03-002274PL Jim Horne, As Commissioner Of Education vs. Donna C. Buhmeyer Status: Closed Recommended Order on Tuesday, October 7, 2003.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent failed to make reasonable efforts to protect the safety of one of her students. Case dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2274PL

)

DONNA C. BUHMEYER, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

on August 14, 2003, in Dade City, Florida.

APPEARANCES

For Petitioner: Robert E. Sickles, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

For Respondent: William L. Yanger, Esquire

William L. Yanger, P.A.

201 North Franklin Street, Suite 3010

Post Office Box 1077

Tampa, Florida 33601 - 1077

STATEMENT OF THE ISSUE

Whether Respondent's educator's certification should be

sanctioned for the alleged violation of Section 1012.795(1)(i),

Florida Statutes, specif ically Rule 6B - 1.006(3)(a) and (e),

Florida Administrative Code, Principles of Professional Conduct

for the Education Profession in Florida.

PRELIMINARY STATEMENT

Following an investigation by the Department of Education,

Petitioner filed an Administrative Complaint against Respondent,

dated May 7, 2003. Respondent denied all allegations and

requested a formal hearing on June 10, 2003. This matter was

referred to the Division of Administrative Hearings (DOAH) on

June 18, 2003, and was set for hearing. Th e parties conducted

discovery and timely filed witness and exhibit lists.

Respondent asserted her Fifth Amendment privilege consistently

throughout discovery and at the final hearing. Respondent filed

a Motion in Limine and later an Amended Motion in Lim ine seeking

to prevent referral by Petitioner to certain statements by

Respondent and certain documents proposed as exhibits by

Petitioner. While Respondent's Motion in Limine was denied,

ruling on the relevancy of the documents in question was

reserved u ntil the final hearing. The final hearing was held on

August 14, 2003.

The Administrative Complaint alleged one statutory

violation count. Count one stated the misconduct alleged was in

violation of Section 1012.795(1)(i), Florida Statutes, in that

Respo ndent has violated Rule 6B - 1.006(3)(a) and (e), Florida

Administrative Code, Principles of Professional Conduct for the

Education Profession in Florida prescribed by the State Board of

Education. Count two, which is redundant of Count one, simply

restates an allegation of a violation by Respondent of Rule 6B -

1.006(3)(a), Florida Administrative Code, and is, therefore, not

an additional charge. Similarly, Petitioner's Count three

simply restates an allegation of a violation by Respondent of

Rule 6B - 1.006(3 )(e), Florida Administrative Code, and is also,

therefore, not an additional charge.

At the hearing, Petitioner called four witnesses to

testify: Andrea DaSilva, the next door neighbor of the student,

B.B.; Jill Brown, mother of the student; Sarah Lynn Pa bst,

assistant principal, Sand Pine Elementary School; and Ginny

Yanson, principal, Sand Pine Elementary School. Three of

Petitioner's exhibits were admitted in evidence, Petitioner's

Exhibit 1, Respondent's letter of resignation; Petitioner's

Exhibit 2, District School Board of Pasco County, Human

Resources Action Form, pertaining to Respondent, dated

August 23, 2001; and Petitioner's Exhibit 3, Sand Pine

Elementary School Handbook 2001 - 2003. Respondent called no

witnesses and reasserted her Fifth Amend ment privilege.

At the close of Petitioner's case - in - chief, Respondent

filed and argued a Motion for Directed Ruling, asserting that

Petitioner (1) had failed to establish jurisdiction over

Respondent and (2) had wholly failed to meet its burden by clear

and convincing evidence. Petitioner thereupon voluntarily

dismissed Count three of its Administrative Complaint. Ruling

was reserved on the motion. Respondent offered no evidence at

the hearing.

A Transcript of the hearing was filed on August 28, 2003.

Petitioner's unopposed Motion for Extension of Time to File

Proposed Recommended Order was granted on September 12, 2003.

Petitioner filed his Proposed Recommended Order on September 19,

2003. Respondent filed her proposals on September 22, 2003.

Both proposals have been given careful consideration in the

preparation of this Recommended Order. All statutory citations

are to Florida Statutes (2002), unless otherwise indicated.

FINDINGS OF FACT

1. No evidence was offered by Petitioner establishing that

Respondent, Donna C. Buhmeyer, holds or held a Florida Educator

Certificate during the times relevant to Petitioner's

allegations. However, Respondent did admit that DOAH had

appropriate jurisdiction over this matter and that Respondent is

subject to the provisions of Section 1012.795 in Respondent's

Pre - Hearing Statement, Part F.

2. At all times relevant hereto, Respondent was employed

as a kindergarten teacher at Sand Pine Elementary School (Sand

Pine) in the Pasco County School District during the 200 1 - 2002

school year. Teachers at Sand Pine are required to report at

8:30 a.m. and are responsible for the care of students in their

classes while the students are in their classroom or at recess.

Teachers are not responsible for students while the studen ts are

at lunch, art class, physical education or music class.

Students start arriving at 9:25 a.m. and are considered tardy at

9:45 a.m. Lunchtime for Respondent and her students was

scheduled from 11:03 a.m. to 11:33 a.m., followed by ten minutes

of re cess.

3. At Sand Pine during the 2001 - 2002 school year, teachers

were required to report on August 6, and students reported on

August 13, 2001. Kindergarten was made up of three primary

teams, with 130 children divided among the teams. Development

asses sments of the kindergarten students are performed in the

first few weeks, after which students are moved to new classes

based upon developmental status. Parents are notified of this

change by school officials. After this move, each teacher has a

home bas e list of students, a language arts list, and a math

list. These three lists may be different, and each teacher is

responsible only for the students on each list during that

particular class block.

4. The Sand Pine handbook regarding student supervision

states: "Each teacher is responsible for the students assigned

to his/her care during the time scheduled." Respondent received

this handbook, and the handbook is on - line for teachers to

review. Teachers formally review the handbook during pre -

planning. The handbook encourages teachers to count their

students when they take the students off the playground to make

sure they always have all of their children during the time

scheduled.

5. Teachers at Sand Pine are required to take roll at the

beginning of each class so that teachers will recognize whether

students on the class list are actually in the class. Teachers

are responsible for students during the period of time when

students are scheduled to be with that teacher.

6. During lunch, the teacher bri ngs her students to the

cafeteria. While the students are in the cafeteria, the

personnel assigned to the lunch room are responsible for the

children. The teacher returns to the cafeteria to pick up the

students. It is the teacher's responsibility to es cort her

class out of the cafeteria to where recess takes place.

7. Respondent's pertinent student lists were not offered

into evidence by Petitioner; however, on August 23, 2001, there

were 20 students assigned to Respondent's home base class, and

B.B. w as one of those students.

8. On August 23, 2001, at about 12:00 noon, Pasco County

resident Andrea DaSilva (DaSilva) found Sand Pine kindergarten

student B.B. playing in the grass in front of his residence

located across the street from DaSilva's driveway . DaSilva

attempted to locate B.B.'s mother, but found she was not at

home.

9. DaSilva contacted officials at Sand Pine by phone and

notified them that B.B. was at her home. After DaSilva's call

to the school, Assistant Principal Sara Lynn Pabst was sen t to

DaSilva's house. She met B.B. for the first time, retrieved him

and returned him to the school. Pabst reported that B.B. was

not angry, was not crying and appeared only a little disheveled,

as if he had been playing outside on a hot day.

10. DaSilv a has no personal knowledge of B.B.'s

whereabouts on August 23, 2001, prior to finding him in the

grass across the street from her house.

11. Pabst has no personal knowledge of Respondent's or

B.B.'s whereabouts at anytime prior to retrieving B.B. from

Da Silva's house. She has no knowledge of when or if B.B. went

to school or lunch on August 23, 2001, how he got there, when or

if he left school, or from where he left school. She had no

knowledge who was responsible for him at the time he was found

off of the school campus.

12. Meanwhile, shortly after 12:15 p.m., Principal Ginny

Yanson went to Respondent's classroom and asked Respondent if

B.B. was present. Respondent answered that B.B. was present and

called out his name for him to come forward. Howev er, B.B. was

not present at that time.

13. Yanson met with B.B. in her office, upon his return to

the school, and spoke with him regarding his breaking the rules

by leaving the campus at Sand Pine and the consequences for

doing so. B.B. was sent to anoth er teacher's class for the

remainder of the day.

14. Yanson has no personal knowledge of Respondent's or

B.B.'s whereabouts at anytime prior to meeting with B.B. in her

office. She has no knowledge of when or if B.B. went to the

school or lunchroom on Au gust 23, 2001, how he got there, when

or if he left school, or from where he left school. She had no

knowledge who was responsible for him at the time he was found

off of the school campus.

15. Jill Brown, B.B.'s mother, was notified by school

officials of her son's violation of Sand Pine rules on the date

of the incident. She did not visit the school until the

following day. Brown has no personal knowledge whatsoever of

her son's activities on the date in question or who may have

been responsible for h im throughout the school day. She does

not have personal knowledge of Sand Pine's class assignments or

faculty structure during the 2001 - 2002 school year.

16. Although Pabst acknowledges her significant

familiarity with and obligations under Section 39.2 01, which

requires the mandatory reporting of child abuse, Pabst did not

call the abuse hotline to report Respondent because it was her

belief that B.B. had not been abused, abandoned or neglected by

Respondent.

17. Although Yanson also acknowledges her s ignificant

familiarity with and obligations under Section 39.201, Yanson

did not call the abuse hotline to report Respondent nor did she

direct anyone to do so because it was her belief that B.B. had

not been abused, abandoned or neglected by Respondent.

1 8. The evidence is not clear and convincing that

Respondent was responsible for B.B. at the time he was found off

of the school grounds on August 23, 2001, or that Respondent

failed to supervise B.B. on that date.

CONCLUSIONS OF LAW

19. Petitioner offere d no evidence establishing that the

DOAH had jurisdiction of the parties or the subject matter of

these proceedings pursuant to Sections 120.569, 120.57(1), and

1012.795. Respondent in her Pre - Hearing Stipulation, dated

August 7, 2003, reasserted her Fift h Amendment privilege to

remain silent and neither admitted nor denied any of the facts

asserted in the Administrative Complaint. However, in Part F of

Respondent's Pre - Hearing Statement, Respondent agreed that DOAH

had jurisdiction and that Respondent wa s subject to Section

1012.795. Therefore, DOAH has jurisdiction over the subject

matter of these proceedings and the parties thereto, pursuant to

Sections 120.569, 120.57(1), and 1012.795.

20. Pursuant to Section 1012.795(1)(i), the Education

Practices C ommission has the authority to suspend, revoke or

otherwise discipline the teaching certificate of a person who

has violated the Principles of Professional Conduct for the

Education Profession prescribed by the State Board of Education

rules. The maximum penalty for violation of the rules is

revocation of the teaching certificate.

21. Rule 6B - 1.006, Florida Administrative Code, sets forth

the Principles of Professional Conduct for the Education

Profession in Florida as referenced in Section 1012.795(1)(i) .

Rule 6B - 1.006, Florida Administrative Code, provides that

violation of any of the principles of professional conduct shall

subject the person to revocation or suspension of the

individual's teaching certificate, or other penalties provided

by law.

22. Petitioner's Administrative Complaint alleges

Respondent violated Rule 6B - 1.006(3)(a), Florida Administrative

Code, which provides that an educator "shall make reasonable

effort to protect the student from conditions harmful to

learning and/or to the stude nt's mental and/or physical health

and/or safety."

23. The standard against which a teacher's performance of

this duty is measured is an objective one: the teacher must

make a "reasonable effort." Therefore, a teacher's subjective

intent is irrelevant i n determining whether Rule 6B - 1.006(3)(a),

Florida Administrative Code, was violated. See Christ v.

Goldberg , DOAH Case No. 02 - 1371PL, paragraphs 25, 26, and 27,

2002 WL 31780246 (Dec. 6, 2002). The specific standard of care

owed under a legal duty is t ypically a question of fact. Thus,

it is susceptible to ordinary methods of proof. See Dennis v.

City of Tampa , 581 So. 2d 1345, 1350 (Fla. 2nd DCA 1991).

Accordingly, when a teacher is charged with a violation of

Rule 6B - 1.006(3)(a), the final hearing necessarily entails:

(1) evidence regarding the teacher's actual actions in the face

of a harmful condition; (2) evidence from which the trier of

fact can conceptualize a standard of conduct in the form of the

action of a "reasonable teacher" under the same or similar

circumstances; and (3) a comparison of the teacher's conduct

against the theoretical, objectively reasonable standard of

conduct. Rolle v. Crist , DOAH Case No. 01 - 2644, Recommended

Order (Dec. 14, 2001), Final Order (March 4, 2002) at para graphs

42 and 43; Cf. Wal - mart Stores, Inc., v. King , 592 So. 2d 705,

707 (Fla. 5th DCA 1991), rev. denied , 602 So. 2d 942.

24. Although Petitioner's Administrative Complaint also

alleges Respondent violated Rule 6B - 1.006(3)(e), Florida

Administrative Cod e, Petitioner voluntarily dismissed this

charge at the hearing on this matter.

25. Revocation of licensure proceedings are penal in

nature, State ex. rel Vining v. Florida Real Estate Commission ,

281 So. 2d 487 (Fla. 1973), and must be construed strictly in

favor of the one against whom the penalty would be imposed.

Munch v. Department of Professional Regulation, Division of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v.

Department of Professional Regulation , 441 So. 2d 1121 (Fla. 3d

DCA 1983). The standard of proof required in this matter is

that relevant and material findings of fact must be supported by

clear and convincing evidence of record. Department of Banking

and Finance v. Osborne Stern & Company , 670 So. 2d 932 (Fla.

1996). P etitioner must prove each of the material allegations

in the Administrative Complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

The Florida Supreme Court, quoting the Second District Court in

Reid v. Florida Real Estate Commission , 188 So. 2d 846, 851

(Fla. 2d DCA 1966), agreed that:

The power to revoke a license should be

exercised with no less careful

circumspection than the original granting of

it. And the penal sanctions should be

directed only toward those w ho by their

conduct have forfeited their right to the

privilege, and then only upon clear and

convincing proof of substantial causes

justifying the forfeiture.

Ferris v. Turlington , supra. at p. 295.

26. In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quot ing

with approval from Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983), states:

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 must be lacking in 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 th e

truth of the allegations sought to be

established.

The First District Court of Appeal has also 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 see ms to preclude evidence that is ambiguous."

Westinghouse Electric Corporation, Inc. v. Shuler Brothers,

Inc. , 590 So. 2nd 986, 988 (Fla. 1st DCA 1991) rev. denied , 599

So. 2d 1279 (1992).

27. Furthermore, the grounds proven must be those

specifically all eged in the administrative complaint. See

Kinney v. Department of State , 501 So. 2d 129, 133 (Fla. 5th DCA

1987); Hunter vs. Department of Professional Regulation , 458 So.

2d 842, 844 (Fla. 2nd DCA 1984). No conduct is to be regarded

as included within t he grounds alleged that is not reasonably

proscribed by the statutes or rules. Furthermore, if there are

any ambiguities included such must be construed in favor of the

licensee. Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

28. Hearsay is admissible in administrative proceedings,

but Section 120.57(1)(c) provides that hearsay evidence shall

not be sufficient in itself to support a finding of fact unless

it would be admissible over objection i n civil actions. Durrall

v. Unemployment Appeals Commission , 743 So. 2d 166, 168 (Fla.

4th DCA 1999); see also Arnold v. State , 497 So. 2d 1356, 1357

(Fla. 4th DCA 1986); Department of Business and Professional

Regulation, Division of Alcoholic Beverages and Tobacco v. CDN

Southern Investments, Inc. , DOAH Case No. 01 - 1675, Recommended

Order, August 31, 2001; and DABT Case No. RL58 - 982106, Final

Order, October 9, 2001.

29. In light of the penal nature of these proceedings,

Respondent is entitled to exercis e her Fifth Amendment privilege

and no negative presumption can or has been taken by the trier

of fact related to Respondent's decision not to testify. State

of Florida ex rel. Vining v. Florida Real Estate Commission , 281

So. 2d 487 (Fla. 1973); Kozerowi tz v. Florida Real Estate

Commission , 289 So. 2d 391 (Fla. 1974).

30. The August 23, 2001, "handwritten resignation letter

from Buhmeyer to Principal Yanson" (Petitioner's Exhibit 1) and

the August 23, 2001, "Pasco County School Board Human Resource

Actio n Form" (Petitioner's Exhibit 2) entered as evidence by

Petitioner are irrelevant and immaterial to the determination of

the factual issues in this matter. They are also irrelevant and

immaterial to Petitioner's burden of proof as it relates to

establishi ng a violation of the statute and rules set forth in

the charging document. They cannot be construed as an admission

against interest. Respondent's response to Yanson's inquiry as

to the whereabouts of the student, B.B., when she entered

Respondent's cla ssroom, is admissible as to an admission against

interest. However, Respondent's statements are ambiguous, and

her admission does not rise to the level of clear and

convincing. B.B.'s statements to DaSilva, his mother, Pabst,

and Yanson, as to his wherea bouts prior to being found at home,

are hearsay and are insufficient by themselves to support a

finding of fact. Section 120.57(1)(c).

31. With regard to Rule 6B - 1.006(3)(a), Florida

Administrative Code, which provides that the educator shall make

a reas onable effort to protect the student from conditions

harmful to learning or to health or safety, Petitioner has

offered no credible evidence in any way related to such efforts,

or lack thereof, by Respondent on the date and at the time in

question. To the contrary, Respondent's witnesses have

testified consistently as having no personal knowledge of

Respondents whereabouts and actions or those of the student

during the pertinent time frames.

32. Petitioner has further failed to prove those grounds

specifi cally alleged in Administrative Complaint. Kinney and

Hunter , supra. First, Petitioner alleges a failure of

supervision but there is no record evidence whatsoever of

Respondent's activities with her students leading up to the

alleged incident. Second, P etitioner alleges one of

Respondent's students left the school campus but Petitioner

offered no credible evidence that (1) B.B. was present on the

campus prior to being found by DaSilva at his home or (2) that

he left the school campus. Third, Petitioner alleges that the

student was missing for approximately one - half hour, but offered

uncorroborated hearsay evidence establishing that he was even on

campus or when he left, if he was. Finally, Petitioner alleges

the child was found playing in the street, bu t Petitioner's

first witness, DaSilva, testified she found him playing in the

grass in front of his house.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued finding that

Respondent is not guilty of violating Section 1012.795(1)(i) or

Rule 6B - 1.006(3)(a) of the Principles of Professional Conduct

for the Education Profession in Florida, and, therefore,

Petitioner's Administrative Complaint must be dismissed.

DONE AND ENTERED this 7th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 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 7th day of October, 2003.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices C ommission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399

Robert E. Sickles, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

William L. Yanger, Esquire

William L. Yanger, P.A.

201 No rth Franklin Street, Suite 3010

Post Office Box 1077

Tampa, Florida 33601 - 1077

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Special ist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.