16-003078PL Pam Stewart, As Commissioner Of Education vs. Winston Northern Status: Closed Recommended Order on Tuesday, November 15, 2016.

Summary: Petitioner did not prove, by clear and convincing evidence, that Respondent violated Principles of Professional Conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 3078PL

WINSTON NORTHERN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final formal administrative hearing

was conducted in this case on September 26, 2016, in

Jacksonville, Florida, before Administrative Law Judge R. Bruce

Mc Kibben of the Division of Administrative Hearings ( Ð DOAH Ñ ).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Stephanie Marisa Schapp, Esquire

Teddy Rivera, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

impose sanctions against Respondent, Winston Northern

(ÐNorthernÑ or the ÐTeacherÑ), up to and including revocation of

his EducatorÓs Certificate.

PRELIMINARY STATEMENT

An A dministrative C omplaint was filed by Pam Stewart, as

Commissioner of Education (the ÐCommissionerÑ) , on August 25,

2015. The Teacher s ubmitted an Elections of Rights form dated

September 10, 2015, wherein he requested a formal administrative

hearing to co ntest the allegations in the A dministrative

C omplaint. The matter was referred to DOAH on June 3, 2016. On

July 27, 2 016, the Commiss ioner filed an Unopposed Motion for

Leave to A mend the Administrative Complai nt; the m otion was

granted.

At the final hearing, the Commissioner called five

witnesses: Michael King Byrd, school technology coordinator;

Diamond Williams, former student; B.B., student; Robert Lewis,

principal; and Lizzie Peeples, assistant principal. The

CommissionerÓs Exhibits 2 through 5 were admitted into evidence.

Mr. Northern testified on his own behalf. Respondent Ós Exhibits

1 and 6 were admitted. Joint Exhibit 1 was also admitted. (All

hearsay evidence was admitted subject to corroboration by

competent, non - hearsay evidence. To the extent such hearsay did

not supplement or explain non - hearsay evidence, it will not be

used solely as a basis for any finding herei n.)

The parties advised the undersigned that a transcript of

the final hearing would be ordered. They are allowed 10 days by

rule from the date the transcript is filed at DOAH to submit

proposed recommended orders. The T ranscript was filed on

October 25, 2016. Each party timely submitted a proposed

recommended order, and both parties' submissions were given due

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1 . The Florida Education Practices Commission is the state

agenc y charged with the duty and responsibility to revoke or

suspend, or take other appropriate action with regard to Florida

Educator Certificates, as provided in sections 1012.795 and

1012.796(6), Florida Statutes (2016). The Commissioner of

Education is cha rged with the duty to file and prosecute

administrative complaints against individuals who hold Florida

Educator Certificates and who are alleged to have violated

standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016)

2 . At all times relevant hereto, Northern held a Florida

Educator Certificate and was employed as a teacher in the Duval

County School System, teaching at A. Philip Randolph Academy of

Technology, a charter school within the Duval County school

system (and referred to herein as th e ÐSchoolÑ).

3 . On Oct ober 30, 2013, L.E. was a ninth - grade male

student in the TeacherÓs fourth period class, Introduction to

Information Technology. L.E., who had a history of misbehaving

in class, was one of 25 students in class on that day.

4 . Th e facts of this case read like A Tale of Two Cities ;

ÐIt was the best of times, it was the worst of times.Ñ Although

the duration of the incident in question was very short, and the

location where it occurred was limited in size, the disparity in

the test imony of eye witnesses could not be greater. For some,

there was clearly an egregious event precipitated by the

TeacherÓs actions. For others, there was only a minor

disruption of class with little significance. Few of the

witnesses seemed to have a cle ar memory of the events that

transpired that day, as evidenced by the contradictory and

imprecise testimony evoked at final hearing.

The CommissionerÓs View

5 . Mrs. Byrd (formerly Ms. King) was the SchoolÓs

Ðcomputer technology coordinator.Ñ She would o ften come into

Mr. NorthernÓs classroom because most of the SchoolÓs computer -

related supplies were kept in a closet in that classroom.

Mrs. Byrd came into Mr. NorthernÓs room on October 30, 2013, to

get some IT supplies out of the closet. As she exited the

classroom, Mrs. Byrd saw a woman walking quickly towards the

classroom door; the woman appe ared to be very agitated.

Mrs. Byrd asked the woman (later identified as T.E., L.E.Ós

mother, and also referred to herein as the ÐMomÑ) if she needed

assistance . Mrs. Byrd noticed that the woman was not wearing a

VisitorÓs badge, as required by school rules.

6 . The woman said she did not need any help and that

Mr. Northern had called her to come and deal with her sonÓs

behavior issues. At that point, Mr. No rthern opened the door

and ushered T.E. into the classroom, indicating to Mrs. Byrd

that it was Ðokay.Ñ Mrs. Byrd followed them back into the

classroom.

7 . T.E. immediately made a bee line to where her son, L.E.,

was sitting. Mrs. Byrd remember ed T.E. ph ysically attacking her

son as she yelled profanities at him. The beating, with fists

and open hands to L.E.Ós face, lasted Ða long time.Ñ Mrs. Byrd

initially estimated it to be about a minute and a half in

length, but later agreed that it was probably ab out 15 seconds

in duration. During the time that L.E. was being physically

attacked by his mother , Mr. Northern did not intervene.

8 . Mrs. Byrd was in shock at what she was witnessing. At

some point, Mrs. Byrd recovered from her shock and began to

shout Mr. NorthernÓs name over and over to get his attention.

Mr. Northern then directed the Mom and L.E. out into the open

area outside the classroom. A student told Mrs. Byrd she

Ðneeded to do somethingÑ after L.E., his mom and Mr. Northern

left the room. She obtained L.E.Ós name from a student so that

she could report the incident.

9 . Once outside the classroom, T.E. continued to berate

both L.E. and Mr. Northern. At that point, Mrs. Byrd (who had

walked out of the classroom sometime after the others) wa lked

towards the elevator which was located just across from the

classroom. As she neared the elevator , she met Mr. Lewis, the

p rincipal at the school. She indicated to Principal Lewis that

she needed to talk to him about something important, i.e., the

incident she witnessed in Mr. NorthernÓs classroom. However,

Principal Lewis heard the Mom cursing loudly at T.E. and instead

of talking to Mrs. Byrd, he went to speak to the Mom. Mrs. Byrd

entered the stairwell next to the elevator and went downstairs.

10 . Principal Lewis explained to the Mom that the language

she was using was not allowed on campus and that she needed to

calm down. She did so. T.E. then took her son downstairs and

presumably signed him out of school for the remainder of the

day. Mr. Northern did not indicate to Principal Lewis that

there had been a problem of any kind in the classroom.

Principal LewisÓ testimony overall was not persuasive. He

seemed very unclear as to how the events unfolded and seemed to

contradict other, more bel ievable witness testimony.

11 . Mrs. Byrd was upset by the incident and immediately

called the abuse hotline at the Department of Children and

Families (ÐDCFÑ) to report the incident. DCF advised Mrs. Byrd

to notify administration at the S chool about the incident.

Mrs. Byrd contacted the assistant principal, Mrs. Peeples, but

not until the next day. Mrs. Peeples asked Mrs. Byrd to provide

a written statement about the incident and Mrs. Byrd prepared

the statement.

12 . At about 4:15 p.m. on the day of the incident ,

Mrs. Peeples allegedly received a telephone call from the parent

of one of the other students in Mr. NorthernÓs class. The

student had purpor tedly told his/her parent a fellow student,

L.E., had been severely beaten by his mother in the pres ence of

the entire classroom. Based on that call, Mrs. Peeples

contacted Principal Lewis to tell him what she had heard from

the parent. Principal Le wis remember ed that he, not

Mrs. Peeples, received the parentÓs phone call on that day. He

a lso remember ed talking with Mrs. Peeples about the incident and

that she recounted her conversation with Mrs. Byrd . Mrs. Byrd,

however , said she did not talk to Mrs. Peeples about the

incident until the following day. Therefore, who talked to whom

and when the conve rsations occurred are not completely clear

from the testimony provided.

13 . Principal Lewis contacted Mr. Northern and told him

they needed to talk, so Mr. Northern later stopped by Mr. LewisÓ

office. A short conversation was held, but Mr. Northern did n ot

say that the Mom had physically attacked her son in the

classroom. Mr. Northern did not remember being summoned to

Principal LewisÓ office, but remember ed talking briefly to him

in the breezeway on the first floor of the School.

14 . The School gather ed statements from six of the

25 children in Mr. NorthernÓs classroom that day. Three of the

statements were not signed and did not clearly indicate who had

written them. Mrs. Peeples, who decided which students to ask

for statements and was present as e ach child wrote his or her

statement, could not -- on the day of final hearing -- identify the

authors of the unsigned statements. Mrs. PeeplesÓs testimony

was credible, but not substantively helpful.

15 . Some of the studentsÓ hearsay statements seem to

confirm what Mrs. Byrd reported; some do not. From the

affirming statements ca me these remarks: ÐHis mom came up there

and kept punching [L.E.] in the face.Ñ (K.B.) ÐHis mom had

just started beating o n him.Ñ (W.W.) Ð[His] mother just

started hitting him in the face.Ñ (J.W.) ÐA mom . . . came in

and was very angry, very verbal about her anger and started

hitting her son and yelling.Ñ (Unsigned) Ð[L.E.Ós] mom started

hitting him.Ñ (Unsigned) None of the hearsay statements were

particularly credible as they are all unverified and without

information as to the author.

The TeacherÓs View

16 . On October 30, 2016, L.E. was engaged in playing a

very violent video game on a classroom computer in

Mr. NorthernÓs classroom. L.E. had accessed the game by way of

a ÐmodifiedÑ thumb drive which made his actions undetectab le by

school administration, which may have been monitoring the

computer. Mr. Northern told L.E. to put the game away, because

it was pro hibited by school policy. Further, a school assembly

had been held recently wherein the consequences for playing such

video games were announced, i.e., five days suspension from

school and 45 days restricti on from use of school computers -- a t

least that wa s Mr. NorthernÓs description of the events at final

hearing. In his deposition (taken on July 18, 2016) ,

Mr. Northern said the issue with L.E. was that L.E. was Ðplaying

video gamesÑ instead of logging on to the appropriate website.

He made no mention of the nature of the video games or that they

were violent or prohibited by school policy, only that L.E. was

told three times to stop playing videos and log on to the

website as directed. After the third warning, Mr. Northern

decided to call in reinforceme nts, to wit: L.E.Ós mom. It was

customary for Mr. Northern to call L.E.Ós mom or Dean Lapkin, a

school administrator, when L.E. would act out in class or fai l

to stay focused on his work.

17 . Mr. Northern said L.E. was a bright student, very

versed in computer skills. He had a lot of potential, but was

very often off - track and off - task. When L.E. refused to comply

with instructions, Mr. Northern would call T.E. and have her

talk with her s on. That was usually enough to get L.E. back on

track. Principal Lewis confirmed that calling a studentÓs

parent was an acceptable method for dealing with recalcitrant

students.

18 . On the day in question, Mr. Northern finally pulled

L.E. off the comput er (whether for playing video games despite

being warned three times or for playing forbidden violent video

games) and telephoned L.E.Ós mother. Mr. Northern said at final

hearing that he had first contacted Dean Lapkin to see if L.E.

might be released fr om the prescribed discipline for watching

violent video games on campus. Dean Lapkin said the discipline

was to be imposed, that Mr. Northern should write a referral and

he, Lapkin, would make the call to L.E.Ós mom. But somehow

Mr. Northern determined t hat the dean was too busy to call T.E.,

so Mr. Northern called the Mom himself. Mr. Northern said he

received the MomÓs telephone number from Dean Lapkin that very

day, but that statement flies in the face of his prior testimony

that he had called the Mom several times in the past about

L.E.Ós behavior. (This sort of discrepant testimony severely

clouds the facts in this case.) As Mr. Northern was talking to

the Mom, she put him on hold to take another call, reputedly

from Dean Lapkin. When she returned to the phone call with

Mr. Northern, the Mom said she was already at the School. In

his deposition, Mr. Northern said that he called T.E.

immediately, i.e., there was no mention of calling the dean

first, and that she arrived at the School as they talked .

19 . Mr. Northern anticipated receiving a call from

downstairs for him to send L.E. down to the Guidance Office to

check out, or, possibly, that the Mom would be escorted to his

classroom to get L.E. Instead, a few minutes after Mr. Northern

completed his call to T.E., she appeared in his classroom.

Mrs. Byrd had just left the room, so Mr. Northern assumed she

had let T.E. into the room (as the door is generally locked).

However she gained entrance, Mr. Northern heard L.E. say to

someone, ÐBitch, what you gonna do now?Ñ and turned around to

see T.E. racing toward L.E., cursing loudly.

20 . Mr. Northern testified that he Ðtried to rush overÑ to

intercept the Mom before she got to L.E. He stated that he was

able to get between the two and fend off the M omÓs attempts to

hit her son. As far as he kn ew , the Mom never landed any blows

on L.E . Mr. Northern did not remember anyone in the classroom

saying anything to him during the confrontation. After some

unspecified amount of time, Mr. Northern escorted T .E. and L.E.

outside the classroom into the hallway area. The Mom continued

haranguing her son in that area until Principal Lewis

intervened.

2 1 . One studentÓs statement seems to confirm

Mr. NorthernÓs comments: The student wrote, ÐMr. Northern call

[L .E.] to his desk then his mom came and took him out of the

classroom.Ñ At final hearing, Ms. Williams, a former student

who was present on the day in question, remembered the Mom

slapping at L.E. but could not remember if the Mom ever made

contact.

22 . Hearsay evidence at final hearing presented by

Mrs. Byrd, uncorroborated but not objected to, indicates that

during the DCF investigation L.E. had reported that his mom

never hit him, but neither L.E. nor T.E. testified at final

hearing to verify what actu ally happened.

23 . According to Mr. Northern and at least two of the

students, Mrs. Byrd was not in the classroom during the

confrontation between L.E. and his Mom.

24 . Mr. Northern did speak to Principal Lewis at some

point after the incident. Accord ing to Mr. Northern, they met

in the breezeway on the first floor for a few moments.

Principal Le wis maintained that he called Mr. Northern to his

office to talk about the incident later on the day it happened.

Mr. NorthernÓs testimony was not persuasive as to the specifics

of his meeting with Principal Lewis.

Other Factors in the Dispute

25 . The MomÓs physical size was discussed by three

witnesses. Mrs. Byrd described her as being Ðbigger than me.Ñ

(Mrs. Byrd is approximately five feet, two inches tall and stout

in stature.) Ms. Williams said the Mom was about five feet,

four inches tall and Ðnot that big.Ñ Mr. Northern said she was

about five feet, one inch tall and weighed abou t 102 pounds.

L.E. was a ninth - grade student and was sort of slight in

stature.

26 . Mrs. Byrd said the Mom did not have a VisitorÓs badge

on her person. She could not remember what the Mom was wearing

on that day, but did not see a badge. Mr. Northern said the Mom

was wearing a halter top and tight jeans that day, totally

inappropriate clothing under the student dress code (as he

initially thought T.E. was a student). She did have a VisitorÓs

badge but , with no place to put it on her clothes, she had it in

her purse. Neither party presented the V isitorÓs log for that

day to substantiate whether T.E. had registered or not, so we

shall never know. It is inte resting that Principal Lewis never

asked T.E. about a VisitorÓs badge.

27 . There were allegedly three investigations done

concerning the alleged incident: One by the school; one by DCF;

and one by law enforcement. None of the investigative reports

(or t heir ultimate findings) was introduced into evidence in

order to substantiate either partyÓs position. It was not

mentioned whether photographs were taken of L.E. to ascertain

bruising or other injuries from the alleged beating. So, again,

we shall never know. After the investigations were concluded,

Principal Lewis did not ÐtrespassÑ the Mom from coming on campus

in the future, even though he had authority to do so if

warranted. 1/

28 . Neither the Mom nor L.E. was called to testify or

bring some clarit y to the matter at hand. Presumably they would

have confirmed the position of one side or another in this

matter, but again we shall never know. Nor was Dean Lapkin

called to verify his involvement in the situation.

29 . Mr. Northern served as a teachers Ó union

representative at the School. He has brought complaints to

Principal Lewis on numerous occasions as part of his duties in

that role. Mr. Northern has also brought direct complaints to

Principal Lewis regarding computer equipment issues in his own

classroom. The two men have a ÐhistoryÑ outside the present

dispute. In fact, just about two weeks prior to the alleged

incident, Mrs. Byrd wrongfully removed ten computers from

Mr. NorthernÓs classroom, forcing him to have Principal Lewis

intervene to have the equipment returned.

30 . The Amended Administrative Complaint in this matter

contains four counts: Count I is a general count alleging that

Mr. Northern violated the Principles of Professional Conduct for

the Education Profession; Count II alle ges Mr. NorthernÓs

failure to protect a student from conditions harmful to learning

or to the studentÓs mental health and/or physical health and

safety; Count III alleges intentional distortion of facts

concerning an event; and Count IV alleges failure to maintain

honesty.

31 . What the unrefuted evidence at final hearing proved is

this: Mr. Northern was teaching his class on October 3 0, 2013.

L.E. was a student in that class. L.E.Ós mother came to the

classroom cursing loudly and took L.E. away. Mrs. Byrd had been

in the classroom in close proximity to L.E. as he was being

removed from the classroom by his mom and/or Mr. Northern.

Mrs. Byrd reported an incident to DCF and to the School

administration. Mr. Northern discussed the matter with

Principal Lewis.

32 . Ð Tis a far harder decision I make in t his case than I

have ever made . . . ,Ñ at least as to what actually transpired

that fateful day in Mr. NorthernÓs classroom. The conflicting

and unclear stories delivered by the key players in this

incident (minus the two primary protagonists), does little to

explain what actually happened on that day. Based on the

totality of the conflicting testimony, it is likely that T.E.

came into the classroom and accosted her son. The finer details

of what she did, however, seem to be forever lost.

CONCLUSIONS OF LAW

33 . The Division of Administrat ive Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2016) .

34 . The Commissioner is responsible for filing complaints

and prosecuting allegations of misconduct again st instructional

personnel holding educator certificates. § 1012.795(1), Fla.

Stat. (2016). In the case at issue, the Commissioner relies on

section 1012.796(6), Florida Statutes (2013), which provides in

pertinent part:

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 teaching

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 specified 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

probation 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, with 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 employment 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 Education.

3. Pay to th e commission within the first

6 months of each probation year the

administrative costs of moni toring

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,

profession al 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, upon a person whose teaching

certificate has expired, for an act or

acts committed while that person

possessed a teachi ng 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 net work

program provided in s. 1012.798 under

such terms and conditions as the

commission may specify.

35 . In this case, the Commissioner seeks to take action

against Mr. NorthernÓs educator certificate. Such a proceeding

to impose discipline against a professional license is penal in

nature, so the Commissioner bears the burden to prove the

allegations in the Administrative Complaint by clear and

convincing evidence. Te nbroeck v. Castor , 640 So. 2d 164,

167 (Fla. 1st DCA 1994). See also DepÓt of Banking & Fin. v.

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

Turlington , 510 So. 2d 292 (Fla. 1 987).

36 . Clear and convincing evidence has been said to

require:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses mus t 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.

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

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

instant case, there is almost no clear and convincing evidence

under the Slomowitz definition.

37 . Section 1012.795, Florida Statutes ( 2016) , states in

pertinent part:

(a) [The Commissioner] may suspend

the educator certificate of any

person . . . [or] may revoke

permanently the educator

certificate . . . if the person:

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education Rules.

38 . The principles of professional conduct are codified in

Florida Administrative Code Rule 6A - 10.081 (3) , which states in

relevant part:

(b) The following disciplinary rule shall

con stitute the Principles of

Professional Conduct for the Education

Profession in Florida.

(c) Violation of any of these principles

shall subject the individual to

revocation or suspension of the

individual educatorÓs certificate, or

the other penalties provided by law.

(d) Obligation to the student requires that

the individual:

(e) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and safety.

* * *

(j) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an

educational matter in direct or

indirect publ ic expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

39 . The statutes and rules providing grounds for

disciplining a teacherÓs Education Certificate are penal in

nature and must therefore be construed in favor of the teacher.

Beckett v. DepÓt of Fin. S erv s. , 982 So. 2d (Fla. 1st DCA 2008);

Lester v. DepÓt of Banking & Fin. , 348 So. 2d 923 (Fla. 1st DCA

1977).

40 . The facts do no t support a conclusion that

Mr. Nort hern intentionally exposed L.E. (or any other student in

the class, for that matter) to Ðunnecessary embarrassment or

disparagement.Ñ While it is true that Mr. Northern called

L.E.Ós mother for the purpose of disciplining him, there is no

competent evidence that Mr. Northern knew how aggressive the Mom

would be upon her arrival. After all, Mr. Northern had called

the Mo m on several previous occasions without such a raucous

response by her. The completely divergent accounts of what

transpired in the classroom fall well short of clear and

convincing evidence that Mr. Northern did not make a reasonable

effort to protect L. E. from harm.

41 . Likewise, the allegation that Mr. Northern was

untruthful or distorted the facts is also not proven by the

evidence. Again, the disparate testimony was not clear and

convincing on any side. The passage of time since the event in

ques tion has undoubtedly clouded the memories of those involved.

Thus, the testimony is not Ðlacking in confusion as to the facts

in issue.Ñ

42 . Although Mr. NorthernÓs testimony was far from totally

believable, he did not bear the burden of proof in this case.

The Commissioner, who does have the burden, did not prove by

clear and convincing evidence that Mr. Northern violated section

1012.795 , Florida Statute (2013), or any portion of Florida

Admin istrative Code Rule 6A - 10.081.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Pam Stewart, as Commissioner of Education, dismissing the

Administrative Complaint against Respondent, Winston Northern.

D ONE AND ENT E R ED this 1 5 th day of November, 2016, in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 1 5 th day of November, 2016.

ENDNOTE

1/ Ð TrespassÑ is a term of art in school parlance that is

equivalent to a restraining order.

COPIES FURNISHED:

Gretchen Kelley 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)

Stephanie Marisa Schaap, Esquire

Teddy Rivera, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, 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, 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.