and 11:00 p.m., the Respondent telephoned the school secretary at home to ask if he was in trouble. He gave the excuse that he was lying on a table in the emergency room all morning having a barium enema and was not permitted to get up to call the school to get a substitute for the afternoon. Later, school officials learned that the Respondent had not been at the hospital that morning but rather, in fact, had been arrested earlier on the morning of October 12, 1989, and was in the Pinellas County Jail. (The evidence at the final hearing did not specify the charges or their disposition.) On the morning of October 24, 1989, the Respondent was scheduled to take his class on a field trip to Ruth Eckerd Hall, a performing arts center in Clearwater, with the other third grade class. The Respondent was late for school again, so late that the field trip almost had to be cancelled. He arrived with the strong smell of alcohol on his breath and complaining of a headache. When the bus arrived at Ruth Eckerd Hall, the Respondent jumped off and, inappropriately, headed across the busy parking lot toward the building well ahead of the children in his class, who were hurrying to try to keep up with him. The other third grade teacher was concerned for the safety of the children in the Respondent's class and had to take some of the stragglers from the Respondent's class, of whom the Respondent appeared oblivious, under her care for their safety. When the Respondent returned to school after the field trip, still complaining of a headache, he inappropriately yelled at one of the children in his class for not being appropriately dressed for Ruth Eckerd Hall, upsetting the child. On November 11, 1989, a Pinellas Park Police Department patrol officer saw the Respondent in his car weaving down the street and running a stop light. The officer attempted to stop the Respondent, who sped off in his car, leading the officer on a two mile chase at 60 miles per hour, 20 mile per hour over the legal speed limit, that ended in the driveway of the Respondent's residence. The Respondent resisted arrest (without violence), saying that he did not want to go back to jail because he would lose his job. The patrol officer had to call for back up assistance, and it took three officers to take the Respondent down to the ground to handcuff and arrest him. Although the Respondent's breathalyzer showed 13 to 14 percent blood alcohol, there was no evidence whether the breathalyzer was properly calibrated. However, the Respondent failed all four field sobriety tests, and it is found that he was intoxicated at the time of his arrest. Criminal charges are pending against the Respondent. He has failed to appear for criminal court proceedings, and there is an outstanding warrant for his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent, Bruce R. Ferko, guilty as specified in the Findings of Fact and Conclusions of Law and imposing the sanction that he be barred from applying for a new teacher certificate for a period of two years. RECOMMENDED this 18th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5822 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): 1.-2. Accepted and incorporated. Rejected in part as not proven. There was no evidence to prove the third and fourth sentences. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 5.-10. Accepted but subordinate, mostly to facts found. 11. Accepted and incorporated. 12.-21. Accepted but subordinate, mostly to facts found. Rejected as not proven. The witnesses were not clear as to the Respondent's contract status, and there was no evidence to prove the rest of the proposed finding. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Herdman, Esquire Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675 Bruce R. Ferko 109 Collier Place, Apt. 2C Cary, North Carolina 27513 George A. Bowen Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's teaching certificate should be revoked, suspended or otherwise disciplined for the violation alleged in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent held a Florida teaching certificate, number 652475, covering the area of substitute teaching, which is valid through June 30, 1993. At all times material to this proceeding, the Respondent was an authorized substitute teacher for the Pinellas and Manatee County School Districts. During the spring of 1990 Respondent was employed as a substitute teacher with the Manatee County School District and assigned as a teacher at Southeast High School. Respondent was an authorized substitute teacher for the Pinellas County School District, but after certain allegations arose concerning improper conduct by Respondent toward a student Respondent was not called to substitute. On May 3, 1989, the Respondent was arrested in Pinellas County and charged with soliciting a 14 year old child for sexual activity while in the position of custodial authority to the child. The child was a student in Respondent's class at Baypoint Middle School where Respondent was employed as a teacher by the Pinellas County School District. On May 3, 1989, Respondent was also arrested and charged with unlawfully obtaining a Florida Driver's license. In July 1989, the state attorney filed a two-count Information charging Respondent with procuring a person less than sixteen years for prostitution, and for soliciting for prostitution. Also, in July 1989, the state attorney filed an Information charging Respondent with knowingly making false statements, knowingly concealing a material fact, or otherwise committing fraud in an application for a Florida driver's license. On April 8, 1990, the Respondent was arrested in Pinellas County and charged with driving with a suspended driver's license. On April 27, 1990, the Respondent entered a plea of guilty to the charge of driving with a suspended license and was found guilty. The court withheld adjudication of guilt, and Respondent was ordered to pay $30.00 in costs. On May 4, 1990, Respondent was arrested and charged with petit theft. On June 21, 1990, the state attorney filed an Information charging Respondent with knowingly and unlawfully obtaining or using or endeavoring to obtain to use the property of another, to wit: petit theft, a second degree misdemeanor. On June 30, 1990, the Respondent entered a plea of guilty to the charge of petit theft. The court adjudged the Respondent's guilty and ordered him to pay a fine of $150.00 plus costs. On May 14, 1991, the Respondent entered a plea of nolo contendere to the charges of procuring a person less than sixteen years for prostitution, soliciting for prostitution, and making a false application for driver's license. The Respondent was represented by the Public Defender's office. The court withheld adjudication of guilt and imposition of sentence. The Respondent was placed on three years probation which included one year in the Community Control Program. The Respondent did not attempt to refute the above charges at the hearing. The Manatee County School Board became aware of Respondent's arrest in Pinellas County for solicitation of a minor and of certain alleged misconduct toward students at Southeast High School in Manatee County by the Respondent at the end of the 1989-90 school year. However, the Petitioner did not present any competent, substantial evidence of this alleged misconduct. The only evidence presented by the Petitioner was hearsay. There was insufficient evidence to show that Respondent's effectiveness as an employee of the School Board of Manatee County had been seriously reduced as a result of his personal conduct, notwithstanding that the Manatee County School Board would not rehire Respondent as a result of his personal conduct coming to their attention or the fact that his arrest and criminal history was reported in the Bradenton Herald, a daily newspaper circulated generally in Manatee County and the City of Bradenton. On September 4, 1990, in an attempt to secure employment with the District of Columbia Public Schools, Respondent signed a Disclosure Statement under penalty of perjury which included the following statement: I declare or affirm under penalty of perjury that I have not been convicted of, and or/am not the subject of pending charges for, the commission or attempt to commit any of the following offense(s), except as described below: murder; child abuse; rape; a sexual offense involving a minor or non-consenting adult; child pornography; kidnapping or abduction of a child; assault where the victim was a child under the age of sixteen years; illegal use, sale or distribution of controlled substances; illegal possession or use of weapons; or a crime of moral turpitude (i.e., one characterized by behavior or acts that violate moral sentiments accepted moral standards of the community and are of a morally culpable quality). I further certify that I am the applicant whose signature is affixed below. Although the Disclosure Statement provides a place for the description of convictions or pending charges, the Respondent did not list the conviction for petit theft or the pending charges of procuring a person less than sixteen years for prostitution, solicitation for prostitution and making false application for a driver's license that were pending in Pinellas County or the charges pending at the time in Manatee County for solicitation of a child for sexual acts by a person in custodial authority and solicitation of sex.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, it is, accordingly, RECOMMENDED: That a Final Order be entered finding Respondent, Kenneth K. Long guilty of violating Section 231.28(1)(c)(e) and (h), Florida Statutes and Rule 6B- 1.006(5)(a)(g) and (h), Florida Administrative Code, and for such violation permanently revoke Respondent's Florida teaching certificate No. 652475. It is further recommended that Counts III, VI, VII and VIII of the Administrative Complaint be dismissed. DONE and ENTERED this 27th day of August, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1992. APPENDIX TO RECOMMENDED ORDER In Case No. 92-7879 The following constitutes my specific ruling pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number is parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(5); 6(11); 7(7); 8(8); 9(9); 10(10); 11(12); 13(12); 14(13); 16(13); and 17-18(14). Proposed findings of fact 12 and 15 are rejected as not being supported by competent, substantial evidence in the record. Proposed finding of fact is more of an argument to support proposed finding of fact 18 than a proposed finding of fact. Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Margaret O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kenneth K. Long 5301 85th Avenue #202 New Carrolton, MD 20784 Karen Barr Wilde, Exec. Dir. 301 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact Notice of the hearing in this case was give in accordance with the applicable statutes and rules. Freddie Sills applied for a teaching certificate to the Department of Education. Sills' application was tentatively denied on the basis that he had pled guilty to the crime of manslaughter on April 30, 1971, had been sentenced to imprisonment for 20 years, and was on parole at the time of his application. Freddie Lee Sills requested a hearing on the question of the denial of his application. The Department of Education introduced Exhibit 1, an indictment of Freddie Lee Sills for the premeditated murder of Margaret A. Knots; Exhibit 2, an autopsy report on the victim Margaret Knots; Exhibit 3, a record of the non- jury arraignment of Freddie Lee Sills indicating the entry of his plea of guilty to a charge of manslaughter; Exhibit 4, a judgment of guilt of Freddie Lee Sills for the crime of manslaughter; and Exhibit 5, a sentence of Freddie Lee Sills to imprisonment for 20 years for the crime of manslaughter. All of the foregoing exhibits bear the certificate and seal of the Court of Orange County, State of Florida. No evidence was received in support of the application of Freddie Lee Sills for a teacher's certificate.
Recommendation Based upon the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the application for a teaching certificate of Freddie Lee Sills be denied. DONE AND ENTERED this 11th day of September 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Elise F. Judelle, Esquire Post Office Box 128 Tallahassee, Florida 32302 Mr. Freddie Lee Sills 6510 N.W. 30th Avenue Miami, Florida 33142
The Issue Whether Respondent (a) pushed a ten-year-old student against a wall and struck his arm with a closed fist; and/or (b) falsely answered a question on the application for renewal of her educator certificate, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's educator certificate.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules. Respondent holds Professional Educators Certificate 730057 (certificate). Valid through June 30, 2018, the certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Cooperative Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (ESE). At all times material to this proceeding, Respondent was employed as an ESE teacher at WHGES in the Miami-Dade County School District (District). Respondent has been employed by the District in a variety of capacities for a total of 25 years and in a teaching capacity for the last 17 years. The charges against Respondent arise from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. On that date, E.A. returned to Respondent's classroom after an in-school appointment with his therapist. Rather than entering the classroom, E.A. stood outside the closed door and knocked on the door intermittently for approximately five to ten minutes. Several students in the classroom went to the door to tell E.A. that the door was unlocked and to come in. When E.A. continued to knock on the door and disrupt the classroom, Respondent went to the door. Respondent was able to open the door part of the way and get her hand and part of her body in between the door and the door frame when E.A. pushed the door closed on Respondent and held it shut with his foot. Respondent shouted at E.A. to open the door and said repeatedly, "it's the teacher, open the door!" When E.A. removed his foot from the door, the door swung out towards the wall, trapping E.A. in a corner between the open door and the wall. Respondent yelled at E.A. to get into the classroom and struck him on the upper arm at least two times. Respondent also picked up E.A.'s backpack and threw it in the classroom. According to Respondent, she made physical contact with E.A. when he raised his arm and she believed he was about to hit her. Respondent claims she used a "defensive move" to prevent E.A. from striking her. Respondent's testimony is inconsistent with that of E.A. and several students who witnessed the event, and deemed not credible by the undersigned. According to E.A., Respondent definitely meant to hit him although he was not hurt physically by the contact. E.A. entered the classroom crying because he was very embarrassed that this occurred in front of his fellow classmates. This altercation was witnessed by another teacher who reported it immediately to administration. Assistant Principal Mary Pineiro (Pineiro) was sent to the classroom to determine what happened. Pineiro observed E.A. crying and holding his arm. Pineiro heard another student say, "I cannot believe you did that to my friend," to Respondent. Respondent refused to answer Pineiro's questions regarding the incident. The teacher and other students who witnessed the event were sent to the office and asked to provide written statements of what they observed. The statements were provided independently and students were separated when they wrote their statements. They were not told what to write and their statements were not edited. The statements corroborated E.A.'s version of events that he was playing around outside the door when Respondent came out and struck him on the arm several times. On February 15, 2012, Respondent was suspended without pay from her teaching position for 25 days which was later upheld after a formal hearing (DOAH Case No. 12-0808TTS). By certified letter dated March 14, 2012, Petitioner informed Respondent that PPS opened a case to investigate her use of inappropriate discipline.2/ On August 9, 2012, another certified letter was sent from Petitioner to Respondent advising that Petitioner had "concluded its preliminary investigation" and wanted to provide Respondent an opportunity to review the materials and respond to the allegations. The letter states that Respondent is not required to respond and that an informal conference was scheduled for August 29, 2012. Respondent wrote back to Katrina Hinson (Hinson) with PPS on August 31, 2012, thanking PPS for "putting me on this pedestal of honor" and giving her the opportunity to refute the allegations of misconduct. Respondent asserts in this letter that she is the victim of a "mafia-type, posse ring" and the victim of a conspiracy including Pineiro and others at WHGES. Rather than respond to the allegations of misconduct, Respondent's three-page letter appears to be a plea for help from Respondent to protect her teaching position from the "obsessive hate" of the alleged conspirators. Petitioner sent a memo to Respondent on August 30, 2012, enclosing a copy of the materials assembled during the preliminary investigation conducted by PPS. The purpose of this memo appears to be to notify Respondent to keep the materials confidential during the proceedings. This memo and the materials were received by Respondent on September 8, 2012. On September 17, 2012, Respondent wrote another letter to Hinson at PPS in which she states, "to be in compliance with your office's investigation, I am writing for professional guidance in regard to curtailing the constant bare-faced humiliation and bait-and-switch torture by Dade County Public School's [sic] employees, as my soul is longing for peace to have solace to grieve my loss in every respect of life fulfillment." Respondent asks whether PPS is part of the DOAH process, complains about the union attorney and the school board attorney and asserts that the "mafia-type posse wants me to be on an accelerated program for homelessness and malnutrition." This letter, and its reference to an "investigation," is not a response to allegations of misconduct but rather appears to be Respondent's attempt to seek help from PPS with regard to the DOAH proceeding. The final hearing in the DOAH proceeding regarding Respondent's suspension without pay occurred before Administrative Law Judge Stuart M. Lerner on September 24, 2012. On October 1, 2012, Respondent wrote another letter to Hinson which states in the opening paragraph: To be in compliance with your office's investigation, I am writing for professional guidance in regard to my mental faculty due to my mild malnourished and homeless states, as I am constantly being deprived of rightful income due to a group of vicious, hateful, and jealous so-called professional educators and so-called professional administrators of Dade County public schools. This letter states, "I am being sanctioned (mentally slaved [sic]) that if I return to employment of Dade County Public Schools. I cannot communicate further with your office, neither through writing or telephone." In this letter, Respondent asserts that E.A. and the student witnesses were "coached to give false witness against me." Regarding the incident with E.A., Respondent states, "the student kidnapped me between the door and the door jamb, and battered me with the door to my head and upper torso, that left me with a mild head trauma." A similar letter was written by Respondent to Hinson on October 5, 2012. Respondent does not mention any "investigation" but again asks for help from Hinson stating: May you please go another extra mile to help me? I beg of you. My grasp to hope is weakening as my resilience to these evil ones has been for many, many years. They have cornered me by attacking my every phase of bottom line. Please, do not allow evil to have dominion over good. A final letter by Respondent to Hinson was written on October 19, 2012, in which Respondent complains that she is being unfairly harassed by the principal at her new assigned school, Aventura Waterway K-8 Center. Notably, Hinson did not reply to any of the correspondence from Respondent. According to Hinson, PPS has no authority to address concerns or complaints about harassment or discrimination. This information was not communicated by PPS to Respondent. What is clear from these letters is that Respondent had no understanding that she was under investigation by DOE. Rather, Respondent erroneously believed that PPS would intervene on her behalf with regard to her then-pending matter before DOAH or with her assigned schools. The final order upholding Respondent's suspension without pay was issued by the District on February 13, 2013. Respondent alleges that, at that time, she was advised by her union representative that the matter was concluded and that she did not have to worry about this incident any further. On March 18, 2013, Respondent filed her annual application for renewal of her educator's professional certificate with the District. In response to the question, "Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for professional license or certificate?" Respondent answered "No." Respondent certified by her application signature that all information provided in the application was "true, accurate and complete." When the District received and reviewed the application, a computerized alert was received from Petitioner indicating that an investigation was pending with PPS. Jose Garcia, Certification Officer for the District, notified Respondent by memorandum dated April 17, 2013, that Respondent needed to return a corrected application. Respondent did not believe she was under investigation and thought that by indicating "yes" on the form, she would be incriminating herself. Respondent wrote Governor Scott an email on May 17, 2013, alleging that PPS and the District Certification Office were wrongfully preventing the renewal of her application in an attempt to prevent her from working with children with disabilities. As a result of this email, the alert was removed from Respondent's certificate and it was reissued by the District. Respondent never acknowledged the DOE investigation in her application for renewal. Petitioner considers Respondent's refusal to acknowledge the pending PPS investigation as an attempt to renew her certificate by fraudulent means. The Administrative Complaint charges Respondent as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(a), Florida Statutes, in that Respondent obtained or attempted to obtain a teaching certificate by fraudulent means. COUNT 2: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 3: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 4: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 5: 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 6: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings. Respondent filed a Motion for a Formal Hearing on December 26, 2013, with the EPC in which she disputed all of the allegations of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the incident with E.A., with a copy to be placed in Respondent's certification file, and placing Respondent on probation for a period of 90 school days. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 22nd day of January, 2015.