00-004445 Miami-Dade County School Board vs. Andrea L. Demsey Status: Closed Recommended Order on Monday, November 5, 2001.

Summary: Petitioner may dismiss instructional employee, pursuant to union contract and School Board rule, for violating drug-free workplace strategy due to employee`s refusal to return to classroom after long absence, even though she was still using illegal drugs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00 - 4445

)

ANDREA L. DEMSEY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Rober t E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on May 30 and 31, 2001.

APPEARANCES

For Petitioner: Luis M. Garcia

Attorney's Office

School Board of Miami - Dade County

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Richard Baron

Baron and Cliff

11077 Biscayne Boulevard, Suite 307

Miami, Florida 33161

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's

employment as a teacher.

PRELIMINARY STATEMENT

By Notice of Specific Charges dated May 2, 2001, Petitioner

alleged that it has employed Respondent as a teacher since

August 1994. Petitioner alleged that Respondent was absent an

excessive nu mber of times while on leave without pay from

December 4, 1996, through February 4, 1997; administratively

referred to Respondent's Employee Assistance Program on

November 5, 1997; and absent from May 20 to June 2, 1999.

Petitioner alleged that, on June 2 , 1999, Respondent's

principal requested that Petitioner's Office of Professional

Standards monitor Respondent's return to work. Petitioner

alleged that, on June 8, 1999, Petitioner's representatives and

Respondent met in a Conference for the Record to ad dress

Respondent's attendance, fitness to teach, and future employment

with Petitioner. Petitioner alleged that its representatives

advised Respondent of its procedures authorizing drug testing on

the basis of reasonable suspicion and warned her that they would

require that she undergo drug testing if she appeared to be

under the influence. Petitioner alleged that its

representatives issued Respondent another referral to

Petitioner's Employee Assistance Program and directives

concerning attendance, lesson plans, and obtaining leaves of

absence. Petitioner alleged that its representatives warned

Respondent that a failure to comply with these directives would

lead to disciplinary action.

Petitioner alleged that, on September 27, 1999, Respondent

requested a substitute teacher because she was sick. Respondent

allegedly asked for a substitute for the following day, claiming

to be sick; however, she allegedly showed up at school on

September 28, 1999. Petitioner alleged that Respondent left

school on Septemb er 29 without authorization and prior to the

end of the school day.

Petitioner alleged that Respondent did not report to work

from October 11 - 14, 1999, because she claimed to be sick and

hospitalized. On October 19, Respondent allegedly failed to

report to work and failed until later in the day to notify the

school of her absence, leaving her students unsupervised in the

hallway. On October 20, Respondent allegedly again failed to

report to work or timely notify the school, again leaving her

students uns upervised in the hallway. Later in the day, while

driving her car to the school, Respondent allegedly struck a

fire hydrant, reported to work crying, and appeared to be under

the influence of drugs or alcohol.

Petitioner alleged that, on October 21, Resp ondent failed

to report to work or timely notify the school of her absence.

Petitioner alleged that, on October 22, it required Respondent

to undergo a drug test and that the results, obtained one week

later, revealed the presence of cocaine.

Petitioner alleged that, on November 1, it notified

Respondent that she could not return to work until she obtained

clearance from Petitioner's Office of Professional Standards.

Petitioner alleged that, one week later, Respondent requested a

medical leave of absence without pay from October 22, 1999,

through June 16, 2000.

Petitioner alleged that, on July 11, 2000, Respondent's

treating physician cleared her to return to duty upon

participation in an approved drug abuse recovery program. On

July 28, 2000, Petitione r's representatives and Respondent

allegedly participated in another Conference for the Record to

address her medical fitness, attendance problems, noncompliance

with Petitioner's rules, violation of various education rules,

and future employment with Peti tioner. Respondent allegedly

asserted that she was clean and sober. At this time, Respondent

allegedly took a drug test, which 11 days later, revealed the

presence of morphine.

Petitioner alleged that its representatives and Respondent

participated in a nother Conference for the Record on August 30,

2000, at which Petitioner's representatives advised Respondent

of her option to request a confirmatory drug screen. On

October 11, 2000, Petitioner suspended Respondent and commenced

this proceeding to termin ate her employment.

Count I of the Notice of Specific Charges alleges that

Respondent is guilty of incompetency, in violation of Articles

XI and XXI of the labor contract, School Board Rules

6Gx13 - 4A - 1.21 and 6Gx - 4A - 1.21, and Rule 6B - 4.009(1), Florida

Adm inistrative Code; inefficiency, in violation of Rule

6B - 4.009(1)(a)1 and 2, Florida Administrative Code, and Section

231.09, Florida Statutes; and incapacity, in violation of Rule

6B - 4.009(1)(b)1 and 2, Florida Administrative Code.

Count II of the Notice of Specific Charges alleges that

Respondent is guilty of reporting to school while under the

influence of a controlled and illegal substance and failing to

meet the requirements of an approved substance abuse recovery

program, in violation of Rules 6B - 1.00 1(2) and (3) and

6B - 1.006(3)(a) and (5)(a), Florida Administrative Code; and

impaired effectiveness as a teacher and misconduct in office, in

violation of Rule 6B - 4.009(3), Florida Administrative Code.

Count III of the Notice of Specific Charges alleges t hat

Respondent is guilty of appearing on school property while under

the influence of illegal drugs, in violation of School Board

Rules 6Gx13 - 4 - 1.05 and 6Gx13 - 4A - 1.21.

Count IV of the Notice of Specific Charges alleges that

Respondent is guilty of conduct unbecoming a school board

employee, in violation of School Board Rule 6Gx13 - 4A - 1.21.

Count V of the Notice of Specific Charges alleges that

Respondent is guilty of willful absence from work, in violation

of School Board Rule 6Gx13 - 4E - 1.011 and Section 23 1.44, Florida

Statutes.

At the hearing, Petitioner called four witnesses and

offered into evidence 38 exhibits: Petitioner Exhibits 1 - 38.

Respondent called three witnesses and offered into evidence four

exhibits: Respondent Exhibits 1 - 4. All exhibits were admitted.

However, Respondent failed to file Respondent Exhibits 1 and 3,

so they are deemed withdrawn.

The court reporter filed the transcript on July 27, 2001.

The parties filed their proposed recommended orders on

September 21, 2001.

FINDINGS OF FACT

1. Respondent has been a teacher since 1993. She is a 34 -

year - old divorced mother of a four - year - old son.

2. Respondent has suffered from a chemical dependency

since she was 18 years old. At that time, she completed a 28 -

day detoxification progra m at Mt. Sinai Medical Center in Miami.

Six or seven years later, Respondent underwent additional

inpatient treatment for her addiction to drugs. She submitted

to a third detoxification, lasting five to seven days, in 1993

or 1994. Respondent underwent a fourth detoxification ten

months later and, in 1996, a fifth detoxification. Respondent

admits that she has undergone detoxification several more times

since 1996. These detoxifications and Respondent's intermittent

participation in Narcotics Anonymous were parts of treatment

programs attempting to relieve Respondent from her addiction to

cocaine and heroin.

3. Respondent's addiction has spanned her college years

through her entire teaching career. The effects of Respondent's

illness have, at times, p recluded her from reaching her full

potential as a classroom teacher.

4. After a brief period of employment by Petitioner as a

permanent substitute teacher, Respondent began fulltime

employment with Petitioner in August 1994 as a teacher at Oak

Grove Elem entary School.

5. While at Oak Grove, Respondent was a satisfactory

teacher, although her attendance was less than satisfactory.

Also, on at least six occasions, evidently starting in her

second year, Respondent fell asleep while conducting a reading

tut orial session in which the students spent 20 minutes in

separate cubicles.

6. Respondent's principal at Oak Grove documented by a

memorandum dated December 4, 1995, eleven full - day absences and

two half - day absences during the 1995 - 96 school year and two

instances of sleeping while charged with the instruction of a

student -- both on the same day and both discovered by the

principal. Due to these incidents and an earlier incident of

sleeping while on duty, the principal administratively referred

Respondent to Petitioner's Employee Assistance Program (EAP).

7. The December 4 memorandum documented the actions taken

at a conference held the same date involving, among others,

Respondent and the principal. Respondent then missed work on

December 6 and 7 -- callin g in at 10:06 a.m. on December 7 saying

that she had overslept and asking if it was too late to report

to work.

8. Respondent missed a considerable amount of work during

the 1996 - 97 school year. Some of the absences, especially from

early December throug h early February, were due to Respondent's

chemical dependency. However, some absences, especially during

the latter part of the school year, may be attributed to the

birth of Respondent's child on July 9, 1997, following a high -

risk pregnancy.

9. The re cord does not disclose much about the 1997 - 98

school year. However, Respondent missed ten days of work due to

sick or personal leave and eleven days of work due to unpaid,

but authorized, leave. The absence of additional administrative

action against Res pondent suggests that she may have improved

her attendance and eliminated her sleeping while on duty.

10. For the 1998 - 99 school year, Respondent transferred to

a new school, Linda Lentin Elementary School. Again, Respondent

was a satisfactory teacher, e xcept for absenteeism. However,

during a nine - day absence from May 20 through June 2, 1999, the

principal received a telephone call from someone claiming that

Respondent had had a breakdown and was in a "drug rehabilitation

hospital." Accordingly, the pr incipal requested that

Petitioner's Office of Professional Standards (OPS) monitor

Respondent's return to work.

11. On June 8, 1999, Respondent, the principal,

Petitioner's OPS Director, and others participated in a

Conference for the Record (CFR). Respo ndent attributed her 21

absences in the 1997 - 98 school year, as well as 20.5 absences in

the 1998 - 99 school year, to six miscarriages and depression.

Petitioner's OPS Director explained the procedures for

reasonable - suspicion drug testing. The CFR memora ndum concludes

by emphasizing that Respondent must report to work when

scheduled and on time, obtain medical excuses for all absences,

provide lesson plans for substitute teachers, and obtain

approval for scheduled leave. At the same time, Petitioner's

OP S Director referred Respondent to Petitioner's EAP. Subject

to these actions, Petitioner approved Respondent's return to the

classroom.

12. However, Respondent's attendance did not improve the

following school year, and her behavior became somewhat

eccen tric early in the school year. At noon on September 27,

1999, Respondent told the principal that she was ill and needed

to go home for the remainder of the day and the following day.

Respondent went home, but, despite requesting leave and a

substitute fo r the following day, returned to work the following

day without calling first. Near the end of the school day,

while her students were in a special - area class, Respondent

signed out of school and walked down the street, despite the

fact that it was rainin g. The next day, Respondent left the

school grounds without permission and, the following day, failed

to attend a mandatory teachers' meeting.

13. The situation deteriorated in mid - October 1999. From

October 11 - 14, Respondent telephoned the school each day and

reported that she was sick and in the hospital. The following

Monday, October 18, Respondent reported to work. However, on

October 19, Respondent failed to report to work or call, leaving

her class sitting in the hallway. Respondent telephoned t he

school at mid - day and stated that she had been in a five - car

accident. This accident did not take place.

14. On October 20, while driving to school, Respondent was

involved in a two - car accident, which resulted in her striking a

fire hydrant not far f rom the school. The accident took place

at about 8:45 a.m., which was about 15 minutes after Respondent

assumed direct supervision of her students. Respondent arrived

at school late, crying and disconcerted. An acquaintance

transported Respondent home.

15. The next morning, prior to the start of school,

Respondent called the school and stated that she would not be at

work.

16. On the following morning, October 22, Respondent

reported to work, and her principal ordered her to submit to a

reasonable - susp icion drug test. Respondent complied, and the

drug test revealed the presence of cocaine and morphine. The

drug test accurately detected the presence of these substances

because Respondent had used crack cocaine and heroin within the

period for which the drug test is sensitive.

17. By memorandum dated October 29, 1999, Respondent's

principal asked Petitioner's OPS to monitor Respondent's return

to work. By memorandum dated November 1, 1999, Petitioner's OPS

informed Respondent that she would require a c learance from OPS

before returning to work.

18. On November 8, 1999, Respondent requested a leave of

absence without pay to extend from October 22, 1999, through

June 16, 2000. Petitioner granted this request. Shortly after

starting her leave from work, Respondent was first seen by

Dr. John Eustace.

19. Dr. Eustace is Board - certified in internal medicine

and is also certified in the treatment of addictions. He is the

medical director of the Addiction Treatment Program at Mt. Sinai

Medical Center. He i s also an assistant professor of psychiatry

at the University of Miami medical school. In the last ten

years, Dr. Eustace has performed 2000 evaluations of

professionals to assess whether they can return to practice with

the requisite skill and safety. D uring his career, Dr. Eustace

has diagnosed and treated over 10,000 patients for addictions.

20. Dr. Eustace admitted Respondent as an in - patient at

Mt. Sinai for, among other things, a four - or five - day

detoxification program. He found that Respondent w as in the

late middle stage of addiction to heroin and cocaine and that

her illness was active.

21. When releasing Respondent from the detoxification

program, Dr. Eustace recommended that Respondent enter a twelve -

step program to better prepare Responde nt for the difficult

recovery process, which requires, among other things, gaining

insight into the consequences of the addiction.

22. Following the detoxification process, Dr. Eustace

opined that Respondent had an even chance of avoiding another

relapse. However, this prognosis improves with time. After the

first five years without relapse, the relapse rate is only ten

percent. Also, after a second treatment, the recovery rate is

over 90 percent. Of the 2000 professionals whom Dr. Eustace has

treated, over 90 percent have recovered.

23. Unfortunately, Respondent relapsed after her 1999

detoxification and treatment by Dr. Eustace. Despite her return

to active use of illegal drugs, Respondent chose to restart the

process by which she could return to th e classroom.

24. Petitioner's OPS informed Respondent that she would

need OPS clearance before returning to work. Reacting to

Respondent's request for a clearance, OPS scheduled a CFR with

Respondent and others to take place on July 28, 2000.

25. At t he July 28 CFR, Respondent signed an Employee

Acknowledgement Form concerning Petitioner's drug - free workplace

policy. The form states: "Before returning to duty, I must

undergo a return - to - duty . . . controlled substances test with

verified negative res ults." At the CFR, Respondent admitted

that she had had a chemical dependency, but represented that she

was now clean and sober.

26. Apparently, Respondent did not anticipate that she

would be required to take a drug test at the July 28 CFR.

However, wi th the new school year imminent, it is difficult to

understand exactly when Respondent thought she would be required

to take the drug test. If she were going to teach the next

school year, her principal needed more than a few days' notice.

In any event, Respondent took the test on July 28, and the test

revealed the presence of morphine, although not cocaine.

27. By memorandum dated September 6, 2000, from

Petitioner's OPS Director to Respondent, Petitioner advised

Respondent that it was reviewing its opt ions after receiving the

results of the July 28 drug test. By letter dated October 6,

2000, to Respondent, Petitioner's Superintendent advised

Respondent that Petitioner was suspending her and initiating

dismissal proceedings due to just cause, including incompetency,

misconduct in office, gross insubordination, excessive absences,

and violation of Petitioner's Rules 6Gx13 - 4 - 105 (drug - free

workplace) and 6Gx13 - 4A - 1.21 (responsibilities and duties). By

letter dated October 12, 2000, and revised October 17, 2000,

Petitioner's board took the action recommended by the

Superintendent.

28. The contract between Petitioner and the United

Teachers of Dade (Contract) provides in Article XXI, Section

1.B.1.a, that "[a]ny member of the instructional staff may be

susp ended or dismissed at any time during the school year,

provided that the charges against him/her are based upon Florida

Statutes."

29. Article XXI, Section 2.G, sets forth the Drug - Free

Workplace General Policy Statement. Section 2.G.b provides the

pol icy statement on illegal drugs, Section 2.G.c provides the

policy statement on alcohol and prescription drugs, and Section

2.G.d provides the policy statement on employee drug screening.

Under employee drug screening, Section 2.G.d.5 states:

[Petitioner] recognizes that chemical

dependency is an illness that can be

successfully treated. It is the policy of

[Petitioner], where possible, to seek

rehabilitation of employees with a self -

admitted or detected drug problem.

Disciplinary action may be instituted

against employees who the Board believes

will not be assisted by rehabilitation or

who have negatively impacted students and/or

staff. Employees who have previously been

referred for assistance or employees

unwilling or unable to rehabilitate may be

subj ect to appropriate action, pursuant to

Board Policy, applicable Florida Statutes,

State Board Rules, and applicable provisions

of collective bargaining agreements.

30. Petitioner has invoked two of its rules in this case.

Rule 6Gx13 - 4A - 1.21, which is a statement of "Responsibilities

and Duties," requires, at Section 1, all employees "to conduct

themselves, both in their employment and in the community, in a

manner that will reflect credit upon themselves and the school

system." It is unnecessary to dete rmine whether the Contract

incorporates this rule, or whether Petitioner may otherwise rely

on this rule to dismiss an instructional employee during the

school year.

31. Rule 6Gx13 - 4 - 1.05 (Rule), which is the "Drug - Free

Workplace General Policy Statement, " is a restatement of the

Drug - Free Workplace General Policy Statement contained in the

Contract. The prominent role of the Drug - Free Workplace General

Policy Statement in the Contract, as well as its provision for

the dismissal of employees, justifies Pe titioner’s reliance upon

a violation of the Rule as a basis for dismissing an

instructional employee during the school year, notwithstanding

the provision of the Contract otherwise requiring that all such

dismissals be based on violations of Florida Statut es.

32. In most respects, the Drug - Free Workplace General

Policy Statement is the same in the Rule and the Contract. The

Rule provides for "disciplinary sanctions" against employees who

have violated the "standards of conduct" set forth within the

R ule . Like the Contract, the Rule contains three "policy

statements," which supply most of the operative provisions of

the Rule.

33. For illegal drugs, the policy statement, as set forth

in the Rule, provides: "Employees are expected to conduct

themselves in a manner consistent with the following provisions:

A. Employees on duty or on School

Board property will not manufacture,

distribute, dispense, possess or use illegal

drugs, nor will they be under the influence

of such drugs.

B. Employees on or off duty will not

influence students to use illegal or abuse

legal drugs.

C. An employee convicted, adjudicated

guilty, or who has entered a plea of guilty

for an criminal drug statute violation

occurring in the workplace shall notify

[Petitioner] within 48 hours after final

judgment.

34. Paragraphs A and C are limited to acts and conditions

that take place while an employee is on Petitioner's property or

on duty. Paragraph B is limited to acts of the employee

directed toward students. The evidence does n ot suggest that

Respondent violated any of these provisions of the Rule.

Petitioner failed to serve that the incidents involving

Respondent sleeping while in charge of students appear not to

have been due to her cocaine or heroin intoxication; it is at

le ast as likely that the sleeping resulted from fatigue

following the use of one or both of these drugs the preceding

night. The distinction between intoxicating levels of these

drugs and nonintoxicating trace amounts is explicitly dismissed

by the Rule's t reatment of alcohol, as to which employees must

be "free of measurable . . . concentrations."

35. After the policy statements on illegal drugs and

alcohol and prescription drugs, the Rule sets forth the policy

statement on employee drug screening. Althou gh this part of the

Rule fails to provide explicitly that a positive drug screen is

a violation of the Rule, the introductory paragraph of the Rule

acknowledges that Petitioner and the United Teachers of Dade are

jointly committed "to create and maintain a drug - free work

environment." Paragraph D within the drug - screening policy

statement restates this purpose. Also, the disciplinary

sanctions provided by the Rule clearly state that a refusal to

submit to a drug test or a second violation of the Rule

cons titutes an inability to be assisted by rehabilitation; if a

refusal to submit to a drug test is a violation, a failed drug

test must also be a violation. These statements are therefore

sufficient to provide that the presence in employees of even

nonintoxi cating amounts of illegal drugs, while on duty,

constitute a violation of the Rule.

36. In two respects, the Drug - Free Workplace General

Policy Statement, as described in the Rule, is materially

different from the Drug - Free Workplace General Policy Statem ent,

as described in the Contract.

37. First, the Rule adds another objective:

To communicate that persons who violate

the standards of conduct cited in this rule

and who refuse or cannot be assisted by

rehabilitation or who have negatively

impacted s tudents and/or staff shall be

dismissed.

38. Second, the Rule provides disciplinary sanctions for

any violation -- not just for violations of the drug - screening

policy statement, as provided by the Contract -- of the Drug - Free

Workplace General Policy Statem ent. The Rule also adds two

presumptive conditions for determining when an employee is

unable to be assisted by rehabilitation. The Rule states:

Employees who violate the standards of

conduct cited it this rule and who the Board

determines will not be assisted by

rehabilitation or who have negatively

impacted students and/or staff shall be

dismissed. A refusal to submit to a drug

test or a second violation of the Drug - Free

Workplace Policy shall constitute an

inability to be assisted by rehabilitation.

. . .

39. This case turns on whether Petitioner has proved that

Respondent would not be assisted by rehabilitation because

Petitioner has produced little detailed evidence of any negative

impact upon Respondent's students. The record lacks detail of

R espondent's specific teaching duties, the specific impact of

her sleeping incidents or absences, and the academic

achievements of her students during the periods in which these

shortcomings took place.

40. Notwithstanding the marked shortcomings in

Respon dent's performance as a teacher, Petitioner did not

dismiss her until first giving her a chance to rehabilitate

herself. The most likely inference is that Petitioner's

administrative employees found that the situation did not

satisfy the first criterion f or dismissal -- negatively impacting

students.

41. The basic issue, then, is whether Petitioner could

reasonably have determined, from July to October 2000, that

Respondent would not be assisted by rehabilitation. Petitioner

could choose to show rehabili tation would be futile by relying

on one of the two presumptions contained in the Rule. However,

Respondent never refused to submit to a drug test, and difficult

questions of her employment status in July 2000 obscure the

determination as to whether her f ailure of the July 2000 drug

test constitutes a second violation of the Rule.

42. In this case, though, Petitioner may satisfy its

standard of proof without regard to either of the presumptions

in the Rule. After a display of considerable patience and good

faith by Petitioner, Respondent, in July 2000, misrepresented to

Petitioner that she was clean and sober and prematurely

requested permission to return to teaching duties despite her

knowledge that she was still abusing drugs and not ready to

return t o the classroom. These facts support the finding that,

as of July or October 2000, Respondent would not be assisted by

rehabilitation.

43. This finding of the futility of rehabilitation, as of

July or October 2000, is difficult due to the fact that

subse quent events suggest that Respondent may finally be

rehabilitating herself. After Petitioner dismissed her,

Respondent underwent detoxification and then began treatment at

St. Luke's Addiction Recovery Center, which is sponsored by

Catholic Charities of t he Archdiocese of Miami, Inc. She was in

intensive residential treatment from November 6, 2000, through

January 24, 2001. She later underwent nine urinalyses, through

June 1, 2001 -- a day after the end of the hearing in this case --

and all of them were neg ative. Respondent is successfully

participating in the St. Luke's aftercare program, where she

takes weekly drug tests. She is proud of the fact that she has

turned her life over to God and has achieved the longest period

of sobriety that she has experie nced in many years.

44. After regaining sobriety, Respondent substituted for

awhile and then found a job teaching a third - grade class at a

private school in the Miami area. At the time of the hearing,

Respondent had been so employed for six weeks, she had not been

late or missed a day of school, and the school had invited her

to teach again for the 2001 - 02 school year. Dr. Eustace opines

that Respondent's prognosis is much improved from the prognosis

of September 2000.

CONCLUSIONS OF LAW

45. The Di vision of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

46. Section 231.36(1)(a) authorizes the termination of

instructional employees for "j ust cause." The statute defines

"just cause" illustratively, not comprehensively, so that

Petitioner may incorporate its drug - free workplace rule into its

contracts with employees. See also Gamble v. Mills , 483 So. 2d

826 (Fla. 4th DCA 1986).

47. Petiti oner must prove the material allegations by a

preponderance of the evidence. Dileo v. School Board of Dade

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

48. It is unnecessary to determine whether the facts

constitute a violation of the provisions of the Flo rida Statutes

and Florida Administrative Code that Petitioner has cited

because Petitioner has proved that Respondent violated the Drug -

Free Workplace General Policy Statement, as set forth in

Petitioner's Rule 6Gx13 - 4 - 1.05.

49. Although not intoxicated , Respondent was not drug - free

while at work in October 1999. Without regard to Respondent's

employment status in July 2000 when she failed another drug

test, the key facts are Respondent's misrepresentation of her

condition in July 2000, her request in J uly 2000 to resume her

teaching duties when she knew that she was again using illegal

drugs, and the ample time and opportunity that Petitioner had

given Respondent to obtain treatment for her illness.

50. The point at which to determine Respondent's

am enability to rehabilitation in this case is July through

October 2000, not the present. After considerable forbearance,

Petitioner decided to take action at some point, and the

sustainability of its determination to dismiss Respondent, as

distinguished fr om a licensing determination, depends on the

facts in existence at that time of Petitioner's decision to

dismiss Respondent.

51. For these reasons, Petitioner had ample grounds to

conclude, from July to October 2000, that Respondent would not

be assiste d by rehabilitation.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing

Respondent from employment.

DONE AND ENTERED this 5th day of November, 2001, in

Tallahassee, Leon County, Florida.

________ ___________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November, 2001.

COPIES FURNISHED:

Roger C. Cuevas, Superintendent

Miami - Dade County School Board

14 50 N. E. Second Avenue

Room 912

Miami, Florida 33132 - 1308

Luis M. Garcia

Attorney's Office

School Board of Miami - Dade County

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Richard Baron

Baron and Cliff

11077 Biscayne Boulevard, Suite 307

M iami, Florida 33161

Honorable Charlie Crist

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

NOTI CE 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 must be filed with the agency that

will issue the final order in thi s case.