04-000477PL Jim Horne, As Commissioner Of Education vs. Sanford H. Hayes Status: Closed Recommended Order on Thursday, June 10, 2004.

Summary: Respondent falsely accused a student, which lead to the student`s expulsion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, 1 )

)

Petitioner, )

)

vs. ) Case No. 04 - 0477PL

)

SANFORD H. HAYES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 19, 2004, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes

(2003). The hearing location was the Okaloosa County

Courthouse, Bo ard of County Commissioners Meeting Room 120,

U.S. Highway 90, 101 East James Lee Boulevard, Crestview,

Florida. The hearing commenced at 9:30 a.m. (C.T.). The

hearing was conducted by Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Peti tioner: J. David Holder, Esquire

Law Offices of J. David Holder, P.A.

4421 Commons Drive, E, Suite 432

Destin, Florida 32541 - 3487

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines D rive

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's Florida

Educator's Certificate No. 635967, based upon the allegations in

the Administrative Complaint, Case No. 0 12 - 1824 - V, before the

State of Florida, Education Practices Commission?

PRELIMINARY STATEMENT

On December 17, 2002, Charlie Crist, then Commissioner of

Education, executed the Administrative Complaint. Respondent

selected a settlement option in reply, fo llowed by a request for

formal hearing if the case did not settle. Settlement was not

achieved. Therefore, it is left to be considered the

allegations in paragraphs 3, 4, and 5, and all allegations set

forth in Counts 1 through 7, to the Administrative C omplaint.

Since that time some other factual allegations in the

Administrative Complaint have been conceded by Respondent

through a pre - hearing stipulation to be discussed in greater

detail. Some facts remain in dispute in the case that has been

forwarde d to the Division of Administrative Hearings for formal

hearing in accordance with Sections 120.57(1) and 231.262,

Florida Statutes. 2

The case was assigned and the hearing conducted on the

aforementioned date.

At hearing, Petitioner presented the test imony of

Robert Rosado, Jr.; Valarie Rutland; Hyum Kim; William Head,

Evangelina Rosado; Martin Knopes; and Arden Farley.

Petitioner's Exhibits numbered 1, 2, 4, 9 through 17, and 19

through 23, were admitted. Petitioner's Exhibits numbered 5, 6,

8, and 18, were denied admission. Ruling was reserved on the

admission of Petitioner's Exhibits numbered 3 and 7. Having

considered those exhibits post - hearing, Petitioner's Exhibit

numbered 3, is denied admission. Petitioner's Exhibit

numbered 7, is admitte d. Petitioner's exhibits denied admission

are forwarded with the record.

Respondent testified in his own behalf. Respondent

presented testimony from Robert Jones, Dean Sullivan, and

Robert Parish. Respondent's Exhibits numbered 1 through 3 were

admit ted. As with those Petitioner's exhibits denied admission,

Respondent's Exhibit numbered 4, was not admitted but is sent

forward with the record.

Concerning Petitioner's Exhibit numbered 1, the deposition

transcript of Respondent as reported on April 8 , 2004,

Respondent was allowed to read and revise the deposition. He

exercised that option making changes which are included with the

exhibit. As well, Petitioner was allowed to submit the

audiotape of the deposition session, which is included with this

record for consideration.

A pre - hearing order was entered requiring the parties to

submit certain information in accordance with the instructions

set forth. This included the obligation to arrive at those

factual stipulations acceptable to the parties . The parties

through counsel offered 22 separate factual stipulations. Those

factual stipulations are accepted and are included in the fact

finding to the Recommended Order.

On April 29, 2004, a hearing transcript was filed. The

parties filed Propose d Recommended Orders which have been

considered in preparing the Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. Respondent holds Florida Educator's Certificate

No. 635967, covering the areas of Educational Leadership and

Elementary Education, which is valid through June 30, 2005.

2. At all times pertinent hereto, Respondent was employed

as an administrator at Crestview Senior High School in the

Okaloosa County School District.

3. On or about February 1, 2000, the principal and the

school administrators met to discuss heightened security for the

Crestview Senior High School and Pace High School basketball

game. At the meeting, all administrators were asked to attend

the game.

4. At the game on the night of or about February 1, 2000,

ext ra law enforcement was present.

5. Roberto Rosado, Jr., was a student on February 1, 2000,

and his date of birth is October 10, 1981.

6. Respondent approached Robert Rosado, Jr., after

observing Mr. Rosado make obscene gestures at the opposing team

or fans of the opposing team.

7. Law enforcement officers escorted Mr. Rosado from the

gym.

8. Mr. Rosado was taken to the hallway by the boys' locker

room.

9. Mr. Rosado was handcuffed by the police; Respondent was

not present when that occurred.

10. Respondent wrote a sworn statement stating that

Mr. Rosado had "pushed [him] away" during the altercation.

11. Law enforcement officers arrested Mr. Rosado for

battery on a school official and took him to jail.

12. On or about February 2, 200 0, the school

administrators and the school principal met to discuss the

appropriate discipline for Mr. Rosado.

13. On or about February 2, 2000, the school principal

suspended Mr. Rosado for ten days based on the incident at the

basketball game and rec ommended to the Superintendent that

Mr. Rosado be expelled; Mr. Rosado remained on suspension until

the expulsion proceedings were completed.

14. On or about February 7, 2000, the Superintendent wrote

a letter to Mr. Rosado's mother informing her that after

reviewing the principal's recommendation and pertinent

documents, he would be recommending to the Okaloosa County

School Board that Mr. Rosado be expelled for assaulting a school

administrator.

15. At a later date, the Okaloosa County School Board did

charge Mr. Rosado with assaulting a school district

administrator as well as willful disobedience of a school

district administrator and open defiance of the authority of a

school district administrator.

16. On or about March 9, 2000, an attorney r epresenting

Mr. Rosado in his civil suit against the Okaloosa County School

Board took Respondent's deposition.

17. In his deposition, Respondent stated that "R.R.,

pushed him [Hayes] away with his arm."

18. On or about March 22, 2000, the Okaloosa County School

Board held Mr. Rosado's expulsion in abeyance stating that

Mr. Rosado could graduate, but had to earn one remaining credit

hour needed to graduate at another school.

19. Mr. Rosado, a high school senior, was not allowed to

participate in senior class activities, attend the prom, or

attend graduation with his class.

20. During the week prior to Mr. Rosado's criminal trial,

a videotape of the altercation was provided to Mr. Rosado's

attorney.

21. The criminal charges against Mr. Rosad o were

dismissed.

22. Respondent continues to be employed by Crestview

Senior High School.

Additional Facts

23. Crestview High School (Crestview) and Pace High School

(Pace) played a basketball game at Pace on a date before

February 1, 2000. It wa s reported that there was an altercation

between a Pace player and Crestview player near the end of that

game that was closely contested. As a result, fans came out of

the stands and resource officers had to be involved together

with Pace administrators t o restore order. This led to the

meeting between the principal at Crestview and other school

administrators to discuss the need for extra security for the

return game between Crestview and Pace to be held at Crestview.

24. The return game took place on February 1, 2000. In

addition to Okaloosa County Deputy Sheriff Dean Sullivan, the

school resource officer for Crestview, Deputy Dustin Adams from

that office, and Officer Frank Bergeron from the Crestview

Police Department attended the game to provide security.

25. Respondent was among several administrators who

attended the basketball game on February 1, 2000, to maintain

surveillance and order. Other administrators from Crestview who

came to the game were Booker Matthews, Robert Jones and

Robert Parish.

26. On February 1, 2000, the student Robert Rosado, Jr.,

was seated about mid - court, down front on the home side of the

gymnasium. He was seated among other students. As with their

earlier game, the teams were very evenly matched.

27. Pac e had its fans in attendance across the court from

where Mr. Rosado was seated.

28. Among the fans in attendance supporting Pace were its

junior varsity basketball team members.

29. There was a lively exchange between the fans cheering

for their resp ective teams. This included yelling back and

forth across the court. Some comments made by the fans were not

flattering to the opponents supporters.

30. Among the comments from the Pace side were remarks

such as, "just kiss my ass." The Crestview st udents responded

in kind.

31. One person participating in the cheering and insults

was Mr. Rosado. He and other Crestview fans had been provided

what are referred to as "Spirit Sticks." These are inflated

plastic implements several feet long that are banged together to

make noise. During the course of the event Mr. Rosado had

another use in mind for his "Spirit Sticks." He took those

sticks and pointed them at his crotch in a manner that could be

seen by the fans from Pace. While pointing at his cr otch,

Mr. Rosado used words to the effect, "suck it" or "suck this."

He yelled these words. This performance was both seen and heard

by Respondent from his vantage point in the gym. Respondent

proceeded to move from his location to Mr. Rosado's locatio n to

address what he properly considered as being misconduct by

Mr. Rosado.

32. When Respondent arrived in front of Mr. Rosado at mid -

court, he told Mr. Rosado, that Mr. Rosado had to leave the

game. Respondent also grabbed Mr. Rosado's left bicep wit h

Respondent's right hand. His hold was hard enough to leave red

marks. Mr. Rosado's reaction was to vigorously pull away from

the grip in an upward motion. When that occurred Respondent

released Mr. Rosado's arm. Mr. Rosado did not in this

encounter, push, shove, hit, punch, or otherwise physically

strike Respondent. Respondent was not injured in this

encounter. During this brief incident, Respondent and

Mr. Rosado argued back and forth. Among his remarks, Mr. Rosado

yelled at Respondent, "Don't ev er touch me again." This is

taken to refer to Respondent grabbing Mr. Rosado by the arm.

33. Respondent began to escort Mr. Rosado from the gym.

He was joined in the act by Booker Matthews, another Crestview

administrator, Deputy Adams, and Officer B ergeron. The choice

to remove Mr. Rosado from the gym was appropriate. As

Mr. Rosado exited the gym he was excited and agitated, speaking

in a loud voice.

34. On the way out Mr. Matthews told Mr. Rosado to "go,"

to "just leave."

35. Mr. Rosado wa s led through the inner doors to the gym

and from there to the outer doors and outside the gym where the

officers placed him in handcuffs with his arms and hands behind

his back. This was in public view. Again, to this point,

Mr. Rosado's treatment, to the extent that Respondent was

responsible, was acceptable.

36. Mr. Rosado was brought by the officers back into the

gym building in a hall area by the boys' locker room.

37. Mr. Rosado had been brought into the area near the

boys' locker room to ge t him away from public attention. The

decision to put him in the area near the boys' locker room was

made by Deputy Sullivan. When asked by Deputy Adams "What

should be done?" with Mr. Rosado, Deputy Sullivan had in mind to

locate Respondent and Robert P arish, to determine what those

administrators wanted done with Mr. Rosado.

38. When Deputy Sullivan first encountered Mr. Rosado

outside the gym before he was brought back into the area near

the boys' locker room, Mr. Rosado was being belligerent, cursi ng

loudly. Deputy Sullivan accompanied Mr. Rosado into the hallway

area near the boys' locker room.

39. Subsequently, Deputy Sullivan found Respondent and

Mr. Parish in the gym proper and brought them back to

Mr. Rosado's location in the back hallway .

40. This time Deputy Sullivan came into the back hallway

immediately before Respondent and made remarks to Mr. Rosado

that led Mr. Rosado to believe that Respondent had accused

Mr. Rosado of physical contact instituted by Mr. Rosado directed

to Respon dent. Mr. Rosado denied that he had done anything

untoward; instead he told Deputy Sullivan that Respondent had

grabbed Mr. Rosado. At that moment Respondent entered the back

hallway.

41. In response to Deputy Sullivan's question about what

was to b e done with Mr. Rosado, Respondent replied, "We'll take

care of him in the morning." Mr. Rosado accused Respondent of

grabbing him, as was the case. Mr. Rosado was cursing

Respondent calling him several profane names. Given these

circumstances, Responde nt told Deputy Sullivan that if

Mr. Rosado wanted to act that way, "We'll just go ahead and file

charges against him for battery." That being said, Deputy Adams

escorted Mr. Rosado to a patrol car and transported him to the

local jail.

42. In turn, De puty Sullivan filled out an offense report

with supporting sworn affidavits of complaint executed by

Respondent, Booker Matthews, and Robert Parish. Petitioner's

Exhibit numbered 16 is constituted of the report and attached

affidavits. This led to Mr. Ro sado being charged in the Circuit

Court of Okaloosa County, Florida, with a violation of Sections

784.03 and 784.081, Florida Statutes, related to a battery upon

an employee of a school district, a third degree felony, in Case

No. 00 - 0002168 - CF - 002.

43. To support the charge, in his affidavit provided to

Deputy Sullivan, Respondent said, in pertinent part about his

encounter with Mr. Rosado in the gym." . . . I then touched him

on the arm and again asked him to leave the game. Bobby pushed

me away . . . ." Respondent did more than touch Mr. Rosado on

the arm. Most importantly, Respondent was untruthful when he

said that Mr. Rosado pushed him away. While the choice was made

by Deputy Sullivan to formally write the report leading to

Mr. Rosado's arre st for battery, Deputy Sullivan relied in part

on Respondent's false affidavit to support that decision.

Mr. Rosado did not push Respondent away as the affidavit states.

44. On the morning of February 2, 2000, a meeting was held

among administrators at Crestview to discuss the possible

discipline to be imposed on Mr. Rosado. At that meeting

Respondent made a comment that in essence left the impression

that Mr. Rosado had pushed or shoved Respondent during their

encounter the night before. The meetin g resulted in a

disciplinary referral for Mr. Rosado. A form to support that

referral was completed by Respondent, Petitioner's Exhibit

numbered 19. In describing the specific nature of the offense

leading to the referral for discipline, Respondent said in

describing the event ". . . he refused to leave. I asked him to

leave again and touched him on the arm. Bobby pushed me away

from him . . ." Again, Respondent attributes misconduct to

Mr. Rosado in relation to pushing him, which is not true.

45. I n the February 2, 2000, letter from G. Wayne Ansley,

principal at Crestview, directed to Walter Gordon,

Superintendent of the Okaloosa County School District

recommending Mr. Rosado's expulsion, it is premised to some

extent upon the untruthful remarks by Respondent that Respondent

had touched Mr. Rosado's arm and that, in turn,

Mr. Rosado shoved Respondent. Petitioner's Exhibit Numbered 20.

46. On March 9, 2000, Ms. Evangelina Rosado, Mr. Rosado's

mother was informed that the school district of Okalo osa County

had charged Mr. Rosado and through that charge called for his

expulsion. Petitioner's Exhibit numbered 11. The specific

charges were: assault on an administrator, willful

disobedience, and open defiance of authority. The charge of

assault on an administrator stems from the false claim by

Respondent that he had been assaulted.

47. At a disciplinary hearing convened by the Okaloosa

County School Board to consider the imposition of discipline

against Mr. Rosado, Respondent read from his fals e remarks in

the disciplinary referral form, Petitioner's Exhibit numbered

19. The school board relied upon this information in making its

decision to expel Mr. Rosado, reflected in its order entered

March 22, 2000. Petitioner's Exhibit numbered 14.

4 8. While Mr. Rosado's criminal case was pending his

attorney, Martin Knopes spoke to Respondent. In the course of

that conversation Respondent told Mr. Knopes that he touched

Mr. Rosado on the arm while in the gym and that Respondent was

pushed backward s by Mr. Rosado. Both remarks are contrary to

the truth.

49. In preparation for the criminal case Respondent's

deposition was taken by Mr. Knopes. While under oath Respondent

said that he touched Mr. Rosado in their encounter somewhere

between the el bow and the shoulder. This is as contrasted with

what actually happened, in that Respondent grabbed Mr. Rosado's

upper arm. Respondent in the deposition was not truthful when

he testified that "He pushed me away with his -- with his

forearm," referring t o Mr. Rosado.

50. In the deposition in the criminal case, Petitioner's

Exhibit numbered 2, Respondent explains that as a result of the

alleged assault, he was going to go back and talk with

Mr. Rosado in the hallway near the boys' locker room and let hi m

go. Then he modifies his testimony to the effect that he was

going to go back and talk to him and see how "he" (Mr. Rosado)

reacted and let him go. According to the testimony in the

deposition the decision to press charges was ". . . because of

the rem arks he kept making and I saw that I couldn't reason with

him is when I asked the police officers to take him away." This

explanation provided in his testimony in the deposition related

to the criminal law case affords clear insight into his mindset

when he set upon the course that has led to this place in his

career.

51. Some discipline could have been expected in relation

to Mr. Rosado's conduct given the nature of the charges in the

case for expulsion, but the aspect of the discipline related to

t he alleged assault on a school district administrator comes

from the false premise about an assault supplied by Respondent,

as did the criminal prosecution. To that end, Respondent is

partially responsible for Mr. Rosado's embarrassment and

humiliation ca used by the incident and the emotional disruption

in Mr. Rosado's life.

Disciplinary History

52. There was no indication that Respondent has been

subjected to prior discipline.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

juri sdiction over the parties and the subject matter in this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Statutes (2003).

54. When the Administrative Complaint in this case was

brought, it charged violations of Section 231.2615(1)( c) and

(i), Florida Statutes (1999), within Counts 1 and 2,

respectively. The substantive provisions in those counts are

now found in Section 1012.795(1)(c) and (i), Florida Statutes

(2003). With this change jurisdiction has been retained over

the allega tions in the original Administrative Complaint. See

Solloway v. Department of Professional Regulation , 421 So. 2d

573 (Fla. 3d DCA 1982).

55. The remaining Counts 3 through 7 charge violations of

Florida Administrative Code Rules 6B - 1.001(2) and (3) an d

6B - 1.006(3)(a) and (e), and (5)(a), respectively.

56. In turn the above statutes and rules state:

§ 1012.795, Fla. Stat.

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for a period of time not to exceed 3 years,

thereby denying that person the right to

teach for that period of time, after which

the holder may return to teaching as

provided in subsection (4); may revoke the

educator certificate of any person, thereby

denying that person the right to teach for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(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 State Board of

Education rules.

Fla. Admin. Code R. 6B - 1.001.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

Fla. Admin. Code R. 6B - 1.006.

(3) Obligation to the student requires that

the individ ual;

(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

d isparagement.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

57. The reasons for the alleged violations are set forth

in the Administrative Complaint, where in it is stated:

3. On or about February 1, 2000, Respondent

and spectator R.R., became involved in a

verbal altercation at a school basketball

game. R.R. is a male student whose date of

birth is October 10, 1981. Respondent

approached R.R. after observ ing R.R. make

obscene gestures at the opposing team. He

grabbed R.R.'s arm and a verbal argument

ensued. Respondent then had police officers

escort R.R. from the gym. The deputies

handcuffed R.R. and took him to a side room

where the Respondent entered and yelled at

R.R. He told R.R. that if he was going to

'play tough guy,' he would press charges.

Respondent proceeded to write a sworn

statement to the officers stating that R.R.

had 'pushed [him] away' during the

altercation. R.R. was arrested for fel ony

Battery on a School Official. He was taken

to jail where he was searched,

fingerprinted, and held overnight. R.R.'s

mother was notified of the arrest, and

finally learned of the incident four hours

later after calling the sheriff's department

to repo rt her son missing.

4. On or about February 2, 2000, the school

principal suspended R.R. for a period of two

weeks based on the incident at the

basketball game. R.R. served the suspension

from February 2, 2000 through February 15,

2000. On or about Fe bruary 28, 2000, the

Okaloosa County School Board held an

expulsion hearing for R.R., charging him

with Assault on a School District

Administrator, Willful Disobedience of a

School District Administrator, and Open

Defiance of the Authority of a School

Dist rict Administrator. As part of the

hearing, the Respondent read his previous

statement under oath that R.R. pushed him

during the incident at the basketball game.

On or about March 9, 2000, an attorney

representing R.R. in his civil suit against

the Okal oosa County School Board took

Respondent's deposition. Respondent stated

again that 'R.R. pushed him [Respondent]

away with his arm."' On or about March 14,

2000, the Okaloosa County School Board added

the additional charge of Disorderly Conduct

against R.R. On or about March 22, 2000,

the School Board issued an Order expelling

R.R. based on a finding of fact that there

was physical contact between R.R. and

Respondent. The Board held the expulsion in

abeyance, stating that R.R. could graduate,

but had t o earn one remaining credit hour at

another school. R.R., a high school senior,

was not allowed to participate in senior

class activities, attend the prom, or attend

graduation with his class.

5. During the week prior to R.R.'s criminal

trial, which wa s scheduled for June 12,

2000, a spectator at the February 1, 2000,

came forward and provided a videotape of the

event to R.R.'s attorney. The videotape

showed the entire incident, which took place

between Respondent and R.R., and clearly

showed that R.R. never touched the

Respondent. At trial, the judge dismissed

the case against R.R. The Respondent

continues to be employed.

58. Petitioner bears the burden of proving the allegations

in the Administrative Complaint by clear and convincing

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

The definition of clear and convincing evidence is found in the

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

59. In considering the outcome of the case, it is with the

recognition that ed ucators are expected to conform to higher

moral standards. The court has held, "by virtue of their

leadership capacity, teachers are traditionally held to a higher

moral standard in a community." Adams v. Professional Practices

Counsel , 46 So. 2d 1170, 1 171 (Fla. 1st DCA 1991). As an

educator, it is not necessary that Respondent ". . . be charged

with or convicted of a crime in order to be subject to

revocation of a certificate based on conduct reflecting gross

immorality or moral turpitude . . . ." Wal ton v. Turlington ,

444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

60. Count 1 refers to acts of gross immorality or moral

turpitude. To understand the meaning of those terms, resort is

made to provisions within Florida Administrative Code

Chapter 6B - 4, wh ich defines terms for the benefit of district

school systems in disciplining instructional staff.

61. Florida Administrative Code Rule 6B - 4.009(2), defines

immorality as: "[C]onduct that is inconsistent with standards of

public conscience and good moral s. It is conduct sufficiently

notorious to bring the individual concerned or the educational

profession into public disgrace or disrespect and impair the

individual's service in the community." For the conduct to be

considered grossly immoral, it would n eed to be a form of

immorality that is obvious and inexcusable.

62. In connection with the discipline to be imposed by a

district school system for its instructional staff "moral

turpitude" is defined at Florida Administrative Code

Rule 6B - 4.009(6) as :

Crime that is evidenced by an act 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 is prohibition by statutes fixes the

moral turpitude.

Again, it is not necessary that a crime be committed in order to

demonstrate moral turpitude.

63. When measured against the definitions that have been

discussed, clear and convincing proof has been shown that

Respondent in falsely accusing Mr. Rosado of striking him in

their altercation and Respondent's actions beyond that point

constitute gross immorality but are not so severe as to reflect

moral turpitude. Respondent violated Section 101 2.795(1)(c),

Florida Statutes (2003).

64. Respondent would have violated Count 2 to the extent

that he violated any of the remaining counts to the

Administrative Complaint.

65. The proof is clear and convincing that Respondent

violated Count 3, Florid a Administrative Code Rule 6B - 1.001(2),

in that Respondent's treatment of Mr. Rosado, when he suggested

that Mr. Rosado be taken from the hallway near the boys' locker

room by the authorities and acted in support of false charges

against Mr. Rosado beyond that time was anything but conduct

expressing concern for the student and the development of

Mr. Rosado's potential. It evidenced terrible judgment and a

lack of integrity.

66. Clear and convincing evidence was presented concerning

Count 4, that Resp ondent violated Florida Administrative Code

Rule 6B - 1.001(3), in that his actions that have been explained

ignored the importance of maintaining respect and confidence

among colleagues, students, parents, or other members of the

community in relation to th is incident. Respondent failed to

achieve and sustain the highest degree of ethical conduct. In

fact, his conduct was most unethical at the point in time when

he turned Mr. Rosado over to the authorities and falsely

supported charges about an assault by Mr. Rosado, both in the

expulsion and the criminal law case.

67. Clear and convincing evidence has been presented to

support the allegations in Count 5, to the Administrative

Complaint and Respondent has violated Florida Administrative

Code Rule 6B - 1.00 6(3)(a), in the failure to make the reasonable

effort to protect Mr. Rosado from conditions harmful to

Mr. Rosado in his learning and mental health.

68. In relation to Count 6, clear and convincing evidence

has been presented to show that Respondent vi olated Florida

Administrative Code Rule 6B - 1.006(3)(e), in that Respondent

intentionally exposed Mr. Rosado to embarrassment and

disparagement for the reasons that have been described.

69. Clear and convincing evidence has been presented to

show that Re spondent violated Count 7, to the Administrative

Complaint pertaining to Florida Administrative Code

Rule 6B - 1.006(5)(a), in that Respondent did not maintain honesty

in his professional dealings as a school administrator when he

chose to pursue the course that began when Mr. Rosado was turned

over the authorities in the hallway near the boys' locker room

and Respondent in a number of instances beyond that point

continued to support the notion that Mr. Rosado had physically

assaulted Respondent, which was n ot the truth.

70. Because Respondent violated Counts 3 through 7, clear

and convincing evidence has been shown that Respondent violated

Count 2 of the Administrative Complaint.

71. In keeping with the expectations set forth in

Section 1012.795(1), F lorida Statutes (2003), and having in mind

the seriousness of these violations, a recommendation for

punishment is made.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law

reached, it is

RECOMMENDED that a Final Order be entered w hich finds

Respondent in violation of Counts 1 through 7, and revokes

Respondent's educator's certificate for a period of one year,

subject to reinstatement in accordance with Section 1012.795(4),

Florida Statutes (2003).

DONE AND ENTERED this 10th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of June, 2004.

ENDNOTES

1 / This case was originally filed by Charlie Crist, as

Commissioner of Education. Subsequently he became the Attorn ey

General of Florida and was replaced by Jim Horne, as

Commissioner of Education. This correction to the style was

agreed upon by counsel for the parties and the undersigned.

2 / Those relevant provisions set forth in Section 231.262(6),

Florida Statu tes, were later found in Section 1012.796(6),

Florida Statutes (2002).

COPIES FURNISHED :

J. David Holder, Esquire

Law Offices of J. David Holder, P.A.

4421 Commons Drive, East, Suite 432

Destin, Florida 32541 - 3487

Ronald G. Meyer, Esquire

Meyer and Brooks, P.A.

2544 Blair Stone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

D aniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

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 this Recommended Order. Any exceptions

to this Recommended Order should be filed w ith the agency that

will issue the Final Order in this case.