09-006513PL Dr. Eric J. Smith, As Commissioner Of Education vs. Michael Allen Simmons Status: Closed Recommended Order on Thursday, April 29, 2010.

Summary: Petitioner seeks to discipline Respondent/band teacher for touching student with a baton to obtain the student's attention, but failed to prove violation of Principles of Professional Conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6513PL

)

MICHAEL ALLEN SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on March 5, 2010, in Orlando, Florida, before Jeff B. Clark, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Michael Allen Simmons, pro se

6004 Westgate Drive, Apartment 102

Orlando, Florida 32835

STATEMENT OF THE ISSUE

Whether it is appropriate for Petitioner to discipline

Respondent's Florida educator's certificate for acts alleged in

Petitioner's Administrative Complaint dated July 16, 2009.

PRELIMINARY STATEMENT

On July 16, 2009, Petitioner, Dr. Eric J. Smith,

Commissioner of Education, filed an Administrative Complaint

advising Respondent, Michael Allen Simmons, that he was seeking

disciplinary sanctions against his Florida educator's

certificate.

On September 10, 2009, Respondent requested an

administrative hearing if a settlement was not reached. On

November 25, 2009, Petitioner forwarded the case to the Division

of Administrative Hearings for assignment of an Administrative

Law Judge.

On November 25, 2009, an Initial Order was sent to both

parties requesting, inter alia , mutually-convenient dates for

the final hearing. Based on the response of the parties on

December 3, 2009, the case was scheduled for final hearing on

February 2, 2010, in Orlando, Florida. On January 28, 2010,

Respondent requested a continuance, and on February 1, 2010, the

case was rescheduled for March 5, 2010.

The hearing took place as scheduled on March 5, 2010.

Petitioner presented four witnesses: Dr. Stephanie Shames,

Michael Longmire, Rivers Lewis, and C.F. Petitioner submitted

four exhibits that were received into evidence and marked

Petitioner's Exhibits 1 through 4. At the hearing, Respondent

testified in his own behalf and had with him a conductor's

baton.

The Transcript of Proceedings was filed on March 17, 2010.

Both parties timely submitted Proposed Recommended Orders.

All statutory references are to Florida Statutes (2007),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Respondent holds Florida Professional Educator's

Certificate No. 1045332, covering the area of music, which is

valid through June 30, 2011. At the time of the incident

alleged in the Administrative Complaint, he was employed as a

band teacher at Memorial Middle School, Orlando, Florida.

2. Petitioner is the head of the state agency responsible

for certifying and regulating public school teachers in Florida.

3. On December 12, 2007, Respondent, pursuant to his

teaching responsibility, was conducting the seventh-grade band

ensemble which was performing in the school cafeteria.

Apparently, this is where the band class meets.

4. C.F., a sixth-grade band student, was in the cafeteria

as a part of the class. Students who were not actively

performing had been instructed to remain quiet, to read music,

to be courteous and not to distract the performing ensemble.

5. Notwithstanding the admonition to remain quiet, C.F.

became "bored" and began "banging" rhythmically on a lunch

table.

6. Initially, Respondent attempted to get C.F.'s

attention. Another student also attempted to stop C.F.

Respondent moved across the cafeteria as he continued to conduct

the ensemble, reached out and "tapped" C.F. on the wrist/forearm

with a conductor's baton "to get his attention," and instructed

him by facial expressions to stop banging on the table.

7. A conductor's baton is approximately eight inches long,

has a cork end that allows it to be grasped between the thumb

and forefinger, and is smaller in circumference than a pencil.

It looks similar to a small knitting needle, only shorter.

8. When the ensemble concluded the musical selection it

was performing, Respondent returned his attention to C.F. who

began arguing with him. Respondent told C.F. to remove himself

from the cafeteria and stand in the hallway.

9. Instead of standing in the hallway as instructed, C.F.

went to the assistant principal, Mr. Campbell, and complained

that Respondent had struck him.

10. Mr. Campbell called Mr. Longmire, the sixth-grade dean

of men, to his office, and Mr. Longmire observed a small red

mark on C.F.'s arm.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2009); Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA

1993).

12. Section 1012.795, Florida Statutes (2009), reads, in

pertinent part, as follows:

(1) The Education Practices Commission

may suspend the educator certificate of any

person as defined in s. 1012.01(2) or

(3) for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or a

public school in any capacity requiring

direct contact with students 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 or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to ten years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules.

13. Florida Administrative Code Rule 6B-1.006 states, in

pertinent part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or 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.

14. Because Respondent's Florida educator's certificate is

at risk of being sanctioned, Petitioner bears the burden of

proving the allegations in the Administrative Complaint by clear

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

(Fla. 1987). The definition of clear and convincing evidence is

found in the case of Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983).

15. Because the statute and rules providing grounds for

disciplining Respondent's Florida educator's certificate are

penal in nature, they must be construed in favor of Respondent.

Rosario v. Burke , 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v.

Department of Professional Regulations , 348 So. 2d 923 (Fla. 1st

DCA 1977).

16. Petitioner has failed to prove by "clear and

convincing evidence" that Respondent violated the Principles of

Professional Conduct for the Education Profession in Florida in

that he failed to "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." The evidence

clearly suggests that Respondent was simply attempting to gain

the attention of a disruptive student by tapping his hand/wrist

with the conductor's baton.

17. It is also alleged that Respondent violated the

Principles of Professional Conduct for the Education Profession

in Florida in that he "intentionally expose[d] a student to

unnecessary embarrassment or disparagement." While it is not

hard to imagine that a student would be embarrassed by being

asked to leave the classroom, based on the evidence presented,

removing the student appears to be an appropriate remedy for

the disruption caused by the student and arguing with a teacher.

Petitioner has failed to prove that Respondent violated Florida

Administrative Code Rule 6B-1.006(3)(e) by "clear and

convincing" evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Michael Allen Simmons, be

found not guilty of the violations alleged in the Administrative

Complaint and that no disciplinary action be taken.

DONE AND ENTERED this 29th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 2010.

COPIES FURNISHED :

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Michael Allen Simmons

6004 Westgate Drive, Apartment 102

Orlando, Florida 32835

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 the Final Order in this case.