03-000178PL Charlie Crist, As Commissioner Of Education vs. Mark D. Swanson Status: Closed Recommended Order on Monday, December 8, 2003.

Summary: High school football coach who threw a helmet, grabbed a player, and engaged in a curse-laden halftime speech should be reprimanded and placed on one year`s probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0178PL

)

MARK D. SWANSON, )

)

Respondent. )

)

RECOMMENDED ORD ER

A formal hearing was held in this case before Lawrence P.

Stevenson, Administrative Law Judge, Division of Administrative

Hearings, on April 15 and 16, 2003, in Naples, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Pos t Office Box 131

St. Petersburg, Florida 33731 - 0131

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

Whether Respondent's educator's certificate should be

subject to discipline for the violations alleged in the

Administrative Complaint dated February 13, 2002.

PRELIMINARY STATEMENT

Followi ng an investigation by the Department of Education

(the "Department"), Petitioner filed an Administrative Complaint

against Respondent on February 13, 2002. Respondent denied the

allegations and filed an Election of Rights, seeking a formal

hearing. This matter was referred to the Division of

Administrative Hearings on January 21, 2003. The case was

initially set for hearing on March 11 and 12, 2003. The case

was continued once and rescheduled for final hearing on April 15

and 16, 2003.

The Administrati ve Complaint set forth the following

material allegations of fact:

On or about September 8, 2000, Respondent

engaged in inappropriate conduct and used

profane language during halftime of a

football game as part of a preplanned [sic]

effort to motivate the team. Specifically,

Respondent threw a football helmet which hit

[Fenwick Paul], a 16 - year - old player, in the

back. Respondent pushed [Jim Muth], a 17 -

year - old player, into a locker. Respondent

threw [Brandon Tyler], a 17 - year - old player,

into the bathr oom and then threw him into

several walls. Respondent also threw a clip

board which hit another coach and cut his

hand. On or about September 26, 2000, the

superintendent accepted Respondent's

resignation as head football coach and

issued Respondent a le tter of reprimand and

suspended him without pay for 3 days.

Respondent resigned his teaching position

effective November 3, 2000.

Based on the these factual allegations, the Administrative

Complaint alleged two statutory violation counts and two rule

vi olation counts. Count one stated the misconduct alleged was

in "violation of Section 231.2615(1)(c), Florida Statutes, 1 in

that Respondent has been guilty of gross immorality or an act

involving moral turpitude." Count two stated the misconduct

alleged w as in "violation of Section 231.2615(1)(i), Florida

Statutes, in that Respondent has violated the Principles of

Professional Conduct for the Education Profession in Florida

prescribed by the State Board of Education." Count three stated

the misconduct all eged constituted a rule violation in which

Respondent "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," in violation of

Florida Administrative Code Ru le 6B - 1.006(3)(a). Count four

stated the misconduct alleged constituted a rule violation in

which Respondent "intentionally exposed a student to unnecessary

embarrassment or disparagement," in violation of Florida

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

At the hearing, Petitioner presented the testimony of

Kim G. Butts, Mario Doria, Roy Terry, and Peter DeBaun.

Petitioner recalled Mr. DeBaun as a rebuttal witness.

Petitioner's Exhibits 1 through 15 were admitted into evidence.

Respondent testified in his own defense and presented the

testimony of Steven Pricer, Jason Woodward, Steven Sapere, Heidi

Roderick, and William Sparacio. Respondent also testified in

surrebuttal on his own behalf. Respondent's Exhibits 1 through

7 were admitted into evidence.

A two - volume Transcript of the hearing was filed on

August 21, 2003. By Order dated August 26, 2003, Petitioner's

motion for extension of time was granted and the parties were

given until September 12, 2003, to file their Proposed

Recommended Orders. Bot h parties timely filed their Proposed

Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record of this proceeding, the

following Findings of Fact are made:

1. Respondent, Mark D. Swanson (Coach Swanson), holds

Florida Educator Certificate No. 585952, covering the areas of

mathematics and business education, which was valid through

June 30, 2003. At the hearing, Respondent testified that it was

his intention to maintain his certifi cation beyond June 30,

2003.

2. At all times relevant to this proceeding, Coach Swanson

was employed by the Collier County School District (the

"District") and was assigned to Lely High School ("Lely") as a

teacher and as head football coach.

3. In 1995 , Coach Swanson took over a Lely program that

had fielded poor teams for several years. Within three years,

Coach Swanson had guided the team to a district championship.

In the 1999 season, despite a rash of injuries and discipline

problems, Lely made th e playoffs, though the team's performance

declined after a 5 - 1 start.

4. At the conclusion of the 1999 season, Lely's principal

Roy Terry, himself a former high school football coach, sent

Coach Swanson a memorandum expressing "concerns with the turn we

took the last half of this past season." After reciting a list

of the positive aspects of Coach Swanson's performance,

Mr. Terry noted nine areas of concern, including "Continue to

monitor language of staff with students."

5. Coach Swanson's expectation s for the 2000 season were

not as high as in recent years past. He believed that a record

of 6 - 4 would constitute a successful season. Summer practices

had gone well. However, the team lost its first game to Barron

Collier High School by a score of 24 - 0 .

6. To Coach Swanson, the manner of losing the Barron

Collier game was more important than the loss itself. The game

was a scoreless tie at half time, and Lely trailed only by 7 - 0

at the start of the fourth quarter. However, in Coach Swanson's

view, the team quit in the fourth quarter and allowed Barron

Collier to win the game going away.

7. Lely's second game, on September 8, 2000, would be

against Fort Myers High School. Fort Myers was one of the best

teams in the area, and Coach Swanson did not seriously believe

that Lely could win the game. Nonetheless, he believed that his

team's effort in this game would determine the fate of the

season. If his team played hard and did not give up against a

clearly superior team, Coach Swanson could use tha t effort to

motivate Lely in subsequent winnable games. Throughout the

week's practices, the Lely coaching staff emphasized maximum

effort and not quitting against Fort Myers.

8. The Fort Myers game began relatively well for Lely.

The team was behind on ly 14 - 0 near the end of the first half.

Then, Fort Myers took over the ball on its own nine yard line

and drove 91 yards to a touchdown in a little over one minute.

Coach Swanson believed that his team "just laid down and quit"

on that touchdown drive.

9 . On the touchdown play, Lely's defensive coordinator

Steve Sapere called for a linebacker blitz. Linebacker Brandon

Tyler, one of the best players on the Lely team, made a

halfhearted effort on the play. As the defense came off the

field, Coach Sapere told Brandon Tyler that he would not call

any more blitzes unless Brandon's effort improved. Coach Sapere

then walked away.

10. William Sparacio, then the running backs coach at

Lely, witnessed the scene between Coach Sapere and Brandon

Tyler. After Coa ch Sapere walked away, Brandon told Coach

Sparacio, "You better get that guy out of my face." 2 After the

ensuing kickoff, Coach Sparacio shouted to Brandon Tyler in an

effort to get his attention, but Brandon ignored him. Coaches

Sparacio and Sapere cons ulted and agreed that if Brandon would

not accept coaching, he would not be put back into the game.

11. Coach Sparacio reported the incident to Coach Swanson

at the commencement of half time. Coach Swanson told Coach

Sparacio that the decision whether to play Brandon Tyler in the

second half would be left to Coaches Sapere and Sparacio, but

that he would deal with Brandon during half time.

12. Coach Swanson testified that, as the first half came

to a close, he wondered what he could do to motivate his

li stless team. When apprised of the situation with Brandon

Tyler, his first thought was that Brandon's insubordination

would provide a perfect subject for a half time talk to the

team.

13. Coach Swanson thought that Brandon Tyler was the

perfect person to criticize in front of the team because Brandon

was one of his best players, and "calling out" a team leader

would have more impact than picking on a lesser player. Brandon

was a tough player, "very intense," and had always liked the

fact that Coach Swans on was himself "fiery" and intense. Coach

Swanson believed that Brandon would understand being used as an

example in a half time speech and that Brandon would respond

positively.

14. Coach Swanson walked to the locker room with Heidi

Roderick, the Lely team trainer. Ms. Roderick asked him what he

was going to do about the team's performance. Coach Swanson

responded that he was going to make a fool of himself and create

a "spectacle" that might make the team mad enough to play hard.

He told Ms. Roderic k, "Maybe they'll picture my face on a guy

across the line . . . and want to beat the crap out of him." He

believed that the second half of this game was essential to the

team's entire season and that he had to try something drastic to

break the team out of its lethargy.

15. The Lely locker room was not an open football locker

room, but a typical high school locker room with rows of benches

separated by rows of lockers. Thus, there was no central area

where the team could gather during half time. The pl ayers would

scatter throughout the locker room at half time. Coach Swanson

decided that the only way to get the attention of all the

players was to make a big noise and that the best way to do that

was to bounce a football helmet off a metal locker.

16. Coach Swanson took a helmet from a player and glanced

down a row of lockers to make sure no one was in the line of

fire, then skipped the helmet "off the floor so it'd go 'bing,

bing, bing, bing,'" down the row of lockers. At the moment he

let go of the h elmet, Coach Swanson looked farther down the row

of lockers and saw Fenwick Paul, a Lely player, sitting on a

bench at the far end of the row. The helmet traveled about 40

feet down the row of lockers and struck Mr. Paul in the back.

Mr. Paul was unharme d by the helmet glancing off his back.

Coach Swanson apologized to Mr. Paul for hitting him with the

helmet.

17. Another player, Jim Muth, demanded to know who was

throwing helmets. Coach Swanson said, "It's me. You got a

problem with that?" Jim Muth, cowed, said, "No, coach." The

weight of the evidence established that Coach Swanson did not

push Jim Muth into a locker.

18. Coach Swanson then loudly called for Brandon Tyler.

When he found Brandon, Coach Swanson grabbed him by the shoulder

pads and said, "Brandon, who the hell do you think you are

talking to Coach Sapere like that?" Coach Swanson walked

Brandon around the locker room by the shoulder pads, all the

while shouting at the player.

19. The weight of the evidence established that Coach

Swanson did not throw Brandon Tyler into the bathroom, into

walls, or down to the floor. Coach Swanson credibly testified

that he held Brandon tightly by the shoulder pads both for the

visual effect and to keep Brandon from slipping in his cleats on

the tile floor of the locker room. He intended to intimidate

the player while making an example of him in front of the team,

but Coach Swanson had no intention of causing physical injury to

Brandon Tyler.

20. Coach Swanson admitted that he swore as he walked

Brandon Tyler around the locker room. He admitted that he

repeatedly used the word "fuck." When Coach Swanson accosted

him, Brandon began shouting, "I didn't do it. Coach Sparacio,

you better fix this, you better tell him," apparently meaning

that Coac h Sparacio should intervene on Brandon's behalf. In

response, Coach Swanson told Brandon to "be a fucking man and

own up to it, because that's what this game is about, is being

honest and reasonable and owning up to when you make a mistake."

At that poin t, Coach Swanson released Brandon Tyler.

21. Coach Sparacio and Ms. Roderick heard Brandon Tyler

say he was quitting the team during the altercation. Coach

Swanson did not recall Brandon's saying he was quitting, but

testified that "I could see myself" t aking Brandon's statement

to make the point to the team that its problem was quitting when

the going gets tough. Coach Swanson testified that such a

statement by Brandon would not have concerned him because "I

knew Brandon wasn't going to quit." In fact, Brandon Tyler did

not quit the football team. He played the entire second half of

the Fort Myers game and played the rest of the season.

22. After releasing Brandon, Coach Swanson spoke to the

team as a whole, urging the players to fight to the end and give

their best effort. He asked them, "Aren't you tired of this

shit?" Some of the players chimed in their agreement.

23. After completing his speech to the team, Coach Swanson

walked into the coaches' office adjacent to the locker room.

Several as sistant coaches, but no players, were in the office.

Coach Swanson saw two of his assistants, Kim Butts and Steven

Pricer, drawing up blocking schemes on a hand - held dry - erase

board. Coach Swanson took the board away from Coach Pricer,

saying that the te am's problem was not "X's and O's" but a lack

of heart and will to win. He threw the board against a wall.

The board bounced off the wall and nicked the hand of assistant

coach Brian Wallace.

24. Ms. Roderick testified that before the team left the

lock er room, Coach Wallace asked her to look at his hand. She

stated that there was a small scratch on Coach Wallace's hand.

It was not bleeding. Ms. Roderick testified that she would not

have seen the mark on Coach Wallace's hand had he not shown her

where it was. She gave Coach Wallace a band - aid in case the cut

started bleeding during the second half.

25. No players or students testified at the hearing.

Coach Wallace did not testify. Assistant coaches Kim Butts,

Steve Pricer, Jason Woodward, Steve Sap ere, William Sparacio,

and Mario Doria all testified as witnesses to some or all of the

events in the locker room at half time of the Fort Myers game.

Aside from Coach Doria, all the assistants generally agreed with

the facts as set forth above.

26. C oach Doria testified that Coach Swanson shoved

Brandon Tyler into a locker and down to the ground. While

Brandon lay on the ground, Coach Swanson told him to quit being

"a fucking pussy," to get up and be a man. Brandon was crying

and begging for help, b ut Coach Doria did not intervene for fear

of creating a confrontation between himself and Coach Swanson.

Coach Doria testified that when Coach Swanson took the dry - erase

board from his assistants, he snapped it in half and threw

one - half of the board ac ross the room.

27. Coach Doria's singular version of events cannot be

credited. He was the sole testifying witness to claim that

Coach Swanson shoved Brandon or called him names. His witness

statement of October 24, 2000, did not mention Coach Swanson's

calling Brandon a "fucking pussy." No other witness claimed to

have seen Coach Swanson snap the dry - erase board in half. The

board belonged to Coach Pricer, who testified that he still uses

it, though it did receive a crack from Coach Swanson's toss.

28 . Whether they approved or disapproved of his actions,

the assistant coaches agreed that Coach Swanson was engaged in

an effort to motivate the team and that he was not out of

control or acting in a blind rage. Coach Swanson himself

testified that, while not scripted, his actions were a conscious

effort to spark his team into giving a better effort in the

second half of the Fort Myers game, which he believed key to the

remainder of the season.

29. All of the witnesses agreed that Coach Swanson's

tirade b egan and ended in the locker room at half time. His

behavior on the field during the second half indicated nothing

out of the ordinary. Lely lost the game by a score of 35 - 0.

30. In summary, the Department demonstrated by clear and

convincing evidence that Coach Swanson threw a football helmet

that struck Fenwick Paul; that Coach Swanson placed his hands on

Brandon Tyler and cursed at the player while reprimanding him for

his disrespectful comments to an assistant coach; and that Coach

Swanson threw a dry - erase board that struck a fellow coach on the

hand, causing a small cut.

31. There were no allegations that Coach Swanson committed

any improper act in his role as a classroom teacher. Roy Terry,

the principal of Lely, described him as a "fine person ," who did

a "fine job" as a teacher.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has jurisdiction

of the parties to and the subject matter of these proceedings.

§§ 120.569 and 120.57(1), Fla. Stat. (2003). See also

§ 231.262(5), Fla. Stat. (2001).

33. License revocation and discipline proceedings are

penal in nature. The burden of proof on Petitioner in this

proceeding was to demonstrate the truthfulness of the

allegations in the Administrative Complaint by clear and

convincing evi dence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

34. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the f acts 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 the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

The findings in this case were made based on the standard set

forth i n Osborne Stern and Ferris .

35. The Administrative Complaint alleged that Coach Swanson

committed the acts prohibited by the provisions of Section

231.2615(1)(c) and (i), Florida Statutes (2001). The

Administrative Complaint further alleged that Coach Sw anson

violated Florida Administrative Code Rule 6B - 1.006(3)(a) and (e).

36. Section 231.2615(1), Florida Statutes (2001),

authorizes the Education Practices Commission to suspend, revoke

or otherwise penalize a teaching certificate provided it can be

show n that the holder of the certificate, inter alia :

(c) Has been guilty of gross immorality

or an act involving moral turpitude.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the Stat e Board of

Education rules.

37. Florida Administrative Code Rule 6B - 1.006 reads in

pertinent part:

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(1) The following disciplinary rule shall

constitute the Principl es of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension 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 and/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.

38. Florida Administrative Code Chapter 6B - 4 applies to

school districts, but its definitions provide guidance as to the

terms "immorality" and "moral turpitude." Florid a

Administrative Code Rule 6B - 4.009 provides:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

pro fession into public disgrace or

disrespect and impair the individual's

service in the community.

39. The term "moral turpitude" is defined in Florida

Administrative Code Rule 6B - 4.009(6), as follows:

Moral turpitude is a crime that is

evidenced by an a ct of baseness, vileness or

depravity in the private and social duties

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute f ixes the moral turpitude.

Moral turpitude has also been defined by the Supreme Court of

Florida as follows:

Moral turpitude involves the idea of

inherent baseness or depravity in the

private social relations or duties owed by

man to man or by man to soc iety. . . . It

has also been defined as anything done

contrary to justice, honesty, principle, or

good morals, though it often involves the

question of intent as when unintentionally

committed through error of judgment when

wrong was not contemplated.

S tate ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 611, 146

So. 660, 661 (1933).

40. The Department has urged that Coach Swanson be held to

the standard of a classroom teacher and argues that profane,

equipment - throwing tantrums, and the physical hand ling of

students would never be tolerated in the classroom and, thus,

should not be tolerated when a teacher takes on the role of

football coach. Coach Swanson's position is that the football

field and the classroom are two entirely separate arenas and

th at it is unrealistic to hold a football coach to the same

standards of propriety expected of a classroom teacher.

41. The truth lies somewhere between the extremes outlined

by the parties. The Department correctly states that Coach

Swanson's behavior wo uld be clearly beyond the pale in a math

class. However, by the same token, high school football players

perform acts of violence on the field that would subject them to

expulsion and arrest if performed in that same math class.

Coach Swanson's job as a football coach is to demand that his

players engage in that behavior with maximum discipline and

proficiency. In other words, the Department's position ignores

the reality that football is an intense, emotional, violent

sport and that a football coach can not always engage with his

players in a calm, conversational tone and a gentle demeanor.

The relationship between a football coach and his players is

qualitatively different than that between a classroom teacher

and his students. This reality must be ack nowledged in

assessing a penalty on Coach Swanson.

42. Acknowledging the violent reality of football does not

require acceptance of Coach Swanson's behavior in this case.

Coach Swanson intentionally set out to create the spectacle of a

stereotypical co ach's temper tantrum. Even accepting that a

football coach is granted more behavioral leeway than a

classroom teacher, there is no excuse for a coach putting his

hands on a player, throwing a helmet hard enough to hit another

player 40 feet away, or emplo ying the kind of language that

Coach Swanson conceded he used during half time of the

Fort Myers game.

43. It is concluded that none of the acts Coach Swanson

committed rise to the level of "gross immorality" or "moral

turpitude." The allegations in t he Administrative Complaint

essentially accused him of beating up one of his players, which

would constitute "moral turpitude." The facts established at

the hearing did not sustain this accusation. The proven

facts -- that Coach Swanson threw a football helmet and a

dry - erase board; that he grabbed a player and walked him around

the locker room; and that he gave a profanity - laced half time

speech to his team -- indicate poor judgment, but do not approach

"inherent baseness or depravity."

44. It is co ncluded that Coach Swanson did not make

reasonable efforts to protect the students from conditions

harmful to learning and/or to the student's mental, physical

health, and/or safety. Specifically, Coach Swanson's throwing

the football helmet down a row of lockers endangered the

physical safety of the players. It was simply fortuitous that

no one was injured by Coach Swanson's careless action.

45. It is concluded that Coach Swanson did intentionally

expose a student to unnecessary embarrassment or dispar agement.

Specifically, the manner in which Coach Swanson confronted

Brandon Tyler exposed the student to unnecessary embarrassment.

The coach could have singled out Brandon Tyler for discipline,

and even made an example of him to inspire the team, withou t

adding the elements of physical intimidation and liberal use of

the word "fuck" in a high school locker room.

46. Section 231.262, Florida Statutes (2001), reads in

pertinent part:

(7) A panel of the [Education Practices]

commission shall enter a f inal order either

dismissing the complaint or imposing one or

more of the following penalties:

* * *

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate of fense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additi onal appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation.

(e) Restriction of the authorized scope

of practice of the teacher, admini strator,

or supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

47. The facts led to the conclusion that Coach Swanson

violated Florida Administra tive Code Rule 6B - 1.006(3)(a) and (e).

It is noted that this episode constituted the only disciplinary

proceeding against Coach Swanson in his teaching career and that

his behavior in the classroom has never been an issue.

48. It is concluded that the appropriate penalty is a

written reprimand and a probationary period of one year to

commence if and when Coach Swanson again becomes an active

teacher and/or football coach.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued finding that

Respondent did violate the provisions of Florida Administrative

Code Rule 6B - 1.006(3)(a) and (e), but did not violate

Section 231.2615(1)(c) or (i), Florida Statutes (2001). It is

further

RECOM MENDED that a final order be issued providing that a

written reprimand be placed in his certification file and

placing him on a one - year period of probation subject to such

conditions as the Commission may specify, to commence if and

when Respondent again becomes an active teacher and/or football

coach in the State of Florida.

DONE AND ENTERED this 8th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 8th day of December, 2003.

ENDNOTES

1/ After the filing of the Administrative Complaint in this

case, Section 231.2615, Florida Statutes (2001), was repealed

and its substance reenacted as Section 1012.795, Florida

Statutes (2002). See Chapter 2002 - 387, § 757, Laws of Florida.

2/ There was some conflict as to Brandon's exact words on the

sidelines at the Fort Myers game. Coach Sparacio testified that

Brandon may have said, "Get him the fuck out of my face."

However, Coach Sparacio's written statement o f October 24, 2000,

did not include the word "fuck," and in cross - examination Coach

Sparacio conceded that his written statement was probably a more

accurate recollection because it was closer in time to the

relevant events. Heidi Roderick, the Lely team trainer,

testified that Brandon was generally venting his frustration on

the sidelines, yelling at the coaches, "Fuck that coach" and

"I'm not going to listen to him." However, no other witness

shared Ms. Roderick's recollection.

COPIES FURNISHED :

Robe rt J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallaha ssee, Florida 32399 - 0400

Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731 - 0131

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224E

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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue th e final order in this case.