20-004281PL Richard Corcoran, As Commissioner Of Education vs. Thomas Lloyd Alden Status: Closed Recommended Order on Wednesday, June 2, 2021.

Summary: Petitioner proved by clear and convincing evidence that Respondent used profanity in the classroom.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

Case No. 20 - 4281PL

vs.

T HOMAS L LOYD A LDEN ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted via

Zoom before Administrative Law Judge Garnett W. Chisenhall of the

Division of Administrative Hearings (ÑDOAHÒ), on March 23 and 24, 2021.

A PPEARANCES

For Petitione r: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

S TATEMENT OF T HE I SSUE S

Whether R espondent committed any of the acts alleged in PetitionerÔs

Amended Administrative Complaint; and if so, what penalty should be

imposed.

P RELIMINARY S TATEMENT

Richard Corcoran, as Commissioner of Education (ÑPetitionerÒ), issued an

Administrative Complai nt on December 18, 2019, alleging Thomas Lloyd

Alden (ÑMr. AldenÒ) violated statutes and rules governing education

certificate holders by committing the following acts during the 2018 - 19 school

year: (1) Ñ[i]n the classroom and in front of their classmates , Respondent

referred to students as ÓdumbÔ or ÓstupidÔ or words to that effectÒ ;

(2) ÑRespondent told his students that the class was divided into a section of

ÓsmartÔ kids in the back and ÓdumbÔ kids in the front, or words to that effectÒ ;

and (3) ÑResp ondent used profanity in the classroom including the words,

Óbitch,Ô Óshit,Ô and Óhell.ÔÒ Petitioner also alleged that Mr. Alden embarrassed a

high school student during the 2018 - 19 school year by engaging in a debate

with that student about his religious beliefs and stating that one of the

studentÔs beliefs was Ñdemonstrably fallacious.Ò

Mr. Alden requested a formal administrative hearing, and Petitioner

referred this matter to DOAH on September 23, 2020. After granting two

continuances, the undersigned scheduled the final hearing for March 23

and 24, 2021.

On January 15, 2021, Petitioner filed a Motion seeking to amend the

Administrative Complaint based on newly discovered evidence. The Motion

sought to add the following allegations:

On or about Oc tober 8, 2019, as one of RespondentÔs

students was entering his classroom, Respondent

grabbed the studentÔs hair, which caused the

studentÔs head to be pulled backwards.

On or about February 25, 2020, a student in

RespondentÔs class answered a question in correctly.

Respondent walked over to the student, touched

the studentÔs forehead with two fingers and said

ÑthinkÒ to the student. By doing this, Respondent

embarrassed the student in front of his classmates.

On or about April 22, 2019, Respondent submitt ed

six applications for employment to the Marion

County School District. On the applications,

Respondent stated in the Employment History

section that while employed in the Citrus County

School District he was the ÑTitle: SS Department

ChairÒ and his duti es were to ÑOversee social

science department.Ò In the Background Questions

section of the application, Respondent answered

ÑNoÒ to the question ÑHave you ever been

investigated for misconduct related to your

employment?Ò The statements made by Respondent

on the application are false.

On or about December 18, 2020, Respondent

submitted an application for employment to the

Marion County School District. On the application,

Respondent stated in the Employment History

section that while employed in the Citrus County

School District he was the ÑTitle: SS Department

ChairÒ and his duties were to ÑOversee social

science department.Ò In the Background Questions

section of the application, Respondent answered

ÑNoÒ to the question ÑHave you ever been

investigated fo r misconduct related to your

employment?Ò The statements made by Respondent

on the application are false. [ 1 ]

On March 5, 2021, Petitioner filed a ÑMotion to Deem Fact AdmittedÒ

(Ñthe MotionÒ) asserting that Mr. Alden admitted certain allegations within

the Amended Administrative Complaint during the course of a deposition.

After comparing Mr. AldenÔs deposition testimony to the pertinent allegations

1 In its Proposed Recommended Order, Petitioner correctly notes that no evidence was

presented during the final hearing regarding the allegations that Mr. Alden submitted

applications to the Marion County School Board containing false information. Accordingly,

those allegations are deemed to have been dismissed and will not be discussed further

herein.

within the Amended Administrative Complaint, the undersigned made the

following rulings via an Order iss ued on March 15, 2020:

Paragraph 3(c) of the Amended Administrative

Complaint alleges that Respondent embarrassed

and disparaged students during the 2018/2019

school year by using profanity in the classroom.

While Respondent admitted using profanity, he d id

not admit that any students were embarrassed or

disparaged as a result of him using profanity.

Therefore, Respondent is only deemed to have

admitted the portion of Paragraph 3(c) alleging

that he used profanity in the classroom.

Paragraph 4 of the Ame nded Administrative

Complaint alleges that Respondent embarrassed a

student by telling the student that one of his

religious beliefs was Ñdemonstrably fallacious.Ò

While Respondent admitted during his deposition

that he told the student in question that a ÑclaimÒ

of his Ñwas demonstrably fallacious,Ò Respondent

did not admit that he embarrassed the student or

that he told the student that Ñhis beliefÒ was

Ñdemonstrably fallacious.Ò Therefore, Respondent is

not deemed to have admitted the allegations in

Para graph 4 of the Amended Administrative

Complaint.

Paragraph 6 of the Amended Administrative

Complaint alleges that Respondent ÑgrabbedÒ a

studentÔs hair as she was entering RespondentÔs

classroom and that RespondentÔs action Ñcaused the

studentÔs head to be pulled backwards.Ò However,

Respondent stated during his deposition that he

ÑswattedÒ at the studentÔs hair and that his finger

became entangled in a knot. Therefore, Respondent

is not deemed to have admitted the allegations in

Paragraph 6 of the Amend ed Administrative

Complaint.

Paragraph 7 of the Amended Administrative

Complaint alleges that after a student answered a

question incorrectly, Respondent approached the

student, Ñtouched the studentÔs forehead with two

fingers and said ÓthinkÔ to the stu dent. By doing

this, Respondent embarrassed the student in front

of his classmates.Ò While Respondent admitted

during his deposition that he approached the

student, touched the studentÔs forehead, and said

Ñthink,Ò Respondent did not admit that the student

in question was embarrassed in front of his

classmates. Therefore, Respondent is only deemed

to have admitted the portion of Paragraph 7 of the

Amended Administrative Complaint alleging that

Respondent approached the student, touched the

studentÔs forehea d, and said Ñthink.Ò

The final hearing took place as scheduled with Petitioner calling Karen

Harper, Alexander Stubenbort, Melissa Forsyth, and Kayla Palacios as

witnesses. Petitioner also called the following witnesses who are former

students of Mr. Alde nÔs: S.H., S.C., S.B., J.S., O.L., K.S., and K.R.H.

Respondent offered testimony from himself and Brian Donovan. Respondent

also called the following witnesses who are his former students: R.C., M.M.,

C.S., B.S., S.C., and M.J. PetitionerÔs Exhibits 2, 3 (pages 3 through 5, 10

through 13, and 15 through 25 2 ), 3a, 6 (pages 32 through 44), 7, 9 (an

October 9, 2019 , letter and a hotline report), 10 (a February 27, 2020 , letter),

11, and 12 were accepted into evidence. The undersigned noted hearsay

objections to PetitionerÔs Exhibits 3, 3a, 6, 10, and 11. The undersigned also

noted a relevancy objection to PetitionerÔs Exhibit 9. RespondentÔs Exhibits 1,

2, 6, and 7 were accepted into evidence.

The three - volume final hearing Transcript was filed on April 9 , 2021, and

the parties filed timely p roposed r ecommended o rders on May 3, 2021.

Both of the Proposed Recommended Orders were considered in the

preparation of this Recommended Order.

2 Petitioner was unable to authe nticate page 14 of PetitionerÔs Exhibit 3.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing

and the entire record in this proceeding, the following Findings of Fact are

made:

Background on Mr. Alden

1. Mr. Alden began working as an educator in 2004 when he was hired to

work at the Clark County Alternative School in Athens, Georgia. When that

school closed in 2009, Mr. Alden relocated to Clark Central High School.

After taking a year off to care for his terminally ill mother, Mr. Alden

relocated to Florida and took a position with Gateway High School in Osceola

County in 2011 . 3 In 2017, Mr. Alden took a teaching position with Lecanto

High School (ÑLecanto HighÒ) in Citrus County, Florida.

2. During the 2018 - 19 school year, Mr. Alden was an economics and

government instructor at Lecanto High. He also taught one section of worl d

history.

3. Allegations by students regarding Mr. AldenÔs conduct led to the

initiation of an investigation in September of 2018 and the issuance of a

written reprimand on September 25, 2018. A second investigation began on

May 2, 2019 , but was closed o n May 9, 2019, due to Mr. AldenÔs resignation

from Lecanto High .

4. Mr. Alden worked as a sixth - grade world history teacher at Liberty

Middle School in Marion County, Florida , during the 2019 - 20 school year. As

explained in more detail below, two incidents during the 2019 - 20 school year

led to Mr. Alden not being recommended for reappointment.

3 Mr. Alden holds Florida EducatorÔs Certificate 1186313, covering the areas of Educational

Leadership, Elementary Education, Gifted , and Social Science, which is valid through

June 30, 2022.

Findings as to Whether Mr. Alden Referred to Students as ÑDumb,Ò ÑStupid,Ò

or Words to that Effect

5. S.H. was a senior at Lecanto High during the 2018 - 19 schoo l year and

was in Mr. AldenÔs economics class. S.H. has a learning disability and

reported in September of 2018 to her case manager, Karen Harper, a math

teacher at Lecanto High, that Mr. Alden would become angry with her for

asking questions. Mr. Alden su pposedly displayed that anger by sighing

heavily and telling S.H. that she didnÔt know what she was talking about. 4

6. S.H. offered the following testimony during the final hearing:

Q: Tell us about what your concerns were in

Mr. AldenÔs class.

A : Well, I was Ï not repeatedly, but I have heard

him putting down students. On top of that I was

making a statement about something he said and

he said that I didnÔt know what I was talking about

and that I was stupid.

Q: Okay. Now, did that bother you w hat Mr. Alden

said to you?

* * *

A: Yes, sir.

Q: When he called you stupid, did he say this in

front of other students?

A: Yes, sir.

Q: What you just told us here today, was that some

of what you told Mr. Harper?

4 Ms. Harper also a cted as a case manager for a student named A.M., who stated to her that

Mr. Alden referred to him as stupid and a failure when he sought assistance from Mr. Alden.

Because A.M. did not testify during the final hearing, the portion of Ms. HarperÔs testimony

concerning A.M.Ôs allegations is uncorroborated hearsay that cannot support a finding of fact.

See £ 120.57(1)(c), Fla. Stat. (2020)(providing that Ñ[h]earsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself

to support a finding unless it would be admissible over objection in civil actions.Ò).

A: Yes, sir,

* * *

Q: Okay. You say he has put you down when asked

questions. What do you mean by that? What did he

do? What was going on?

* * *

A: Like anything I would say Ï and, honestly, it

sounded pretty dumb in my mind as well, my

questions, but I could understand why he put me

down, but itÔs still unacceptable. But I was just

saying things that provoked it. So. He put me

down, like, you know, called me, you know, stupid,

tell me I wasnÔt Ï I didnÔt know what I was talking

about. Like that.

Q: Okay. So even if you felt like you aske d a dumb

question, you didnÔt expect him to call you stupid in

front of your peers?

* * *

A: Yes. Because my other teachers donÔt do that.

Q: Okay. How did that make you feel for him to call

you stupid?

A: Not good. It just made me feel kind of depre ssed,

like I wasnÔt good enough for his class. Just did not

feel good about it.

7. Other former students of Mr. AldenÔs from the 2018 - 19 school year did

not corroborate S.H.Ôs testimony. For example, J.S. testified that Mr. Alden

implied that particular s tudents were dumb or stupid but never directly said

so. However, J.S. did not explain how that implication was expressed. K.S.

did not remember Mr. Alden using the words ÑdumbÒ or Ñstupid.Ò M.M. could

not recall any instances in which Mr. Alden demeaned a student. C.S. denied

ever observing Mr. Alden disparage a student or call a student ÑstupidÒ or

Ñdumb.Ò B.S. never heard Mr. Alden call a student ÑdumbÒ or ÑstupidÒ and did

not recall Mr. Alden disparaging or embarrassing any students. S.C. never

witnessed Mr. Alden disparage or belittle any students and never heard

Mr. Alden call any students ÑstupidÒ or Ñignorant.Ò M.J. never observed

Mr. Alden disparaging any students or call a student ÑdumbÒ or Ñstupid.Ò

8. R.C. denied ever observing Mr. Alden di sparage a student. When asked

if he remembered Mr. Alden explaining the difference between ÑstupidÒ and

Ñignorant,Ò R.C. gave the following testimony:

A: I remember the comment. If I believe. I mean,

itÔs been two years, but to my best knowledge I

believe that the comment was made on the note

that, as long as youÔre Ï as long as youÔre trying

and youÔre asking questions and youÔre trying to be

engaged and learn, that you canÔt be stupid. But if

youÔre choosing not to learn and youÔre choosing not

to try an d give no effort, then youÔre just ignorant.

But you canÔt be stupid as long as you try.

Q: Okay. And did you ever observe Mr. Alden, you

know, directly, call a student stupid or dumb?

A: No, sir.

9. Mr. Alden vehemently denied PetitionerÔs al legation that he referred to

students as ÑdumbÒ or ÑstupidÒ:

A: I spent 15 years in the classroom working with

kids that have been disparaged by their community

and their families. Came to me using I am stupid

as their Ï as their Ï as an excuse for not pu tting

effort into their education.

They had to Ï they had been convinced that there

was no point in trying because they werenÔt Ï they

were going to fail. I spent 15 years, from the

minute I walked into the classroom, trying to

convince these kids that th ey were not stupid, that

they were, in fact, more than capable and trying to

deprogram them from the belief that there was no

point in trying.

I made, every year, the first day of the Ï the first

day of class I made a point to illustrate to the kids

th at there was a difference between ignorant and

stupid. Because a lot of them conflated those two

terms.

I would point out that ignorant means you have not

learned and stupid means you cannot learn. And to

drive the point home, especially with the age grou p

that I worked with, I went into a little conversation

about human growth and development and the

formation of the prefrontal cortex and that thatÔs

the part of your brain that allows you to make

rational decisions and it doesnÔt finish forming

until your early - to - mid 20s.

* * *

I also used the secondary working definition of

stupidity that ignorant means you donÔt know any

better and stupid means you know better, but you

do it anyway.

And I use that to short circuit what a lot of these

kids would in terpret as a disparaging remark from

other adults. That when an adult might say, that

was stupid, they werenÔt talking about you as a

person, theyÔre talking [about] your actions.

* * *

Q: How often would you have to have that sort of

discussion with you r students?

A: Well, as I said, I would do it at the beginning of

the term, just to sort of begin that deprogramming

process. I would also reiterate the lesson at every

available opportunity.

If I heard a kid say, IÔm stupid, I would stop the

world and point out to them, no, youÔre not, you

canÔt be. ItÔs physiologically impossible and all the

rest.

If I heard a kid disparage another student, say that

was stupid or are you stupid or donÔt be stupid, I

would clarify for both the student making the

comme nt as well as the student the comment was

towards, that thatÔs not how you want to say that.

You want to say, that was careless, that was

thoughtless, that was reckless. Not that that was

stupid. And stress to the student that was Ï that

had engaged in ob servable behavior that could be

defined as a stupid action and say, look, youÔre not

stupid. You knew better. Think about what youÔre

doing before you do it. And, you know, you donÔt

have to worry about people coming to the wrong

conclusions.

Findings as to Whether Mr. Alden Told His Students That a Class Was

Divided Into ÑSmartÒ and ÑDumbÒ Sections

10. S.B. was a sophomore at Lecanto High during the 2018 - 19 school year

and had Mr. Alden for world history. When asked about how Mr. Alden

seated students in his classroom, S.B. gave the following testimony:

A: He would separate the classroom. Smart people

would be in the back of the classroom and then the

dumber kids, or what he would refer [to as] the kids

who failed the test or didnÔt make good enough

grad es, he would put them in the front and refer to

them as dumb.

Q: How did you know Mr. Alden was putting the

smart kids in the back?

A: He had said it.

Q: And the not so smart or dumb kids in the front?

How did you know that?

A: He had said it himself. A kid has asked why we

were being separated and he just said that he had

separated the kids because the smart kids go in the

back and the dumb kids go up front, is what I had

overheard in the class period.

Q: Okay. Did that make you feel any particular wa y

when he would put Ï separate kids like that?

A: Yes. Because thatÔs not how a teacher should be

speaking to their students. So I donÔt think that

was right.

* * *

Q: Now, even though youÔre in the smart group, did

you feel bad for the kids that were i n the, what he

described, as you say, the dumb group?

A: Yes, of course. Because he would always repeat

and make it known that those were the dumber

kids.

Q: Okay. And what did he tell you he based putting

the smart kids in the smart group and the dumb

k ids in the dumb group? How did he Ï did he tell

you how he made that determination as to which

kids were going to go in any particular group?

A: Usually it would be because of the quiz grades or

the test grades that we had received [that] day.

11. J.D. w as a senior at Lecanto High during the 2018 - 19 school year and

was one of Mr. AldenÔs students. J.D. offered the following testimony about

Mr. AldenÔs method of seating students:

Q: Okay. LetÔs start talking about [allegation] 3 - A.

Tell us what you know a bout 3 - A.

A: All right. So 3 - A, it says that in the classroom he

referred to students as dumb or stupid. I never

heard him actually refer to any individual student

individually as dumb or stupid, but I know that he

did refer to people collectively as not willing to

learn. But I do not know that he actually referred

to any [ ] particular student as dumb or stupid.

Q: Did you hear him use those words toward any

group of students as being dumb or stupid?

A: Implied, yes. But not directly.

Q: Okay. What do you mean when you say implied?

A: So, like, in the next part, in 3 - B, when he divided

the section into smart and dumb students. And

smart students were in the back and dumb

students were in the front. That did happen and

that does imply that he thought th at those kids

were not as smart as the kids in the back.

Q: Okay. So, by the way, were you in either one of

those groups?

A: Yes, I was. I was in the back.

Q: Okay. So, you were in the smart kidsÔ group; is

that right?

A: Exactly.

Q: Okay. Now, how di d you Ï did you Ï did that

make you feel in any way? How did you know that

the smart kids were in the back and the dumb kids

were in the front? I mean, how did you know that?

A: Because itÔs what the other kids were saying.

The other kids in the class. It made them feel that

the kids in the back were better than they were.

And those were Ï those are words from the

students. Like, when I was Ï so, in the class, I was

in the back and me and another student in the back

would Ï we would, you know, bicker and a rgue. So I

asked Mr. Alden to move me to a different setting

so that we just wouldnÔt bicker and argue anymore.

And when I was sitting with those students, they

would always refer to me as the smart kid in the

group. And it made a distinction. It actually, in a

way, segregated the class based on the level of

intelligence.

* * *

Q: Okay. Did Mr. Alden tell you that [was] why he

was separating [students] into different groups?

The kids who scored well on the exams were put in

the back and the kids who didnÔt score well, they

were put in the front.

A: Exactly. That is how he explained it in the

beginning of the school year.

Q: Okay. And you were talking about the

interaction between the kids. Based on the way he

had told you all he was segregating you with t he

kids that scored well in the back and kids that

didnÔt score well in the front, did that cause some

tension or problems between the students in the

classroom?

A: I wouldnÔt say tensions, but it did ostracize

people who sat in the front, people who sat in the

back. And then when you, like, try to talk to people

from a different area, it was, like, you were either

below them or above them.

Q: Okay. And that was discussions among the

students based on where they were placed; is that

correct?

A: Right. An d that is my experience from sitting in

a different group.

12. K.S. was aware that Mr. Alden based studentsÔ seat assignments on

their class performance. However, he testified that Mr. Alden Ñnever said

that we were either stupid or smart in one place or another.Ò

13. R.C. gave the following testimony about the seating arrangement:

Q: How was the seating arrangement in

Mr. AldenÔs classroom, if you recall?

A: It varied. Normally we could sit kind of wherever

we want[ed] when we came in. Bu t then, after test

days, we would be split into groups where the first

row back, if I recall, the highest test grades would

be in one area and the lowest test grades in the

other. WeÔd talk and go over the test and then we

would be split into groups based on lowest test

grades with the highest test grades put together

and all mixed out so that everybody could help each

other and help each other learn.

Q: Okay. And did you find this effective?

A: I believe so. Because some days I had a bad test

and someone else did better and they could help

me. Then if I had a better test and someone else

didnÔt, I could help them. You got to know

everybody in the class better and I feel, again, it

was just very productive overall.

Q: Did the seating arrangement ever ca use you any

embarrassment?

A: No, sir.

14. C.S. testified that the seating arrangement helped Ñstudents that

werenÔt really doing well on their tests by putting students that had lower

grades on tests up in front. That way [Mr. Alden] could do one - on - on e with

them, if needed.Ò When asked if the seating arrangement ever caused him

embarrassment, C.S. testified that, ÑI actually really enjoyed it since there

would be certain lessons I didnÔt understand that well and so being up closer

to him, it allowed me to, like, get his attention and be, like, can you help me

understand this.Ò

15. When asked about the seating arrangement in Mr. AldenÔs class, B.S.

testified that Ñhe just put it to where he thought would be the best for people

that needed to learn a l ittle bit better. But it wasnÔt like anything like

embarrassing or anything like that. Like it was what he thought was the best

seating arrangement to do.Ò

16. S.C. seemed to agree when asked if Mr. Alden ever announced that he

was dividing a class Ñbetwe en dumb students and smart students.Ò However,

S.C. testified that no one took any offense and that the seating arrangement

never caused him any embar r as s ment.

17. M.J. did not recall students being seated based on test scores, but she

did remember that st udents who needed more help were placed closer to the

front of the classroom so that they could get Mr. AldenÔs attention. She

denied ever hearing Mr. Alden state that he was dividing a class into smart

and dumb sections.

18. Mr. Alden readily acknowledg ed that he placed students in different

sections of his classroom based on test scores during the time in question and

had used this method during seven school years:

After the first unit test, they were grouped by their

test score. So the highest perform ing students were

in the back of the room. They were Ï my

independent learners were in the back of the class.

And the lowest scoring kids in the group were my

dependent learners and they needed more support

from me and I put them in Ï not necessarily in th e

first group because the very first group was closer

to the door to the classroom. The second and third Ï

the second, third Ï no, wait. One, two, three. The

second, fifth and fourth groups were the ones

closest to my desk. And thatÔs where I arranged the

students that needed more help with the content.

And sometimes it was a bad test taker or

sometimes they were having trouble with the read

Ï with reading comprehension. Sometimes it was

an issue with communication with their peers. And

having them closer to me allowed me to observe

their interactions and, where necessary, step in and

provide one - on - one support and determine if I had

to address a learning deficiency or if it was a

struggle Ï they were struggling with a particular

piece of content.

19. Mr. Adlen denied referring to students as being in Ña dumb section or

stupid sectionÒ:

Whenever the students would make comments to

that Ï to that end, I was vehement and immediate

in my correction of it. I made Ï on numerous

occasions I would say that the kids in the back of

the room might have gotten a hundred percent on

the test and the kids in the front of the room might

have gotten a 90. That I only have limited amount

of space and I canÔt put every A in the back of the

room. I donÔt have enoug h room to put everybody in

the back of the room.

So everybodyÔs got to go somewhere and it -- ending

up in the front of the room does not mean youÔre

low performing. It doesnÔt mean you have a poor

performance. ThereÔs no such thing as good enough

grades.

* * *

The folks in the front are the folks that need

support. The folks in the back are Ï IÔm able to

leave to their own devices.

Findings as to Whether Mr. Alden Used Profanity in the Classroom

20. S.H. testified that Mr. Alden uses the words Ñ bitchÒ and ÑshitÒ in class.

S.C. read from a prior written statement in which he stated that Mr. Alden is

Ñvery blunt, uses uncalled for words. He speaks about other students, but

doesnÔt use specific names, like mistakes they have done. He cusses, such a s

words as damn, shit and hell. HeÔs used the n - word before. Does not think

before he speaks.Ò S.B. testified that Mr. Alden Ñwould curse a lotÒ and used

the words Ñbitch,Ò Ñshit,Ò and Ñass.Ò That made S.B. uncomfortable because

she thinks that teachers sh ould not be using such language around students.

J.S. testified that Mr. Alden used the words Ñbitch,Ò Ñshit,Ò and ÑhellÒ in class.

J.S. added that Ms. Alden expressed his preference for Milton FriedmanÔs

economic theories by stating that John Maynard Keyn es ÑdidnÔt know shit.Ò

21. O.L. was a senior at Lecanto High during the 2018 - 19 school year and

was in Mr. AldenÔs economics class. She testified that Mr. Alden told a joke 5

to a student in which the set - up was Ñwhat is the difference between a bitch

and a ho?Ò 6

22. K.S. remembered Mr. Alden using the term ÑshitÒ at least a couple of

times. He also remembered the joke described by O.L.

23. R.C. testified that Mr. Alden occasionally used profanity in the

classroom. However, according to R.C., Mr. Alden did not use profanity in a

derogatory manner and did not direct any profanity toward any students.

C.S. denied hearing Mr. Alden ever say anything inappropriate.

24. Mr. Alden 7 conceded during his testimony that he had a relaxed

attitude toward prof anity:

Q: The Amended Administrative Complaint in 3 - C

states, specifically, Respondent used profanity in

the classroom, including the words bitch, shit and

hell. Could you respond to that accusation?

A: Incidental profanity was not a thing that I made

a big deal about. It was more that the students

engaged in it than that I participated in it. I did

participate in it, but very infrequently.

5 The Amended Administrative Complaint did not mention the joke at issue, but Mr. Alden

did not assert that he was not on notice that test imony regarding the joke would be used to

substantiate the allegation that he used profanity in the presence of students.

6 I.G. did not testify at the final hearing but a written statement from her was accepted into

evidence as part of PetitionerÔs Exhib it 6. I.G. wrote that ÑAlden said Óthis is a jokeÔ and

asked the class not to tell, because I believe some other students were making jokes about

being called a whore, then he said ÓWhatÔs the difference between a whore and a bitch? A

whore gets with every one and a bitch gets with everyone but you.ÔÒ Even if I.G.Ôs statement

was offered to prove that Mr. Alden made the statement at issue, I.G.Ôs statement

supplements and corroborates O.L.Ôs testimony. Accordingly, I.G.Ôs statement is admissible.

See § 1 20.57(1)(c), Fla. Stat. (2020)(providing that Ñ[h]earsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself

to support a finding unless it would be admissible over objection in civil actions.Ò).

7 As noted in the Preliminary Statement, Mr. Alden is deemed to have admitted using

profanity in the classroom.

It originated with students in the class using that

language without sign of disquiet. They Ï I

remember distinctl y one student saying to me,

Mr. Alden, I really like your class because you talk

to us about real shit. And I was, like, whoa. But he

showed no signs that he was aware that he had

said something inappropriate and nobody in the

class showed signs that i t was an inappropriate

thing to say. At that point I noticed that it was Ï it

was not an infrequent thing among the students.

So rather than make it Ï I mean, I worked at an

alternative school where I dealt with juvenile

felons. I worked in a school where we Ï our number

one problem was kids getting into gang fights.

So in my career there had just been bigger fish to

fry and more important issues to address. So, at

Lecanto, when the students informed me, through

their behavior, that incidental profanity w as not a

thing that they were going to get bent out of shape

about, I tried to manage it in what I thought was

the best way possible. I made very strict rules.

Nothing over Ï nothing more than PG - 13. Nothing

that you would not hear on commercial televisio n in

prime time. And the f - word Ï never in anger, never

towards another person, never used to aggress

against another student, never used to disparage or

insult another student. And the f - word was

forbidden.

Mr. Alden denied ever using the n - word.

25. With regard to the testimony that he told a joke with the words ÑbitchÒ

and Ñho,Ò Mr. Alden offered the following context:

I had a senior girl that was in crisis. She was being

accused of being a whore by the ex - girlfriend of her

current boyfriend. T he agitator was a junior. My

girl was a senior and she was about to graduate.

She was within just a few short weeks of

graduating. She came into class [visibly] upset,

surrounded by a group of girls who were egging her

on and she kept saying she was going to beat her.

I tried to intervene to calm her down, kind of talk

her off the ledge.

* * *

So, I did the last thing I could think to do. I just

said, hey, do you know what the difference is

between a b_ _ and a ho? Because that was the

topic that she wa s upset about. Being called a

whore. That got her attention.

* * *

And I said, so what is the difference. Tell me what

the difference is. And it took a little while to kind of

talk her through it, but she got the point that it

wasnÔt about the behavior, it was about the

perception of the behavior. That it wasnÔt about the

person who was acting, it was about the outside

observer and their judgment of the personÔs

behavior.

26. Karen Harper is a teacher at Lecanto High and explained why

teachers using pro fanity in the classroom could be harmful to learning:

Q: Now, in your career, do you use those kinds of

words in your classroom?

A: No.

Q: Do you believe Ï is there any particular reason

why you donÔt use those words in your classroom?

A: ItÔs not prof essional. I know that during --

whenever youÔre hired, you have to go to Ï the

beginning of school or when you get hired by a

county, you have to go through an orientation and

they talk about code of ethics and things that they,

you know, as a teacher, thi s is whatÔs expected of

you. And that was just something that was Ï I

know that itÔs a code of ethic[s] you shouldnÔt be

doing that.

Q: Well what about just in terms of how Ï based on

what you know about students, how using those

kinds Ï that kind of lang uage impacts students?

A: Some students are Ï you never know. Just like

in [the] general population. You donÔt know who

youÔre going to offend, who youÔre not going to

offend. So itÔs best just to avoid it and not say them.

* * *

Q: Okay. So, but if th e teacher wants to

characterize a person in a history book as a bitch or

something that they did in the context of history as

. . . If the teacher, then, wants to say that

something that the queen or the king did was

shitty, in your professional view, is t hat an

appropriate context to use those kinds of words?

A: No.

27. Teachers and students at Lecanto High are prohibited from using

profanity.

Findings as to Whether Mr. Alden Embarrassed J.S. by Engaging in a

Religious Debate and Stating That a Belief of J.S.Ôs Was ÑDemonstrably

FallaciousÒ

28. M.M. was a senior at Lecanto High School during the 2018 - 19 school

year, and Mr. Alden was his economics teacher. On a day in early May of

2019, M.M. disclosed to classmates sitting at his table during economic s class

that he was transgender, and that led to his classmates asking several

questions about M.M. Ô s family life and religious views. When M.M. expressed

a favorable view about JehovahÔs Witnesses, J.S. approached the table where

M.M. was seated, stood ov er him, and inserted himself into the conversation.

M.M. described the ensuing events as follows:

I canÔt remember exactly what brought up J.S.

joining this conversation. I do remember that

I started with saying my own opinion on JehovahÔs

Witnes ses, stating that it was a truer religion than

most that I have viewed. And I remember him

walking up to my desk, standing less than a foot

over me while I was seated. And I am a very, very

short, small man. Very, very scared of many people,

especially in high school. He stood over me and he

told me right off the bat that I was wrong. And I

said, itÔs okay, man, no problem. Conversation over.

WeÔre done. And I just acted as if I was going back

to my assignment.

He was like, no, no, no, you are wrong. And I want

to tell you that you are wrong and that Jesus and

God are one and the same. And I was, like, okay,

thatÔs your belief, my belief is different. Just, thatÔs

it. He was, like, no, no, man. And I was, like, I donÔt

want to Ï I donÔt want to deal with so meone

pushing someoneÔs beliefs on me right now.

You know, IÔm in school, I just want to finish my

assignment. And he was like, IÔm not pushing my

beliefs, IÔm enlightening you. And as heÔs talking to

me he is in a way towering over me, is how I vi ewed

it.

IÔm assuming that Mr. Alden saw that I was

getting very uncomfortable and Mr. Alden came to

the other side of me, looked at Mr. J.S. and said,

you are wrong for doing this to him, you need to

back off. And at that point, the conversation

diverted , while it was over me, still to J.S. going

after Mr. Alden with the same phrases and

repeating the exact same argument that he was

doing to me. Mr. Alden kindly enough diverted the

argument away from my desk and got sort of to the

other side of the classr oom at that point.

29. J.S. described the events in question as follows:

So they were talking about that topic and they were

talking Ï kept talking about, you know,

mainstream Christianity. So I walked over there

and I wanted to share my belief, since they were

already on that topic, to inform them of that in case

they were not aware of a different way of thinking,

a different way of believing. So I walked over there

and I made the comment, I said, did you know that

Jesus is God. And after I said that comment,

Mr. Alden walked over to me and he said, donÔt say

that Jesus is God. ThatÔs demonstrably fallacious.

And Jesus is God is one of the core beliefs of my

faith. The fact that [he] believes that Jesus is God

and that God is the Holy Ghost an d that all of them

are one person is one of the founding principles of

what I believe.

So in essence, he was saying, donÔt say what you

believe is true, because itÔs clearly and evidently

based on something that is false.

* * *

And after that, he eng aged me in a whole debate,

trying to prove what I believe to be wrong in front

of all of [my] peers.

Q: Okay. So his demeanor towards you while he

was telling you that what you believe was

demonstrably fallacious, what was his demeanor

like?

A: It was co cky, it was arrogant, it was Ï it seemed

like he thought no one could ever prove him wrong.

And even when you tried to use the sources that

you draw your faith from, such as the Bible, I was Ï

when we were talking, I was trying to use

scriptures that I bel ieve to be doctoral scriptures

from the Bible. And he said Ï he told me that I

could not use the Bible because it was inaccurate

and false, due to the Council of Nicaea. So he not

only was disparag[ing] my faith, but he disparaged

the spiritual book that I draw my faith from.

Q: Okay. Emotionally how did that make you feel?

A: Emotionally, I was embarrassed. I was upset. I

was angry. But I was just going to let it -- I was just

going to let it go. I was just going to let it roll off Ï

roll off like water on a duckÔs back.

30. The undersigned does not credit J.S.Ôs assertion that he was

embarrassed. During his testimony, J.S. presented as a very outgoing and

opinionated young man who ha s no inhibitions about expressing his views

and engaging in debates . I n fact, J.S. testified that ÑI am a, you know, I hate

to say it, but I am an opinionated person and that tends to get me into

discussions based on different topics, such as, you know, politics, opinions,

the whole nine yards.Ò

31. Mr. AldenÔs description of this incident corroborates M.M.Ôs testimony,

and his description of J.S. matches the opinion formed by the undersigned:

[J.S.] was aggressively opinionated. And I had to

remove him from two groups at the request of the

members of his groups because he would not

acquiesce ever. A big part of the class was they

would take quizzes as a collaborative group and

they would discuss and debate what was the best

evidence for their answers on the quiz. And J.S.

would not keep Ï J.S. would get his opinion on what

was the best evidence and he would not hear

anyone nay - saying it. So, two different groups of

kids said, could you please remove him because we

canÔt have a debate with this guy.

He was also very aggressive about his religious

beliefs. And I, on more than one occasion, reminded

him that belief is individualized. You cannot

require anybody else to agree with your beliefs. If

itÔs just a matter of a difference of opinion on

beliefs, on faith, then you have to agree to disagree.

ItÔs unjust. Otherwise itÔ s unjust.

The particular incident involving M.M. Ï M.M.Ôs

characterization of the interaction is a lot more

intimidating than I though t it was. I just Ï I just

saw J.S. in the back of the room with a group that

had asked him to be removed from them. And I

stepped up to just sort of reestablish that boundary.

That, you know, this is -- this is a group of kids that

really doesnÔt Ï they got a problem with you, thereÔs

a personality conflict or something going on here. I

had no Ï I didnÔt know that M.M. was feeling

bullied at the time. And I Ï when I stepped to M.M.

or when I stepped to J.S., I heard him Ï all I Ï I

heard him say that Jesus and God are literally the

same thing. And I heard M.M. very gently

disagreeing, but clearly not wanting to get into a

de bate Ï a debate with J.S.

I certainly did not want to get into a debate about

religious beliefs, so I employed the Socratic method

and I just asked J.S., what do you base that on.

And J.S. said, I base it on the Bible. And I said,

okay. Let me just ask y ou questions based on your

source material and letÔs see if we can figure out if

thatÔs an accurate claim. Like, can you make that

claim using your own sources. And I just asked him

a few simple questions about the biblical nature of

God as defined by the Bible and the nature of Jesus

as outlined in the Bible and showed the contrast

between God of the Bible and the Jesus of the Bible

to show him that, okay, that claim, you canÔt

defend. You canÔt make that claim based on the

source material.

Findings Reg arding the Allegation that Mr. Alden Grabbed a StudentÔs Hair

32. Mr. Alden taught world history at Liberty Middle School in Marion

County, Florida , during the 2019 - 20 school year.

33. K.R.H. was a student at Liberty Middle School that year and had

Mr. A lden for eighth - grade history. On approximately October 8, 2019,

K.R.H. was walking into Mr. AldenÔs classroom and Mr. Alden was positioned

near the entrance. K.R.H. had long hair and was wearing it in a ponytail. S he

testified that Mr. Alden Ñpulled my ha ir pretty roughly and it made my head

go back a little.Ò K.R.H. did not say anything to Mr. Alden. However, when

she looked back at him, she testified that he was laughing and did not offer

an apology.

34. K.R.H. called her parents about the incident, and her father then

called the school. Melissa Forsyth, the principal of Liberty Middle School,

fielded the call and began an investigation. In addition to interviewing

K.R.H., Ms. Forsyth interviewed two other students who witnessed the

incident and corrobor ated K.R.H.Ôs assertion that Mr. Alden pulled K.R.H.Ôs

hair. 8

35. Ms. Forsyth and her assistant principal viewed security camera

footage of the incident 9 , and Ms. Forsyth discussed the incident with

Mr. Alden:

And we saw Mr. AldenÔs hand go around h er

ponytail and kind of -- it went up and then her

head tilted back as she was walking into the room.

Q: Okay. Did you talk to Mr. Alden about that?

A: We did.

Q: What did he tell you?

A: So at first he said that he oftentimes greeted

students at the d oor. High fives, fist bumps, elbows.

And he never pulled anyoneÔs hair. I did take that

opportunity and reminded him that there were

security cameras in the hallway. And then he said,

he swatted at K.R.H.Ôs ponytail jokingly to flip it

and a finger got cau ght in a tangle.

Q: So is it your testimony that when you first

talked [to] Mr. Alden about it, he denied ever

pulling the studentÔs hair?

A: Yes, sir.

Q: And then when you informed him that you had

video and you had seen him grab the studentÔs hair

8 Neither of the alleged witnesses testified at the final hearing.

9 The security camera footage was not offered into evide nce during the final hearing.

an d pull her head back, did he Ï thatÔs when he told

you what he did was swat at her head?

A: Right. I didnÔt tell him I saw anything. I just

reminded him that there were video cameras in the

hallway.

Q: Okay. And then thatÔs when he changed his

story ab out what happened?

A: He swatted at her ponytail jokingly to flip it and

a finger got caught in a tangle.

Q: Okay. Now, is that what you saw when you

observed it yourself?

A: It did not appear that way.

Q: Okay. It appears as youÔve described, that he

grabbed her ponytail and pulled her head back; is

that correct?

A: That it was Ï that it was around the hand Ï the

hair and then her head tilted back after it went up.

36. While denying that he grabbed and pulled K.R.H.Ôs ponytail,

Mr. Alden testified that his hand accidentally got entangled in K.R.H.Ôs hair:

I was standing at Ï I was standing in the doorway

on the hallway side, greeting students as they came

in. The doorway was inset about three feet from the

wall. So, if IÔm standing in the doorway observing

the hallway, I couldnÔt clearly see into the

classroom. As K.R.H. came in I said, hi, she said hi.

And as she Ï I put my fist out to bump her and as

she walked by I Ï I assume she didnÔt see me with

my hand out or she was distracted. As she walke d

by, I swatted at her ponytail, just like, oh, youÔre

going to ignore me. Okay. Swatted at her ponytail.

I wear a ring on my little finger and it got caught Ï

my finger or the ring or some combination got

caught in her hair and thatÔs Ï thatÔs why on the

camera it appeared to flip up and then get pulled

back down because thatÔs how gravity works. You

hit a thing, itÔs going to fall back down.

Got my finger caught and her head came back and I

got my finger out. She kind of jerked. I said, my

bad. I couldnÔ t really say a lot to her because there

was another student right in front of me that was

in the moment trying to get my attention. So, just

Ï it was just an incidental movement that got taken

wildly out of proportion.

Findings Regarding the Allegation that Mr. Alden Embarrassed a Student by

Touching His Forehead and Saying ÑThink.Ò

37. Kayla Palacios was an assistant principal at Liberty Middle School

during the 2019 - 20 school year, and she was conducting a formal observation

of one of Mr. AldenÔs cla sses on February 25, 2020. She testified that

Mr. Alden was standing at the front of the classroom and directing questions

to specific students. When A.C. was unable to answer the question posed to

him, Ms. Palacios testified that ÑMr. Alden poke[d] A.C. in the forehead with

two fingers and A.C.Ôs head went back.Ò

38. Ms. Palacios discussed the incident with Mr. Alden later that

afternoon and relayed that it is inappropriate for teachers to touch students.

According to Ms. Palacios, Mr. Alden Ñacknowledge d it and we moved forward

from that conversation.Ò Because she considered the incident sufficiently

significant, Ms. Palacios informed Ms. Forsyth about it the next morning.

39. Mr. Alden described the incident as follows:

On this particular day I was b eing observed, so I

wanted to make a good impression on Ms. Palacios.

So, I went to A.C. on a difficult question that I was

sure he would have the right answer to. And he

didnÔt. He kind of flubbed the answer a little bit.

And when I didnÔt give him that i mmediate, youÔre

right, he got flustered. And because he was, you

know, the teacherÔs pet and because he was the guy

that always had the right answer, his peers were

starting to kind of snicker.

There was a little bit of tension between him and

the rest o f the class that didnÔt really bother him,

usually. But on this day, when his friends were

snickering and he felt like he had it and then

realized he hadnÔt, he got a little flustered. To try to

focus his attention on me and ignore the rest of the

class, I very delicately placed two fingers on his

forehead, while he was looking up at me. He did not

have his head down. He was looking me in the face,

trying to figure it out. And I just Ï and I just Ï to

focus him, stop, think, think about what youÔre

doing, y ou know this, youÔve got this. And he did.

He came up with the correct answer. And he

beamed when he got it right.

40. A.C. did not testify at the final hearing, and there was no evidence as

to whether Mr. AldenÔs action embarrassed him.

Ultimate Findi ngs Regarding PetitionerÔs Allegations

41. PetitionerÔs first two allegations are closely related. The first alleges

that Mr. Alden referred to students as Ñdumb,Ò Ñstupid,Ò or words to that

effect. The second alleges that Mr. Alden told his students that his class was

divided into one section for Ñsmart kidsÒ and another for Ñdumb kids.Ò

42. Petitioner presented testimony from S.H. and S.D. that clearly

supported the first two allegations. Because the other witnesses who testified

about these allegations contradicted the testimony given by S.H. and S.D.,

the undersigned is not left with a firm conviction regarding these two

allegations. Thus, Petitioner did not prove the first two allegations by clear

and convincing evidence.

43. In contrast, Mr. AldenÔs own admission and the witness testimony

clearly and convincingly established that Mr. Alden used profanity in the

classroom. Moreover, Ms. Harper, a teacher at Lecanto High, persuasively

testified why teachers using profanity in the classroom is harmful to learning

and would reduce a teacherÔs effectiveness. However, there was no persuasive

evidence that any students were seriously harmed by PetitionerÔs use of

profanity.

44. Petitioner also alleged that Mr. Alden embarrassed J.S. by engaging

J.S. in a religious debate and telling J.S. that one of his religious beliefs was

Ñdemonstrably fallacious.Ò Even if Petitioner could prove that Mr. Alden

characterized one of J.S.Ôs religious beliefs as Ñdemonstrably fallacious,Ò

Petitioner has not proven that the debate between Mr. Alden and J.S.

embarrassed the latter. After having the opportunity to observe J.S.Ôs

demeanor, the undersigned does not credit J .S.Ôs assertion that he was

embarrassed.

45. As for the allegation that Mr. Alden grabbed K.R.H.Ôs hair an d caused

her head to be pulled backwards, there is no doubt that one of Mr. AldenÔs

hands made contact with K.R.H.Ôs ponytail and caused her head to be pulled

backwards. The only question pertaining to this allegation is whether

Mr. Alden grabbed K.R.H.Ôs ponytail or inadvertently got entangled with it.

Other than Mr. Alden and K.R.H , Ms. Forsyth was the only witness to testify

about the incident. However, her testimony was based on her observation of

security camera footage, and Petitioner did not attempt to move that footage

into evidence. As a result, there is no way to ascertain whether the footage

was detailed enough for Ms. Forsyth to accurately distinguish whether

Mr. Alden grabbed K.R.H.Ôs ponytail or inadvertently got entangled within it.

In other words, the absence of that footage and the absence of testimony from

other witness es at the scene of the incident precludes the undersigned from

finding that Petitioner proved this allegation by clear and convincing

evidence. 10

10 This finding should not be construed as the undersigned accepting Mr. AldenÓs version of events. Even if

Mr. Alden simply swatted at K.R.H.Ós ponytail, he exhibited poor judgment by doing so. He also exhibited

poor judgment by using profanity in the classroom.

46. Petitioner also alleges that Mr. Alden embarrassed A.C. by touching

A.C.Ôs forehead and saying ÑthinkÒ when A.C. was initially unable to answer a

question. While the evidence clearly and convincingly established that

Mr. Alden touched A.C.Ôs forehead, there was no evidence as t o whether A.C.

was embarrassed thereby because A.C. did not testify . Accordingly, this

allegation was not proven by clear and convincing evidence.

C ONCLUSIONS OF L AW

47 . DOAH has jurisdiction over the subject matter and the parties to this

action in accor dance with sections 120.569 and 120.57(1), Florida Statutes

(20 20 ).

48. T he Commission is the state agency charged with the certification and

regulation of Florida educators pursuant to chapter 1012 , Florida Statutes .

49 . This is a proceeding in which Peti tioner seeks to impose discipline 11

against RespondentÔs educator certification. Because disciplinary proceedings

are considered to be penal in nature, Petitioner is required to prove the

allegations in the Administrative Complaint by clear and convincing

e vidence. DepÔt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d

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

50 . Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and t o the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). As stated

by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

11 Section 1012.796(7), Florida Statutes (2018 - 2019) , enumerates the penalties that the

Commission can impose such as: (a) revocation or suspension of licensure; (b) imposition of

an administrative fine of up to $2,000 for each count or separate offense; (c) probation; (d)

restriction of the authorized scope of practice; and (e) written reprimand. The 2018 and 2019

versions of the Florida Statutes apply to the instant case because that is when the conduct at

issu e allegedly occurred. McCloskey v. DepÔt of Fin. Serv. , 115 So. 3d 441, 444 (Fla. 5 th DCA

2013).

which the witnesses tes tify must be distinctly

remembered; the testimony 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 hesita ncy, 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). ÑAlthough this standard of proof

may be met where the evidence is in conflict, it seems to preclude evidence

that is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986,

989 (Fla. 1991).

51. Charges in a disciplinary proceeding must be s trictly construed, with

any ambiguity construed in the licenseeÔs favor. Elmariah v. DepÔt of ProfÔl

Reg. , 574 So. 2d 164, 165 (Fla. 1 st DCA 1990); Taylor v. DepÔt of ProfÔl Reg. ,

534 So. 2d 782, 784 (Fla. 1 st DCA 1988). Disciplinary statutes and rules mus t

be construed in terms of their literal meaning, and words used by the

Legislature may not be expanded to broaden their application. Beckett v.

DepÔt of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1 st DCA 2008); Dyer v. DepÔt

of Ins. & Treas. , 585 So. 2d 100 9, 1013 (Fla. 1 st DCA 1991).

52. Also, due process prohibits a regulatory authority from taking

disciplinary action against a licensee based on matters not specifically alleged

in a charging documents, unless those matters were tried by consent. See

Shore Vill. Prop. OwnerÔs AssÔn v. DepÔt of Envtl. Prot. , 824 So. 2d 208, 210

(Fla. 4 th DCA 2002); Delk v. DepÔt of ProfÔl Reg. , 595 So. 2d 966, 967 (Fla. 5 th

DCA 1992).

53. The Commission argues that the allegations against Mr. Alden

amount to violations of se ctions 1012.795(1)(g) and 1012.795(1)(j), Florida

Statutes (2018 - 2019). 12 The former statute subjects a certificate holder to

discipline for being Ñfound guilty of personal conduct that seriously reduces

that personÔs effectiveness as an employee of the dis trict school board.Ò

Section 1012.795(1)(j) subjects a certificate holder to discipline for violating

Ñthe Principles of Professional Conduct for the Education Profession

prescribed by State Board of Education rulesÒ set forth in Florida

Administrative Cod e Rule 6A - 10.081. In the Amended Administrative

Complaint, Petitioner alleges Mr. Alden violated rules 6A - 10.081(2)(a)1 . , 5 . ,

and 7 . 13 :

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educatorÔs certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student fr om conditions harmful to learning and/or

to the studentÔs mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

12 Sections 1012.795(1)(g) and 1012.795(1)(j) have not been amended since the 2018

legislative session.

13 Rule 6A - 10.081 has not been amended since March 23 , 2016. The Amended Administrative

Complaint also alleges that Mr. Alden violated rules 6A - 10.081(2)(b)2 . and (c)1. The former

requires that a certificate holderÔs obligation to the public requires that the individual

Ñ[s] hall not intentionally distort or misrepresent facts concerning an educational matter in

direct or indirect public expression.Ò The latter requires that a certificate holderÔs obligation

to the profession of education requires that the individual Ñ[s]hall maintain honesty in all

profession al dealings .Ò Those rules appear to pertain to the allegations that were not pursued

during the final hearing, i.e., that Mr. Alden submitted applications to the Marion County

School Board containing false information .

* * *

7. Shall not harass or discriminate against an y

student on the basis of race, color, religion, sex, age,

national or ethnic origin, political beliefs, marital

status, handicapping condition, sexual orientation,

or social and family background and shall make

reasonable effort to assure that each stude nt is

protected from harassment or discrimination.

54. The outcome of the instant case largely turns on the burden of proof

and the wording of PetitionerÔs allegations. As discussed above, Petitioner

failed to prove by clear and convincing evidence that Mr. Alden referred to

students as ÑdumbÒ or ÑstupidÒ and that he divided his class into a Ñsmart

kidÒ section and a Ñdumb kidÒ section.

55. While Petitioner had evidence to support its allegations that

Mr. Alden said that J.S.Ôs religious belief was Ñde monstrably fallaciousÒ and

that Mr. Alden touched A.C.Ôs forehead and said Ñthink,Ò Petitioner presented

either no evidence or no credible evidence that Mr. Alden embarrassed J.S. or

A.C.

56. Likewise, Petitioner was unable to prove the portion of the cha rge

alleging that Mr. Alden ÑgrabbedÒ K.R.H.Ôs hair. The videotape of that

incident or testimony from a witness who had a proper vantage point could

have resulted in a different outcome. See generally T.D.W. v. State , 137 So. 3d

574 (Fla. 4 th DCA 2014)(hol ding that Ñthe detectiveÔs testimony in this case Ï

that she saw a better camera angle, not present on the video in evidence, that

clearly depicted appellantÔs face Ï violated the best evidence rule.Ò); Dyer v.

State , 26 So. 3d 700, 702 - 04 (Fla. 4 th DCA 20 10)(ruling a store manager was

improperly allowed to testify that the storeÔs surveillance video showed the

defendant opening DVD boxes and putting DVDs into his pocket); Russell v.

State , 844 So. 2d 725, 727 - 28 (Fla. 5 th DCA 2003)(finding a best evidence rule

violation where a detective testified that a video showed the defendant

placing a large amount of change on the counter of a 7 - Elev e n after a large

quantity of change had been stolen from a Taco Bell).

57. In contrast, the evidence clearly and convincingly established that

Mr. Alden used profanity in the classroom. That conduct violated

section 101 2 .795(1)(g) by reducing Mr. AldenÔs effectiveness as a teacher and

rule 6A - 10.081(2)(a)1 . by creating a condition harmful to learning.

Ms. Harper, a teacher at Lecanto High, persuasively explained why using

profanity in the classroom is not productive. Even though Petitioner did not

offer Ms. Harper as an expert witness, the aforementioned testimony was

well within her professional scope. I t is well established that a lay witness

can offer an opinion about a matter within that witnessÔs personal experience

and knowledge. See R.C. v. State , 192 So. 3d 606, 611 (Fla. 2d DCA

2016)(holding that ÑFloridaÔs adoption of the Daubert standard has not

changed t he long - established rule that lay persons can identify marijuana Ï

and some other illicit substances as well, e.g., cocaine and methamphetamine

Ï based on their personal experience and knowledge. Such testimony is not

admitted based on scientific expertise but instead based on the laymanÔs

training and experience, for which a predicate establishing a sufficient degree

of familiarity is sufficient.Ò); Jones v. State , 440 So. 2d 570, 574 (Fla.

1983)(rejecting an argument that a police officer could not offer an opinion

that a mark on a window sill resulted from the recoil of a high - powered rifle

because Ñ[i]t was well within his realm of experience to offer the trier of fact

his opinion as to this origin of the mark on the Óstash houseÔ window sill.Ò);

Sajiun v. Hernandez , 226 So. 3d 875 (Fla. 4th DCA 2017)(holding that the

trial court did not abuse its broad discretion in allowing a non - expert witness

to testify about how quickly a motorcycle was traveling before an accident

when that witness had operated moto rcycles since 1980); Austin v. State , 199

So. 3d 327 (Fla. 3d DCA 2016)(holding that testimony from a crime scene

investigator that pry marks left on a drawer could have been made by a

screwdriver Ñhas long been recognized as permissible lay testimonyÒ bas ed on

the witnessÔs personal observation and general experience). See also

§ 120.569(2)(g), Fla. Stat. (providing , in relevant part , that Ñall other evidence

of a type commonly relied upon by reasonably prudent persons in the conduct

of their affairs shal l be admissible, whether or not such evidence would be

admissible in a trial in the courts of Florida.Ò).

58. Accordingly, the undersigned finds that Mr. Alden violated

section 1012.795(1)(g) and section 1012.795(1)(j) through rule 6A -

10.081(2)(a)1. Flori da Administrative Code Rule 6B - 11.007 14 sets for th the

Education Practices CommissionÔs disciplinary guidelines and provides that

violations of section 1012.795(1)(g) are punishable by a penalty ranging from

probation to revocation of a teaching certificate . Violations of section

1012.795(1)(j) through rule 6A - 10.081(2)(a)1 . are punishable by a penalty

ranging from reprimand to revocation.

59. Upon reviewing the aggravating and mitigating factors set forth in

rule 6B - 11.007(3), the undersigned does not perc eive any compelling reasons

for deviating from the recommended penalty range. However, a two - year

revocation, as sought by Petitioner, is too harsh given that the majority of the

counts alleged in the Amended Administrative Complaint were

unsubstantiated a nd that there was no persuasive evidence that any

students were seriously harmed by PetitionerÔs use of profanity. Accordingly,

the undersigned recommends that PetitionerÔs teaching certificate be placed

in probationary status for one year.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it

is R ECOMMENDED that the Education Practices Commission enter a final

order finding that Respondent violated section 1012.795(1)(g) and

14 Rule 6B - 11.007 was last amended on December 10, 2019. None of the provisions relevant

to the instant case changed.

section 1012.795(1)(j) through rule 6A - 10.081(2)(a) 1 . , and that RespondentÔs

educatorÔs certificate be placed in probationary status for one year.

D ONE A ND E NTERED this 2nd day of June, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2021 .

C OPIES F URNISHED :

Lisa M. Forbess, Interim Ex ecutive Branden M. Vicari, Esquire

Dir ector Herdman & Sakellarides, P.A.

Department of Education Suite 110

Education Pra ctices Commission 29605 U.S. Highway 19 North

Turlington Building, Suite 316 Clearwater, Florida 33761

325 West Gaines Street

Tallahassee, Florida 32399 Randy Kosec, Jr., Chief

Office of Professional Practices Services

Ron Weaver, Esquire Departme nt of Education

Post Office Box 770088 Turlington Building, Suite 224 - E

Ocala, Florida 34477 - 0088 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 12 44

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Orde r. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.