10-001839PL Dr. Eric J. Smith, As Commissioner Of Education vs. Audrey Lynette Johnson Status: Closed Recommended Order on Tuesday, June 28, 2011.

Summary: Petitioner proved that Respondent violated several parts of sec. 1012.795(1) by coming to school to teach while impaired by alcohol. That, plus prior stipulated violation, justifies 2 years' suspension and 2 years' probation of educator's certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1839PL

)

AUDREY LYNETTE JOHNSON , )

)

Respondent . )

)

RECO MMENDED ORDER

Pursuant to notice, the final hearing was held in this case

on April 15, 2011, by video teleconference in Sarasota and

Tallahassee, Florida, before Administrative Law Judge

Elizabeth W. McArthur of the Division of Administrative

Hearings.

A PPEARANCES

For Petitioner: Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Christine R . Sensenig, Esquire

Sensenig Law Firm, P.A.

2033 Main Street, Suite 406

Sarasota, Florida 34237

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j),

Florida Statutes (2008), 1 and Flori da Administrative Code Rule

6B - 1.006(3)(a), and, if so, what discipline should be imposed;

and further, what discipline should be imposed for Respondent's

admitted violation of section 1012.795(1)(f).

PRELIMINARY STATEMENT

On November 29, 2009, Petitione r, Dr. Eric J. Smith, as

Commissioner of Education (Petitioner), issued a five - count

Administrative Complaint against Respondent, Audrey Lynette

Johnson (Respondent or Ms. Johnson), a middle - school teacher.

The complaint alleged that Ms. Johnson was invol ved in an

incident on October 20, 2007, for which Ms. Johnson was

criminally charged with, and pled guilty to, trespass after

warning and resisting arrest with violence. In addition, the

complaint alleged that on September 25, 2008, Ms. Johnson

reported t o work at her school under the influence of alcohol.

Based on the alleged conduct, the complaint charged statutory

and rule violations and sought to impose sanctions authorized by

sections 1012.795(1) and 1012.796(7).

Ms. Johnson timely requested an admi nistrative hearing

involving disputed issues of material fact, and on April 5,

2010, the case was forwarded to the Division of Administrative

Hearings for assignment of an Administrative Law Judge to

conduct the requested hearing.

The final hearing was in itially scheduled for June 4, 2010.

The parties filed three joint motions for continuance, which

were granted, and the hearing was ultimately rescheduled and

held on April 15, 2011.

The parties entered into a Joint Pre - Hearing Stipulation in

which they s tipulated to certain facts, which are incorporated

in the Findings of Fact below to the extent relevant. In

addition, as clarified at the hearing, Respondent stipulated to

the violation of section 1012.795(1)(f) charged in Count 2, but

Respondent reserved the right to present evidence to explain the

circumstances and argue in mitigation of the statutory

violation.

At the final hearing, Petitioner presented the testimony of

Dr. William Bolander, Jean Thompson, Dr. George Kenney, and

Sheri K. Miller. Peti tioner's Exhibits A through D were

received into evidence. Respondent testified on her own behalf.

Respondent's Exhibits A, B, and D through G were received into

evidence.

The one - volume Transcript of the final hearing was filed on

April 27, 2011. Th e parties initially agreed to file p roposed

r ecommended o rders within ten days of the filing of the

Transcript. Respondent filed an unopposed motion to extend that

deadline by 15 days, which was granted. The parties timely

filed their Proposed Recommende d Orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Johnson holds Florida Educator's Certificate

No. 886672, covering the area of mathematics ( g rades six to 12),

which is valid through June 30, 201 5.

2. At all times material to the charges in this

proceeding, Ms. Johnson was employed as a mathematics teacher at

Heron Creek Middle School (Heron Creek) in the Sarasota County

School District (School District).

3. On October 20, 2007, Ms. Johnson wa s arrested and

charged with committing the crimes of trespass after warning,

resisting arrest with violence, and aggravated assault on a law

enforcement officer. Ms. Johnson subsequently pled guilty to

resisting arrest with violence, a third - degree felony , and

trespassing after warning, a first - degree misdemeanor.

Adjudication of guilt was withheld, and Respondent was placed on

probation for a period of 18 months. Ms. Johnson met the

conditions for community service hours, payment of fines and

court cost s, and other probation terms faster than required, and

as a result, was released early from probation.

4. By way of background leading to this incident,

Ms. Johnson testified that she was in a car accident in 2004,

from which she had lingering issues wit h her ankles and ribs,

and she also believed she had nerve damage. She testified that

she went to as many as 20 doctors in the aftermath of the 2004

car accident. She saw numerous doctors to get several opinions

when she was not satisfied with the outcom e, particularly with

respect to her belief that she had nerve damage.

5. On the day of Ms. Johnson's arrest in 2007, she

testified that she went to a walk - in clinic because of her nerve

damage issue and that the physician she saw at the walk - in

clinic pre scribed Oxycodone.

6. According to Ms. Johnson, she had never taken Oxycodone

before, and she claimed that the physician did not tell her

about the drug's potential side effects. Ms. Johnson's

testimony is not credible in this regard; by this time,

Ms . Johnson was quite experienced with a variety of physicians

and had explained how she questioned their opinions and sought

second opinions, particularly with regard to her belief that she

had nerve damage. It is hard to believe that she would seek out

ne rve damage treatment at a walk - in clinic or that she would

accept a new pain medication without at least asking questions

about it to the extent information was not volunteered by the

physician.

7. Ms. Johnson put into evidence a copy of the drug

store's prescription purchase summary to show that her

prescription for Oxycodone was filled that day, October 20,

2007. Readily apparent from a quick glance at the summary

information regarding the drug was the following phrase, deemed

sufficiently important to highlight in all capital letters:

"AVOID ALCOHOLIC BEVERAGES while taking this medicine." Thus,

even if the walk - in clinic physician did not adequately brief

Respondent regarding the pain medication being prescribed, the

pharmacy that filled the prescri ption provided the basic

information, including the specific warning to avoid alcohol

when taking the drug. Despite this warning, Ms. Johnson

admitted that in addition to taking Oxycodone for the first time

on October 20, 2007, she also had a "few beers."

8. At the time of the 2007 incident, Ms. Johnson

apparently had just broken up with a boyfriend. Ms. Johnson had

been on her ex - boyfriend's property three days earlier, and her

ex - boyfriend called the police. The police issued a trespass

"warning" to Ms. Johnson, advising her that she was trespassing

on her ex - boyfriend's property and that if she returned to the

property, she would be arrested for trespass after warning.

9. Ms. Johnson claimed that she talked to her ex - boyfriend

by telephone on Octob er 20, 2007, and that he had invited her

over to return some of his belongings and to pick up items of

hers that were in his possession. Ms. Johnson claims that her

ex - boyfriend told her that the trespass warning had been lifted.

Other than Ms. Johnson's own testimony recounting what her

ex - boyfriend said, no evidence was presented to corroborate this

hearsay testimony such that it could provide the basis for a

finding of fact.

10. Ms. Johnson did not say when on October 20, 2007, she

claims to have spoke n with her ex - boyfriend -- before or after she

went to the walk - in clinic, then to a drugstore to get the

prescription filled, then took the Oxycodone and drank a few

beers. Ms. Johnson's explanation as to why she thought she

could go to her ex - boyfriend's residence, despite having been

warned by a law enforcement officer three days earlier not to go

there, was neither credible , nor sufficient , to justify her

actions.

11. Ms. Johnson testified that in her impaired state,

she went alone to her ex - boyfriend's place, presumably driving a

vehicle to get there. Ms. Johnson testified that she was

shocked, panicked, and angry when her ex - boyfriend called the

police , and she ended up being arrested.

12. Ms. Johnson admitted that her recollection of the

incident is spotty:

There was this cop there. I was on the

medication that was affecting me. I didn't

Î I was not thinking clearly at all . . .

It was just kind of awkward. I was on

medications and it was something that when I

panicked I don't recall all of the Î

everything that I said to [the officer].

13. According to the officer's probable cause affidavit,

Ms. Johnson was belligerent, refusing to give the officer

identification upon request, and struggling with him when he

attempted to tak e her into custody. The officer arrested

Ms. Johnson, handcuffed her, and put her in the back seat of the

patrol car. Ms. Johnson, however, was far from subdued.

Somehow, she managed to get out of the handcuffs and banged on

the patrol car window. The officer opened the car door to see

what was going on, and Ms. Johnson jumped out of the car and

threw a high - heel ed shoe at the officer. While Ms. Johnson

claims she was not actually aiming at the officer, she admitted

that she was mad and threw the shoe out of anger. She was

ultimately handcuffed again, although she continued to struggle.

Ms. Johnson was taken to the police station where she was booked

and charged with more than just trespass, having elevat ed the

incident from a misdemeanor situation to one involving felony

charges because of her outbursts.

14. There is not a great deal of evidence in the record

regarding Ms. Johnson's employment history with the School

District. The evidence that is of record demonstrates that

Ms. Johnson was in schoo l herself until 2002, when she received

her master's degree. She was employed later that same year by

the School District. Dr. George Kenney, principal at a high

school across the street from Heron Creek, was the one who hired

Ms. Johnson. She worked fo r Dr. Kenney for two years, teaching

middle school classes that were being held at the high school

site while Heron Creek was being built.

15. As noted, Ms. Johnson was in a car accident in 2004.

No specific evidence was offered with respect to Ms. Joh nson's

performance or attendance between 2004 and 2008, but Ms. Johnson

testified generally that throughout this period, she had many

medical issues, many encounters with physicians, pain, and

treatment (including the Oxycodone prescription in October

2007 ).

16. There is documentation in the record of problems that

Ms. Johnson was having early on in the 2008 - 09 school year, with

numerous incidents of being late or absent without following

reporting requirements. The documentation was provided by the

middl e school's new principal that year, Dr. Bill Bolander. The

numerous incidents were of sufficient concern that Ms. Johnson

was given notice of a Weingarten meeting 2/ ; Ms. Johnson was

absent on the day of the scheduled meeting, and so the meeting

was resche duled for September 26, 2008.

17. On September 25, 2008, the day before the rescheduled

Weingarten meeting, at approximately 8:30 a.m., before school

started, Ms. Johnson went to the School District's

administrative offices to obtain copies from her perso nnel file.

The staff person who assisted Ms. Johnson called Heron Creek to

report that she smelled alcohol on Ms. Johnson's breath.

18. Meanwhile, Ms. Johnson went to Heron Creek and

proceeded to her classroom. At 9:30 a.m., when middle school

classes w ere about to begin, Dr. Bolander and Jean Thompson ,

assistant principal, went to Ms. Johnson's classroom. Rather

than confront her in the classroom in front of the students,

Dr. Bolander had Ms. Thompson go into the classroom to ask

Ms. Johnson to step ou tside to speak with Dr. Bolander, while

Ms. Thompson took over supervision of Ms. Johnson's class.

19. Dr. Bolander spoke with Ms. Johnson briefly in the

hall outside her classroom, and he noticed the smell of alcohol

on Ms. Johnson's breath. He told M s. Johnson that he had been

informed about her suspected alcohol consumption and asked her

to go with him to his office where they could speak privately.

20. Back at his office, Dr. Bolander notified the School

District's human resources department and wa s advised that

another principal within the School District would come to Heron

Creek to conduct an evaluation of Ms. Johnson.

21. Dr. George Kenney, the high school principal across

the street -- the person who had hired Ms. Johnson and for whom

she worked for two years -- was asked by the School District to go

to Heron Creek to evaluate a teacher. Dr. Kenney has received

specialized training to evaluate individuals to determine

whether there is a reasonable suspicion that an individual is

under the influenc e of alcohol or drugs. Dr. Kenney went to

Heron Creek, unaware of the identity of the teacher to be

evaluated.

22. Dr. Kenney went to Dr. Bolander's office where he was

waiting with Ms. Johnson. Dr. Kenney explained to Ms. Johnson

why he was there, and Ms. Johnson had no objection to Dr. Kenney

performing the evaluation. Apparently the School District,

likewise, had no objection to Dr. Kenney , despite the fact that

he had made known he favored Ms. Johnson in the past by hiring

her. While there were no formal written consents or agreements

to the selection of the evaluator, the evidence clearly

establishes that the parties mutually agreed to the choice of

Dr. Kenney as the evaluator. 3/

23. Dr. Kenney spent at least 30 minutes conducting a

thorough evalu ation of Ms. Johnson. He testified that he was

concerned from the beginning about the signs of impairment. He

noted the following indicators: slurred speech, bloodshot and

glassy eyes, disheveled appearance, difficulty in organizing

thoughts, and confus ed answers to reasonably straightforward

questions. For example, Dr. Kenney testified that he asked

Ms. Johnson about what her teaching assignment was -- what she was

teaching at that time. He also asked her what her lesson plans

were for that day. Ms. Jo hnson was unable to focus and respond

to these reasonable questions directed to a teacher at the start

of a teaching day.

24. Dr. Kenney could not confirm the smell of alcohol on

Ms. Johnson's breath, but he testified that he would not expect

to be able t o smell alcohol on someone's breath because he has a

very poor sense of smell. Thus, he focuses more keenly on the

other indicators of alcohol consumption, because he knows he

cannot rely on that one indicator. However, Dr. Bolander

confirmed what had be en reported to him by the School District

staff in the h uman r esources d epartment: that as of the time

period from 8:30 a.m to 9:30 a.m., the smell of alcohol was

noticeable on Ms. Johnson's breath.

25. Dr. Kenney's opinion at the conclusion of his

evalua tion was that there was a reasonable suspicion that

Ms. Johnson was under the influence of alcohol and possibly

drugs also. As such, Dr. Kenney requested that Respondent

undergo reasonable suspicion alcohol and drug testing at a

laboratory.

26. Ms. Johnso n did not object to the requested testing.

To the contrary, she advised Dr. Kenney that she had no fear of

being tested. Ms. Johnson testified that the reason she had no

fear is because she "knew I wouldn't test positive to any of

these -- to any of their tests that they had."

27. Ms. Thompson was asked to transport Ms. Johnson to a

lab for a breathalyzer test for alcohol and a urine test for

drugs. Ms. Thompson testified that upon opening Dr. Bolander's

office door to get Ms. Johnson, she noticed a "defin ite smell"

of alcohol released from that confined environment. Dr. Kenney

left to return to his high school when Ms. Thompson came to

collect Ms. Johnson at about 10:30 a.m.

28. Ms. Thompson drove Ms. Johnson to a lab at Fawcett

Memorial Hospital in Port Charlotte, Florida. At the lab,

Ms. Johnson was first asked to submit to a breath test for the

purpose of measuring alcohol level.

29. The breath test was performed by Sheri Miller.

Ms. Miller is a registered nurse and a certified breath test

technician, who has performed at least 300 such breath tests

since her initial certification in 2002.

30. Before the test, Ms. Miller completed information on

an Alcohol Testing Form, including Ms. Johnson's name and

identification number (social security number) and the reason

for the test to be performed -- a reasonable suspicion test

requested by an employer. Next, Ms. Miller had Ms. Johnson

review the information for accuracy. Ms. Johnson signed a

certification that she knew she was about to submit to alcohol

test ing and that the identifying information on the form was

correct.

31. To conduct the breath test, Ms. Miller used the R andom

B reath T esting Intoximeter, which has been approved by the U.S.

Department of Transportation. Ms. Miller instructed Ms. Johnson

on how to blow into the mouthpiece to give a breath sample, and

Ms. Johnson did so. The results generated by the Intoximeter

show that Ms. Johnson's breath sample, time - recorded at

11:28 a.m., yielded an alcohol content measurement of .074,

which is a pos itive reading. Anything over .02 is considered

positive for alcohol content, and by protocol, the lab

automatically does a second breath test 15 minutes after the

first test , when the first test result s i n a positive reading.

32. A second breath test wa s performed on Ms. Johnson at

11:45 a.m. The results were still well above the positive mark,

at .063.

33. After the two tests, Ms. Miller performed a

calibration check on the machine to verify its accuracy. The

breath test lab report included Ms. Mill er's confirmation that

she performed this check: "Cal. Check okay."

34. Finally, Ms. Miller had Ms. Johnson review the results

and sign the form to acknowledge the test results shown on the

form, and that because the test results were positive (.02 or

hig her), she was not to drive, perform safety - sensitive duties,

or operate heavy machinery.

35. After completion of the breath test, Ms. Johnson also

provided a urine sample to be tested for drug content. The lab

did not perform the urinalysis on site. Inst ead, the lab

performed the sample collection function, but then the samples

were transported to a lab facility in Pennsylvania for testing

and issuance of a report.

36. Ultimately, Ms. Johnson learned that the results from

her urine drug panel test were ne gative. However, there was a

discrepancy on the report. Although the report identified the

donor name as Ms. Johnson, the donor ID number did not match

Ms. Johnson's social security number. 4/

37. Ms. Johnson testified that she knew the results were

wron g, because the drug panel test was negative. According to

Ms. Johnson, she should have tested positive for opiates,

because she was taking a prescription opiate. Ms. Johnson did

not elaborate, nor did she explain the inconsistency of this

statement with her testimony that she had no fear of being

tested for alcohol and drugs because she knew she would not test

positive.

38. Ms. Johnson denied, at the time in 2008 and at the

final hearing, that she had consumed a substantial amount of

alcohol before going to the School District's administrative

offices on September 25, 2008; she claimed she only had one

glass of wine at 8 :00 p.m. , the previous evening. However, she

had no other explanation for the positive breath test results,

the first of which was a full three hours after a staff person

first noticed the smell of alcohol on Ms. Johnson's breath.

Likewise, Ms. Johnson did not refute or otherwise contradict

Dr. Kenney's description of her physical and mental state that

morning -- slurred speech, bloodshot an d glassy eyes, disheveled

appearance, inability to organize thoughts , or respond lucidly

to reasonable questions.

39. Ms. Johnson attempted to blame the breath test results

on the fact that she had visited another walk - in clinic the

previous day because of broken ribs and a reaction to a bug

bite, and the physician she saw that day gave her a shot of some

form of steroids for the bug bite. No competent evidence or

expert testimony was offered to prove the suggestion that

somehow a steroid shot would result in a positive alcohol breath

test the next day, much less that it would cause slurred speech,

confusion, inability to organize thoughts, glassy and bloodshot

eyes, or a disheveled appearance.

40. Ms. Johnson's denial of substantial alcohol

consumption is rejected as not credible. Instead the clear and

convincing evidence established that Ms. Johnson consumed enough

alcohol at some point before going to the School District's

administrative offices on the morning of September 25, 2008, to

make the alcohol odor on her breath noticeable, to cause the

other indicators of impairment found by Dr. Kenney in support of

his reasonable suspicion determination, and to result in two

consecutive positive breath tests more than three hours later.

41. As in 2007, Ms. Joh nson, in an impaired state, drove

to the School District's administrative offices, then drove to

Heron Creek and proceeded to her classroom, fully intending to

teach the gathering middle - school students. As in 2007, it was

fortuitous that Ms. Johnson did not cause serious injury or

worse, to herself or others, because of her driving under the

influence. And it was fortuitous that Ms. Johnson's time in the

classroom with her students on September 25, 2008, was brief.

42. Dr. Bolander testified that because of the

September 25, 2008, incident, plus Ms. Johnson's attendance and

reporting issues that were significant in the beginning of the

2008 - 09 school year , prior to the incident , and continued after

the incident , he recommended that her employment be termi nated.

In lieu of termination, Ms. Johnson agreed to enter into a "Last

Chance Agreement" with the School District, whereby she was

suspended for five days without pay. Thereafter, she took FMLA

leave for 12 weeks, during which she went through intensive

physical therapy and alternative pain management therapy to

reduce her use of pain medications. She returned to Heron Creek

to teach for the final nine weeks of the 2008 - 09 school year.

43. Dr. Bolander credited Ms. Johnson with an excellent

attendance r ecord during this nine - week period. He also

indicated that her performance as a teacher was good during this

time. A single performance evaluation for Ms. Johnson was

offered into evidence, completed halfway through this nine - week

period. Ms. Johnson wa s deemed "proficient" in all categories.

44. While Ms. Johnson benefited from the leave, in that

she was able to undergo intensive therapy that she said would

not have been possible while she was teaching, it would not be

fair to conclude, as Respondent suggests, that her problems,

including the incidents underlying the charges at issue here,

should be attributed to the School District for failing to

recognize her need for FMLA leave at some point before she

requested it. As Ms. Johnson admitted, she was well aware of

the availability of FMLA leave, having us ed it previously to

take leave when her mother was experiencing a serious medical

problem.

45. Ms. Johnson was invited back to the School District to

teach for the 2009 - 10 school year. However, ove r the summer of

2009, Ms. Johnson had another accident, falling and severely

breaking her leg. This injury triggered another round of

multiple doctor visits, a surgery that did not go well, and a

second surgery, which was as successful as possible.

Nonet heless, Ms. Johnson testified that she suffered a permanent

injury as a result of this accident to compound the permanent

injury she said she had from her 2004 car accident. Ms. Johnson

testified that as soon as she obtains clearance from her

physician, s he would like to return to teaching.

46. In contrast to Ms. Johnson's testimony addressing her

2009 FMLA leave experience, during which she worked on physical

therapy and alternative pain management techniques that enabled

her to reduce her use of pain med ication, no similar testimony

was offered with respect to how Ms. Johnson has dealt with the

new challenge presented by her accident in the summer of 2009.

Ms. Johnson did not really speak to how she has managed in the

two years since she had a successful nine - week period of

teaching, other than to recount the new medical problems caused

by her 2009 accident, another parade of doctors and second

opinions, and the subsequent surgeries from which she said she

will never fully recover. Ms. Johnson's experien ces are

unfortunate , and one can certainly sympathize with her plights;

however, the limited information and absence of explanation

leave some concerns, given her track record for dealing with

these issues in the past. 5/

CONCLUSIONS OF LAW

47. The Divisio n of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

48. In this proceeding, Petitioner seeks to discipline

Respondent's educator's certificate pursuant to the authority

set forth in sections 1012.795(1) and 1012.796(7). Petitioner

bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). "The evidence

mus t be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established."

Slomowitz v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983).

49. The firs t four counts of the Administrative Complaint

charge Respondent with violating section 1012.795(1)(d), (f),

(g), and (j), respectively. Section 1012.795 provides in

pertinent part:

(1) The Education Practices Commission

may suspend the educator certifi cate of any

person as defined in s . 1012.01 (2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that per iod

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

othe rwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child s upport; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality

or an act involving moral turpitude as

defined by rule of the State Board of

Education.

* * *

(f) Has been convicted or found guilty

of, or entered a plea of guilty to,

regardless of adjudication of guilt, a

misdemeanor, felony, or any other criminal

charge, other than a minor traffic

violation.

(g) Upon investigation, has been found

guilty of personal conduct that se riously

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.

50. Count 1 charg es Respondent with violating section

1012.795(1)(d), by being guilty of gross immorality or an act

involving moral turpitude.

51. Neither of the terms "gross immorality" or "an act

involving moral turpitude" are defined in the subject statute or

in rule. However, Florida Administrative Code Rule 6B - 4.009,

which contains definitions for use by school districts in

disciplining instructional staff, provides assistance and has

been used in agency precedent interpreting this statute. John

L. Winn, as Com m 'r o f Educ. v. Adela Popescu , Case No. 06 - 1620

(Fla. DOAH Aug. 23, 2006; Fla. EPC Jan. 23, 2006); accord

Dr. Eric J. Smith, as Com m 'r of Educ. v. Maria Elena Malvar ,

Case No. 10 - 2784 (Fla. DOAH Sept. 13, 2010; Fla. EPC Jan. 11,

2011).

52. Rule 6B - 4.009(2) de fines the term "immorality" as

follows:

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.

53. "Gross immorality" has been described in agency

precedent to mean an act of misconduct that is serious, rather

than minor in nature; it is a flagrant disregard of pro per moral

standards. Brogan v. Mansfield , Case No. 96 - 0286 (Fla. DOAH

Aug. 1, 1996; Fla. EPC Oct. 18, 1996).

54. The moral standard to be upheld must be viewed in

context with the profession at issue. As leaders and role

models in the community, teacher s are held to a high moral

standard. Adams v. Prof'l Practices Council , 406 So. 2d 1170,

1172 (Fla. 1st DCA 1981).

55. As argued by Respondent, Petitioner has failed to

prove by clear and convincing evidence that Respondent's conduct

on October 20, 2007, meets the standard for gross immorality,

not because it was not a flagrant disregard of proper moral

standards, but rather, because it was not sufficiently

notorious. The incident occurred away from the school grounds

and was not associated with any scho ol activity. No evidence

was presented as to any publicity about the incident. Likewise,

this incident cannot be considered conduct involving moral

turpitude, i.e., an act of vileness, baseness, or depravity.

See Jamerson v. Lenczyk , Case No. 94 - 0151 (F la. DOAH Feb. 22,

1995)(concluding that misdemeanor crimes of trespass after

warning, disorderly conduct and resisting arrest without

violence cannot be classified as acts of vileness, baseness, or

depravity so as to constitute an act involving moral

turpi tude . ). 6/

56. The same cannot be concluded, however, with respect to

the September 25, 2008, incident, in which Ms. Johnson drove to

the School District's administrative offices where a staff

member smelled alcohol on her breath; and then Ms. Johnson

pr oceeded to drive to Heron Creek and report to her classroom

intending to teach. As found above, Petitioner clearly and

convincingly proved that Ms. Johnson reported to work to teach

her middle school class in an impaired state, under the

influence of alco hol. "Being intoxicated in a classroom in

which students are present is action which exhibits both gross

immorality and moral turpitude." Winn v. O'Neill , Case

No. 08 - 1597 (Fla. DOAH May 9, 2008), Rec. Order, ¶ 17.

57. Count 2 charges Respondent with a violation of section

1012.795(1)(f), and Respondent stipulated to this statutory

violation. Respondent claims that the circumstances leading to

the charges of one misdemeanor and one felony, to which

Ms. Johnson pled guilty, should be considered mitigatin g. In

essence, Respondent claims that she was not really at fault

because the Oxycodone (and alcohol) made her act the way she

did. However, Respondent intentionally ingested a potent pain

medication, disregarded the prescription's strong warning to

"AVO ID ALCOHOLIC BEVERAGES" with the drug, and then went to her

ex - boyfriend's place despite having been warned by police that

she would be arrested for trespass if she went there.

Respondent is fully responsible for those actions. If anything,

her guilty pl ea to both a misdemeanor and a felony should be

considered an aggravating circumstance under the statute, which

would be violated by either guilty plea alone.

58. Count 3 charges Respondent with violating section

1012.795(1)(g) by engaging in personal con duct which seriously

reduces her effectiveness as an employee of the school board.

The same analysis applied to Count 1 applies here: Petitioner

did not prove a violation of this statute by virtue of

Respondent's conduct on October 20, 2007, but did meet its

burden of proving a violation of this statute by virtue of

Respondent's conduct on September 25, 2008. Winn v. O'Neill ,

supra .

59. Count 4 charges a violation of the Principles of

Professional Conduct for the Education Profession (Principles of

Prof essional Conduct) prescribed by State Board of Education

rules. This charge in turn leads to Count 5, which charges that

Respondent's alleged conduct violated Florida Administrative

Code Rule 64B - 1.006(3)(a). Rule 64B - 1.006 codifies the

Principles of Pro fessional Conduct, referred to in section

1012.795(1)(j). Thus, establishing a violation of the rule as

charged in Count 5 would establish a violation of section

1012.795(1)(j).

60. Rule 6B - 1.006(3)(a) requires that an education

professional, such as R espondent, "[s] hall 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."

61. Petitioner met its burden of proving by clear and

convincing evidence that Resp ondent's conduct on September 25,

2008, violated her obligations under Rule 6B - 1.006(3)(a) to

protect her students from conditions harmful to learning and/or

to the students' mental and/or physical health and/or safety.

Instead, as found above, Ms. Johnso n was responsible for

exposing her students to such harmful conditions. See Winn v.

O'Neill , supra .

62. In making a penalty recommendation, the undersigned

has taken into account Ms. Johnson's unfortunate history with

medical problems, both prior to and subsequent to the incidents

that gave rise to this Administrative Complaint. The

undersigned has also considered the positive impact of the

12 - week FMLA leave and Respondent's good performance teaching

for a brief nine - week period following her FMLA leave . However,

the undersigned disagrees with Respondent's attempt to paint

herself as a blameless victim of accidents, pain medication,

alcohol, and a School District not pushing Respondent to take

FMLA leave sooner than she did. Instead, it is troubling th at

Respondent has not come to accept responsibility for her actions

taken when she voluntarily ingested pain medications and

alcohol, instead of expecting others to take responsibility that

she should have taken for herself. If Respondent needed help,

she knew she could have asked for help. If Respondent needed

FMLA leave sooner, she knew she could have asked for it. The

solution was not to jeopardize the well - being of her middle

school students by going to class impaired by alcohol.

63. Florida Admin istrative Code Rule 6B - 11.007(2) sets

forth disciplinary guidelines that should normally be followed,

absent mitigating or aggravating circumstances warranting

deviation outside of the normal penalty ranges. The undersigned

concludes that under the totali ty of the circumstances,

including the multiple violations found above and the slight

mitigating circumstances offset to some degree by Respondent's

troublesome tendency to blame others instead of accepting

responsibility for her own actions, that deviatio n from the

normal penalty ranges is not warranted. Accordingly, within the

normal penalty ranges for the statutory violations found above,

a two - year suspension of Respondent's educator's certificate is

warranted. While not quite as harsh as Petitioner's request for

a two - year revocation (which is also within the normal penalty

ranges), such a penalty should, nonetheless, send the message to

Respondent that she must accept responsibility, and

consequences, for her actions.

64. The undersigned determines that under the

circumstances, rather than impose the harsher penalty urged by

Petitioner , what would make more sense would be to impose an

additional probationary period following the suspension. Given

the absence of sufficient information about Responden t's conduct

over the last two years since her most recent serious accident,

a two - year probationary period following the suspension would

allow for monitoring and other terms to ensure that Respondent's

past conduct will not be repeated. For example, par ticipation

to successful completion in a Professional Recovery Network

Program would seem appropriate under the circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that a final order be entered by the Florida

Education Practices Commission finding that Respondent, Audrey

Lynette Johnson, violated sections 1012.795(1)(d), (1)(f),

(1)(g), and (1)(j) and Rule 6B - 1.006(3)(a); and imposing the

following as the penalty for such violations: (1) suspension of

Respondent's educator's certificate for two years; and

(2) imposition of a two - year probationary period following the

two - year suspension, subject to such terms and conditions,

including participation through completion in a Professional

Recovery Network Program, as the Education Practices Commission

deems appropriate.

DONE AND ENT ERED this 28th day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Di vision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of Ju ne , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version. The two incidents underlying

the charges in the Administrative Complaint occurred in

October 2007 and September 2008, respectively. The statutory

provisions allegedly violated that remain in dispute were not

changed from the 2007 statute to the 2008 statute, although due

to a new statutory grounds for discipline added in 2008 in

section 1012.795(1)(b) (failure to report suspected child abu se

or suspected misconduct), the lettered paragraphs corresponding

to the charged statutory provisions each moved by one letter

between 2007 and 2008.

2/ A Weingarten meeting, named after NLRB v. Weingarten, Inc. ,

420 U.S. 251 (1975), is a fact - finding meeting, with the

possibility that discipline may result. Because of the possible

discipline, notice is required, as is the right to

representation.

3/ Ms. Johnson admitted that she had no objection to the

selection of Dr. Kenney to conduct the evaluati on, which stands

to reason since he has shown his faith in her in the past and

would seem to be an ideal choice to give Ms. Johnson every

possible benefit of the doubt. Respondent argues that a

Collective Bargaining Agreement provision, which was not offe red

into evidence, required that the neutral evaluator be " mutually

agreed upon " by Ms. Johnson and the School District. Respondent

argues that this requirement can only be met by express,

affirmative consent. Particularly under the circumstances

present ed in this case, that argument is rejected as creating an

inappropriate roadblock of form over substance. Mutual

agreement to the selection of Dr. Kenney is found here upon

consideration of all of the evidence, including Ms. Johnson ' s

testimony, credibili ty, and demeanor.

4/ Respondent argued that the identification discrepancy on the

report of the urine drug panel test results discredited not only

that test, but also, the separate breath test results. That

argument is rejected. The clear and convincin g evidence

established the precise protocol for the breath test, each step

of which was taken in Ms. Johnson ' s presence and with her signed

corroboration. The breath test process and results were

entirely separate from the report of the urine drug test pa nel

results, generated by a remote lab in Pennsylvania, on which the

identification number discrepancy appeared.

5/ Respondent asserted that the length of time since her last

incident at the School District is a mitigating circumstance.

However, it is difficult to credit Ms. Johnson for unknown

performance and conduct during an extended period of time away

from the School District, particularly when Ms. Johnson did not

volunteer information to address any lingering concerns about

her prior conduct and her tendency to resort to pain medications

and alcohol to combat the pain from her old accident. For

example, Respondent ' s Proposed Recommended Order asserted that

one of the terms of the Last Chance Agreement required

Ms. Johnson to attend Alcoholics Ano nymous (AA) meetings. No

evidence was presented to support this finding. No testimony

was offered by Ms. Johnson on the subject of attending AA

meetings, as a condition of her Last Chance Agreement or

otherwise. If, as the proposed finding seems to sugg est,

Ms. Johnson started attending AA meetings after the Last Chance

Agreement in 2009 as a condition of that Agreement , it would be

important to know whether she continued doing so after her 2009

accident or whether she let that effort lapse over the last two

years.

6/ As Petitioner notes, the Lenczyk R ecommended O rder concluded

that although the misdemeanor crimes of trespass after warning,

disorderly conduct, and resisting arrest without violence did

not constitute acts of moral turpitude, they did con stitute acts

of gross immorality, since they are inconsistent with the

standards of public conscience and good morals and would be

sufficiently notorious to bring the respondent into disrespect.

However, the rule definition of immorality does not include

conduct that " would be " sufficiently notorious to disgrace the

teaching profession and impair the teacher ' s service in the

community (such as if the conduct were publicized); the conduct

must actually be sufficiently notorious to disgrace the teaching

prof ession and impair the teacher ' s service in the community.

See McNeill v. Pinellas C n ty Sch . Bd . , 678 So. 2d 476, 477 (Fla.

2d DCA 1996).

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

T urlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bure au Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Christine R. Sensenig, Esquire

Sensenig Law Firm, P.A.

2033 Main Street, Suite 406

Sarasota , Florida 34237

Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

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.