11-000743PL Dr. Eric J. Smith, As Commissioner Of Education vs. Bryan Mays Status: Closed Recommended Order on Tuesday, June 28, 2011.

Summary: Respondent's license should be suspended for 60 days where he intentionally disparaged his fifth grade students, thereby seriously reducing his effectiveness. Not guilty of incompetence and intentionally violating a student's rights.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH , AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 743 PL

)

BRYAN MAYS , )

)

Respondent. )

________________________________)

RECOM MENDED ORDER

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

before Edward T. Bauer, an Administrative Law Judge of the

Division of Admini str ative Hearings, on May 19 , 2011 , by video

teleconference a t sites in Tallahassee and Port St. Lucie ,

Flo rida.

APPEARANCES

For Pet itioner: Ron Weaver , Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Bryan Mays, pro se

207 Gardenia Avenue

Fort Pierce, Florida 34982

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Administrative Complaint , and

if so, the penalty that should be imposed.

PRELIMINARY STAT EMENT

On December 13 , 2010, Petitioner, Dr. Eric J. Smith, as

Commissioner of Education, filed an Administrative Compl aint

against Respondent, Bryan Mays. The Administrative Complaint,

which consists of six counts, alleges that Respondent committed

variou s acts of misconduct during the 2009 - 2010 school year

while employed as a music teacher with the St. Lucie County

School District. Respondent timely requested a formal hearing

to contest the allegations, and, on February 16, 2011 , the

matter was referred to the Division of Administrative Hearings .

During the May 19, 2011, Final Hearing , Petitioner

presented the testimony of Susan Ranew, Assistant Superintendent

of Human Resources for the St. Lucie County School District;

Charlotte Tombline, a teacher at Parkway Elementary in the St.

Lucie School D istrict; Jennifer Avellino, an assistant p rincipal

at Parkway Ele mentary; Ucola Barrett - Baxter, p rincipal of

Parkway Elementary; and students E.J.V., Y.G.H., W.F., and K.P.

Petitioner introduced twelve exhibits into evidence, numbered 1 -

12. Respondent testified on his own behalf and introduced seven

exhibits, numbered 1 - 7. With the undersignedÓs consent,

Respondent late - filed four exhibits, numbered 8 - 11. 1

The final hearing Transcript was f iled with DOA H on

June 15 , 2011 . Petitioner timely filed a Proposed Recommended

Order , which the undersigned has considered . Respondent did not

submit a proposed recommended order. 2

Unless otherwise indicated, all rule and statutory

re ferences are to the versio ns in effect at t he time of the

alleged misconduct .

FINDINGS OF FACT

A. The Parties

1. Petitioner is the head of the Florida Department of

Education, the state agency charged with the responsibility of

investigating and prosecuting complaints of violat ions of

section 1012.795, Florida Statutes, against teachers holding

Florida educator's certificates.

2. Bryan Mays, Respondent in this proceeding, holds

Florida Educator's Certificate 636531, covering the area of

music, which is valid through Jun e 30, 2011.

B. Background

3. At all times material to the allegations of thi s case,

Respondent was employed as a music teacher in the St. Lucie

County School District ("the district").

4 . Respondent's employment with the district , which

commen ced in 1999 , wa s initially uneventful. B eginning in 2006,

however, Respondent began to amass a disciplinary history with

th e district, which included: letters of concern in May 2007 and

May 2008; a reprimand for insubordination in May 2008; and

placement on unpaid status in January 2009, which continued for

approximately three months.

5. With the aim of providing him with a fresh star t, the

district transferred Respondent from Manatee Elementary to

Parkway Elementary beginning with the 2009 - 2010 school year.

Unfortunately, and as detailed below, the evidence demonstrates

that Respondent did not take advantage of this opportunity and

engaged in improper classroom behavior.

C . The Instant Allegations

6. During the final hearing, Petitioner p resent ed

testimony from four children, each of whom was a member of

Respondent's fifth - grade music class at Parkway Elementary

during 2009 - 2010.

7. Collectively, the students' testimony establishes that

Respondent, durin g music class, disparaged his pupils b y calling

them "stupid," "retarded," and "idio ts." Respondent also told

his students , at least once, tha t they would never get "real

jobs" and would not amount to more than garbage collectors, or

words to that effect . 3 On another occasion, Respondent yel led at

student N. while standing approximately five to twelve inches

from his face.

8. Not surprisingly, Respondent's behavior and insults

were not well received by the testifying students. In

particular , the comments made student E.J.V. " feel bad"; Y.G.H.

was both angered and saddened; W.F. felt "really sad [and]

depressed"; and K.P. was "disturbed and upset."

9. Ultimately , Ms. Charlotte Tombline, a reading and

science teacher at Parkway Elemen tary , l earned of the misconduct

while leadi ng a classroom discussion on the topic of bullying.

Specifically, one of her students asked if it was acceptable for

a teacher to call students "idiots." At that point, other

students chimed in ÏÏ some of whom were close to tears ÏÏ and

revealed Respondent's misconduct to Ms. Tombline in greater

detail. Ms. Tombline promptly notified the administration of

Parkway Elementary, at which point an investigation ensued.

10. The principal of Parkway Elementary (Ms. Ucola

Barrett - Baxter ) concluded, after interview ing some of

Respondent's students and receiving complaints from parents

regarding the inappropriate clas sroom comments, that

Respondent's effectiveness was reduced to the point that he

needed to be relieved of his duties. Shortly thereafter, the

district removed Respondent from the classroom and notified him

that it would move forward with termination proceedings. On

March 9, 2010, Respondent resigned his position with the

district .

D . Other Allegation Î Halloween Film

11 . Petitio ner further alleges in the Administrative

Complaint that Respondent intentionally violated the legal

rights of student Y.G.H. by not excusing her from the viewing of

a film .

12 . It is undisputed that in October 2009, Respondent

presented a film to his cla ss about Halloween music. Y.G.H.,

who "sometimes" considers herself a Jehovah's Witness, 4 advised

Respondent that she did not want to wa tch the film due to her

religious beliefs . Although Respondent continued to play the

film and told Y.G.H. that she nee ded to pay attention , Y.G.H.

put her head on her desk and either covered her eyes or went to

sleep.

13 . Respondent credibly testified during the final hearing

that because the Halloween film was part of the music

curriculum, he did not believe it was ne cessary , upon hearing

Y.G.H.'s objection, to contact school administration or excuse

the student from class. Respondent further testified:

A. It -- it was a musical activity . . .

which was in the Silver Burdett book which -

- and I showed the film in ref erence to the

songs that were in the Silver Burdett book

at the time, and there were lots of

Halloween songs in the Silver Burdett books.

And that's approved by the county, approved

by the state.

Final Hearing Transcript, p. 145.

14 . Petitioner adduced no evidence demonstrating that

Respo ndent's playing of the film was improper, 5 n or did it prove

that Respondent intentionally violated any of Y.G.H.'s legal

rights.

CONCLUSIONS OF LAW

A. Jurisdiction

15 . The Division of Administrative Hearings has

ju risdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. The Burden and Standard of Proof

16 . This is a disciplinary proceeding against Respondent's

licen se. Accordingly, Petitioner must prove t he allegations in

the Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

17 . Clear and convincing evidence:

[R]e quires 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 eviden ce 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.

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

C. The EPC's Authority to Discipline Teaching

Certificates; The Charges Against Respondent

18 . Section 1012.795(1), Florida Statutes, gives the

Education Practices Commission the power to suspend or revoke

the teaching certificate of any person, either for a set period

of time or permanently, or to impose any penalty provided by

law, if he or she is guilty of certain acts specified in the

statute.

19 . In Counts One, Two, and Three of the Administrative

Complaint, Petitio ner alle ges that Respond ent has committed the

following violations of section 1012. 795(1) :

(c) Has proved to be incompetent to teach or

to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

* * *

(g) Upon investigation, has been found

guilty of personal conduct tha t seriously

reduces that person' s effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

20 . Petitioner further alleges, i n Count s Four, Five, and

Six of the Administra tive Complaint, that Respondent has

violated three Principles of Professional Conduct : Florida

Administrative Code R ule 6B - 1.006(3)(a), by failing to make

r easonable effort to protect students from conditions harmful to

learn ing and/or their mental health; r ule 6B - 1.006(3)(e), by

intentionally exposing one or more students to unnecessary

embarrassment or disparagement; and rule 6B - 1.006(3)(f), by

intentionall y denying or violating a student's legal rights.

21 . Whether Respondent violated these statutes and rules,

as charged, is a question of ultimate fact to be decided in the

context of each alleged violation. McKinney v. Castor , 667 So.

2d 387, 389 (Fla. 1st DCA 1995).

D. Count One: Section 1012.795(1)(c)

22 . In Count O ne of the administrative complaint,

Petitioner contends that Respondent is in violation of section

1012.795(1)(c), which provides, in relevant part, that an

educator may be disciplin ed if he or she "[h]as proved to be

incompetent to teach or to perform duties as an employee of the

public school system."

23 . Although chapter 1012 contains no definition of

"incompetent," the Education Practices Commission has defined

"incompetency," by rule, for use by local school districts in

taking action against instructional personnel:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a re lative

term, an authoritative decision in an

individual case may be made on the basis of

testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on .

. . evidence showing the existence of one

(1) or more of the following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate wit h and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her super vision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lac k of adequate command

of his or her area of specialization.

Fla. Admin. Code R. 6B - 4.009 (1) .

24 . Applying the foregoing definition to the instant case,

Petitioner has failed to demonstrate that Respondent has been

rendered incompetent to teach by eit her inefficiency or

incapacity.

25 . With respect to inefficiency, neither of the two

applicable alternatives enumerated in rule 6B - 4.009(1)(a) has

been proven by clear and convincing evidence. In particular,

there has been no showing that Respondent h as repeatedly failed

to perform the duties outlined in section 231.09, Florida

Statutes. A lthough Respondent failed to properly communicate

with his class on multiple occasions, there is no evidence that

his students were deprived of a minimal educational experience.

On the contrary , all of the students who testified during the

fi nal hearing admitted that they learned about music while

taking Respondent's class.

26 . Turning to incapacity, "lack of emotional stability"

is the only prong of rule 6B - 4.009( 1)(b) that could plausibly

apply in th is case. Respondent's behavior, while unquestionably

improper, does not clearly and convincingly prove that

Respondent was emotionally unstable to such a degree that he was

rendered incompetent.

E. Count Two: Sect ion 1012.795(1)(g)

27 . Next, Petitioner alleges that Respondent is guilty of

personal misconduct that seriously reduces his effectiveness as

an employee of the school board, in violation of section

1012.795(1)(g).

28 . As detailed in the findings o f fact, Respondent's

verb al mistreatment of his students resulted in p arental

complaints to the princ ipal of Parkway Elementary , Ms. Barrett -

Baxter, who ultimately concluded ÏÏ aft er speaking with the

students ÏÏ that she no longer wanted Respondent at her sch ool . A

district investigation ensued, which culminated in Respondent's

removal from Parkway Elementary and his resignation 6 as a school

board employee . These facts provide clear and convincing

evidence that Respondent's behavior seriously reduced his

eff ectiveness as a School B oard employee, and as such,

Res pondent is guilty of Count Two. See, e.g. , Castor v. Clarke ,

Case No. 92 - 6923, 1993 Fla. Div. Adm. Hear. LEXIS 5411 (Fla.

DOAH Aug. 5, 1993)(concluding that teacher's use of disparaging

and vulgar rem arks toward students seriously reduced his

effectiveness as a school board employee).

F. Count Three: Section 1012.795(1)(j)

29 . Count Three charges Respondent with violating the

Principles of Professional Conduct for the Education Profession,

in violation of section 1012.795(1)(j). By virtue of the

conclusions made below with respect to Counts Four and Five ÏÏ in

which the undersigned finds Resp ondent guilty of violating rule

6B - 1.006(3)(a) and (3)(e) ÏÏ Petitioner has proven Count Three by

clear and convincing evidence.

G. Count Four: Rule 6B - 1.006(3)(a)

30 . In Count Four of the Administrative Complaint,

Petitioner alleges that Respondent failed to protect students

from conditions harmful to learning and/or their men tal health,

in violation of Fl orida Administrative Code Rule 6B - 1.006(3)(a).

31 . As discussed previously , Respondent directly insulted

his students by calling them "retarded," "dumb," and "idiots,"

and, on at least one occasion, informed them that they would

never get "real jobs . " S uch comments, which adversely affected

each of the students who testified during the final hearing,

plainly constitute a violation of rule 6B - 1.006(3)(a). See

Horne v. West , Case No. 03 - 2272PL (Fla. DOAH Oct. 21, 2003)

(concluding that teacher failed to p rotect students from

conditions harmful to their mental health, in violation of rule

6B - 1.006(3)(a), by referring to them as "fat" and "stupid"); Lee

Cnty. Sch. Bd. v. Phillips , Case No. 02 - 1271 , 2002 Fla. Div.

Adm. Hear. LEXIS 1027 (Fla. DOAH Aug. 2, 2002 )(finding violation

of rule 6B - 1.006(3)(a) where evidence demonstrated that teacher

used derogatory terms toward his students, which included

"stupid," "ignorant," and "no good"); Castor v. Rawls , Case No.

92 - 4489, 1993 Fla. Div. Adm. Hear. LEXIS 5166 (Fla . DOA H Feb.

26 , 1993)(concluding educ ator violated rule 6B - 1.006(3)(a ) by

calling her elementary students "stupid," "dumb," and telling

them that they wer e "never going to be anything"); Dep't of

Educ., Educ. Practices Comm'n v. Smith , Case No. 83 - 2024, 19 83

Fla. Div. Adm. Hear. LEXIS 6235 (Fla. DOAH Sept. 30, 1983)

( finding teacher failed to protect students from conditions

harmful to learning by calling them names such as "dumb,"

"stupid," and "brainless").

H. Count Five: Rule 6B - 1.006(3)(e)

32 . Petitioner next alleges, in Count Five of the

Administrative Complaint, that Respondent's derogatory comments

subjected them to unnecessary embarrassment or disparagement, in

violation of rule 6B - 1.006(3)(e) . There is no question that

students were dispa raged by Respondent's inappropriate comments,

as all of the testifying children revealed that they were

saddened, upset, and/or angered by his behavior. Accordingly,

Respondent is guilty of Count Five. See Horne v. Knight , Case

No. 03 - 4096PL, 2004 Fla. D iv. Adm. Hear. LEXIS 1736 (Fla. DOAH

June 11, 2004)(finding violation of rule 6B - 1.006(3)(e) where

teacher belittled her fourth grade students during class by

calling them, among other things, "slow," "stupid," "stupid

idiots," and "babies"); Sch. Bd. of Palm Beach Cnty. v. Fereara ,

Case No. 86 - 066, 1986 Fla. Div. Adm. Hear. LEXIS 3610 (Fla. DOAH

Aug. 11, 1986)(finding that teacher exposed his students to

unnecessary embarrassment or disparagement by calling them

derogatory names such as "jerk," "immature, " and "stupid").

I. Count Six: Rule 6B - 1.006(3)(f)

33 . Finally, Petitioner contends that intentionally

violated student Y.G.H.'s legal rights, contrary to rule 6B -

1.006(3)(f), by refusing to excuse her from class during the

playing of the Halloween vid eo .

34 . At the outset, it is critical to recognize that the

presence of Halloween festivities and decorations in public

schools is not unlawful under most circumstances . See Guyer v.

Sch. Bd. of Alachua Cnty. , 634 So. 2d 806 (Fla. 1st DCA 1994).

In G uyer , the evidence demonstrated that prior to and during

Halloween, elementary schools in Alachua County were decorated

with depictions of witches, brooms, and cauldrons. In addition,

some t eachers dressed up as witches by adorning b lack dresses

and point ed hats. Id. at 806. Finding the behavior

objectionable, a parent of several elementary students sued to

permanently enjoin the school district from engaging in such

future practices. In holding that the school board did not

violate the establishment cl auses of the constitutions of

Florida or the United States, the court reasoned:

In the present case, there is no doubt that

the Halloween festivities and decorations

serve a secular purpose. According to the

school principal, the costumes and

decorations serve to make Halloween a fun

day for students and serve an educational

purpose by enriching their educational

background and cultural awareness. The

record also reflects that this cultural

celebration enhances a sense of community.

In addition, the Hall oween festivities and

decorations do not foster any excessive

entanglement b etween government and

religion. No evidence was offered to show

that any one acted in furtherance of any

religion and as such had any involvement

whatsoever with the school Hallow een

celebration, nor was there any argument to

that effect. Thus the question in this case

boils down to whether the principal or

primary effect of the celebration, including

depictions of the symbols appellants object

to, is the endorsement or promotion of

religio n. We are firmly convinced that it

is not.

Id. at 808.

35 . As in Guyer , it is apparent from Respondent's

testimony ÏÏ and there is no evidence to the contrary ÏÏ that the

Halloween film was intended to serve a secular, educational

purpose. Accor dingly, pursuant to the First District's holding

in Guyer , Respondent's mere act of playing the movie was not

unlawful.

36 . The question remains, however, whether Respondent was

legally obligated to either turn off the film or excuse Y.G.H

from th e lesso n after the student informed him that she was a

Jehovah's Witness. A ssuming, arguendo, t hat the content of the

film was incompatible with Y.G.H.'s religious beliefs,

Petitioner has cited no specific authority ( constitutional,

statutory , case law , o r otherwise ) demonstrating that any legal

right of the student was violated. See Broward Cnty. Sch. Bd.

v. Deering , Case No. 05 - 2842, 2006 Fla. Div. Adm. Hear. LEXIS

367 (Fla. DOAH July 31, 2006)("To demonstrate a violation of

[rule 6B - tioner] must establish, as an

element of the offense, which legal right or rights were

infringed upon by the accused teacher. Here, however, the

School Board has neither proved nor even identified the legal

rights allegedly at stake. For this reason alon e, th e offense

was not established"); Crist v. Goldberg , Case No. 02 - 1371PL,

2002 Fla. Div. Adm. Hear. LEXIS 1361 ( Fla. DOAH Dec. 6,

2002)("Further, the undersigned agrees with Goldberg's

contention that the Commissioner failed to articulate clearly

any le gal rights(s) of students that Goldberg intentionally

could have denied or violated under these circumstances")

(emphasis added) .

37. E ven if a violation of Y.G.H.'s legal rights did

occur, Petitioner failed to prove that Respondent acted with the

neces sary intent. See Fla. Admin. Code. R. 6B - 1.006(3)(f)

( providing that educators "Shall not intentionally violate or

deny a student's legal rights")(emphasis added); Horne v. Adams ,

03 - 3165PL ( Fla. DOAH June 11, 2004 )( "Any legal right of M.S.

which Mr. Adam s may have violated or denied to M.S., was not

intentionally violated or denied").

38. For these reasons, Respondent is not guilty of Count

Six.

J. Penalty

39 . In its Proposed Recommend ed Order, Petitioner requests

a two - year suspension of R espondent's teaching certificate. In

the undersigned's view, however, a suspension of that length is

too harsh in light of Respondent's lack of prior discipline by

the Education Practices Commission. Under the circumstances,

the undersigned recommends a 60 - day suspension of Respondent's

certification, a penalty well within the disciplinary guidelines

and consistent with punishments imposed in similar cases . See

Fla. Admin. Code R. 6B - 11.007(2)(f) (providing for a penalty

range of probation to revocation for personal conduct that

seriously reduces effectiveness as a district school board

employee); Crist v. Young , Case No. 02 - 0 966PL, 2002 Fla. Div.

Adm. Hear. LEXIS 1334 (Fla. DOAH Oct. 31, 2002)(imposing 60 - day

suspension based upon finding that educator's improper classroom

behavior, which included gruff behavior toward students (e.g.,

"I hate these damn kids") , resulted in a serious reduction in

effectiveness and violated rule 6B - 1.006(3)(a) and (3)(e)),

adopted in toto , February 14, 2003.

REC OMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Education Practices Commission:

1. Finding that Respondent violated s ection 1012.795(1)(g)

and (1)(j ), Florida Statutes, a s charged in Counts Two and Three

of the Administrative Complaint.

2. Findin g that Respondent violated rule 6B - 1.006(3)(a)

and (3)(e), as charged in Counts Four and Five.

3. Dismissing Counts One and Six of the Administrative

Complaint.

4. Suspendi ng Respondent's teaching certificate for 60

days.

DONE AND ENTERED this 28 th day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUE R

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 28 th day of June , 2011 .

ENDNOTES

1 Petitioner's objections to Respondent's late - filed exhibits

are overruled.

2 On May 25, 2011, Respondent s ubmitted a letter to the

undersigned requesting that he be found not guilty of each count

charged in the Administrative Complaint. The unders igned has

considered Respondent' s correspondence in the preparation of

this Recommended Order.

3 Respondent does not deny tha t he used words such as "stupid"

during class, but insists that the language was utilized as a

corrective measure (i.e., "don't be stupid") as opposed to a

direct insult (i.e., "you're stupid"). Finding the testimony of

the children more credible on this point, the undersigned

concludes that Respondent's use of words such as "stupid,"

"idiots," and "retarded" were employed as insults.

4 Y.G.H. testified that her father (a Jehovah's Witness) and her

mother (a Catholic) are living apart , and that she "sometimes"

considers herself a Jehovah's Witness because she visits her

father's residence. Final Hearing Transcript, p. 71.

5 In its Proposed Recommended Order, Petitioner highlights

Respondent's statement during cross - examination that he did not

seek permission to play the video. However, Petitioner never

demonstrated ÏÏ either through Respondent's cross - examination

testimony or any other evidence ÏÏ that Respondent was required to

obtain approval.

6 In his May 25, 2011, corresponden ce to the undersigned,

Respondent suggests that because he settled the termination

action (with his resignation) brought against him by the St.

Lucie County School District, the Commissioner of Education is

barred from taking action against his teaching ce rtificate.

Respondent is mistaken, however, as it is well - settled that the

doctrines of collateral estoppel and res judicata do not apply

when two separate and distinct governmental units independently

consider similar factual allegations , but for differe nt

purposes . Newberry v. Fla. Dep't of Law Enf., Crim. Just. Stds.

& Training Comm'n , 585 So. 2d 500, 501 (Fla. 3d DCA

1991)(holding that Criminal Justice Standards and Training

Commission was not prohibited from taking action against

appellant's law enfo rcement certification, notwithstanding fact

that appellant had preva iled at an administrative proceeding ÏÏ

brought by the Dade County School Board to terminate licensee's

employment ÏÏ that was based upon similar factual allegations;

"[T]he doctrines of res j udicata or estoppels by judgment are

not applicable under the facts of the case where two separate

and distinct governmental units independently considered similar

factual allegatio ns but for different purposes"); see also Todd

v. Carroll , 347 So. 2d 618, 619 (Fla. 4th DCA 1977).

COPIES FURNISHED :

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

Bryan Mays

207 Gardenia Avenue

Fort Pierce, Florida 34982

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lo is Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahas see, 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

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 must be filed with the agency that

will issue the final order in this case.