09-003829PL Dr. Eric J. Smith, As Commissioner Of Education vs. Robin Phitides Status: Closed Recommended Order on Friday, December 18, 2009.

Summary: Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Counts 1-5 and 7 of the Administrative Complaint. Revocation of her certificate is the appropriate penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3829PL

)

ROBIN PHITIDES, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 5, 2009, a duly-noticed hearing was held by video

teleconference with sites in Tallahassee and Jacksonville,

Florida, before Lisa Shearer Nelson, an administrative law judge

assigned by 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: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On February 4, 2009, Dr. Eric J. Smith, as Commissioner of

Education (the Commissioner or Petitioner), filed an

Administrative Complaint against Respondent, Robin Phitides,

alleging violations for Section 1012.795(1)(a), (d), and (j),

Florida Statutes (2004, 2007) 1/ ; Florida Administrative Code Rule

6B-1.006(3)(a), (e), and (i); and Florida Administrative Code

Rule 6B-1.006(5)(a). The alleged misconduct deals with three

separate factual contexts: 1) criminal offenses that allegedly

occurred outside the classroom; 2) representations made on

Respondent's application for recertification; and 3)

inappropriate discipline within the classroom during the 2007-

2008 school year. Respondent disputed the allegations in the

Administrative Complaint and requested a hearing pursuant to

Section 120.57(1), Florida Statutes (2009). On July 17, 2009,

the matter was referred to the Division of Administrative

Hearings for assignment of an administrative law judge.

A Notice of Hearing by Video Teleconference was filed on

August 4, 2009, setting the case for October 5, 2009. Petitioner

filed a unilateral Pre-hearing Stipulation on September 30, 2009.

On October 5, 2009, the hearing was held as scheduled.

At hearing, Petitioner presented the testimony of John

Williams, Officer D.F. Lauyans, Roseanne Jones, Irene Szeremi,

Leroy Starling, Michael Cobb and Dr. Charles Wolfgang.

Petitioner's Exhibits 1-8 were admitted into evidence.

Petitioner was granted leave until November 5, 2009, to submit

the deposition testimony of two witnesses, and on October 21,

2009, the depositions of A.D. and M.D. were filed, which are

admitted as Petitioner's Exhibits 9 and 10, respectively.

Respondent presented testimony on her own behalf and submitted no

exhibits. The parties stipulated that Respondent has held a

certificate as an educator during all times material to the

Administrative Complaint, and Petitioner advised that it would

present no evidence on the first three sentences of paragraph

three of the Administrative Complaint.

The proceedings were recorded, and the Transcript was filed

with the Division November 17, 2009. Both parties timely filed

Proposed Recommended Orders that have been carefully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

certifying and regulating public school teachers in Florida.

Respondent is licensed in the fields of elementary education and

pre-kindergarten education. She holds Florida Educator's

Certificate No. 544004, which was valid through June 30, 2009.

2. During the time relevant to these proceedings,

Respondent was employed as a kindergarten teacher at Oceanway

Elementary School in the Duval County School District.

Criminal Charges

3. On August 7, 2002, Respondent was arrested for

contributing to the delinquency of a minor and with failure to

comply with the compulsory school attendance law. These charges

stemmed from excessive absences from school by her daughter, A.F.

During the 2001-2002 school year, A.F. missed 66 days of school.

Respondent did not dispute the allegations regarding the

excessive absences. She stated that her daughter did not want to

attend school, and she took her out of the public school system

during the 2002/2003 school year to home school her. Prior to

her removal, she missed 13 days of the 2002-2003 school year.

Upon her return to school for the 2003-2004 year, Respondent's

daughter missed another 43 days of school.

4. On September 3, 2002, Respondent's entered her

neighbor's property while he was not at home. She climbed up on

a chair to tamper with the mounting of a security camera affixed

to the neighbor's garage, removing caulk or putty from around the

mounting. Respondent was arrested for trespass and criminal

mischief with respect to this incident.

5. On January 17, 2003, Respondent pleaded no contest to

the charge of failing to comply with school attendance laws, and

adjudication was withheld. Respondent was placed on probation

for a period of twelve months, and a fine of $148.00 was imposed.

The charge of contributing to the delinquency of a minor was

nolle prossed . Respondent's probation with respect to the school

attendance violation was terminated on July 8, 2003.

6. Four days later, on January 21, 2003, Respondent pleaded

nolo contendere to the trespass charge, and adjudication of guilt

was withheld on this charge as well. The criminal mischief

charge was nolle prossed .

Application for Renewal of Educator's Certificate

7. On April 14, 2004, Respondent filed an application for

renewal of her Florida educator's certificate.

8. The application for renewal contained the following

question:

Have you ever been convicted, found guilty,

had adjudication withhold, entered a pretrial

diversion program, or pled guilty or nolo

contendere (no contest) to a criminal offense

other than a minor traffic violation (DUI is

NOT a minor traffic violation)?

A YES or NO answer is required by Florida

law. If you check the YES box, you must give

the information requested for each charge.

Please attach a separate sheet with your name

and social security number if you need more

space.

9. Respondent answered the question "no."

10. The application contains and Respondent signed the

following certification, which is sworn and notarized:

I hereby certify that I subscribe to and will

uphold the principles incorporated in the

Constitutions of the United States of America

and the State of Florida. I understand that

Florida Statutes provide for revocation of an

Educator's Certificate if evidence and proof

are established that the certificate has been

obtained by fraudulent means. I further

certify that all information pertaining to

this application is true, correct, and

complete.

11. The information provided on the application for

recertification was not true, correct and complete, as it did not

include information regarding the two misdemeanor offenses of

trespassing and failing to comply with the school attendance law,

to which Respondent pled nolo contendere .

Inappropriate Student Discipline

12. During 2007-2008 school year, Respondent was teaching

kindergarten at Oceanway Elementary School. At this time, she

was known as Robin Bush. During at least part of the school

year, she was assisted by Roseanne Jones and Irene Szeremi,

paraprofessionals who worked in her classroom. While these women

worked with Respondent at different times, their testimony about

the atmosphere in the classroom was consistent.

13. Respondent was heard threatening the students in her

class and yelling at them in a loud, angry manner. According to

the paraprofessionals, Respondent yelled at the students almost

every day. This behavior would cause some students to become

upset and cry, and students appeared to be afraid of Respondent.

14. Respondent punished at least one child, J.H., by making

him sit underneath a computer table, amidst the electrical cords,

for long periods of time. The area where the child was directed

to sit for time-out had not only electrical cords, but electrical

outlets readily accessible to small children.

15. On one occasion, Ms. Szeremi observed Respondent

discipline J.H. by making him stand up with his nose pressed to

the wall at eye level. When Respondent left the room for a

moment, the crying child dropped to the ground, protesting that

he could not continue. When Respondent returned, she lifted him

back to a standing position, using her knees to propel him up.

16. Respondent's loud, threatening behavior was upsetting

to the students. At least one student, A.D., had been a happy

student during her pre-kindergarten experience. However, within

a few weeks of attending Respondent's kindergarten class, she

started crying when it was time to go to school and did not want

to attend. She had nightmares, complained of an upset stomach,

and did not want to be out of her mother's sight. After

Respondent was removed from the classroom, A.D.'s behavior

improved and she no longer dreaded going to school.

17. In May of 2008, M.D., A.D.'s mother, contacted

Mr. Cobb, the principal at Oceanway Elementary, regarding the

atmosphere in Respondent's classroom and her concerns about

inappropriate discipline taking place in the classroom. The two

paraprofessionals working with Respondent had also voiced

concerns about her behavior.

18. As a result of these concerns, an investigation was

conducted by Leroy Starling, the Duval County School District

professional standards investigator. Before his retirement,

Mr. Starling was the professional standards investigator for the

School District for 17 years, following a 25-year career with the

Jacksonville Sheriff's Office.

19. As part of the investigation, Mr. Starling interviewed

several of Respondent's students in Mr. Cobb's presence. The

students were interviewed individually in a non-leading fashion.

Based upon the interviews of the students and of the

paraprofessionals working with Respondent, the School District

determined that the allegations of inappropriate discipline were

substantiated.

20. On September 10, 2008, the School District issued a

letter of reprimand to Respondent, based on the allegations of

inappropriate discipline.

21. Respondent denied using inappropriate discipline,

accused one of the paraprofessionals of "being bipolar" and

having Alzheimers' Disease, and claimed that J.H. sat under the

computer table because that is where he wanted to be.

Respondent's testimony is rejected. She also claimed, although

she was not present for any of the interviews, that Mr. Starling

and Mr. Cobb led the students to say bad things about her.

22. It is considered abuse for a teacher to require a

student to stand with his or her nose against a wall for a

substantial period of time. Such a punishment could have a

significant psychological impact on a child. The same could be

said for consistently yelling at kindergarten students, and

punishing students by making them lie or sit under a table.

Persuasive evidence indicates that instead of creating an

atmosphere for learning for these five and six-year-old students,

Respondent's classroom had an atmosphere of fear that would

interfere with the ability to learn.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

24. This proceeding is a disciplinary proceeding to take

action against Respondent's certification to teach in the State

of Florida. Petitioner bears the burden of proof to demonstrate

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

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

25. 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 lacking in

confusion as to the facts in issue. The

evidence must be of such a 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

26. The Administrative Complaint alleges the following

facts to support the imposition of discipline against Respondent:

3. . . . [O]n or about September 3, 2002,

Respondent took her minor child and a ladder

and entered J.C.'s property uninvited and

while she knew he was not at home. While on

J.C.'s property, Respondent removed putty

from a security camera on the garage.

Respondent was arrested and charged with one

count of Criminal Mischief and one count of

Trespass on Property. On or about January

21, 2003, Respondent pled nolo contendere to

the charge of Trespass on Property and the

court withheld adjudication of guilt. On the

same date all other charges were nolle

prossed.

4. During the 2001/2002 school year,

Respondent failed to ensure that her

elementary school age child attended school

on a regular basis in violation of Florida's

compulsory school attendance law and

resulting in Respondent's child having 31 un-

excused absences for the school year. During

the fall semester of the 2002/2003 school

year, Respondent continued to withhold her

child from classes resulting in 13 unexcused

absences for the first half of the year. On

or about December 24, 2002, Respondent was

arrested and charged with Count 1, Failure to

Comply with Compulsory School Attendance Law

and Count 2, Contributing to the Delinquency

of a Minor. On or about January 17, 2003,

Respondent pled nolo contendere to Count 1

and the court withheld adjudication of guilt.

On the same day, Count 2 was nolle prossed.

5. During the 2007/2008 school year

Respondent engaged in inappropriate conduct

that included but was not limited to the

following:

A. Respondent required kindergarten students

to serve extended periods of "timeout" on the

floor, under a computer table requiring the

students to sit on electrical wires, computer

cables and dirt.

B. Respondent drew a circle on the board and

required kindergarten students to stand for

extended periods of time with their nose in a

circle.

C. Respondent struck kindergarten students

with a ruler.

D. Respondent discussed the medical history

of students with parents of other students

and with other teachers.

E. Respondent solicited B.J., the parent of

one of her kindergarten students, to write a

letter denying that Respondent had employed

inappropriate discipline with B.J.'s son.

When B.J. failed to write the letter,

Respondent went to B.J.'s house to exert

further pressure and acted in a manner that

suggested to B.J.'s husband that Respondent

was inebriated.

F. Without administrative permission,

Respondent showed her kindergarten class

videos that had been downloaded from the

internet that were inappropriate for the age

group in that they depicted violence or

suggested violence.

6. On her application to renew her Florida

Educator's Certificate, Respondent failed to

acknowledge her criminal background as

required by Florida law and in conflict with

her statement on the application that all

information provided was true, and accurate

and complete in that she failed to

acknowledge her 2002 charge.

27. Petitioner has demonstrated by clear and convincing

evidence that, as alleged in paragraph three of the

Administrative Complaint, Respondent entered her neighbor's

property, removed putty from the camera mounting, and was

arrested and charged with trespassing and criminal mischief.

Petitioner has also proven that Respondent pled nolo contendere

to the charge of trespass, for which adjudication was withheld.

28. Petitioner has proven by clear and convincing evidence,

as alleged in paragraph four of the Administrative Complaint,

that Respondent allowed her daughter to be absent from school on

numerous days with no valid excuse, and that as a result she was

charged with contributing to the delinquency of a minor and

failure to comply with the compulsory school attendance law.

Petitioner has also proven by clear and convincing evidence that

Respondent pled nolo contendere to the compulsory attendance

violation, for which adjudication was withheld, and that the

remaining charge was dismissed.

29. Petitioner has proven by clear and convincing evidence

the material allegations in subparagraphs 5A and 5B of the

Administrative Complaint. Petitioner has not proven the

remaining allegations in paragraph five, either because no

evidence was presented or the evidence presented was not

competent, or substantial. 2/

30. Petitioner has also proven by clear and convincing

evidence that Respondent filed an application to renew her

Florida Educator's Certificate, and on that application falsely

stated that she had never pled nolo contendere to a criminal

offense other than a minor traffic violation.

31. Section 1012.795(1), Florida Statutes, authorizes the

Commission to suspend, revoke, or otherwise discipline a teaching

certificateholder, where it is shown that he or she:

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

* * *

(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.

32. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(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.

* * *

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or is

required by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

33. Section 1012.796(7), Florida Statutes (2009), provides

the penalties for violations of Section 1012.796 and Rule 6B-

1.006. Those penalties include denial of a certificate,

revocation or suspension, probation, restriction of the

certificate and administrative fines not to exceed $2,000 per

count or offense.

34. The Education Practices Commission has not defined

"gross immorality" or "moral turpitude" for the purposes of

discipline to be imposed pursuant to Section 1012.795, Florida

Statutes. The Commission has, however defined "immorality" and

"moral turpitude" for use by school districts in taking action

against instructional personnel in Florida Administrative Code

Rule 6B-4.009. This rule, which may provide guidance in this

context, provides in pertinent part:

(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

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a 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 its prohibition by

statute fixes the moral turpitude.

35. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

36. Count One of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(a). The Department

has proven this charge by clear and convincing evidence. By

applying for recertification of her educator's certificate

without disclosing, as required, the two pleas of nolo contendere

entered in 2003, Respondent obtained a teaching certificate by

fraudulent means.

37. Count Two of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(d), Florida

Statutes. In support of this charge, the Commission asserts that

Respondent has committed gross immorality by stating under oath

on her 2004 application that she had not entered pleas of no

contest or had adjudication withheld with respect to any criminal

offense, when in fact she had entered two such pleas, and in each

case adjudication was withheld by the court. The Commission also

contends that Respondent committed an act of gross immorality or

moral turpitude when she removed the caulk from the camera

mounting on her neighbor's property, and by virtue of her

improper and egregious methods of physical discipline.

38. Removal of putty from the camera mounting, and the nolo

plea for trespassing do not rise to the level of gross immorality

or a crime of moral turpitude. Winn v. Daniel Gardiner , No. 08-

6171 (DOAH Recommended Order 2009)(citation for trespass does not

rise to the level of gross immorality or an act of moral

turpitude). However, deliberately falsifying the application for

renewal is a an act of gross immorality as contemplated by

Section 1012.795(1)(c), Florida Statutes. See Turlington v.

Jenkins , No. 82-2834 (DOAH Recommended Order 1983). Likewise,

the methods used in disciplining children within her care, as

well as the general demeanor exhibited in front of kindergarten

students are acts of gross immorality. Count I has been proven

by clear and convincing evidence.

39. Count Three of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(j), Florida

Statutes, by violating the Principles of Professional Conduct for

the Education Profession as prescribed by rule. As explained

below, Respondent's violation of Counts Four, Five and Seven

require a finding that the Commission has demonstrated a

violation of Count Three by clear and convincing evidence.

40. Count Four of the Administrative Complaint charges a

violation of Rule 6B-1.006(3)(a), by failing to make a reasonable

effort to protect a student from conditions harmful to learning

and/or to the student's mental health and/or physical safety.

The Commission has demonstrated a violation of this rule by clear

and convincing evidence. Respondent yelled at the

kindergarteners in her classroom on almost a daily basis. Her

manner was abusive and threatening, to the point where the five

and six-year-olds in her care were afraid of her and reduced to

tears. At least one child was so frightened, she suffered

nightmares, crying spells and upset stomachs, and was afraid to

attend kindergarten. No child should be subjected to this type

of behavior in what is supposed to be an environment to create a

foundation for a child's educational future and foster learning.

41. Respondent also violated Rule 6B-1.006(3)(a) by placing

J.H. in time-out under a computer table. Respondent contends

that she did not place him there as a punishment, but that he

chose to go under the table and she let him. Her explanation is

rejected. Even assuming that she allowed, as opposed to ordered,

J.H. to sit under the table, the location was not a safe place

for a small child. Respondent should have known that placing or

allowing a child to sit amongst computer wires and adjacent to

electrical plugs placed the child in a potentially dangerous

position. Under either scenario, Respondent has failed to make

reasonable effort to protect the child's safety.

42. Count Five of the Administrative Complaint charges

Respondent with violating Rule 6B-1.006(3)(e), by intentionally

exposing a student to unnecessary embarrassment or disparagement.

The Commission has proven this charge by clear and convincing

evidence. By placing J.H. in time-out under the computer table,

and by requiring him to stand with his nose in a circle on the

wall, Respondent engaged in methods of punishment that were

humiliating and isolative. Expert testimony, which is credited,

demonstrated that this type of punishment is not an accepted form

or discipline and is abusive to the child.

43. Count Six of the Administrative Complaint charges

Respondent with violating Rule 6B-1.006(3)(i), by failing to keep

in confidence personally identifiable information obtained in the

course of professional services. No evidence was presented to

support this charge. Accordingly, Count Six should be dismissed.

44. Count Seven charged Respondent with violating Rule 6B-

1.006(5)(a), by failing to maintain honesty in all professional

dealings. By failing to disclose her pleas of nolo contendere ,

for which adjudication was withheld, on her application for

renewal of her teaching certificate, Respondent acted in a manner

that was dishonest and unprofessional. Count Seven has been

proven by clear and convincing evidence.

45. In summary, Counts One, Two, Three, Four, Five and

Seven have been proven by clear and convincing evidence, and

provide a basis for discipline. Count Six has not been proven

and should be dismissed.

46. The Commission has adopted disciplinary guidelines for

the imposition of penalties authorized by Section 1012.796,

Florida Statutes. Florida Administrative Code Rule 6B-11.007(2)

provides that for a violation of Section 1012.795(1)(a), as

charged in Count One, the appropriate penalty range is probation

to revocation. For a violation of Section 1012.795(1)(c), as

charged in Count Two, the penalty range is also probation to

revocation. The appropriate penalty range for using

inappropriate methods of discipline, of violation of Rule 6B-

1.006(3)(a) and (e), and charged in Counts Four and Five, is a

reprimand to revocation. Failure to protect children, in

violation of Rule 6B-1.006(3)(a) is probation to revocation. The

same penalty (probation to revocation) is the range identified

for other violations of Section 1012.795, such as that alleged in

Count Seven, not specifically covered by the guidelines.

47. Rule 6B-11.007 also identifies several aggravating and

mitigating factors to be considered in determining the

appropriate penalty. Due consideration to these factors as well

as the guideline ranges for the violations proved have been

considered in determining the recommendation for penalty in this

case. Respondent has been found guilty of several violations

based on multiple different factual instances taking place over a

period of six years. What is particularly disturbing is that in

each instance she casts responsibility or blame on anyone other

than herself. For example, she claimed that the neighbor, now

deceased and therefore not available as a witness, was taking

pictures of her and her daughter, necessitating her trespass onto

his property to examine his security camera. She claimed a

paraprofessional testifying against her was bipolar and has

Alzheimers' Disease. She excused her daughter's non-attendance

at school because she did not want to attend, yet professed to be

an educator. Most importantly, she created an atmosphere in her

classroom where small children were afraid to come to school.

Not only were her claims not credible, but they evidenced an

attitude that served only to confirm that she does not belong in

a classroom.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

finding Respondent guilty of Counts One, Two, Three, Four, Five

and Seven of the Administrative Complaint; dismissing Count Six

of the Administrative Complaint; and permanently revoking her

education certificate.

DONE AND ENTERED this 18th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 18th day of December, 2009.

ENDNOTES

1/ The applicable statutory provision for each violation is the

codification in effect at the time of the conduct, i.e. , the 2004

codification with respect to the renewal application, and the 2007

codification for the allegations with respect to the 2007-2008

school year. There has been no change in Section 1012.795 from

the 2004 codification to the 2007 codification.

2/ No evidence was presented with respect to subparagraphs D and

E. A finding that Respondent committed the acts alleged in

subparagraph C would depend on the testimony of a child, A.D., who

was five at the time of the events, and 7 when her deposition was

taken. However, there was no demonstration in the deposition that

A.D. had the ability to tell the difference between the truth and

a lie, or understood the moral obligation to tell the truth. See

Family Services , 975 So. 2d 435 (Fla. 2d DCA 2007)(insufficient

inquiry into the child witness's ability to understand the

difference between telling a lie and telling the truth required

reversal). With respect to paragraph F, the only evidence that

Respondent showed videos in class is the statement of A.D.'s

mother, M.D., that A.D. told her about the videos. This hearsay

statement is insufficient to support a finding of fact.

§ 120.57(1)(c), Fla. Stat. (2009).

COPIES FURNISHED:

Edward T. Bauer, Esquire

Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

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 3399-0400

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 the final order in this case.