10-009921PL Dr. Eric J. Smith, As Commissioner Of Education vs. Mary Dwyer Status: Closed Recommended Order on Monday, April 11, 2011.

Summary: Teacher closed a door on student's hand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9921PL

)

MARY DWYER , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on February 11, 2011, by video teleconference with sites in

Tampa and Tallahassee, Florida , before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Mary Kathleen Dwyer

603 Highview Terrace, North

Brandon, Florida 33510 - 2446

ST ATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes

(2008), 1/ and Florida Administrative Code Rule 6B - 1.006(3)(a),

and, if so, what discipline should be imposed.

PRELIMI NARY STATEMENT

On October 19, 2009, Petitioner, Eric J. Smith, as

Commissioner of Education, filed an Administrative Complaint

against Respondent, Mary Dwyer (Ms. Dwyer), alleging that she

violated sections 1012.795(1)(g) and 1012.795(1)(j) and rule 6B -

1.0 06(3)(a). Ms. Dwyer requested an administrative hearing, and

the case was forwarded to the Division of Administrative

Hearings on October 27, 2010, for assignment of an

A dministrative L aw J udge to conduct the final hearing.

The final hearing was originall y scheduled for January 11,

2011. Petitioner filed a Motion to Continue Formal Hearing,

which was granted by Order dated January 6, 2011. The final

hearing was rescheduled for February 11, 2011.

At the final hearing, Petitioner made an ore tenus motion

t o amend the Administrative Complaint in paragraph two to change

the date from June 18, 2008, to May 9, 2008, and to strike

paragraph five. The motion was granted.

At the final hearing, Petitioner called the following

witnesses: P . J . , Dewitt Jones, and J . D . Petitioner's Exhibit 1

was admitted in evidence. At the final hearing, Ms. Dwyer

testified on her own behalf. Respondent's Exhibits 1 through 3

and 5 were admitted in evidence. Respondent's Exhibit 4 was not

accepted in evidence.

The one - volume Tr anscript was filed on February 24, 2011.

The parties agreed to file their Proposed Recommended Orders

within ten days of the filing of the Transcript. The parties

timely filed their Proposed Recommended Orders, which have been

considered in the preparati on of this Recommended Order.

FINDINGS OF FACT

1. Ms. Dwyer held a Temporary Educator Certificate

No. 798892, covering the areas of English to Speakers of Other

Languages (ESOL) and Family and Consumer Services, which was

valid through June 30, 2008. Ms. Dwyer has not sought to renew

her teaching certificate.

2. At all times material to the Amended Administrative

Complaint, Ms. Dwyer was employed as an ESOL resource teacher at

Dowdell Middle School (Dowdell), located in the Hillsborough

County School Dis trict.

3. On May 9, 200 8 , a multi - cultural festival was being

held at Dowdell. Ms. Dwyer was heading up the festival.

4. On May 9, 200 8 , P.J. was a student at Dowdell, and he

was assigned to take pictures for the school yearbook by his

teacher, Ms. Bedf ord. The assignment was to take pictures of

Ms. Belin's class. When he arrived at Ms. Belin's classroom,

she was not present, and he returned to Ms. Bedford's classroom.

He was told to go to the festival, where Ms. Belin probably had

gone, and to take pictures of the festival and Ms. Belin's

class.

5. Ms. Bedford gave P.J. a pass, and he had the camera

with him. He headed to the festival, which was being conducted

in the auditorium. There were two sets of double doors located

on one side of the auditorium with a wall dividing the sets of

double do ors.

6. When P.J. arrived at the double doors, Ms. Dwyer was at

the doors on the inside of the auditorium. P.J. asked Ms. Dwyer

to let him in because he had a pass and he was supposed to take

pictures of the festival. Ms. Dwyer told him that he could not

come in, but he countered that he had a pass. Ms. Dwyer told

him that if he did not move that she was going to slam his hand

in the door. He did not go away and told her that she better

not shut the door on his hand. Ms. Dwyer shut the door on his

l eft hand. P.J. quickly pulled his hand out.

7. Mr. Dewitt Jones, Jr., is a seventh - grade teacher at

Dowdell. He witnessed part of the incident between Ms. Dwyer

and P.J. He saw P.J. reach for the door and tell Ms. Dwyer not

to close the door on his han d. Mr. Jones also saw Ms. Dwyer

close the door on P.J.'s hand and then observed P.J. holding his

hand. Mr. Jones could tell that P.J. was in pain and told him

to go to the office so that the nurse could check his hand and

to report the incident.

8. Anot her witness, J.D., observed Ms. Dwyer yelling at

P.J. and then clos ing t he door on P.J.'s hand. He also saw P.J.

grab his hand after the door closed on it.

9. P.J. went back to Ms. Bedford's class and told her what

had happened. She advised him to go to the office and file a

report and then to go to the nurse to have his hand examined.

10. The police were called as a result of the incident. A

police officer interviewed P.J., and P.J. advised the police

officer that his left hand was the hand that was caught in the

door. The police officer took pictures of P.J.'s left hand and

a picture showing both left and right hands.

11. Two or three days after the incident, P.J. went to his

physician. An X - Ray was taken of his hand, but the X - Ray did

not reveal any broken bones. The physician prescribed some pain

medication for P.J.

12. After the incident, there was a fair amount of

coverage in the media about the incident. Ms. Dwyer was removed

from the classroom and given administrative work to do.

13. Be cause Ms. Dwyer did not renew her teaching

certificate, she was not allowed to return to teach in the

Hillsborough County School District for the 2008 - 2009 school

year.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over t he parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

15. Petitioner has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

evidence. Dep ' t of Banking & Fin . v. Os borne Stern & Co . , 670

So. 2d 932 (Fla. 1996). Petitioner alleges that Ms. Dwyer

violated sections 1012.795(1)(g) and 1012.795(1)(j) and rule 6B -

1.006(3)(a).

16. Sections 1012.795(1)(g) and 1012.795(1)(j) provide:

( 1) The Education Practices Commissio n 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

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

dist rict school board or public school in

any capacity requiring direct contact with

students for up to 10 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:

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee o f the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

17. Rule 6B - 1.006 provides:

(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 educatorÓs

certificate, or the other penalties a s

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 studentÓs mental and/

or physical health and/or safety.

18. Petitio ner has established by clear and convincing

evidence that Ms. Dwyer closed the door on P.J.'s hand after he

had advised her that he had a pass and was assigned to take

pictures a t the festival for the yearbook. Her statement that

she was going to slam the door on P.J.'s hand if he did not move

lends credence to the conclusion that shutting the door while

P.J.'s hand wa s in the door was intentional.

19. The incident received coverage in the media, and

Ms. Dwyer was removed from the classroom as a result of the

incident. Her conduct seriously reduced her effectiveness as

employee of the Hillsborough County School District. Petitioner

has established that Ms. Dwyer violated section 1012.795(1)(g).

20. Petitioner has established by clear and convincing

ev idence that Ms. Dwyer violated rule 6B - 1.006(3)(a) by failing

to protect P.J. from physical harm. She should not have closed

the door on his hand. By violating rule 6B - 1.006(3)(a),

Ms. Dwyer has violated section 1012.795(1)(j).

21. Petitioner has recomm ended that Ms. Dwyer be placed on

probation for two years during which time she must complete a

class on adolescent development; be given a written reprimand to

be placed in her file; and be required to pay a fine of $500.00.

This recommendation is reason able.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Mary Dwyer violated sections 1012.795(1)(g) and

1012.795(1)(j) and rule 6B - 1.006(3)(a); placing her on probati on

for two years with the condition that she complete a class on

adolescent development; giving her a written reprimand, which is

to be placed in her file ; and imposing a fine of $500.00.

DONE AND ENTERED this 11th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th d ay of April, 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Todd P. Resav age, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Mary Kathleen Dwyer

603 Highview Terrace, North

Brandon, Florida 33510 - 2446

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Flo rida 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.