09-006693PL Dr. Eric J. Smith, As Commissioner Of Education vs. Heather P. Ivanyi Status: Closed Recommended Order on Thursday, July 15, 2010.

Summary: Petitioner proved multiple violations of Section 1012.795 and Rule 6B-1.006 by Respondent's placement in a seclusion room without parental consent and submission of fraudulent documentation regarding consent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6693PL

)

HEATHER P. IVANYI, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 22, 2010, a duly-noticed hearing was held in

Inverness, Florida, before Lisa Shearer Nelson, an Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent violated

the provisions of Section 1012.795(1)(d), (g) and (j), Florida

Statutes (2008), and Florida Administrative Code Rule 6B-

in the Administrative Complaint, and if so, what penalty should

be imposed for the proven violations?

PRELIMINARY STATEMENT

On September 2, 2009, Dr. Eric J. Smith as Commissioner of

Education filed a nine-count Administrative Complaint against

Respondent, Heather P. Ivanyi, charging her with violating

Florida Administrative Code Rule 6B-1.006(3)(a), (e), and (f);

that she placed an autistic child in a seclusion room against the

wishes of his parents; that the child was injured as a result of

this placement; and that she falsified a parental consent form to

submit as proof that parental consent had been obtained.

Respondent disputed the allegations in the Administrative

Complaint and requested a hearing pursuant to Section 120.57(1),

Florida Statutes. On December 9, 2009, the case was referred to

the Division of Administrative Hearings for the assignment of an

administrative law judge, and on December 23, 2009, a Notice of

Hearing was issued scheduling the case for hearing on March 11

and 12, 2010. At the request of Petitioner, the case was

rescheduled for April 22 and 23, 2010, and proceeded as

scheduled. At hearing, Petitioner presented the testimony of

Teresa Royal, Matthew McCraine, Paul Heinz, Dr. V.K., 1/ and Anita

Moon. Petitioner's Exhibits numbered 1 through 24 were admitted

into evidence. Respondent presented the testimony of Carol

Murphy, Keith Posta, Jeanette Brew, Wayne Ellis, Greg Elliot,

Stephanie Hopper, Jack Vino and Heather Ivanyi. Respondent's

Exhibits numbered 1 through 8 were admitted into evidence.

The two-volume Transcript of the hearing was filed with the

Division on June 11, 2010, and Petitioner's Proposed Recommended

Order was filed on June 21, 2010. At Respondent's request, the

deadline for filing proposed recommended orders was extended to

July 6, 2010, and Respondent's Proposed Recommended Order was

filed within that timeframe. Both submissions have been

carefully considered in the preparation of this Recommended

Order.

Unless otherwise indicated, all references to Florida

Statutes are to the Florida Statutes (2008).

FINDINGS OF FACT

1. Petitioner is the state agency responsible for the

certification and regulation of public school teachers in the

State of Florida.

2. Respondent holds Florida Educator's Certificate number

807545, covering the area of varying exceptionalities, valid

through June 30, 2014. At all times material to these

proceedings, Respondent was employed as an exceptional education

teacher at Crest School in the Citrus County School District

(School District). She began her employment at Crest School in

2005. During her previous employment in Dade County, she had

been named Teacher of the Year, and immediately prior to the

incident at issue in this case, she was nominated as Crest

School's candidate for Teacher of the Year in Citrus County.

3. Crest School is a school limited to students with

intellectual or behavioral disabilities.

Safety Procedures at Crest School

4. Students attending Crest School are exceptional

education students who are required by state and federal law to

have Individual Education Plans (IEPs) that are developed after

an IEP meeting involving instructional staff and the student's

parents. While an individual instructor can draft suggested

changes in between IEP meetings conducted for a student, a

teacher cannot unilaterally change a student's IEP.

5. The student population at Crest School presents

significant challenges in terms of student safety. The school

has developed a "safe school plan" for which all personnel

receive training. The safe school plan includes the use of

"codes" for different levels of required intervention. A Code 1

signifies that the student is in control but is disturbing the

educational process of other students. In this instance, the

student is placed in time-out. Assistance is requested in order

to have specific staff member(s), as opposed to a crisis

intervention team, assist with the student.

6. A Code 2 is called when a student is endangering himself

or herself or others. In this instance, the Code 2 team is used,

and Crisis Prevention Intervention (CPI) techniques are employed.

A team approach is used, and decisions are formulated by the team

as a group. The first priority is to ensure that everyone is

safe, and then to use CPI techniques to, hopefully, diffuse the

situation. Approaches used in response to a Code 2 include

clearing the room of other students, and/or taking the disruptive

student to a designated time-out area, which may be in the

classroom or may be a separate Behavioral Transition Room (BTR),

or a secured seclusion room.

7. Respondent used the term "time-out" interchangeably, to

reference use of any of the above-referenced locations.

8. A Code requesting assistance is called by using handheld

radios that most teachers, including Respondent, carried, or by

pressing a call button in the classroom. Some if not all members

of a Code 2 team should be able to respond in a minute or less.

9. The CPI team response in a particular instance should be

guided by the student's IEP, and what interventions are

authorized for that student. In approximately April 2008, Crest

School also adopted a policy that required signed parental

consent before a student could be placed in a BTR. At the time

of the incident at issue in this case, however, in practice, IEPs

were not always followed because not all members of a CPI team

were familiar with the IEP for the student whose behavior was at

issue. Similarly, while parental consent forms were collected

and kept in the office, whether an individual student's parents

had given permission for use of a BTR would not necessarily be

verified when an emergency situation arose. If a truly dangerous

situation was at hand, the need for safety of all students would

generally override the terms of an individual's IEP.

10. There are no state or School District regulations

regarding the use of seclusion areas like the BTR. The policies

in place at Crest School were based on "best practices" bulletins

received from the Department of Education.

11. A BTR is a small room with no stimulation where a child

could calm down. It has concrete walls, a tile floor and no

furniture. Unlike a secured seclusion room, it can be opened

from the inside. Each time a student is placed in a BTR, use of

the room for the child is to be noted in a log book, and the

parents of the student are supposed to be notified.

Student R.K.

12. R.K. is a student at Crest School who, at the time of

the incident in January 2009, was twelve years old, about 5 feet,

6 inches tall, and described as very strong. R.K. suffers from

Autism Spectrum Disorder, and is classified as severely autistic.

R.K. can be aggressive and sometimes violent, especially toward

staff. From approximately 2005 until late January 2009, R.K. was

in Respondent's class at Crest School.

13. When R.K. had a tantrum, he would often sit on the

floor on his knees and rock back and forth. From that position,

he would sometimes lunge at staff and hit, scratch or punch,

usually directed toward a person's upper torso. Respondent was

familiar with, and had often been the recipient of injuries as a

result of, R.K.'s behavior.

14. An IEP meeting was held for R.K. in March 2008. Among

the participants at the IEP meeting were Respondent and R.K.'s

parents, both of whom are medical doctors. During the meeting

behavioral strategies were discussed. R.K.'s parents did not

want time-out to be used to address R.K.'s behavior and did not

consent to use of the BTR or to secured seclusion. Shortly after

R.K.'s IEP meeting, a Behavior Support Plan was developed for

R.K. The Behavior Support Plan is extensive, and acknowledges

his "challenging" behaviors. The Plan does not include time-out,

but relies heavily on "planned ignore" strategies, redirection

and positive reinforcement.

15. The Behavior Support Plan is very specific in terms of

interventions to be used for challenging behavior, and provides

the following:

At the first signs of challenging behavior

call for back up.

Crisis Prevention Intervention (CPI)

Use the most effective and least intrusive

CPI technique, to manage the challenging

behavior at hand.

--Instructional Calm Down

If [R.K.] has a tantrum use instructional

control by briefly prompting him to 'calm

down' or 'cool off'. If he does calm down on

his own or following this prompt state

'that's better'. If the behavior should

continue or escalate, be prepared to

intervene per procedure. Often [R.K.'s]

expression of challenging behavior will not

escalate if he is given time and space.

Remember to only prompt him, wait five

minutes and then prompt again. This is done

4 times 5 minutes apart. If he is obviously

irritated or agitated do not continue to

prompt him. Leave him alone until he has

been calm for at least one minute. If he is

a danger to himself or others he should be

removed to a safe area.

--Return to task

* * *

If [R.K.] is physically striking out, such as

pinching, at either an instructor or another

person, he is to be blocked. If he is in his

workroom setting the instructor is to remove

him or herself from the immediate area.

Planned ignore requires that the instructor

maintain a watch on [R.K.] but not give eye

contact during the inappropriate behavior.

When [R.K.] has been calm for one minute the

instructor is to return to the work area

saying, 'That's better. Good calming down

[R.K.]' in a neutral tone. If [R.K.] engages

in behavior that places himself or another in

danger he should be moved to a safe area.

If [R.K.] is striking out in a hallway or

other open area of the school, a verbal

statement is used, '[R.K.], No, Stop, hands

down.' Planned Ignore is used after a verbal

prompt if [R.K.] is no longer putting himself

or others at risk. If he continues to strike

out, the instructor will call for backup to

bring [R.K.] to a quiet area to calm down.

He should be calm for 1 minute before he is

prompted again to go to the original

destination. . . . An exception is made ot

[sic] the planned ignore rule if [R.K.] must

be removed for safety reasons. (Emphasis

supplied.)

16. While the Behavior Support Plan is not signed by either

parent or any member of the IEP team, persuasive evidence was

presented that the parents knew of and were supportive of the

plan. It was Dr. V.K.'s understanding that the quiet area

referred to was a portion of the classroom that was separated

from the rest of the room by a curtain, and identified as a

sensory area. The sensory area was dark and contained little

stimulation, so R.K. could retreat and calm down.

17. Notwithstanding the terms of the Behavior Support Plan,

there were at least two incidents prior to January 23, 2009, when

R.K. was placed in the BTR. While Respondent insists that R.K.'s

parents were notified, no competent, persuasive evidence was

presented that demonstrates that R.K.'s parents were ever

specifically notified that the BTR was used.

The January 23, 2009, Incident

18. On Friday, January 23, 2009, R.K. was in Respondent's

classroom. Respondent left the classroom at approximately

12:29 p.m., leaving the students under the supervision of teacher

aides, including Ms. Murphy.

19. Ms. Murphy took R.K.'s backpack from him, a move which

he resisted. R.K. then sat on the floor and began rocking back

and forth. He continued to sit, rocking, for several minutes.

20. At approximately 12:36 p.m., a female student passed by

R.K. on the way to her desk. It is unclear whether she spoke to

him, but R.K. lunged toward the female student, who remained

standing in front of him.

21. Respondent walked into the room as R.K. was moving

toward the other student. Respondent immediately took R.K. by

the arm and started pulling him toward the door, into the

hallway, and ultimately to the BTR. R.K. remained on his knees

all the way to the BTR.

22. Respondent testified that she believed the female

student was in immediate danger, and decided to take R.K. to the

BTR because she had other, medically fragile, students in her

room that made movement of those students problematic. However,

Respondent made no attempt to follow any of the techniques

described in R.K.'s Behavior Support Plan, and did not call a

Code 2 in accordance with Crest School procedure. She moved R.K.

directly to the BTR as her intervention of first resort.

23. The lights in the BTR had to be turned on by someone

who had a key, and Respondent did not have a key to the BTR room.

As a result, R.K. was placed in a dark room by himself, with

Respondent sitting outside the room, monitoring him through a

small window on the door. Respondent did not call anyone to

assist by turning on the lights in the room.

24. R.K. was placed in the BTR at approximately 12:37 p.m.

One minute later, Mr. Elliott, another staff member approached

with a wheelchair-bound student, who was placed in the BTR with

R.K. Mr. Elliott was not concerned about the second student's

safety while in the BTR with R.K. because R.K.'s aggression is

normally directed at staff as opposed to other students. Both

teachers struggled with R.K. as they attempted to leave the BTR.

25. After two minutes, the second student was removed from

the BTR, and again R.K. struggled with Respondent while the

student was removed. At that time, Mr. Elliott was concerned

about Respondent's safety because R.K. was attacking her. He did

not observe any injury to R.K.

26. At approximately 12:41 p.m., R.K. was able to open the

door partway, and Respondent closed the door. It appears from

the surveillance video (Petitioner's Exhibit 14) that R.K.'s hand

was caught in the door and may have been injured at that time.

27. It is unclear at what point Respondent knew that R.K.

was injured, but the more persuasive evidence indicates that by

12:46 p.m., when Matt McCraine, another teacher at the school,

walked by, Respondent was aware that R.K. was injured. There is

no evidence to indicate that she understood the extent of his

injury. However, she had not called for any nursing assistance.

28. Mr. McCraine asked who was in the BTR and why the

lights were off. When he indicated that the lights needed to be

turned on, and Respondent responded that R.K. would need to be

moved away from the door because he had cut his finger.

29. Mr. McCraine opened the door and turned on the light to

the BTR. At that time, he observed blood on the door and on the

floor of the room. Mr. McCraine called for a nurse, who arrived

at approximately 12:48 p.m. 911 was called and at approximately

1:06 p.m., paramedics arrived to transport R.K. to the hospital.

R.K.'s parents were notified of the injury and requested that

someone who knew R.K. accompany him in the ambulance, and

Respondent did so.

30. R.K.'s finger was fractured and severely lacerated. He

was required to undergo surgery to treat the finger, and required

anesthesia for the placement of sutures and for their removal.

Events Following the Incident

31. Following the January 23, 2009, incident, there were

questions regarding whether R.K.'s parents had consented to the

use of the BTR, and whether a parental consent form had been

obtained.

32. Mr. Posta, the principal at Crest School, asked

Respondent to provide several documents related to R.K.,

including the parental consent form for use of the BTR for R.K.

Respondent could not find a signed copy of the form. She asked

one of her teaching assistants, Ms. Murphy, to cut the signature

of one of R.K.'s parents from another document in his file.

Ms. Murphy did so, and Respondent pasted the parental signature

onto a blank permission form, and turned in the doctored form to

administration.

33. Anita Moon, an assistant principal at Crest School,

examined the form and did not believe that the signature was

authentic, and upon comparison, the signature did not match the

signature on other official documents on file. She went to

Respondent's classroom and asked for R.K.'s working file. One

document was sticking out of the file, and Respondent started to

remove the loose document before handing the file to Ms. Moon.

Ms. Moon told her she needed the complete file.

34. When Ms. Moon examined the file, she found the loose

paper to be a daily note from R.K.'s mother. The note stated:

Dear Ms. Heather

[R.K.] had a good weekend. Regarding the

permission for inclusion/secured seclusion

time out -- may be we will discuss it in the

IEP meeting next mth. before consenting to

it.

Have a good day!

Thanks

35. The signature from the note was missing and had been

cut out.

36. Also included in the file were unsigned consent forms

for use of secured seclusion and isolation time out.

37. Soon thereafter, there was an investigation of the

incident resulting in R.K.'s injury. As part of the

investigation, Respondent was interviewed. She told the

interviewer that she placed R.K. in the BTR because when she came

in the classroom, he was physically on top of the other student.

The surveillance video of the classroom clearly shows that this

was not the case. She also stated that R.K.'s parents had given

written permission for R.K. to be placed in the BTR. When

confronted with the doctored note and asked to explain, she

admitted that she had taken the signature from the parental note

and pasted it to the parental consent form.

38. Respondent also admitted making the doctored form when

she testified at hearing. She claimed that R.K.'s parents had

consented to use of the BTR, and that when she could not find the

signed forms, she panicked.

39. The more persuasive evidence supports a finding that no

consent had been given to use the BTR for R.K.

40. Respondent was terminated from her position at Crest

School as a result of the events described above.

41. The case received significant media attention in the

local area, both in terms of print media and local television

news coverage.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2010).

43. This is a disciplinary action by Petitioner in which

Petitioner seeks to permanently revoke Respondent's teaching

certificate. Petitioner bears the burden of proof to demonstrate

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

Turlington , 510 So. 2d 292 (Fla. 1987).

44. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and 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 hesitancy, as to the truth of the

allegations sought to be established.

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

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

45. The Administrative Complaint charged Respondent with

violations of Section 1012.795(1)(d), (g) and (j), Florida

Statutes. Section 1012.795 authorizes the Education Practices

Commission to suspend, revoke, or otherwise penalize a teaching

certificate, provided it can be shown that the holder of the

certificate has committed any of the violations enumerated.

46. The specific provisions charged in Counts 1-3 of the

Administrative Complaint allege that Respondent:

(d) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(e) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

47. Count 1 charges a violation of Section 1012.795(1)(c).

The Education Practices Commission has not defined "gross

immorality" or "moral turpitude" for the purposes of discipline

to be imposed pursuant to Section 1012.795, Florida Statutes.

The Commission has, however defined "immorality" and "moral

turpitude" for use by school districts in taking action against

instructional personnel in Florida Administrative Code Rule 6B-

4.009. This rule, which may provide guidance in this context,

provides in pertinent part:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

48. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated."

State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So.

660, 661 (1933).

49. The Administrative Complaint can be described as

dealing with two separate incidents: the decision to place R.K.

in time-out on January 23, 2009, and Respondent's actions in

dealing with the fall-out after R.K. was injured.

50. The evidence, taken as whole, does not support a

determination that Respondent committed gross immorality by

placing Respondent in time-out. While Respondent's actions may

represent poor judgment and a failure to abide by Crest School

policies, they do not amount to gross immorality. By most

accounts, Respondent was dedicated to her students, knew R.K.'s

tendencies, and felt that placing him in time-out would avert a

potentially dangerous situation. That in hindsight she may have

over-reacted to the situation is not a basis to find gross

immorality.

51. Petitioner also asserts that gross immorality is

demonstrated by Respondent's failure to call for a nurse

immediately upon learning of R.K.'s injury. However, this

failure is not alleged in the Administrative Complaint.

Discipline cannot be imposed for an offense not charged in the

Administrative Complaintevisani v. Department of Health , 908

So. 2d 1108 (Fla. 1st DCA 2005)(single reference to statute

without supporting factual allegations not sufficient to place

licensee on notice of charges against him).

52. On the other hand, Petitioner has demonstrated an act

of gross immorality based upon evidence that Respondent falsified

a parental consent form and submitted it as an original. Count 1

has been proven by clear and convincing evidence.

53. Count 2 charges a violation Section 1012.795(1)(g),

Florida Statutes. Clear and convincing evidence was presented to

demonstrate that Respondent committed offenses that seriously

reduced her effectiveness as an employee of the School Board. By

her actions following the injury to R.K., Respondent undermined

any sense of confidence that the School District could have in

her judgment and her candor. As stated in Gallagher v.

Desjarlais , DOAH Case No. 00-2767 (RO Oct. 31, 2000; FO Jan. 19,

2001), "Trust is an important component of the relationship that

must exist among teachers and between administrators and a

teacher. Respondent's dishonesty seriously undermines this

trust."

54. Count 3 charges Respondent with violation of Section

1012.795(1)(j). By virtue of the violations proven with respect

to Counts 4 and 6-9, Count 3 has been proven by clear and

convincing evidence.

55. Counts 4-9 charge Respondent with violating several

provisions within Florida Administrative Code Rule 6B-1.006,

which provide in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

56. Count 4 charges Respondent with violating Rule 6B-

1.006(3)(a). By forcibly removing R.K. from the classroom

without calling a Code 2 and without regard to the procedures in

his Behavior Support plan; by placing R.K. in a darkened room;

and by failing to appropriately monitor him while in the room so

as to allow his injury, Respondent has failed to protect R.K.

from conditions harmful to his mental health and physical safety.

Petitioner has proven Count 4 by clear and convincing evidence.

57. Clear and convincing evidence was not presented to

support a violation of Count 5, which charged Respondent with

violating Florida Administrative Code Rule 6B-1.006(3)(e).

58. Clear and convincing evidence was presented to support

a finding that Respondent violated Count 6. By failing to adhere

to R.K.'s IEP and Behavior Support Plan, Respondent violated

R.K.'s legal rights in violation of Florida Administrative Code

Rule 6B-1.006(3)(f).

59. Clear and convincing evidence was presented to support

a finding that Respondent violated Count 7, which charges

Respondent with intentionally distorting or misrepresenting facts

concerning an educational matter, as proscribed in Florida

Administrative Code Rule 6B-1.006(4)(b). During the

investigation following R.K.'s injury, Respondent exaggerated the

emergency nature of the situation in the classroom in order to

justify her use of the BTR without resort to a Code 2. In truth,

however, Respondent cannot claim that the situation presented a

danger to R.K. or to others rising to the level of needing to use

the BTR, and claim at the same time that calling a Code 2 was not

warranted. Even more troubling, when the propriety of her

actions came into question following R.K.'s injury, she claimed

that R.K.'s parents had consented to use of the BTR, and

falsified a consent form to make it appear that R.K.'s parents

had consented to the use of the BTR, when they had not.

60. Petitioner has also presented clear and convincing

evidence to support a violation of Florida Administrative Code

Rule 6B-1.006(5)(a), as charged in Count 8. By Respondent's

statements with regard to parental consent, and submission of a

doctored consent form, Respondent has failed to maintain honesty

in all professional dealings.

61. Finally, Respondent violated Florida Administrative

Code Rule 6B-1.006(5)(h), by submission of the doctored parental

consent form.

62. The Florida Education Practices Commission has adopted

disciplinary guidelines to provide notice of the appropriate

range of penalties to be imposed for violations of Section

1012.795 and the Principles of Professional Conduct for the

Education Profession. Given the number of violations proven and

the severity of Respondent's conduct, revocation is appropriate.

However, the undersigned is mindful of Respondent's dedication to

children with disabilities and the contribution she has made in a

very challenging field. The Commission, in its discretion, may

want to allow her to re-apply for a Teaching Certificate at some

time in the future, under terms the Commission may prescribe.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

finding Respondent guilty of violating Section 1012.795(1)(d),

(g) and (j), Florida Statutes, and Florida Administrative Code

charged in Counts 1-4 and 6-9 of the Administrative Complaint.

As a penalty for these violations, it is recommended that

Respondent's teaching certificate be revoked.

DONE AND ENTERED this 15th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2010.

ENDNOTE

1/ To protect the identity of the child involved in the events

giving rise to these disciplinary proceedings, both the child and

the child's parents will be referred to by their initials.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.