02-001371PL Charlie Crist, As Commissioner Of Education vs. Ellen G. Goldberg Status: Closed Recommended Order on Friday, December 6, 2002.

Summary: Petitioner failed to prove that Respondent teacher had violated the ethics rules by asking students whom their parents had voted for in the 2000 presidential election.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1371PL

)

ELLEN G. GOLDBERG, )

)

Respondent. )

)

RECOMMENDED ORD ER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on August 29, 2002, in Miami,

Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th St reet

Fort Lauderdale, Florida 33316 - 1924

For Respondent: O. Frank Valladares, Esquire

Richard B. Marx & Associates

66 West Flagler Street, Second Floor

Miami, Florida 33130

STATEMENT OF THE ISSUES

The issues in this case are wheth er Respondent violated the

Principles of Professional Conduct for the Education Profession,

specifically Rules 6B - 1.006(3)(a), (e), (f), (g), (i), and 6B -

1.006(4)(a), Florida Administrative Code, and, if so, what

disciplinary action should be taken against her pursuant to

Section 231.2615(1)(i), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 26, 2001, Petitioner

Charlie Crist, as Commissioner of Education (the “Commissioner”),

charged Respondent Ellen Goldberg, the holder o f a valid Florida

Educator's Certificate, with having violated the ethical rules

governing teachers based on the allegation that she had asked her

students how their parents had voted in the 2000 presidential

election and had singled out supporters of the Republican

candidate for unfavorable treatment. Goldberg disputed the

factual allegations and timely requested a formal hearing. On

March 29, 2002, the Commissioner referred this matter to the

Division of Administrative Hearings for a formal hearing.

Th e administrative law judge to whom the case initially was

assigned scheduled a final hearing for June 24, 2002. The final

hearing was continued twice on Respondent’s motions and took place

on August 29, 2002. Before the final hearing, the Commissioner

re quested and was granted leave to file an Amended Administrative

Complaint, which he did on August 6, 2002.

At the final hearing, the Commissioner called 2 witnesses:

Carmen Trimas, a parent; and Lourdes Delgado, the Principal of

Shenandoah Middle School. He also introduced the depositions of

students Matthew Fletcher and Silvia Echevarria in lieu of their

personal appearances. Finally, the Commissioner offered seven

exhibits, numbered 1 - 5, 7, and 8 —— which latter is the deposition

of Respondent Ellen Gol dberg —— and these were received in evidence.

Respondent testified on her own behalf and called Ellyn

Biggs, a friend and former colleague; Maritza Aragon, the

Principal of Youth Co - op Charter School; and Yaslen Jimenez, a

student. Additionally, Responde nt moved exhibits lettered A - H and

J into evidence.

The transcript of the final hearing was filed on October 8,

2002. Each party timely submitted a Proposed Recommended Order,

both of which were carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent Ellen Goldberg (“Goldberg”) holds a Florida

Educator's Certificate that is currently valid. For the past 20

years, more or less, she has been employed as a public school

teacher in the Dade County School District. In the 2000 - 2001

school year, Goldberg taught reading and language arts to

seventh graders at Shenandoah Middle School.

2. On November 8, 2000, many of Goldberg’s students were

interested in discussing the presidential election, which had

not yet pro duced a president - elect, though the polls had closed

the night before. 1 Believing this topic would be a good subject

for an academic debate, Goldberg asked her students if they knew

whom their parents had voted for —— Governor George W. Bush of

Texas or Vic e President Al Gore —— and why. A majority of those

who responded expressed support for Gore. 2

3. Because they were in the minority, Goldberg put the

onus on the Bush backers to recite factual grounds for their

choice, ostensibly to persuade the Gore sup porters that Bush was

the superior candidate. Those students who, in Goldberg’s

judgment, gave thoughtful answers were given extra credit.

Those who failed adequately to articulate reasons for choosing

Bush (or elected not to participate in the discussio n) received

no extra credit but were not penalized. Participation in the

discussion was voluntary.

4. There is conflicting evidence as to whether Goldberg

called upon Gore supporters likewise to defend their man. It is

determined that some students, lo oking for extra credit, did

volunteer to speak on Gore’s behalf.

5. During this discussion, Goldberg revealed to her

students that she had voted for Gore. She also argued that Bush

wanted to take away a woman’s right to an abortion. The

undersigned i s convinced that Goldberg made it clear to her

class where she stood in this electoral contest.

6. At least a couple of students were upset that their

teacher had asked how their parents had voted and also seemed to

be advocating partisan political views that they did not share.

One student’s mother, after being told about this classroom

debate, wrote a letter to the school’s principal complaining

about the incident. This parent requested that her son be

removed from Goldberg’s class, and he was. 3

7. In due course, the school initiated an internal

disciplinary proceeding against Goldberg that culminated, on

December 14, 2000, with the principal issuing the teacher a

letter of reprimand. In this letter, Goldberg was directed “to

immediately refrain fro m imparting [her] personal views and

beliefs and sharing one - sided views with [her] students” and “to

refrain from using inappropriate procedures in the performance

of [her] assigned duties.”

The Charges

8. In his Amended Administrative Complaint against

Goldberg, which was served on August 6, 2002, the Commissioner

made the following pertinent factual allegations:

On or about November 9, 2000, [Goldberg]

asked her students how their parents voted

in the presidential election. However, only

those student s who said their parents had

voted for Bush had to explain their answers.

Some students reported that it made them

feel nervous and uncomfortable to talk about

their parents’ decisions in this way.

Additionally, [Goldberg] told her students

who she voted for and made negative comments

about the other candidate. On or about

December 14, 2000, [Goldberg] was issued a

letter of reprimand by her principal.

On these allegations, the Commissioner accused Goldberg of

having violated subsections (3)(a), (3)(e ), (3)(f), (3)(g),

(3)(i), and (4)(a) of Rule 6B - 1.006, Florida Administrative

Code, which are part of the Principles of Professional Conduct

for the Education Profession in Florida. If proved by clear and

convincing evidence, the alleged rule violations would be

grounds for discipline under Section 231.2615(1)(i), Florida

Statutes.

Ultimate Factual Determinations

9. While the undersigned agrees with the Commissioner that

Goldberg exercised poor judgment in her classroom on November 8,

2000, 4 he is not convinced that she intended to disparage,

embarrass, discriminate against, or infringe upon the rights of,

any of her students. Rather, Goldberg’s explanation that she

believed the political debate served the legitimate pedagogic

purpose of honing the st udents’ critical thinking skills, which

would be useful on a standardized test such as the Florida

Comprehensive Assessment Test, is accepted. This is not to

suggest that no student was offended or embarrassed in

Goldberg’s class that day or to discount t he feelings of those

who were, but only to find that it was not Goldberg’s conscious

object to cause such discomfiture.

10. The undersigned is not convinced that Goldberg

unreasonably created conditions in her classroom that were

harmful to learning or h armful to her students. To be sure, the

undersigned is of the opinion that Goldberg’s questioning her

seventh - grade students about how their parents had voted, even

as part of a voluntary exercise for extra credit, was ill

advised, as was expressing her p ersonal political views. The

undersigned reasonably infers, however, that on the day after an

extraordinary presidential election that was too close to call,

some discussion of the current political events was probably

unavoidable. Therefore, given the c ontext in which Goldberg’s

conduct occurred, it would be unfair and inaccurate to

characterize the conditions in her classroom as harmful.

11. Goldberg did not fail to keep in confidence

“personally identifiable information.” The information she

solicit ed (how parents had voted) would not, by itself, permit

the personal identification of any student. Moreover, in any

event, there is no evidence —— and hence can be no finding —— that

Goldberg disclosed this information outside the classroom,

wherein its use, Goldberg believed, served a professional

purpose.

12. The undersigned is not convinced that Goldberg

attributed her personal views to the school or any other

organization with which she was affiliated. The problem in this

case is not that Goldberg fail ed reasonably to distinguish

between her personal views and those of the school (or another

organization), but rather that she expressed personal views

which prudence dictates she should have kept to herself.

13. The undersigned is not convinced that Gol dberg’s

effectiveness as a teacher has been impaired in any way as a

result of the incident that occurred on November 8, 2000.

CONCLUSIONS OF LAW

14. T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding p ursuant to

Secti ons 120.569 and 120.57(1), Florida Statutes.

15. Upon a finding of probable cause to believe that

grounds exist to revoke or suspend a teaching certificate, or to

impose any other appropriate penalty against a teacher, the

Commissioner is responsible for prosecuting the formal

administrative complaint. Section 231.262(6), Florida Statutes

(2001). 5

16. If the Commissioner proves any of the grounds for

discipline enumerated in Section 231.2615, Florida Statutes,

then the Education Practices Commission (the “Commission”) is

empowered to punish the certificate holder by imposing penalties

that may include one or more of the following: permanent

certificate revocation; certificate revocation, with

reinstatement following a period of not more t han ten years;

certificate suspension for a period of time not to exceed three

years; imposition of an administrative fine not to exceed $2,000

for each count or separate offense; restriction of the

authorized scope of practice; issuance of a written repri mand;

and placement of the teacher on probation for a period of time

and subject to such conditions as the Commission may specify.

Sections 231.261(7)(b), 231.2615, and 231.262(7), Florida

Statutes.

17. Section 231.2615(1)(i), Florida Statutes, authorizes

the Commission to take disciplinary action against a teacher who

has “violated the Principles of Professional Conduct for the

Education Profession in Florida prescribed by State Board of

Education rules.”

18. Rule 6B - 1.006, Florida Administrative Code, p rovides

in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or su spension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning an d/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

* * *

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves prof essional purposes or

is required by law.

* * *

(4) Obligation to the public requires

that the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization w ith which the individual is

affiliated.

19. The foregoing statutory and rule provisions are penal

in nature and must be strictly construed, with ambiguities being

resolved in favor of the licensee. Lester v. Department of

Professional and Occupational R egulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977). Whether Goldberg violated these rules, as

charged, is a question of ultimate fact to be decided in the

context of each alleged violation. McKinney v. Castor , 667 So.

2d 387, 389 (Fla. 1st DCA 1995); La ngston v. Jamerson , 653 So.

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

20. For the Commission to suspend or revoke a teacher's

certificate, or to impose any other penalty provided by law, the

Commissioner must prove the charges by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987); McKinney , 667 So. 2d at 388. Further, the grounds proven

must be those specifically alleged in the administrative

complaint. See , e.g. , Cottrill v. Department of Insurance , 685

So. 2d 1371, 1372 (Fla . 1st DCA 1996); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v.

Department of Professional Regulation , 458 So. 2d 842, 844 (Fla.

2d DCA 1984).

21. Regarding the standard of proof, i n Slomowitz v.

Walker , 429 So. 2d 79 7, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

“workable definition of clear and convincing evidence” and found

that of necessity such a definition would need to contain “both

qualitative and quantitative standards.” The court held that

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses m ust be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the fourth

district’s description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93 - 62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that “[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous.” Westinghouse Elec. Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

22. As set forth in the Findings of Fact above, the trier

has determined as matter of ultimate fact that Goldberg did not

violate the Principles of Professional Conduct as alleged.

These factual findings, however, were necessarily informed by

the administrative law judge's application of the law. A brief

discussion of the pertinent legal principles, therefore, will

illuminate the dispositive findings of ultimate fact.

Rules 6B - 1.006(3)(e) & (f)

23. Rule 6B - 1.006(3)(e), Florida Administrative Code,

requires a finding that the teacher “intentionally” embarrassed

or disparaged a student. 6 Subsection (3)(f) similarly prohibits

the intentional violation or denial of a stud ent’s legal rights.

To prevail under either provision, therefore, the Commissioner

must prove that “the teacher made a conscious decision not to

comply with the rule.” Langston v. Jamerson , 653 So. 2d 489,

491 (Fla. 1st DCA 1995). Because the undersigne d is not

convinced that Goldberg deliberately sought to harm any student

in violation of these rules, the offenses were not established. 7

Rule 6B - 1.006(3)(g)

24. Rule 6B - 1.006(3)(g), Florida Administrative Code, also

requires a showing of intent on the te acher’s part —— an intent to

harass or discriminate on the basis of an impermissible factor

such as political beliefs. Based on the evidence in this case,

the undersigned is unable to find, without hesitancy, that

Goldberg acted out of a conscious desire to harass or

discriminate against students whose parents had voted for Bush.

Therefore, this offense was not proved.

Rule 6B - 1.006(3)(a)

25. Rule 6B - 1.006(3)(a), Florida Administrative Code,

imposes on teachers the affirmative duty to protect students

fro m harmful conditions. The standard against which a teacher's

performance of this duty is measured is an objective one: she

must make a “reasonable effort.” Therefore, a teacher's

subjective intent is not determinative of whether Rule 6B -

1.006(3)(a) was violated.

26. Interestingly, the rule does not expressly prohibit a

teacher from creating a harmful condition. 8 The rule's drafters

seem to have envisioned that the duty to make a reasonable

protective effort would arise most often in situations where th e

harmful condition was not one of the teacher's own doing. 9

Nevertheless, if a teacher creates a harmful condition, then the

rule clearly requires that she make a reasonable effort to

protect the student from it.

27. In this case, the Commissioner fail ed to establish

clearly and convincingly that the conditions in Goldberg’s

classroom were harmful in any manner contemplated by Rule 6B -

1.006(3)(a), Florida Administrative Code; hence, the duty to

make a reasonable protective effort was not triggered, and as a

result there can be no finding that Goldberg violated this

provision.

Rule 6B - 1.006(3)(i)

28. Under Rule 6B - 1.006(3)(i), Florida Administrative

Code, a teacher must not disclose “personally identifiable

information” about her students except in the service of

“professional purposes” or as required by law. The awkward

phrase “personally identifiable information” is not defined in

the rule but most certainly was intended to describe information

that permits the personal identification of a student. S ee

Florida State University v. Hatton , 672 So. 2d 576, 578 - 79 & n.3

(Fla. 1st DCA 1996). In other words, the rule does not refer

generally to all personal information, but rather, more

narrowly, to information unique to a person ( e.g. name, address,

socia l security number) which reveals, discloses, or points to

that particular student’s identity .

29. The information at issue here —— how parents voted in a

presidential election —— is personal information, certainly, but

not “personally identifiable informat ion.” Consider that

approximately 50 million voters cast their ballots for Bush.

Therefore, if Student A reveals in class that his parents voted

for Bush, such disclosure might violate his parents’ confidence,

but the datum divulged is simply too common to identify Student

A. That being so, Goldberg was not shown impermissibly to have

disclosed personally identifiable information concerning any

student.

Rule 6B - 1.006(4)(a)

30. Teachers are required to take “reasonable precautions”

to distinguish their personal views from those of the school and

other institutions with which they are affiliated. See Rule 6B -

1.006(4)(a), Florida Administrative Code. There is no evidence

that Goldberg failed to do this. To the contrary, the evidence

shows clearly that t he students understood Goldberg to have

expressed her own personal views concerning the candidates and

issues. Thus, the alleged violation of this rule was not

established.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a final order

dismissing the Amended Administrative Complaint against

Respondent Ellen Goldberg. Jurisdiction is retained in this

cause to enter a final order disposing of Goldberg’s motion for

sanctions ( i.e. an a ward of attorney’s fees and costs) pursuant

to Section 120.569(2)(e), Florida Statutes. If the Commissioner

wants to be heard on this matter, he shall file a written

response no later than December 27, 2002.

DONE AND ENTERED this 6th day of December, 2002 , in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December, 2002.

ENDNOTES

1 / The undersigned takes offici al recognition of the fact, which

is generally known, that the outcome of the presidential

election held on November 7, 2000, hinged upon the canvassing of

votes in Florida, a process that continued, in one form or

another, until December 12, 2000, when th e U.S. Supreme Court

issued a decision that effectively stopped the vote counting.

See Bush v. Gore , 531 U.S. 98, 121 S.Ct. 525 (2000).

2 / No one, apparently, rose in support of Green Party candidate

Ralph Nader or Reform Party candidate Pat Buchanan.

3 / The student in question had expressed support for Bush and

received extra credit for his answer. Goldberg had told the

student that he could receive additional extra credit if he

wrote a report on Bush’s record.

4 / In his Proposed Recommended Orde r, the Commissioner asserts

that Goldberg “is a seventh grade teacher who crossed over the

line separating good from bad judgment.” As indicated, the

undersigned concurs with this assessment. To be fair, however,

several important qualifications should b e attached to this

observation.

First, poor judgment, standing alone, is not a

disciplinable offense pursuant to Section 231.2615(1)(i),

Florida Statutes. Here, the undersigned has determined, as a

matter of ultimate fact, that Goldberg did not violate a

specific disciplinary rule.

Second, the undersigned’s determination that Goldberg

exercised poor judgment is, he concedes, primarily based on a

personal opinion that public school teachers, as a matter of

tact and discretion, should refrain from enga ging in openly

partisan political advocacy —— and from making comments that

reasonably could be interpreted as such —— in their classrooms.

For whatever reasons, however, the Principles of Professional

Conduct for the Education Profession in Florida do not

ex plicitly forbid political proselytizing.

It is interesting, in this regard, to note that Goldberg

has been lauded in the past for classroom activities that could

easily be considered a form of issue advocacy with political

overtones. In newspaper clippi ngs that Goldberg offered into

evidence, she is described, favorably, as a “born rebel” and “an

ardent whale and dolphin advocate” who has “fired up” her

students to become “anti - whaling crusaders” who write letters to

governmental officials and make video s, posters, and placards

“denouncing the killing of whales.” In one article, Goldberg is

praised by a spokesperson for the Environmental Investigation

Agency, which is described as “a nonprofit group dedicated to

saving endangered animals.” Not everyone, of course, subscribes

to aggressive save - the - whale efforts, which some might consider

to be part of a broader, left - leaning environmental movement.

Surely, there must be some parents who prefer that their

children not be urged at school to join an anti - w haling crusade.

Imagine, by way of contrast, a hypothetical middle school

teacher, “Mr. Smith,” who is a firearms enthusiast and an ardent

Second Amendment rights advocate. Mr. Smith inspires his

students to become anti - gun control crusaders, encouragi ng them

to write letters and make videos, posters, and placards

denouncing efforts to create a national database of ballistics

imaging data. For this he is applauded by the National Rifle

Association, a nonprofit organization dedicated to firearms

educati on and the protection of Second Amendment rights.

Conceptually, our hypothetical Mr. Smith’s actions are

identical to Goldberg’s; only the underlying cause is different.

And neither form of issue advocacy is expressly prohibited under

the state’s discipl inary rules (although the undersigned

suspects that Mr. Smith would not be permitted to advance a pro -

gun agenda in his classroom).

As this brief discussion illustrates, formally regulating

teachers’ speech would be a delicate matter requiring a carefu l

balancing of competing interests. At present, it appears that

setting the boundaries of acceptable classroom discourse

concerning political subjects is a responsibility largely

committed to the teacher’s discretion and judgment. While the

undersigned t hinks Goldberg crossed the line in this instance,

she cannot be disciplined based on the administrative law

judge’s personal preferences. If the Department of Education

wants to impose more stringent controls on classroom speech, it

should adopt a specifi c disciplinary rule on the topic.

Finally, the undersigned personally believes that a teacher

should not ask students how their parents voted in an election,

even if answering the question is voluntary, for the same

reasons that students should not be as ked what books and

magazines their parents read, what websites they visit, what

clubs they belong to, what religion they practice, and so forth.

But the disciplinary rules do not explicitly proscribe such

conduct, again apparently leaving to the teacher’s discretion

the matter of where to draw the line between appropriate and

inappropriate inquiry of students respecting their parents’

private lives. Absent a specific rule concerning such

inquiries, the undersigned cannot recommend discipline against

Goldb erg based on the facts at hand.

5 / The statutory references herein are to the 2001 Florida

Statutes. In 2002, the legislature substantially revised the

Education Code. Most of the provisions of the recently enacted

legislation will not take effect unti l January 7, 2003. See Ch.

2002 - 387, s. 1064, Laws of Florida.

6 / The First District Court of Appeal has described Rule 6B -

1.006(3)(e), Florida Administrative Code, as an “aspirational”

rule, the “violation of which could only justify suspension of a

te aching certificate if there was factual evidence that the

violation was so serious as to impair the teacher's

effectiveness in the school system.” Langston v. Jamerson , 653

So. 2d 489, 491 (Fla. 1st DCA 1995); MacMillan v. Nassau County

School Board , 629 So. 2d 226, 228 (Fla. 1st DCA 1993). There is

no evidence in this record showing that Goldberg’s effectiveness

in the school system has been impaired.

7 / Further, the undersigned agrees with Goldberg’s contention

that the Commissioner failed to articula te clearly any legal

right(s) of students that Goldberg intentionally could have

denied or violated under these circumstances. The Commissioner

argues that Goldberg violated her students’ parents ’ right of

privacy concerning political beliefs, which is a reasonable

concern, see endnote 4, but one not specifically addressed by

Rule 6B - 1.006(3)(f), Florida Administrative Code.

8 / The rule might be construed to imply that the creation of a

harmful condition is a per se violation of the “reasonable

effort” standard. Were the rule so understood, then the

creation of a harmful condition would bespeak a lack of

reasonable effort under all circumstances. This, however, would

be an impermissibly liberal or expansive interpretation of a

rule that is penal in na ture and hence must be strictly

construed. Lester v. Department of Professional and

Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

9 / In imposing on a teacher the duty to protect students against

harmful conditions created by other s, the rule deviates from the

common law, under which a person is not required to protect

another from danger unless he himself has created the danger.

Thompson v. Baniqued , 741 So. 2d 629, 631 (Fla. 1st DCA 1999).

COPIES FURNISHED:

Charles T. Whitelock , Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316 - 1924

O. Frank Valladares, Esquire

Richard B. Marx & Associates

66 West Flagler Street, Second Floor

Miami, Florida 33130

Kathleen M. Richards, Execut ive Director

Florida Education Center

Department of Education

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

T allahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writt en exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.