02-004775PL Charlie Crist, As Commissioner Of Education vs. Michael R. Jacobs Status: Closed Recommended Order on Wednesday, April 23, 2003.

Summary: It was not proven that Respondent sexually harassed or engaged in sexual innuendo with students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION, 1/ )

)

Petitioner, )

)

vs. ) Case No . 02 - 4775PL

)

MICHAEL R. JACOBS, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

Notice was provided and on February 27, 2003, a formal

hearing was held in this case at the Alachua County Courthouse,

201 East University Avenue, Gainesville, Florida. Authority

for conducting the hearing is set forth in Sections 120.569,

and 120.57(1), Florida Statutes. The hearing was conducted by

Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ginger L . Barry, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Pal m Harbor, Florida 34684

STATEMENT OF THE ISSUE

Should the State of Florida, Education Practices

Commission (EPC), impose discipline against Respondent, who

holds Florida Educator's Certificate No. 292611, for the

alleged violations set forth in EPC Case No. 001 - 0121 - A?

PRELIMINARY STATEMENT

On February 13, 2002, Charlie Crist, as Commissioner of

Education, brought an Administrative Complaint in EPC Case

No. 001 - 0121 - A against Respondent. The material allegations

in that complaint were as follows:

During the spring of 2000, Respondent

sexually harassed female students.

Respondent told the girls that the shorter

their shorts were, the higher their grades

would be. During March 2000, Respondent

inappropriately touched M.H., a 16 - year -

old, female st udent, by lifting up her

shirt to look at her tan. Further,

Respondent commented to M.H. that he would

watch her butt to make sure it did not get

too big. Respondent also made

inappropriate comments, which included

sexual innuendo, to E.C. and L.B. both 15 -

year - old, female students. On or about May

30, 2000, Respondent's assistant principal

issued him a letter of reprimand for his

conduct.

Based upon this alleged misconduct Respondent was accused

of violating Sections 231.2615(1)(c) and 2 31.2615(1)(i),

Florida Statutes, as well as Rules 6B - 1.006(3)(a) and 6B -

1.006(3)(e), Florida Administrative Code, representing counts

one through four to the Administrative Complaint.

By an election of rights officially received on March 15,

2002, Respond ent asked for a period of time to discuss

possible settlement. If the settlement was not obtained

Respondent requested a formal hearing. A settlement was not

reached.

On December 11, 2002, the case was referred to the

Division of Administrative Hearing s for formal hearing. The

case was assigned and the hearing ensued.

Petitioner presented the witnesses L.B., E.C., Loretta J.

Shane, Lamar Simmons, and Sandi Anusavice. Respondent

testified and presented the witness F.T.B.

The parties prepared a resp onse to a pre - hearing order.

In that response they stipulated to certain facts as reported

in the Findings of Fact to the Recommended Order.

On March 26, 2003, the hearing transcript was filed.

Subsequently the parties filed proposed recommended orders

which have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts:

1. Respondent holds a Florida Educators Certificate

(FEC), number 292611, in the areas of General Science,

Physical Education, and Middle Grades.

2. Respond ent's FEC is valid through June 30, 2005.

3. At all times relevant to this proceeding, Respondent

was employed as Physical Education Teacher at Sante Fe High

School (Sante Fe) in the Alachua County School District.

Additional Facts:

4. During his care er Respondent has been employed by the

Alachua County School Board as part of the instructional

staff. His career spans 33 years. Respondent taught physical

education at Sante Fe from 1974 through 2001. In the last two

years he has taught at Bucholz Hig h School in drivers

education.

5. The physical education curriculum at Sante Fe, to

include the spring of 2000, emphasized physical activity for

the students three days a week. Two days a week were devoted

to classroom instruction. The physical fitness instruction

emphasized cardio vascular conditioning and building endurance

in the participants' muscles. The physical activity took

place both inside the gymnasium and outside on the school

grounds. The physical activity involved stretching before

engagi ng in the prescribed activity.

6. A typical physical fitness class taught by Respondent

would have had 35 to 48 students. In the spring of 2000 two

of the students taught physical education by the Respondent

were E.C. and L.B., who were ninth graders.

7. On the whole, the proof is not clear and convincing

that Respondent inappropriately stared at the students E.C.

and L.B. when they were doing their exercises in the physical

education class in the spring of 2000, as they claim.

8. During the spring of 2000 E.C. and L.B. went to

Respondent's office to exchange a basketball which was flat

for one that was not. After the students asked for a new

basketball Respondent replied "well that's not the only thing

that's flat" while looking in the direction of t he students.

The students took this remark to be intended as sexual

innuendo concerning the chest of the student E.C. but their

impression was gained outside the context of another remark

made at that time directed to those students referring to them

as a "bunch'a airheads." When the set of remarks are

considered together they do not constitute remarks that are

perceived as sexual harassment or sexual innuendo as alleged

in the Administrative Complaint. To refer to students as

"airheads" is not appropria te, however that remark is not the

subject of the Administrative Complaint. The comments made by

Respondent directed to E.C. and L.B. were overheard by a male

student, F.T.B.

9. M.H., whom one can infer was a student at Sante Fe,

showed Respondent he r midriff where she had been sunburned.

Respondent commented "M., you need to put sunscreen on.

You're going to get burnt up." No other facts were

established concerning Respondent and the student M.H.

10. Contrary to the material allegations in the

Administrative Complaint, no proof was presented concerning

the allegation that Respondent told female students in his

class that the shorter their shorts were, the higher their

grades would be.

CONCLUSION OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties in this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

12. Petitioner bears the burden to prove the material

allegations in the Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

13. Count I to the Administrative Complaint alleges

misconduct in violation of Section 231.2615(1)(c), Florida

Statutes, now Section 1012.795(1)(c), Florida Statutes, in

that R espondent has been guilty of gross immorality or an act

involving moral turpitude. That allegation has not been

proven.

14. Count II to the Administrative Complaint alleges

that Respondent has engaged in misconduct by violating Section

231.2615(1)( i), Florida Statutes, now Section 1012.795(1)(i),

in that Respondent has violated the Principles of Professional

Conduct for the Education Profession in Florida prescribed by

the State Board of Education. The specific provisions within

the Principles of P rofessional Conduct for the Education

Profession in Florida are addressed in Count III and Count IV

to the Administrative Complaint.

15. Count III to the Administrative Complaint alleges

misconduct in violation of Rule 6B - 1.006(3)(a), Florida

Adminis trative 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 safety. That allegation has not been proven.

16. Count IV to the A dministrative Complaint alleges

misconduct in violation of Rule 6B - 1.006(3)(e), Florida

Administrative Code, in that Respondent has intentionally

exposed a student to unnecessary embarrassment or

disparagement. That allegation has not been proven.

17 . Having failed to prove the allegations in Counts III

and IV, Petitioner has also failed to prove the allegations in

Count II.

RECOMMENDATION

Upon the consideration of the facts found and conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered dismissing the

Administrative Complaint in all its counts.

DONE AND ENTERED this 23rd day of April, 2003, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www. doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of April, 2003.

ENDNOTE

1/ This case commenced before the State of Florida, Education

Practices Commission, Charlie Crist, as Commis sioner of

Education, Petitioner vs. Michael R. Jacobs, Respondent , Case

No. 001 - 0121 - A. Since that time Charlie Crist was elected

Attorney General in Florida and Jim Horne became the

Commissioner of Education. The style of the case before the

Division of Administrative Hearings has been corrected to

reflect that change.

COPIES FURNISHED:

Ginger L. Barry, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

Mark Herdman, Esquire

Herdman & Sakellar ides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.