15-005645PL Pam Stewart, As Commissioner Of Education vs. William Doran Status: Closed Recommended Order on Monday, June 20, 2016.

Summary: Respondent's personal physical challenge of student and comments about a student in class were just cause for revocation of teaching certificate for a period of two years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 5645PL

WILLIAM DORAN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 28, 2016, a duly - noticed hearing was held in

Port St. Lucie, Florida, before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 77008 8

Ocala, Florida 34477 - 0088

For Respondent: Nicholas Anthony Caggia, Esquire

Thomas L. Johnson, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent,

Mr. William Doran, violated sections 1012.795(1)(g) or (j),

Florida Statutes (2012), 1/ and implementing administrative rules,

as alleged in the Admin istrative Complaint, and , if so, what is

the appropriate sanction?

PRELIMINARY STATEMENT

On May 18, 2015, Pam Stewart, as Commissioner of the

Department of Education (Petitioner or Commissioner), filed an

Administrative Complaint against Mr. William Doran (Respondent

or Mr. Doran), alleging violations of sections 1012.795(1)(g)

and (j) and implementing rules. Respondent filed an Election of

Rights form on June 16, 2015, disputing allegations in the

Administrative Complaint and requesting a hearing pursuant to

section 120.57(1), Florida Statutes (2015). On October 8, 2015,

the case was referred to DOAH for assignment of an A dministrative

L aw J udge.

The case was noticed for hearing on December 8 and 9, 2015,

but was continued twice in response to motion s , an d was heard on

April 28, 2016. At hearing, Petitioner presented the testimony

of A.L., a former student of Mr. Doran, and Mr. Doran himself.

Petitioner ' s Exhibits P - 1 through P - 12 were admitted without

objection. Exhibit P - 13, a video recording made on a cell phone,

was admitted over Respondent ' s objection, as further discussed

below. Exhibit P - 14, a transcript of testimony from an earlier

DOAH c ase, No. 13 - 3849TTS, was admitted without objection, the

parties stipulating that the testimony in that trans cript was

accepted as the testimony of all witnesses that were also listed

as witnesses in this case. As discussed at hearing, an original

copy of that transcript was submitted on May 16, 2016.

Respondent testified himself and offered a composite exhibit

of his teaching evaluation reports, which was admitted without

objection as Exhibit R - 1.

The Transcript of the proceeding was filed with DOAH on

May 10, 2016. Following Respondent ' s unopposed motion for an

extension of time, the deadline to submit propos ed recommended

orders was set as June 6, 2016. Both parties timely filed

proposed recommended orders that were considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. The Commissioner is responsible for investigating and

prosecuting allegations of misconduct against individuals holding

educator ' s certificates.

2. Mr. Doran holds Florida Educator ' s Certificate 1013018,

covering the areas of general science, social science, and

exceptional student education, which is valid through June 30,

2019.

3. At all times relevant to the complaint, Mr. Doran was

employed as a teacher at Southport Middle School in the St. Lucie

County School District.

4. On or about May 3, 2013, Mr. Doran became involved in a

verbal altercation with M.M., a 13 - ye ar - old male student.

5. Student A.L. was present in the classroom on May 3, 2013.

She made a video recording of a portion of the altercation between

Mr. Doran and M.M. on her cell phone. Shortly after the

altercation, school authorities took A.L. ' s phon e. Later, at

hearing, A.L. viewed a video and credibly testified that it was

the video recording that she had made. A.L. identified Mr. Doran

and M.M. on the video. That video, offered into evidence, was the

entire video that she recorded. It is clear under all of the

circumstances that it fairly and accurately represented the

portion of the altercation that A.L. videotaped. A.L. testified

that she was aware that she violated a rule of the St. Lucie

County School Board that did not allow her to use her cell phone

in class.

6. A.L. did not ask Mr. Doran if she could take the video.

She testified that no one knew that she was videotaping the

incident. There is no evidence that Mr. Doran, occupied with the

confrontation with M.M., was aware that he was being recorded.

7. However, Mr. Doran ' s recorded oral communications took

place in a public school classroom, his place of employment. The

statements were made publicly in the presence of many students

other than M.M., the student he was addressing. M r. Doran had no

reasonable expectation that those comments would remain private

between M.M. and himself.

8. The altercation arose as a result of students playing a

slap game in which they touch hands and strike each other until

one suffers enough pain to let go. As Mr. Doran described in

testimony under oath in an earlier proceeding, the incident began

after Mr. Doran directed M.M. and another student to stop playing

the game:

Q: Did they?

A: Yes. M.M. did. Although he then told me,

" Well, I like pla ying this game because it

makes me feel good, Mr. Doran. "

Q: What did you reply?

A: I said, " I don ' t care how much you like

it. I don ' t care if you like jumping off a

bridge, you ' re not going to do it in this

classroom. "

Q: Did Mr. M.M. respond?

A : He then Î he then responded, " Oh, you want

me to jump off of a bridge. " And I said, " No,

that isn ' t what I said. "

* * *

Well, M.M. continued to protest and I asked

him to please quiet down and allow the class

to continue its work and I did th is a couple

of times. He refused to do it and he finally

said, " Get out of my face. "

As Mr. Doran described, he was four to five feet away from M.M.

when M.M. said this, but he then moved closer to M.M. and asked

M.M., " Well, what are you going to do abo ut it? " M.M. then

repeated " get out of my face " several times and began using

obscenities in the classroom.

9. During the course of the altercation with M.M., Mr. Doran

called M.M. a coward.

10. During the course of the altercation with M.M.,

Mr. Dora n stood over M.M. and repeatedly told M.M. to " [g]o ahead

and hit me. "

11. During the course of the altercation with M.M.,

Mr. Doran told M.M . , " Come on big man -- what you are going to do

about it, hit me? "

12. During the course of the altercation with M .M.,

Mr. Doran told M.M. to hit him because it would " make my day. "

13. It is clear that Mr. Doran ' s response to M.M. ' s

inappropriate attitude and language did not defuse the situation,

and in fact had the potential to escalate it. Mr. Doran ' s

behavior c hanged the nature of the incident from one of a student

defying institutional authority into a personal, potentially

physical, confrontation between M.M. and Mr. Doran as an

individual.

14. On or about March 7, 2014, Mr. Doran told his students

that he wa s getting a new male student in the class, that it was

more common for male students to be disabled (ESE), that the

student ' s name indicated he was black, and that the student had a

behavior plan.

15. On or about November 5, 2014, Respondent resigned from

his teaching position with the St. Lucie County School District.

Prior History

16. On November 9, 2010, Mr. Doran received a Summary of

Conference from his principal, Ms. Lydia Martin, for making

inappropriate comments to students.

17. On May 2, 2011, M r. Doran received a Letter of Concern

from Ms. Martin for abusive or discourteous conduct toward

students.

18. On February 13, 2012, Mr. Doran received a Letter of

Reprimand from Ms. Martin for violating a directive by discussing

a matter under investigat ion and taking pictures of misbehaving

students.

19. On May 5, 2012, Mr. Doran received a Recommendation for

Suspension from Ms. Martin for failing to comply with directives.

20. Mr. Doran received satisfactory ratings in every

category on his evaluation forms for school years 2006 - 2007

through 2010 - 2011 (the years admitted into evidence). He received

a few Above Expectation ratings and only one Improvement Expected

rating in 2006 - 2007 and gradually improved through 2009 - 2010, when

he received a majority of Above Expectation ratings, with only a

few Meets Expectation ratings. In 2010 - 2011, he received several

Above Expectation ratings, a majority of Meets Expectation

ratings, and one Improvement Expected rating.

CONCLUSIONS OF LAW

21. DOAH has jurisdict ion over the parties and subject

matter of this case pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2015).

22. Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructional

personnel. §§ 1 012.795(1) and 1012.796(6), Fla. Stat.

23. Petitioner seeks to take action against Respondent ' s

educator ' s certificate as provided in sections 1012.795 and

1012.796. A proceeding to impose discipline against a

professional license is penal in nature, and Petitioner bears the

burden to prove the allegations in the Administrative Complaint by

clear and convincing evidence. Dep ' t of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

24. The Florida Supreme Court has stated that the clear and

convincing standard requires that:

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

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the w itnesses 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 establish ed.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

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

25. Respondent is substantially affected by Petitioner ' s

intended decision to discipline his Florida educator ' s certificate

and has standing to maintain this proceeding.

Video Recording

26. Respondent cites to Hamilton County School Board v.

Martha Lee , Case No. 00 - 2977 (Fla. DOAH Dec. 11, 2000), rejected

in part , (Fla. HCSB Feb. 20, 2001), in arguing that consideration

of A.L. ' s vide o recording is prohibited by section 934.06, Florida

Statutes (2015), which provides:

Prohibition of use as evidence of intercepted

wire or oral communications; exception. --

Whenever any wire or oral communication has

been intercepted, no part of the conte nts of

such communication and no evidence derived

therefrom may be received in evidence in any

trial, hearing, or other proceeding in or

before any court, grand jury, department,

officer, agency, regulatory body, legislative

committee, or other authority o f the state, or

a political subdivision thereof, if the

disclosure of that information would be in

violation of this chapter. The prohibition of

use as evidence provided in this section does

not apply in cases of prosecution for criminal

interception in v iolation of the provisions of

this chapter.

27. Section 934.02(2) defines " oral communication " to mean

a communication " uttered by a person exhibiting an expectation

that such communication is not subject to interception under

circumstances justifying su ch expectation " and does not mean " any

public oral communication uttered at a public meeting. "

28. As the court made clear in State v. Inciarrano , 473 So.

2d 1272, 1275 (Fla. 1985), this statute thus requires a reasonable

expectation of privacy.

29. A significant factor used in determining the

reasonableness of the person ' s expectation of privacy in a

conversation is the location in which the conversation or

communication occurs. Stevenson v. State , 667 So. 2d 410, 412

(Fla. 1st DCA 1996). See , e.g. , Jatar v. Lamaletto , 758 So. 2d

1167, 1169 (Fla. 3d DCA 2000) (no legitimate expectation of

privacy in business office of victim); Avrich v. State , 936 So. 2d

739, 742 (Fla. 3d DCA 2006) ( " Florida courts have consistently

held that the constitutional protec tions of a reasonable

expectation of privacy do not extend to an individual ' s place of

business. " ).

30. Even assuming, in the words of the statute, that

Respondent " exhibited an expectation " that his comments were not

subject to interception, 2/ circumsta nces did not justify that

expectation. Respondent made his comments to M.M. in a public

school classroom, his place of employment, in the presence of many

students other than the one to whom he was making statements. He

had no reasonable expectation that those comments would remain

private between M.M. and himself. The recording is admissible.

Count 1

31. At the time of the altercation, section 1012.795(1)(g)

provided that the Education Practices Commission may suspend the

educator ' s certificate of a pe rson found guilty of personal

conduct that seriously reduces that person ' s effectiveness as an

employee of the district school board.

32. No convincing evidence was presented to demonstrate that

Respondent ' s effectiveness as an employee was seriously redu ced.

The only evidence presented on this point was from Respondent, who

testified that after the May 3, 2013, incident, discipline in his

class actually improved. Petitioner offered no contrary evidence

to meet its burden.

33. Petitioner failed to prov e by clear and convincing

evidence that Respondent ' s conduct seriously reduced his

effectiveness as an employee of the district school board .

Count 2

34. Count 2 alleges that Respondent is in violation of

section 1012.795(1)(j), in that he has violated th e Principles of

Professional Conduct for the Education Profession. Counts 3 and 4

go on to allege the specific violations of these principles.

Count 2 does not constitute a distinct disciplinary violation.

Count 3

35. Count 3 alleges that Respondent vi olated Florida

Administrative Code Rule 6A - 10.081(3)(a), which at the time of

the alleged offense provided that an educator:

Shall make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s mental and/or

physi cal health and/or safety.

36. Respondent ' s personal physical challenge of M.M. was an

inappropriate response to M.M. ' s behavior. Respondent ' s actions

failed to protect M.M. and the other students in the class from

conditions harmful to their learning an d mental health.

37. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6A - 10.081(3)(a) .

Count 4

38. Count 4 alleges that Respondent violated rule 6A -

10.081(3)(e), providing that an individual shall not

intentionally expos e a student to unnecessary embarrassment or

disparagement.

39. The direct physical challenge and baiting of M.M. by

Respondent, as witnessed by the students in the classroom,

subjected M.M. to unnecessary embarassment and disparagement.

40. Respondent ' s comments about the new student subjected

that student to unnecessary disparagement.

41. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6A - 10.081(3)(e) .

Penalty

42. The Education Practices Commission adopted disciplinary

guidelines for the imposition of penalties authorized by section

1012.795 in Florida Administrative Code Rule 6B - 11.007.

43. Rule 6B - 11.007(2)(i)16. provided that probation to

revocation was the appropriate range of penalty for " [f]ailure to

protect or supervise students in violation of paragraph 6B -

1.006(3)(a), F.A.C. " 3/

44. Rule 6B - 11.007(2)(i)22. provided that probation to

revocation was the appropriate range of penalty for other

violations of the Principles of Professional Conduct and the

Florida A dministrative Code.

45. Rule 6B - 11.007(3) provided:

(3) Based upon consideration of aggravating

and mitigating factors present in an

individual case, the Commission may

deviate from the penalties recommended

in subsection (2). The Commission may

conside r the following as aggravating or

mitigating factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has

practiced and the contribution as an educator;

(g) The actual damage, physical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalty

impo sed;

(i) The effect of the penalty upon the

educator ' s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to corr ect or

stop the violation or refusal by the educator

to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring to

the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Pres ent status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

46. No aggravating or mitigating circumstances are present

here to the extent necessary to warrant deviation from the wide

range of penalties already permitted within the guidelines.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Education Practices Com mission enter a

final order finding Respondent, Mr. William Doran, in violation of

section 1012.795(1)(j), Florida Statutes, and implementing rules.

It is further RECOMMENDED that the Education Practices Commission

revoke his educator ' s certificate for a period of two years, at

the expiration of which time he may receive a new certificate by

meeting all certification requirements at the time of his

application, subject to terms and conditions determined by the

Education Practices Commission to be reasonabl y necessary to

ensure that there will be no threat to students and that he will

be capable of resuming the responsibilities of an educator .

DONE AND ENTERED this 20th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 20th day of June , 2016 .

ENDNOTE S

1/ All references to Florida Statutes or administrative rules are

to the versions in effect in May 2013 and March 2014 , the times of

the alleged violations, except as otherwise indicated . There were

no amendments to section 1012.795 during this time period; the

rules were transferred without change.

2/ There was no direct evidence on this point.

3/ Florida Administrative Code Rule 6B - 1.006 was transferred to

rule 6A - 10.081 effective January 11, 2013, but the penalties rule

continues to reflect the older numbering. It should be amended.

However, the nature of the offenses is set out in full in the

rule , and Respondent is not prejudiced by the incorrect reference.

COPIES FURNISHED :

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Nicholas Anthony Caggia, Esquire

Thomas L. Johnson, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Bu ilding, Suite 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, Flor ida 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.