14-003906PL Pam Stewart, As Commissioner Of Education vs. Allan Rubenstein Status: Closed Recommended Order on Monday, August 31, 2015.

Summary: Commissioner did not prove charges by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Petitioner,

vs. Case No. 14 - 3906PL

ALLAN RUBENSTEIN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 22 thro ugh 24, 2015, a disputed fact hearing was

held in this case by video teleconference in Orlando and

Tallahassee, Florida, before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Es quire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

Cheryl L. Wolf , Esquire

Department of Education

Turlington Building, Suite 1244

325 W est Gaines Street

Tallahassee, Florida 32399 - 0400

For Respondent: Carole C. Schriefer, Esqui re

George F. Indest, III, Esquire

Ritisha K. Chhaganlal, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 - 2033

STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices

Commission sho uld take disciplinary action against the teacher

certificate held by the Respondent , Allan Rubenstein, based on an

Administrative Complaint charging him with violating Florida

Administrative Code Rules 6A - 10.081(3)(a) (failure to make

reasonable effort to protect students from conditions harmful to

learning or to students ' mental or physical health or safety) and

6A - 10.081(3)(e) (intentional exposure of students to unnecessary

embarrassment or disparagement) and, therefore, violating section

1012.795(1)(j), Florida Statutes (2011) (for those rule

violations). (The statutes and rules charged were those in

effect at the time of the alleged violations.)

PRELIMINARY STATEMENT

At the final hearing, the Petitioner called Thomas Mullins,

Mary Jo Bryant, Shannon M ullins, Pat Burney, Elizabeth Eskin,

Cherri Samuel, John Wright, Haley Bryant, John McHale, and

Yolanda Notyce to testify. Petitioner Exhibits 2 through 5,

7 through 19, 21, and 22 were admitted in evidence. (The

Respondent ' s objection to Exhibit 2 is ov erruled; portions of

Exhibit 16 relating to uncharged conduct have been disregarded.)

The Respondent testified and called Missy Green, Stephanie Conte,

Alexis Gautier, Steve Soubasis, Stephanie Feulner, Samantha Bell,

Lindsiann Taylor, and Tami Yingling t o testify. Respondent

Exhibits A through Z were admitted in evidence.

The six - volume Transcript of the final hearing was filed on

June 23, 2015. The parties ' proposed recommended orders have

been considered.

FINDING S OF FACT

1. The Respondent is a hig h school English and journalism

teacher , who also coached volleyball and acted as faculty adviser

and sponsor of the yearbook. He holds Florida educator

certificate 721989, which expires on June 30, 2019. He is

certified in the areas of English ( g rades 6 through 12) and

physical education ( g rades 6 through 12). Prior to the 2011 - 2012

school year, the Respondent ' s performance , in all aspects of his

employment as a high school teacher , was exemplary and without

incident of any kind.

2. The Respondent ' s difficulties at Timber Creek began when

two female high school seniors named Haley Bryant and Shannon

Mullins , who were yearbook editors, complained to the school

administrators that the Respondent called them to the front of

his classroom in late November 2011 and offered to give them

Victoria Secret lingerie. The Respondent disputes the students '

versions of what happened that day. Eleven days later, the

Respondent demoted the students as yearbook editors ; had them do

book work , instead of yearbook work during class ; and denied them

access to the yearbook. The students complained that the

demotions and denials of access to the yearbook were in

retaliation against them for reporting the alleged lingerie gift

offer to the school administration. The Petit ioner sides with

the students ' versions and takes the position that the facts

justify teacher certificate discipline under rules

6A - 10.081(3)(a) (failure to make reasonable effort to protect

students from conditions harmful to learning or to students '

ment al or physical health or safety) and 6A - 10.081(3)(e)

(intentional exposure of students to unnecessary embarrassment or

disparagement), which are parts of the Principles of Professional

Conduct for the Education Profession in Florida (Principles of

Professi onal Conduct), governing Florida teachers.

3. The Respondent denies retaliating against the students

and explains that the demotions and access denials w ere not

related to what they reported to the school administration.

Instead, he states that he demo ted them due to poor performance,

as he had warned them repeatedly would happen if their

performance did not improve , and that he denied them access to

prevent them from sabotaging the yearbook after their demotions.

4. According to Shannon and Haley , o n Monday, November 28,

2011, the Respondent called Shannon and Haley to his desk , " out -

of - the - blue , " during the yearbook class , and told them he had a

gift for them, if they wanted it -- namely, a Victoria ' s Secret bra

that did not fit his wife. They testif ied that this made them

feel uncomfortable, and they did not know what to say but laughed

it off and walked away. They testified that they talked it over

later in the day but were afraid to tell an adult for fear of

repercussions from the Respondent.

5. The Respondent testified that Shannon and Haley's

version is false. He says what actually occurred on that day was

that the Respondent ' s yearbook class was engaged in a holiday

gift exchange called " Secret Santa. " Each student and the

Respondent picked a name randomly and were to purchase a

Christmas gift for the person whose name was picked. To help the

gift - giver (the " Secret Santa " ), students wrote their names and a

suggested gift on the board. The Respondent became concerned

when he saw that the s tudent whose name he had picked wrote

" Victoria ' s Secret " on the board. He testified that he summoned

Shannon and Haley , told them such gifts were inappropriate and

asked them to have the student who wrote it on the board to erase

it and write something e lse.

6. The Respondent ' s wife testified that the Respondent came

home from school visibly upset one day and told her about his

conversation with Shannon and Haley . She testified that he told

her he tried to illustrate his discomfort by relating a story

about how embarrassed he was to buy a Victoria ' s Secret gift for

her once and later was too embarrassed to return it when his wife

did n o t want it. According to the Respondent ' s wife, the

Respondent told her that Shannon and Haley then asked if they

coul d have the gift. The Respondent ' s wife then admonished him

and advised him to make it very clear to them the next day that

such a gift to them would be inappropriate and that he was not

offering the item to them. She added that there actually was no

such item, as they had donated it to a charity after the

Respondent declined to return it.

7. The Respondent corroborated his wife ' s testimony and

testified that he followed her advice and, on November 29, erased

all the Secret Santa ' s gift suggestions from the board ; later

reiterated and emphasized to Shannon how uncomfortable he was

with their request for Victoria ' s Secret gifts the day before ;

and told her never to ask for them again.

8. According to Shannon, on Friday, December 2, she went to

the Resp ondent ' s classroom to retrieve some of her belongings,

and the Respondent told her he had underwear to go with the bra

and asked if she wanted them. She testified that she became

uncomfortable, did not respond, and left the classroom. The

Respondent deni ed that any such conversation ever took place.

9. Shannon testified that after the alleged underwear

offer, she felt it was a serious matter that made her extremely

uncomfortable, and she decided to tell her parents. She

testified that her parents want ed to go directly to the school

administration, but she asked them to let her handle it herself.

Her father testified that he contacted the school administration

anyway, but there is no record or indication that Mr. Mullins

contacted the school until much later in December.

10. Shannon testified that she went to a trusted teacher,

Elizabeth Eskin, on Tuesday, December 6, and told her what the

Respondent had said to her and Haley. According to Ms. Eskin,

Shannon was straightforward but acted upset, like it was

" weighing on her and she needed a release. "

11. Ms. Eskin escorted Shannon to the school administration

office where Shannon reported her version of conversations with

the Respondent regarding lingerie. Haley was summoned, and she

corroborated Sh annon ' s story. Both appeared to be crying, and

they seemed uncomfortable and embarrassed to the adults present,

who initiated an investigation.

12. The next day, December 7, the Respondent was summoned

to be questioned by two administrators, Pat Burney and

Jeffrey Boettner. They informed him that there had been a

complaint against him, and they asked him if he had offered a

gift to any student. They did not identify the students or tell

him anything else about the complaint. The Respondent denied

know ing what the complaint could be about. He wondered aloud if

it could be about the yearbook class Secret Santa gift exchange,

saying that there had been some conversation among the students

to the effect that whoever the Respondent drew would receive

somet hing nice, that someone said something about Abercrombie,

that someone else said something about Victoria ' s Secret, and

that he told the students such gifts would be inappropriate.

13. Later in the day on December 7, the Respondent emailed

Messrs. Burney and Boettner his complete answer to their

question. He wrote that there were numerous things over the

years that could be considered gifts by him to various students,

including Secret Santa gifts. None of the gifts described in the

list would be conside red inappropriate. He did not mention any

conversations with Shannon and Haley or with his wife, which the

Petitioner contends is significant, but those conversations would

not have been directly responsive to the question if no such gift

was offered to t hem.

14. By the following day, December 8, the Respondent had

figured out that the complaint probably had been made by Shannon

and Haley based on things he heard other students saying.

15. On Friday, December 9, the Respondent separated Shannon

and Hal ey ; had them do book work , instead of yearbook work during

class ; and denied them access to the yearbook. Shannon and Haley

were very upset. They thought the Respondent appeared to be

angry. Haley began to cry. The Respondent ' s action and the

reaction by Shannon and Haley were very obvious to the entire

class. Shannon texted her mother about what was happening and

asked two other students to go to the office between classes

(Shannon and Haley had two consecutive classes with the

Respondent) to tell the administration what was going on.

Shannon ' s mother arrived at school, and Shannon was summoned to

the office. Haley was summoned a short time later and was crying

when she arrived. The students told the administration that the

Respondent had retaliated against them for having reported the

lingerie gift offers by demoting them from their positions as

yearbook editors, isolating them from the rest of the class, and

denying them access to the yearbook, which was humiliating and

embarrassing. In response, the administration told the

Respondent that he was to pack up his things and leave the school

pending an investigation and until further notice.

16. The following week, the school principal, John Wright,

interviewed the Respondent. The Respondent told h im his version

of his conversations with Shannon and Haley. He denied

retaliating against them. Instead, he said he was following

through on repeated warnings he had given both of them for

inadequate performance as yearbook editors.

17. Based on statem ents initially made by Shannon and

Haley, the Petitioner attempted to portray them as model,

high - performing, unfailingly honest students, who gave the

Respondent no reason to criticize their performance as yearbook

editors, which is a position usually onl y offered to student s

meeting that description . To the contrary, the greater weight of

the evidence was that the Respondent and the representative of

the yearbook publisher, who worked closely with the Respondent

over the course of several years, had seri ous questions about how

Shannon and Haley would perform as yearbook editors. During the

spring of 2011, when they were juniors , they were invited as

prospective yearbook editors for the following year to the

headquarters of the publisher to learn and star t to plan the next

year ' s yearbook. On the trip, Shannon was obstinate in insisting

on her preferred yearbook theme, which was " the end of the

world, " as supposedly predicted by the ancient Mayan calendar.

Although a bad idea for a high school yearbook, Shannon could not

be dissuaded and became sullen, uncooperative , and troublesome

when the Respondent finally made it clear that she would not get

her way. This reaction was not out - of - character for Shannon, who

had similar reactions when she did not make varsity volleyball in

either her sophomore or senior years. (She did not try out in

her junior year.) Shannon also seemed more interested in

shopping than the yearbook. Shannon was a negative influence on

Haley, who tended to follow Shannon ' s lead.

18 . Despite these concerns, the Respondent decided to give

Shannon and Haley a chance to prove themselves as editors during

their senior year, in part , because there were no other rising

seniors who looked to be any better prospects. As it happened,

from th e start Shannon and Haley did not perform well as editors,

and the Respondent repeatedly warned them that he would have to

remove them as editors if they did not improve. While first

denying that she performed poorly or that the Respondent warned

her abou t poor performance, Shannon later admitted that she was

warned, but said she did n o t take the warnings seriously.

19. Not long before November 28, 2011, the Respondent

decided that he had to do something if the yearbook for 2011 - 2012

was going to measure up to the high standards that had been set

in prior years. Instead of removing Shannon and Haley, he named

a junior as co - editor. This did not sit well with Shannon and

Haley. Based on past experience, it would not be out - of - the -

question for Shannon to plot to get back at the Respondent using

false lingerie gift allegations and other fabrications, or for

Haley to go along with it.

20. When the principal heard the Respondent ' s side of the

story, he criticized how the Respondent handled things, even

ass uming he was telling the complete truth. Based on the

testimony of the principal and assistant principal, John McHale,

the Petitioner takes the position that the Respondent should

have: just erased the blackboard with the Secret Santa gift

suggestions, i nstead of asking Shannon and Haley to do it, and

canceled Secret Santa; reported problems with the performance of

Shannon and Haley to Mr. McHale, who was his direct supervisor;

had " due process " meetings with Shannon and Haley and their

parents before dem oting them; and notified Mr. McHale before

taking action to demote them. However, there were no written

school policies regarding " due process " meetings or notification

to the direct supervisor. Meanwhile, the Respondent had a

written contract with his y earbook students, approved by the

school, stating that demotion and denial of access would be a

consequence of poor performance by a yearbook editor.

21. The school referred the inappropriate gift and

retaliation charges to the Orange County School Distr ict for

investigation. The Respondent was placed on " relief of duty with

full pay and benefits as of December 9, 2011. " His principal

gave him " directives " for clarification and guidance regarding

expectations (which are not considered to be disciplinary in

nature) and put him back to work as a teacher on January 10,

2012, except that he was replaced as yearbook sponsor. The

Respondent continued to perform in an exemplary manner in all

other respects for the rest of the school year.

22. During the Oran ge County School District ' s

investigation, students were interviewed and were asked whether

they had any knowledge of inappropriate cell phone communication

with the Respondent. The students searched their phones to find

texts that might be deemed inappro priate. The evidence suggests

that cell phone texting was a common means of communication among

the Respondent, Shannon, and Haley. There was no convincing

evidence that texting , per se , was inappropriate. The Petitioner

questions the appropriateness of two text communications and

takes the position that they justify teacher certificate

discipline under rules 6A - 10.081(3)(a) or 6A - 10.081(3)(e).

23. One September 2011 text stated that the Respondent was

" pissed " about the failure of the yearbook editor to meet a

deadline. The Petitioner takes issue with the language used.

(Incidentally, this text and others in evidence corroborated the

Respondent ' s testimony that he was indeed upset with Shannon and

Haley for their poor performance as editors and their disrespect

for him as teacher and yearbook sponsor.) In an exchange in

November 2011, the Respondent received a text from Shannon that

included " SMH. " The Respondent answered " SMFH. " The Respondent

testified that he is not text - savvy and was not aware that there

was a commonly understood vulgar meaning of those texts. He

testified that he ignorantly and naively thought they meant

" something like . . . see my hand " and " see my face and hand. "

The Respondent ' s testimony on this point seemed improbable , but

not completely implausible. The evidence was not clear and

convincing that he knew the vulgar meanings at the time.

24. Regardless whether the Respondent knew the vulgar

meanings of SMH and SMFH, the evidence was not clear and

convincing that by usi ng them and the word " pissed " one time, the

Respondent failed to make reasonable effort to protect students

from conditions harmful to learning or to students ' mental or

physical health or safety, or intentionally exposed students to

unnecessary embarrassm ent or disparagement.

25. On June 6, 2012, the Respondent acknowledged receipt of

a written reprimand from his principal. The reprimand , dated

January 10, states that it summarizes a meeting between the

principal and the Respondent that took place on Ja nuary 5 and

refers to the directives given to the Respondent by the principal

on January 10. It is unclear why the Respondent did not

acknowledge receipt of the reprimand until June. The reprimand

is for the inappropriate use of poor judgment in interact ions

with students. It cites to the following provision of the

Principles of Professional Conduct: " The educator ' s primary

professional concern will always be for the student and for the

development of the student ' s potential. The educator will

therefor e strive for professional growth and will seek to

exercise the best professional judgment and integrity. " This is

not a ground for proposed discipline in this case.

26. The Respondent decided not to return to Timber Creek

High School for the 2012 - 2013 s chool year. Instead, he took a

job teaching, coaching volleyball, and sponsoring the yearbook at

F ather Lopez Catholic High School (Father Lopez High School ) in

Volusia County. The evidence was that he has performed in all

three roles in an exemplary man ner at F ather Lopez High School .

CONCLUSIONS OF LAW

27. The Education Practices Commission regulates the

certification and discipline of teachers in Florida.

Disciplinary proceedings like this one are considered to be penal

in nature.

28. In prosecuti ng this disciplinary action, the Petitioner

is limited to proving the charges and allegations pled in the

Administrative Complaint. Cf. Trevisani v. Dep ' t of Health ,

908 So. 2d 1108 (Fla. 1st DCA 2005); Aldrete v. Dep ' t of Health,

Bd. of Med. , 879 So. 2d 1244 (Fla. 1st DCA 2004); Ghani v. Dep ' t

of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep ' t

of Prof ' l Reg., Bd. of Med. , 563 So. 2d 805 (Fla. 1st DCA 1990).

29. The Administrative Complaint charges the Respondent

with: asking Shannon and H aley to come to his desk and offering

to give them a Victoria ' s Secret bra he had purchased for his

wife and offering to give Shannon other undergarments four days

later; retaliating against them for reporting the gift offers by

assign ing them entry - level book work during yearbook class , while

the rest of the class worked on the yearbook; and inappropriately

communicating with student members of the volleyball team and the

yearbook staff by texting some student members repeatedly

regarding non - school matter s. The Administrative Complaint

charges violations of section 1012.795(1)(j), by violating rule

6A - 10.081(3)(a) (failure to make reasonable effort to protect

students from conditions harmful to learning or to students '

mental or physical health or safety) and 6A - 10.081(3)(e)

(intentional exposure of students to unnecessary embarrassment or

disparagement), which are parts of the Principles of Professional

Conduct governing Florida teachers.

30. The Petitioner must prove the charges against the

Respondent by clear and convincing evidence. See Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 ( Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

31. Clear and convincing evidence " requires more proof than

a ' preponderance of the evide nce ' but less than ' beyond and to

the exclusion of a reasonable doubt. '" In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida

Supreme Court, the standard:

[E] ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (citing with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

" Although this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous. "

We stinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

32. Using these standards, the charges were not proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practic es Commission

dismiss the charges.

DONE AND ENTERED this 31st day of August , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 31st day of August , 2015 .

COPIES FURNISHED:

Gretchen K. Bra ntley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Su ite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

(eServed)

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

(eServed)

Carole C. Schriefer, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 - 2033

(eServed)

George F. Indest, III, Esquire

The H ealth Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 - 2033

(eServed)

Ritisha K. Chhaganlal, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 - 2033

Cheryl L. Wolf , Esquire

Department of Education

Turlington B uilding, Suite 12 44

325 W est Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.