14-005823TTS Palm Beach County School Board vs. Anitra Grant-Straghn Status: Closed Recommended Order on Wednesday, February 3, 2016.

Summary: Petitioner failed to prove, by clear and convincing evidence, that Respondent committed the conduct alleged in the administrative charging document, so failed to show that just cause exists to suspend her without pay from her teaching position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 5823 TTS

ANITRA GRANT - STRAGHN,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015), before

Cathy M. Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on July 20 and 21, 2015, in

West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33406 - 9239

For Respondent: Dedrick D. Straghn , Esquire

Dedrick D. Straghn, Attorney an d

Counsel or at Law

26 Southwest 5th Avenue

Delray Beach, Florida 33444

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent from her teaching position , without pay, for seven

days.

PRELIMINARY STATEMENT

On October 20, 2014 , the superintendent for the School

District of Palm Beach County, Florida, notified Respondent ,

Anitra Grant - Straghn, that he was recommend ing to Petitioner ,

Palm Beach County School Board , that Respondent be suspended

from h er teaching duties, without pay , for seven days.

Respondent timely challenged Petitioner ' s proposed action and

the matter was referred to DOAH to conduct a hearing pursuant to

sections 120.569 and 120.57(1).

The final hearing initially was scheduled fo r February 4,

2015, but pursuant to the parties ' motions, ultimately was

continued to July 20 through 22, 2015.

The hearing was held on July 20 and 21, 2015. In its

case - in - chief, P etitioner presented the in - person testimony of

Respondent, ToniLyn Bilota, and Shirley Starling Teague. T he

deposition testimony of Hayxa Anderson, Patricia Brinkley, Tricia

Maxwell, Kenneth Clark, and F.L.S. was presented in lieu of in -

person testimony at the hearing. Petitioner ' s Exhibits 1, 9,

an d 11 through 18 were admitted without objection and Petitioner ' s

Exhibits 2, 4 through 8, 10, 19, 21 through 23, 25, and 30 were

admitted over objection. 1 / Respondent testified on her own behalf

and presented the testimony of Minnie Williams - Smith and San dra

Gero. Respondent ' s Exhibits 1 and 7 were admitted into evidence

without objection and Respondent ' s Exhibits 2 , 3, 5, and 6 were

admitted into evidence over objection. Respondent ' s Exhibit 4 was

not admitted into evidence . On rebuttal, Petitioner pre sented the

testimony of Kia Allen and Mary Powers .

The three - volume Transcript was filed on August 12, 2015.

Pursuant to the parties ' joint agreement made at the close of the

final hearing, the deadline for filing proposed recommended orders

was set for October 2, 2015. The p roposed r ecommended o rders were

timely filed and were duly considered in preparing this

Recommended Order.

FINDI NGS OF FACT

I. The Parties

1. Petitioner , Palm Beach County School Board , is charged

with the duty to operate, control, and supervise free public

schools within the School D istrict of Palm Beach County

("District") , pursuant to article IX, section 4( b ) o f the Florida

Constitution and section 1012.33, Florida Statutes (2013) . 2/

2. At all times relevant to this proceeding, Respondent was

employed by Petitioner as a teacher at Atlantic High School

("Atlantic") in Delray Beach, Florida. During the 2013 - 201 4

school year, Respondent was assigned to supervise the credit lab

at Atlantic.

3 . Respondent has been employed by Petitioner since 2006 and

has not previously been disciplined.

II. Administrative Charg es

4. On December 9, 2014, Petitioner filed its Petition, which

constitutes the administrative charging document in this

proceeding.

5. T he Petition alleges that Respondent slapped a male

student in the face , and that this conduct violates the following:

School Board Policies 0.01(2)(c) and (d) 1.013(1) , 3.02(4)(a) and

(d), 3.02(5)(a )(i), (ii), and (vii), and 3.27 ; Florida

Administrative Code Rules 6A - 5.056, 6A - 10.080(2) and (3), and 6A -

10.081(3)(a) and (e); and the Collective Bargain Agreement Between

th e School District of Palm Beach County, Florida, and the Palm

Beach County Classroom Teachers Association ("CBA") , Article II,

Section M.

6 . The Petition further alleges that these violations

constitute just cause, pursuant to section 1012.33 , to suspen d

Respondent from her teaching position, without pay, for seven

days.

7 . Notably, the Petition does not allege that Respondent

grabbed the student ' s face and does not seek to impose discipline

on that basis . The Petition also does not allege that Respondent

was charged with a crime or seek to impose disciplin e on that

basis.

I II . Evidence Adduced at the Hearing

8 . The incident giving rise to this proceeding occurred on

or about Thursday, March 6, 2014, the date on which the District

celebrated " Take Our Daughters and Sons t o Work Day. "

9 . Respondent took her minor son to work with her at

Atlantic that day.

1 0 . Respondent ' s son left her classroom briefly to use the

restroom. When he returned to the classroom, he told Respondent

that a male student had called him a " [racial slur] " . He was able

to identify the student , by the clothing he was wearing , a s Rodney

Michel.

1 1 . Respondent did not write a disciplinary referral on

Michel for the alleged incident .

1 2 . At or around 3:00 p.m. on the afternoon of Monday,

March 10, 2014, as Respondent was leaving school, she went to the

credit lab classroom to confront Michel regarding the racial slur

that her son claimed Michel had calle d him.

1 3 . According to Respondent, when she entered the classroom,

Michel was standing on a chair and behaving aggressively, and when

she confronted him, " he jumped down in my face. " Respondent

testified that she grabbed Michel ' s face to make him list en to

what she had to say , and that she told him he was wrong to have

called her son the racial slur . She then lef t the classroom .

1 4 . Shirley Starling Teague was the credit lab teacher that

afternoon , and s he was in the classroom when Respondent entered .

S he saw Respondent walk to a particular area of the classroom.

Thereafter, she heard a sound. When asked on direct examination

" what did you think that sound was that you heard? " , she answered ,

" [i]t sounded like a slap ."

1 5 . Teague did not s ee Respondent slap Michel or grab hi s

face because h er view of them was blocked by a partition around a

computer table .

16. Teague testified that she had not seen Michel standing

in a chair . S he believed she would have seen him if he ha d d one

so because the partitions were not high enough to have blocked her

view of a student standing in a chair .

1 7 . Teague testified that as Respondent exited the

class room, she told Teague , " he called my son a [racial slur]. "

1 8 . T he students in the credit lab had become unruly, so

Teague investigated.

1 9 . At some point, s tudent s told Teague that Respondent had

slapped Michel ' s face. On direct examination, t he following

testimony was elicited from Teague :

Q: And did any child say what happened?

A: Yes.

Q: What did they say happened?

A: They said that Ms. Grant slapped Mr. Michel.

20. The following testimony also was elicited on the direct

examination of Teague regarding a statement by student D.L. :

Q: Okay. And do you know if she observe d what happened that

day?

A: To my knowledge, yes.

Q: And did she say anything to you about what she had

observed?

A: Yes.

Q: And what did the student D.L. state?

A: She said that Rodney had gotten slapped and it wasn ' t

right, that we were going to let it go. She felt that we

were going to let it go.

2 1 . Teague testif ied that Michel never told her that

Respondent had slapped him. 3/ S he examined Michel ' s face but was

unable to determine whether there was any swelling.

2 2 . On cross - examinatio n, Teague acknowledged that the only

information she had regarding whether Respondent had slapped

Michel had been relayed to her by students .

2 3 . As part of the School Police Department investigation ,

students provided statements that they had seen Res pondent slap

Michel. Some statements were made on " Witness Statement " forms

and were dated March 10, 2014 . T he se statements were not sworn or

affirmed and the time at which each statement was made was not

recorded on the form . Other statements were made on

" Sworn/Affirmed " form s . Of these statements, some were made on

March 10, 2014, at " 1930 " ( 7:30 p.m .), and others were made on

March 11, 2014, at " 0900 " ( 9 :00 a.m. ). None of the statements

contained a witness signature or otherwise indicated they had been

sworn.

24 . Mary Powers , the assistant principal in charge of night

school and adult education at Atlantic , testified that after the

incident, Michel was brought to her office by others who had been

outside the credit lab classroom at the time of the incident.

Michel told Powers that Respondent had slapped him in the face.

2 5. Powers examined Michel ' s left cheek , and testified that

it appeared swollen.

2 6 . Kia Allen, assistant principal at Atlantic , also saw

Michel ' s face after the incident , and testifie d that his jaw

appeared swollen.

2 7 . Petitioner presented the testimony and written

statements of school personnel that they saw Michel shortly after

the incident, that he appeared upset, and that they were told that

Respondent ha d slapped him.

28 . Petitioner did not present any witness who testified

that he or she saw Respondent slap Michel. 4/

2 9 . Respondent herself was the only witness who testifi ed at

the hearing who actually saw the entire interaction between Michel

and herself on March 10, 2014 . As previously stated, Respondent

denied having slapped Michel, but testified that she had grabbed

his face.

30 . As a result of the incident, Respondent was charged with

battery , pursuant to section 784.03(1)(a) , Florida Statutes . 5 /

This statute states that " [ t ] he offense of battery occurs when a

person : 1. [a]ctually and intentionally touches or strikes

another person against the will of the other; or 2.

[i]ntentionally causes bodily harm to another person. "

31 . There is conflicting evidence as to whether Respondent

pled " no contest " or " guilty " to the battery charge. 6 /

IV . Findings of Ultimate Fact

32 . Based on the foregoing, t he undersigned finds that

Petitioner did not prove , by clear and convincing evidence , that

Respondent slapped Michel as alleged in the Petition.

3 3 . Reduced to its essence, t he competent evidence in the

record regarding the incident between Respondent and Michel

consists of the following:

* Respondent ' s testimony that she entered the c redit lab

classroom, confronted Michel and gr abbed his face, and that she

did not slap Michel ' s fac e. As noted above, Respondent wa s the

only witness testifying at the final hearing who was actually

present and saw the entire incident between herself and Michel. 7 /

* T estimony by Mary Powers , Kia Allen, and other school

personnel who observed Michel ' s face after the incident , and who

testified that Michel ' s cheek or jaw appeared swollen and that

he was upset .

* Testimony by Teague, who said she heard a sound that she

characterized as sounding like a slap.

3 4 . T his evidence does not clearly and convincingly

establish that Respondent slapped Michel.

3 5 . The testimony by Powers, Allen, Teague, and others t o

the effect that Michel and other students told them that

Respondent slapped Michel is hearsay. Additionally, all of the

student s' statements , verbal and written, that they saw

Respondent slap Michel are hearsa y.

3 6 . This hearsay does not merely " sup plement " or explain " 8 /

the competent evidence in the record ; it constitutes the only

evidence in the record 9 / that definitively would establish the

material fact at issue in this proceeding ÏÏ that is, whether

Respondent slapped Michel .

37 . Stated another way, the competent substantial evidence

in the record does not clearly and convincingly establish that

Respondent slapped Michel.

38. In its Proposed Recommended Order, Petitioner

posits that the student s' written statements and their v erbal

statements to Teague, Powers, Allen, and others fall within

various exceptions to the hearsay rule. For the reasons

discussed below, it is determined that these statements, verbal

and written, do not fall within an exception to the hearsay

rule. Ac cordingly, they do not constitute competent evidence on

which a finding that Respondent slapped Michel may solely be

based.

39 . Although there is other competent substantial evidence

in the record that suggests that Respondent slapped Michel, that

evid ence does not clearly and convincingly establish that

material fact.

40 . Thus , it is determined that Petitioner did not meet

its burden to prove, by clear and convincing eviden ce, that

Respondent slapped a student in the face , as alleged in the

Petition .

41 . As such, Petitioner failed to establish that

Respondent violated the rules and policies cited in the Petition

as the basis for its proposed discipline.

42 . Therefore, Petitioner has not demonstrated just cause

to suspend Respondent from her teaching position, without pay,

for seven days.

C ONCLUSIONS OF LAW

43 . The Division of Administrative Hearings has

jurisdiction over the parties to, and su bject matter of, this

proceeding .

44 . This is a disciplinary proceeding in which Petitioner

seeks to suspend Respondent from her teaching position, without

pay, for seven days, p ursuant to section 1012.33, Florida

Statutes ; Florida Administrative Code Rules 6A - 5.056 , 6A - 10.080,

and 6A - 10.081 ; School Board Policies 0.01(2)(c) and (d) 1.013(1),

3.0 2(4)(a) and (d), 3.02(5)(a )(i), (ii), and (vii), and 3.27 ; and

Article II, Section M of the CBA .

4 5 . Respondent is an " instructional employee " as defined

in section 1012.01(2). Pursuant to sections 1012.22(1)(f) and

1012.33(1)(a) and (6)(a), Petitioner has the authority to

suspend her.

4 6 . T o do so, Petitioner must prove that Respondent

committed the act alleged , that the act violat e s the rules and

policies cited in the Petition , and that the violation of these

rules and policies constitute s just cause for dismissal.

§ 1012.33(1)(a), (6), Fla. Stat.

47 . Ordinarily, the evidentiary burden in disciplinary

proceedings in which a school board proposes to suspend or

terminate instructional personnel is a " prepon derance of the

evidence. " Se e, e.g. , McNeill v. Pinellas Cnty. Sch. Bd. , 678

So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade

Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). However, if the

school board has agreed, through collective bargaining, to a

more demanding evidentiary standard, then it must act in

accordance with the applicable contract. See Chiles v. United

Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1993) ; Palm Beach

Cnty. S ch. Bd. v. Zedrick Barber , Case No. 15 - 0047 (Fla. DOAH

Aug. 31, 2015; PBCSB Oct. 13, 2015).

48 . Here, A rticle II, Section M of the CBA provides that

" disciplinary action may not be taken against an employee except

for just cause, and this must be subst antiated by clear and

convincing evidence which supports the recommended disciplinary

action. " Accordingly, Petitioner has the burden of proof in

this proceeding by clear and convincing evidence.

4 9 . This burden , described in Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983) , and later adopted by the

Florida Supreme Court in In re Davey , 645 So. 2d 398, 404 (Fla.

1994), requires the following :

[T] he evidence must be found to be credible;

the facts to which the witnesses testify

must b e distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such 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.

50 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 66 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

51 . Here, Petitioner has charged Respondent with slapping

a student ' s face, in violation of rules 6A - 5.056 , 6A - 10.080, and

6A - 10.081; School Board Policies 0.01(2)(c) and (d) 1.013(1),

3.02(4)(a) and (d), 3.02(5)(a )(i), (ii), and (vii), and 3.27 ; and

Article II, Section M of the CBA.

52 . For the reasons discussed above, it is dete rmined that

Petitioner did not present competent substantial evidence that

clearly and convincingly establishes that Respondent committed

the conduct ÏÏ i.e., slapping a student in face ÏÏ that it alleges

violates these rules and policies.

53 . In its Propo sed Recommended Order, Petitioner asserts

that various verbal and written statements by Michel and other

students stating that Respondent slapped Michel are no t hearsay.

This is incorrect. Hearsay is defined in section 90.801(1)(c),

Florida Statutes, as " a statement, other than one made by the

declarant while testifying at trial or hearing, offered in

evidence to prove the truth of the matter asserted. " Here, it is

undisputed that these statements were made out of court and that

they are being offered to prove the truth of the matter asserted .

Petitioner did not show that these statements fall within one of

the limited exclu sions from the definition of hearsay in

section 90.801(2) . Accordi ngly, the se statements are hearsay.

5 4 . T he question then be comes whether the se statements

fall within an exception to the hearsay rule. Petitioner asserts

that the statements fall within the exceptions codified at

sections 90.803(2) , (3) , and (6) . 10/ Each of these exceptions is

addressed below.

Excited Utter ance

5 5 . S ection 90.803(2) defines an " excited utterance " as " [a]

statement or excited utterance relating to a startling event or

condition made while the declarant was under the stress of

excitement caused by the event or condition. "

5 6 . The essential elements of the excited ut terance

exception are: (1) there must be an event startling enough to

cause nervous excitement; (2) the statement must have been made

before there was time for reflection ; and (3) the statement must

be made while the person is under the stress of excitement caused

by the event. Stoll v. State , 762 So. 2d 870, 873 (Fla. 2000);

State v. Jano , 524 So. 2d 660, 661 (Fla. 1988).

5 7 . As the Florida Supreme Court note d in Jano , for the

excited utterance exception to apply, it is not necessary that

there be contemporaneity between the event and the statement.

However, as the time between the event and statement increases,

courts become more reluctant to find that the exception applies.

W here the time interval between the event and the statement is

long enough to permit reflective thought, the statement should not

be considered an excited utterance , absent proof that the

declarant did not engage in the reflective thought process .

See i d . at 662. This is because the reliability, and, thus, the

admissibility of an excited utterance is premised on the notion

that because the statement or utterance is made while the

declarant was under the stress of excitement caused by the event,

he or she does not have the reflective capacity necessary for

conscious misrepresentation. Brandenburg v. State , 890 So. 2d

267, 269 (Fla. 1st DCA 2004), citing Rogers v. State , 600 So. 2d

237, 240 (Fla. 1995).

58 . Where the statement takes the form of a narrative

description of a n event, it generally is not considered part of

that event , because the narrative nature of the statement shows

that the declarant had time to reflect before making the

statement. For this reason, narrative statements generally do not

fall within the excited utterance exception to the hearsay rule.

See Mariano v. State , 933 So. 2d 111, 117 (Fla. 4th DCA 2006);

Charlot v. State , 679 So. 2d 844, 845 (Fla. 4th DCA 1996 )(citing

Green v. State , 113 So. 121, 123 (Fla. 1927)) .

5 9 . Here, t he students ' verbal statements to Te ag u e and

others do not constitute excited utterances, but , instead , are

narrat ive descriptions of the incidents . By their narrative

nature, the statements show that the students had sufficient time

to reflect on the event before describing it . Furthermore , D.L. ' s

statement to Teague manifests not only reflection , but also

judgment on her part. The reflective nature of these statements

disqualifies them fro m the excited utterance exception .

60 . Additionally , the proponent of the exception has the

burden to show that the time elapsed was sufficiently short to

preclude reflective thought. Jano , 524 So. 2d at 662 . A lthough

the evidence in this case establi shes that Respondent may have

been in the credit lab classroom for one to two minutes, the

record is devoid of evidence showing that the students ' verbal

statements were made within a sufficiently short period of time

from the incident to show the absence of reflective thought. See

Stoll , 762 So. 2d at 873 (absent evidence that the declarant did

not engage in reflective thought , the statement does not fall

within the excited utterance exception ). Thus, Petitioner did not

show the necessary contemporaneity for the statements to fall

within the excited utterance exception.

61 . The students ' written statements given on the evening of

March 10, 2014, and the morning of March 11, 2014, also are

narrati ve descriptions of the incident which show reflection about

the incident . Further, the statements were made after a

sufficient time period had elapsed to enable the students to have

engaged in reflective thought. As stated above , absent evidence

showing that the students did not engage in reflective thought,

the statements cannot be determined to constitute excited

utterance s . See Stoll , 762 So. 2d at 873.

62 . For these reasons, the student statements do not fall

within the excited utterance exception in section 90.803(2).

Then - Existing Mental, Emotional, or Physical Condition

63 . Section 90.803(3) codifies the " then - existing mental,

emotional, or physical condition " ( the so - called " state - of - mind " )

exception to the hearsay rule. This exception applies to :

(a) statement of the declarant ' s then -

existing state of mind, emotion, or physical

sensation , including a statement of intent,

plan, motive, design, mental feeling, pain,

or bodily health, when such evidence is

offered to:

1. Prove the decl arant ' s state of mind,

emotion, or physica l sensation at that time

or at any other time when such state is an

issue in the action .

2. Prove or explain acts of subsequent

conduct of the declarant .

(b) However, this subsection does not make

admissible :

1. An after - the - fact statement of memory or

belief to prove the fact remembered or

believed , unless such statement relates to

the execution, revocation, identification, or

terms of the declarant ' s will.

2. A statement made under circumstances that

indica te its lack of trustworthiness.

§ 90.803(3), Fla. Stat. (2015)(emphasis added).

6 4. By the statute ' s plain terms, the only statements that

fall within this exception are those regarding the declarant ' s

state of mind, emotion, or physical sensation ÏÏ and then only when

specifically offered for the purpose of proving the declarant's

state of mind, emotion, or physical sensation at that time or any

other time when such state is an issue in the action . Stoll v.

State , 762 So. 2d 870, 874 (Fla. 2000); C orrell v. State , 523 So.

2d 562, 565 (Fla. 1988); Fleming v. State , 457 So. 2d 499, 501

(Fla. 2d DCA 1984); Bailey v. State , 419 So. 2d 721, 722 (Fla. 1st

DCA 1982); Kennedy v. State , 385 So. 2d 1020, 1021 - 22 (Fla. 5th

DCA 1980) ; Dep ' t of Fin. Servs. v. Ri pa , Case No. 06 - 3421 (Fla.

DOAH May 16, 2007), modified on other grounds , Case No. 85763 - 06 -

AG (Fla . DFS Jun. 15, 2007). 11 /

6 5 . Here, the student statements were not about the ir state

of mind , emotion, or physical sensation ; rather, they were

statements describing an event. Further, the y were not offered to

prove the students' state of mind, emotion, or physical condition ,

but instead were offered to prove the actions of Respondent , a

third party .

66 . S ection 90.803(3)(b)1. makes clear th at the se types of

statements do not fall within this exception. Th e statute

provides in pertinent part : " (b) [h] owever, this subsection does

not make admissible: 1. An after - the - fact statement of memory or

belief to prove the fact remembered or believed . . . . "

67 . Here, the student statements regarding Respondent ' s

alleged conduct are after - the - fact statements of memory or belief

offered to prove the fact remembered or believed. Thus, they are

excluded from the " state - of - mind " exception to the hea rsay rule.

68 . For these reasons , it is determined that the student

statements do not fall within the state - of - mind exception to the

hearsay rule in section 90.803(3).

Business Records Exception

69 . Section 90.803(6) codifies the so - called " busin ess

records " exception to the hearsay rule. The statute provides:

A memorandum, report, record, or data

compilation, in any form, of acts, events,

conditions, opinion, or diagnosis, made at or

near the time by, or from information

transmitted by, a person with knowledge, if

kept in the course of a regularly conducted

business activity and if it was the regular

practice of that business activity to make

such memorandum, report, record, or data

compilation, all as shown by the testimony of

the custodian or o ther qualified witness, or

as shown by a certification or declaration

that complies with paragraph (c) and

s. 90.902(11), unless the sources of

information or other circumstances show lack

of trustworthiness. The term " business " as

used in this paragraph includes a business,

institution, association, profession,

occupation, and calling of every kind,

whether or not conducted for profit.

70 . For a business record to be admissible, the proponent

must show that the document was: (1) made at or near the time of

the event recorded; ( 2 ) made by or from information transmitted by

a person with knowledge; (3) kept in the ordinary course of a

regularly conducted business activity; and (4) that it was the

regular practice of that busine ss to make such a record. Quinn v.

State , 662 So. 2d 947, 953 (Fla. 5th DCA 1995).

71 . I n Quinn , the court observed that:

[ i ] t is well - established that although the

person who made the report need not have the

personal knowledge of the matter recorded,

the information recorded in the report must

be supplied by persons with knowledge who are

acting within the course of regularly

conducted business activity . If the initial

supplier of information is not acting within

the course of the business, the information

cannot qualify for admission.

Id. at 953 - 54 (emphasis added) .

72 . In Harris v. Florida Game and Fresh Water Fish

Comm ission , 495 So. 2d 806 (Fla. 1st DCA 1986) , a case factually

analogous to this proceeding, the court noted that if the relevant

information contained in a business record is itself hearsay,

the report does not fall within the busi ness records exception.

The court explained:

[f]or example, if a business record includes

a statement of a bystander to an accident,

the bystander's statement is hearsay and not

included within the business records

exception because the statement was not made

by a person with knowledge who was acting

within the regular course of the business

activity .

Id. at 808 - 09 (emphasis added).

73 . Petit ioner contends that the student statements fall

within the business records exception in section 90.803(6) b ecause

they were obtained in the course of an investigation by the School

Police Department , they were part of Respondent's disciplinary

file , and Petitioner's Office of Professional Standards regularly

maintains instructional personnel disciplinary record s. This

contention lacks merit.

74 . Here, Petitioner offers t he student statements for the

truth of the matter asserted in them. Although the students may

have had knowledge of the incident about which the statements were

made, they had no business dut y to make the statements and were

not acting within the ordinary course of business in making the

statements . Thus , e ven though student statements are routinely

kept in instructional personnel disciplinary files that are part

of Pet itioner's business records, the statements do not fall

within the business records exception . See id. See also Brooks

v. State , 918 So. 2d 181 (Fla. 2005)(if the initial supplier of

information in a record is not acting within the course of the

business, the information do es not fall within the business

records exception); Visconti v. Hollywood Rental S erv. , 580 So. 2d

197, 198 (Fla. 4th DCA 1991)(patient statement regarding slip and

fall not within business reco rds exception because she did not

have a business duty to prov ide such statement); Van Zant v.

State , 372 So. 2d 502, 503 - 04 (Fla. 1st DCA 1979)( information in a

document did not fall within the business records exception

because even though the declarant had personal knowledge about the

information, he did not have a business duty to transmit the

information).

75 . The written statements made by Powers, Allen, and other

school personnel regarding the verbal statements that students

made about the incident also do not fall within t he business

records exception; t his is because the school personnel themselves

lack personal knowledge about the incident. 12/

76 . To that point, i n Reichenburg v. Davis , 846 So. 2d 1233,

1234 (Fla. 5th DCA 2003), the court held that investigative

reports containing the results of wi tness interviews did not fall

within the business records exception. The court observed:

[t] he problem here is that, in both reports,

the authors simply related the substance of

what the witnesses had told the authors.

These witness's statements, even th ough

contained within the busines s 's records, d id

not fall within the exception, because they

were not based upon the personal knowledge of

an agent of the business.

77 . Similarly, here, t he statements provided by school

personnel relate what the stud ents said to them about the

incident. Even though the school personnel statements containing

the student statements are maintained in th e District's records,

these personnel do not have personal knowledge of the incident.

As such, their statements and th e s tudent statements relayed

ther e in do not fall within the business records exception to the

hearsay rule .

78 . For these reasons, the written student statements and

statements of school personnel do not fall within the business

records exception to the hearsay rule under section 90.803(6) .

Conclusion

79 . Based on the foregoing, it is determined that the

competent substantial evidence in the record does not clearly and

convincingly establish that Respondent slapped a student in the

face, as alleged in the Petition.

80 . Because Petitioner did not prov e the conduct alleged as

the basis for its proposed disciplinary action against Respondent,

it has not demonstrated that she violated the rules, School Board

Polici es, and other provisions cited in the Petition.

81 . Accordingly , it is concluded that ther e is no just cause

under section 1012.33 to suspend Respondent from her teaching

dutie s, without pay, for seven days.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Palm Beach County School

Board , enter a final order dismissing the charges against

Respondent.

DONE AND ENTERED this 3r d day of February, 2016, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 3r d day of February, 2016 .

ENDNOTE S

1/ See note 9 , infra . At the hearing, t he undersigned reserved

ruling on the admissibility of the deposition testimony of D.L., a

student, contingent on Petitioner showing that she was unavailable

to testify at the hearing. After the hearing, Petitioner filed

Petitioner's Notice of Withdrawing Exhibit #24, Deposition of

Minor Student D.L.

2/ Unless otherwise stated, all references to chapter 1012,

Florida Statutes, are to the 2013 version, which was in effect

at the time of the alleg ed conduct giving rise to this

proceeding.

3/ The testimony on this point was as follows:

Q. And during that one to two minutes that Ms. Grant - Straghn

was in there, was there any ÏÏ was that time for the students

to have embellished anything?

A. I donÓt know. You know, I can't say that they didn't or

they didn't embellish. I don't know. He never, by the way,

said that she slapped him.

Q. Did not say that to you?

A. Other students said it. He never said it.

4/ See note 1, supra .

5/ Section 784.03(1)(b) , Florida Statutes, states in relevant

part: "[e]xcept as provided in subsection (2), a person who

commits battery commits a misdemeanor of the first degree . . . ."

Subsection (2) makes the commission of a second or subsequent

ba ttery a felony. There is no evidence in the record indicating

that Respondent was charged with felony battery.

6/ Under section 784.03(1)(a), intentionally grabbing the face of

another person against that person's will would constitute

battery. Neithe r the Judgment nor the Plea in County Court

("Plea"), both dated December 11, 2014, indicate whether

Respondent was charged with having slapped Michel's face or having

grabbed his face. Thus, it cannot be inferred that either the

Judgment or the Plea cons titute an admission by Respondent that

she slapped Michel's face.

7/ Even if Respondent's testimony that she did not slap Michel was

not deemed credible, Petitioner still has the burden to prove, by

clear and convincing evidence, that she slapped him. See Balino

v. Dep't of Rehab. Servs. , 348 So. 2d 349, 351 (Fla. 1st DCA

1977). As discussed herein, Petitioner has not met this burden.

8/ Hearsay evidence may be used for the purpose of supplementing

or explaining other evidence, but is not suffici ent in itself to

support a finding of fact unless it would be admissible over

objection in a civil action. § 120.57(1)(c), Fla. Stat. (2015).

The hearsay evidence in this proceeding was not shown to fall

within any exceptions to the hearsay rule. Accord ingly, it cannot

constitute the sole basis of a finding of fact in this proceeding.

9/ See note 1, supra . Petitioner offered the deposition of

student D.L. for admission into evidence in lieu of in - person

testimony at the hearing. The undersigned r eserved ruling on the

request to admit the deposition pending demonstration by

Petitioner that D.L. was unavailable to testify at the hearing, as

required by Florida Rule of Civil Procedure 1.330. To her credit,

counsel for Petitioner subsequently notified the undersigned,

through Petitioner's Notice of Withdrawing Exhibit #24 Deposition

of Minor Student D.L., that D.L. had not been subpoenaed to

testify at the final hearing and that the district employee who

had facilitated D.L.'s appearance for deposition had not contacted

her parents regarding her availability to testify at the hearing.

Because Petitioner was thus unable to demonstrate that D.L. was

unavailable, as required by rule 1.330, Petitioner withdrew the

request t o admit D.L.'s deposition into evidence.

10/ In its Proposed Recommended Order, Petitioner cites "Rule 803"

of the "Fl. R. Civ. P." ÏÏ the Florida Rules of Civil Procedure ÏÏ as

the source of the hearsay exceptions it contends apply. The

undersigned notes that the hearsay rule and exceptions to the ru le

are codified in chapter 90, Florida Statutes, the Florida Evidence

Code, and that the hearsay exceptions Petitioner cites are

codified at sections 90.803(2), (3), and (6).

11/ As explained in 46 Fla. Jur. Evidence and Witnesses § 317 (2nd

2015), b ecause these statements concern an existing bodily or

mental condition , they possess a spontaneous quality. Id. at n.5.

1 2/ N o evidence was presented specifically showing that these

school employees were under a business duty to make such

statements; ho wever, even if this predicate were met, Powers,

Allen, and the other school personnel who provided the written

statements did not have personal knowledge of the incident.

COPIES FURNISHED:

Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 For est Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

(eServed)

Dedrick D. Straghn, Esquire

Dedrick D. Straghn, Attorney and

Counselor at Law

26 Southwest 5th Avenue

Delray Beach, Fl orida 33444

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard , Suite C - 316

West Palm Beach, Florida 33406 - 5869

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.