14-004458PL Pam Stewart, As Commissioner Of Education vs. Samuel Vinson Status: Closed Recommended Order on Thursday, January 29, 2015.

Summary: Petitioner proved the allegations. Respondent's teaching certificate should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 14 - 4458PL

SAMUEL VINSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in St.

Petersburg, Florida , on December 2, 2014, before Administrative

Law Judge Lynne A. Quimby - Pennock of the Division of

Administrative Hearings (Division).

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Suite 190

204 37th Avenue , North

St. Petersburg, Florida 33704

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Samuel

Vinson , has violated sections 1 012.795(1)(d), (f), (g) , and (j),

Florida Statutes (2013), and Florida Administrative Code Rule 6A -

10.081(3)(a), (e) , and (h), and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On August 20, 2014, Pam Stewart, a s Commissioner of

Education, f iled a seven - count Second Amended Administrative

Complaint ( Complaint ) against Respondent alleging that he had

violated the statute and rule provisions identified above. The

factual basis for seeking discipline against Respondent's license

was: Responden t made inappropriate , profanity - laced comments to

his seventh - grade students; Respondent engaged in inappropriate

conduct with a female student, including kissing her hand,

kissing her cheek, calling her cell phone , and making suggestive

comments about her body; Respondent was arrested for driving

under the influence ; and pled nolo contendere to a reduced charge

of disorderly conduct.

Respondent disputed the allegations in the C omplaint and

requested a hearing. On September 22, 2014, the case was

referred to the Division for the assignment of an administrative

law judge.

By notice issued September 30, 2014, t he case was scheduled

for December 2 and 3, and completed on December 2. Prior to the

hearing, Petitioner's counsel file d a request for judicial

notic e; that request was granted.

At hearing, Petitioner presented the testimony of M.M.,

B .M., 1/ Raven Gilbert, 2/ Beth Gilbert, Ruth Ellen Riel, Melissa

Porter, Rebecca Sampson Carey, Derek Gregory, Dianne Holston,

Phil Wirth, Thomas Brittain, and Valencia Wa lker. Petitioner's

Exhibits 1 through 17 were admitted into evidence. Respondent

did not appear, nor was he represented by counsel.

At the conclusion of the hearing, it was announced that any

proposed recommended orders (PROs) were to be filed within 10

days of the filing of the transcript. The one - volume Transcript

was filed on January 7, 2015. Petitioner filed a PRO on

January 16 . 3/ Respondent did not file a PRO .

Unless otherwise noted, all references are to Florida

Statutes ( 201 4 ) .

FINDING S OF FACT

1. Respondent is a licensed educator in the State of

Florida, holding certificate number 735373. His certificate

covers health, general science, and physical education, and is

valid through June 2017.

2. At all times relevant, Respondent was employed b y the

Pinellas County School District (District) as a physical

education teacher at Dunedin High School (Dunedin) or as a

science teacher at Clearwater Intermediate School (Clearwater). 4/

3. Between February and April 2008, when Ms. Gilbert was a

senior at Dunedin , Respondent engaged in inappropriate behavior

towards her. One day, when Ms. Gilbert received a hall pass from

Respondent, Respondent kissed her on her hand. Another day ,

Respondent kissed Ms. Gilbert on the cheek. On yet another day ,

Respond ent made a suggestive and inappropriate comment to

Ms. Gilbert about her clothing. 5/ And on another day, Respondent

insinuated that Ms. Gilbert was staying late at her employment

because she was sleeping with her boss. RespondentÓs actions and

comments made Ms. Gilbert uncomfortable. Ms. Gilbert's testimony

is credible.

4. Ms. Gilbert was uncomfortable and upset as a result of

Respondent's conduct. Ms. Gilbert went to talk with the

assistant principal at Dunedin, Ms. Riel. According to Ms. Riel,

Ms. Gilbert was visibly upset as she described RespondentÓs

actions. Ms. Gilbert left Dunedin and did not experience her

senior graduation exercises because she was so distraught, and

fearful of seeing or being around Respondent. Ms. Riel

immediately contact ed the school resource officer, Deputy

Gregory.

5. Both the Pinellas County Sheriff's office and the

District conducted independent investigations of Ms. Gilbert's

allegations. Respondent was removed from the classroom during

the criminal investigation, and directed to work at the school

boardÓs "warehouse , " away from students.

6. Respondent was initially charged with criminal battery ;

however , in August 2011, he pled nolo contendere to a reduced

charge of disorderly conduct with respect to his behavior towards

Ms. Gilbert. The criminal court withheld adjudication on this

charge and ordered Respondent to pay court costs and the cost of

prosecution.

7. In March 2009, Respondent operated a motor vehicle while

under the influence of alcohol and was involve d in a traffic

accident. Respondent was arrested and charged with driving under

the influence. Respondent pled guilty and was adjudicated

guilty.

8. In November 2011, Respondent was in his seventh - grade

class. For some inexplicable reason , Respondent " lost it" and

yelled obscenities at his students. Although the sequence of

words used is uncertain , there is no doubt that Respondent called

the students Ðlittle bastards,Ñ and used the ÐFÑ word. As his

outburst was on - going, one student went to an adjoin ing classroom

and asked Ms. Holston to help. Ms. Holston was able to

effectively remove Respondent from his classroom for the

students Ó safety. Respondent admitted that he Ðblew up , Ñ and

that he used Ða few obscenitiesÑ wi t h his students .

9. Respondent resigned his position with the District,

effective January 10, 2012.

CONCLUSIONS OF LAW

10. 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).

11. The Florida Education Practices Commission is the state

agency charged with the certification and regulation of Florida

educators pursuant to chapter 1012, Florida Statutes.

12. This is a proceeding in which Petitioner seeks to

discipline Respondent 's educator certificat e . Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the Complaint

by clear and convincing evidence. Dep't of B anking & Fin. v.

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

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

13. Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2 d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

the standard:

entails 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.

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 testi mony 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 Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with

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

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

ÐAlthough this standard of proof may be met where the evidence is

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

Westinghouse Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

14. Section 1012.795(1) provides in pertinent part:

The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requiring direct contact with

stud ents for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, thereby denying

that person the right to teach or otherwise

be employed by a district school board or

public school in any capacity requiring

direct contact with students for up to 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 p ayment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(f) Has been convicted or found guilty of,

or entered a plea of guilty to, regardless of

adjudication of guilt, a misdemeanor, felony,

or any other criminal charge, other than a

minor traffic violation.

(g) Upon investigation, has been found

guilty of personal condu ct that seriously

reduces that personÓs 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.

15. Florida Administrative Code Rule 6A - 10.081 provides , in

pertinent part , the following:

(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 Ós mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

16. Further, Section 1012.796 describes the disciplinary

process for educators, and provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint and

prosecute the complaint pursuant to the

provisions of ch apter 120. An administrative

law judge shall be assigned by the Division

of Administrative Hearings of the Department

of Management Services to hear the complaint

if there are disputed issues of material

fact. The administrative law judge shall

make reco mmendations in accordance with the

provisions of subsection (7) to the

appropriate Education Practices Commission

panel which shall conduct a formal review of

such recommendations and other pertinent

information and issue a final order. The

commission sha ll consult with its legal

counsel prior to issuance of a final order.

(7) A panel of the commission shall enter a

final order either dismissing the complaint or

imposing one or more of the following

penalties:

(a) Denial of an application for a teachin g

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that the

applicant may not reapply for certification,

and that the department may refuse to

consider that applicantÓs application, for a

sp ecified period of time or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher, administrator,

or supervisor on prob ation for a period of

time and subject to such conditions as the

commission may specify, including requiring

the certified teacher, administrator, or

supervisor to complete additional appropriate

college courses or work with another

certified educator, wit h the administrative

costs of monitoring the probation assessed to

the educator placed on probation. An

educator who has been placed on probation

shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

emp loyment or termination of employment in

the state in any public or private position

requiring a Florida educatorÓs certificate.

2. Have his or her immediate supervisor

submit annual performance reports to the

investigative office in the Department of

Edu cation.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher, administrator,

or supervisor in writing, with a copy to be

placed in the certification file of such

person.

(g) Imposition of an administrative

sanction, upo n a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

17. The Complaint asserts the followi ng allegations in

support of imposing discipline against Respondent:

3. Between February and April of 2008, the

respondent engaged in inappropriate behavior

towards R.G., a female student.

S pecifically:

(a) the Respondent kissed R.G.Ós hand;

(b) the Respondent lifted his shirt, showed

R.G. his hernia scar and placed R.G.Ós hand

on his stomach;

(c) the Respondent kissed R.G. on the cheek

on two occasions;

(d) the Respondent obtained R.G.Ós cell

phone number and called R.G. on one occasion

during th e school day; 6 / and

(e) the Respondent made suggestive comments

to R.G. such as asking her whether she was

excited to see him or was cold, and

commenting on R.G.Ós physical appearance.

4. The RespondentÓs conduct towards R.G. as

alleged in Paragraph 3 herein caused R.G. to

feel uncomfortable and embarrassed. R.G.

attempted to avoid being alone with the

Respondent.

5. As a result of the RespondentÓs conduct

towards R.G., on or about July 24, 2008, the

Respondent was arrested and charged with

Battery. On or about August 26, 2011, the

Respondent pled nolo contendere to the

reduced charge of Disorderly Conduct. The

court withheld adjudication.

6. On or about March 14, 2009, in Pinellas

County, Florida, the Respondent operated a

motor vehicle while unde r the influence of

alcohol and was involved in a traffic

accident. The Respondent was arrested and

charged with Driving Under the Influence. On

or about May 28, 2009, the Respondent pled

guilty and was adjudicated guilty of the

charge.

7. On or about N ovember 29, 2011, the

Respondent used inappropriate language in

front of his seventh - grade students.

Specifically, the Respondent told the class

that it was his Ðass on the line to feed and

clothe my children and not theirsÑ; Ðthey

didnÓt give a shit abou t me or learningÑ;

called the class little bastards or words to

that affect, and stated, I hope they fire my

ass or words to that affect.

8. On or about December 6, 2011, the

Respondent submitted his resignation to the

Pinellas County School District, to be

effective January 10, 2012.

18. Petitioner demonstrated by clear and convincing

evidence that Respondent kissed Ms. GilbertÓs hand; kissed

Ms. Gilbert on the cheek; made a suggestive comment to

Ms. Gilbert ; pled nolo contendere to a disorderly cond uct charge;

pled guilty to a DUI charge; and used inappropriate , profanity -

laced language in front of his seventh - grade students. Because

Respondent did not make an appearance, there is no evidence to

the contrary.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order finding that Respondent has violated sections

1012.795(1)(d), (f), (g) , and (j) , Florida Statutes (2013), and

Florida Administrative Code R ule 6A - 10.081(3)(a), (e) , and (h),

and revoking his teaching certificate .

DONE AND ENTERED this 29th day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 29th day of January, 2015 .

ENDNOTE S

1/ In order to protect the identity of the student, the studentÓs

motherÓs name is also indicated by initials.

2/ Ms. Gilbert was a minor at the time these incidents took

place; she is now 24 years of age.

3/ According to F lorida A dmi nistrative C ode Rule 28 - 106.103, when

the last day of the period is a Saturday, Sunday or legal

holiday, the party is allowed to file on the next business day

that is not a Saturday, Sunday or legal holiday. January 17,

2015 , was a Saturday, and Monday, J anuary 19 was a legal holiday.

4/ Clearwater is a drop - out prevention s chool . There are fewer

students attending the school, and there are additional support

staff present to assist the students and faculty.

5/ Ms. Gilbert was wearing a white t - shirt and Respondent

inquired if she were excited to see him or just cold.

6/ Although Mrs. Gilbert testified that Respondent identified

himself as the caller , h er testimony , that Respondent identified

himself, was uncorroborated hearsay and cannot form the ba sis for

a finding of fact.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street , Suite 316

Tallahassee, Florida 32399 - 0400

(eServed)

Bruce P. Taylor, Esquire

Suite 190

204 37th Avenue , North

St. Petersburg, Florida 33704

(eServed)

Samuel Sperry Vinson

8759 Huntsfield Street

Tampa, Florida 33635

(eServed)

Matthew Mears , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambert, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGH T 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.