11-002386PL Dr. Eric J. Smith, As Commissioner Of Education vs. Diane Robinson Status: Closed Recommended Order on Thursday, November 17, 2011.

Summary: Petitioner demonstrated, by clear and convincing evidence, that Respondent violated a Final Order of the Education Practices Commission. Recommend penalty of suspension of educator's certificate for six months followed by two years' probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH , AS )

COMMISSIONER OF EDUCATION )

)

Petitioner, )

) Case No. 11 - 2 386PL

vs. )

)

DIANE ROBINSON , )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes, before

Administrative Law Judge Cathy M. Sellers of the Division of

Administrative Hearings on September 12 , 2011. The hearing was

held by video teleconference at sites in Fort Lauderdale and

Tallahassee.

APPEARANCES

For Petitioner: Charles Whitelock , Esquire

300 Southeast Thirteenth Street

Fort Lauderdale , Florida 3331 6

For Re spondent: Johnny Gaspard, Esquire

15025 Northwest 77 th Avenue

Miami Lakes , Florida 33014

STATEMENT OF THE ISSUE

The issue is whether Respondent violated p aragraph 2(G) of

the December 14, 2010, Final Order of the Education Practices

Commis sion ( " EPC " ), a nd, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

This matter came before the Division of Administrative

Hearings ( " D ivision " ) on a request from the EPC to conduct a

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

Statutes , on a Notice to Show Cause regarding Respondent ' s

Florida Educator ' s Certificate . Specifically, Respondent was

charged with violating a Final Order entered by the EPC in

December 2010 , imposing disciplinary sanctions, including

placing he r on employment probation. The EPC convened a hearing

on the Notice to Show Cause . D uring the hearing, Respondent

raised disputed issues of material fact . T he EPC terminated the

hearing and referred the matter to the Division .

The final hearing initi ally was scheduled for July 19,

2011, but was continued and resc heduled for September 12, 2011.

The parties filed a Joint Prehearing Statement on August 30,

2011.

The final hearing was held on September 12, 2011.

Petitioner presented the testimony of Jackie Scialabba and

Christin Visbal , and offered Petitioner ' s Exhibits 1 through 7

into evidence, all of which were admitted without objection.

Respondent testified on her own behalf and offered Respondent ' s

Exhibit 4, which was admitted into evidence ov er objection.

On October 5, 2011, counsel for Petitioner notified the

undersigned by letter, with copy to Respondent ' s counsel , that

the parties had agreed to file their proposed recommended orders

on October 21, 2011. The one - volume Transcript was filed with

the Division on October 7, 2011. Petitioner ' s Proposed

Recommended Order was filed on October 21, 2011. Respondent ' s

Proposed Recommended Order was filed on October 26, 2011. Both

parties ' proposed recommended orders were considered in

preparing this Recommended Order.

FINDINGS OF FACT

The Parties

1 . Petitioner, Commissi oner of Education, is the head of

the Flori da Department of Education, the state agency charged

with the ultimate responsibility to investigat e and take

disciplinary actions against persons who hold a Florida

E ducator ' s C ertificate and are alleged to have violated

specified statutes.

2. The EPC i s charged with imposing discipline for

violation s of section s 1012.795 and 1012.796, Florida Statutes .

3 . Respondent holds Florida Educator ' s Certificate N umber

519374 issued by the Department.

Respondent ' s Employment History and Disciplinary History

4 . Respondent has been employed in the State of Florida

public education system for thirty - one years, twenty - seven of

which she has served as a full - time teacher. During the four

years in which she was not a teacher, she served as an

occupational specialist and career counselor, involved in

helping at - risk students f ind employment and providing guidance

regarding academic training for specific careers. She also

served as a counselor for Project Hope, a drug rehabilitation

program, and as a substitute teacher. She currently is employed

as a classroom teacher by Browa rd County Public Schools. She

has received positive job performance evaluations throughout her

career.

5 . On or about May 14, 2010, Petitioner filed an

Administrative Complaint against Respondent, alleging violations

of specified Florida S tatutes and ag ency rules , and seeking to

impose disciplinary sanctions against Respondent ' s C ertificate.

6 . Following a n informal hearing on the Administrative

Complaint conducted pursuant to sections 120.569 and 120.57(2),

the EPC entered a Final Order dated Decembe r 14, 2010 , placing

Respondent on two employment years of probation, subject to

specified conditions.

7 . The Final Order provides in pertinent part: " 2. Upon

employment in any public or private position requiring a Florida

educator ' s certificate, Res pondent shall be placed on 2

employment years of probation with the conditions that during

that period, she shall: . . . G. [n] ot consume, inject or

ingest any controlled substance unless prescribed or

administered for legitimate medical purposes. "

8 . To ensure compliance with p aragraph 2(G) 1 of the Final

Order , R espondent is required to submit to random substance

abuse testing , as directed by the Recovery Network Program for

Educators ( " RNP " ) or her employer . 2

9 . Pursuant to the Final Order, Resp ondent submitted to

random substance abuse testing on January 28, 2011 .

10 . Respondent was notified by letter from the RNP dated

February 7, 2011, that she was in violation of the Final Order.

The letter stated in pertinent part: " you failed to comply with

Paragraph 2(G) of the Final Order, to wit: You consumed,

ingested, or injected a controlled substance that was not

prescribed by a doctor as evidenced by your drug test on

January 28, 2011, that was positive for C ocaine M etabolite. "

1 1 . On February 17, 2011, t he EPC issue d a Notice to Show

Cause, requiring Respondent to show cause why a penalty for

violating the Final Order should not be imposed. A hearing on

the Notice to Show Cause was convened before the EPC on April 8,

2011 . At the hea ring, Respondent claimed that she had not

consum ed , inject ed , or ingest ed a controlled substance not

prescribed or administered for legitimate medical purposes.

Respondent ' s Random Drug Test of January 28, 2011

1 2 . On January 28, 2011, Respondent rep orted to

Occupational Medicine Centers of America ( " OMC " ) , in Miramar,

Florida, to submit to a random drug test as required under the

Final Order, p aragraph 2(H). Because she had to work that day,

Respondent reported to OMC in late afternoon , before 5:00 p.m.

1 3 . Respondent brought a chain of custody form , form ally

known as a Forensic Drug Testing Chain of Custody Form ( " Form " ),

with her to OMC . 3 The Form for Respondent ' s testing was provided

by the RNP or Respondent ' s employer . 4 The Form is multi - lay ered ,

with the pages (or " layers " ) designated for specific recipients

ÏÏ i.e., the collection laboratory, the testing laboratory, the

employer, the medical review officer ( " MRO " ) , 5 and the donor .

1 4 . The Form l ists " 8543245 " as the " Specimen ID No. " for

Respondent ' s random drug test conducted on January 28, 2011 .

1 5 . Because Respondent ' s employer or the RNP provided the

Form for her drug testing, OMC could not , and did not , generate

a chain of custody f orm that could be use d in collecting

Respondent ' s specimen.

1 6 . The F orm is to be filled out by the person collecting

the specimen in accordance with the specific steps set forth on

the F orm.

1 7 . Step 1 lists the employer ' s name, address, and

identification number , and the MRO ' s name, address, phone

number, and facsimile number. Step 1 requires the specimen

collector to fill in the donor ' s name and social security number

or employee identification number; verify the donor ' s identity ;

identify the reason for the drug test ; ident ify the type of test

to be performed ; and provide the collection site name, address,

phone number, facsimile number, and collection side code.

1 8 . Step 2 is completed by the collector once the donor

has provided the specimen. T he collector identifies the type of

specimen provided ( i.e ., split, single, or none provided) on the

Form, read s the temperature of the specimen within four minutes

of collection , and verif ies on the Form whether the temperature

is between 9 0 and 100º Fahrenheit.

1 9 . Step 3 r equires the collector to pour the specimen

into a bottle, seal the bottle with a tamper - evident label or

seal , have the donor initial the seal , and place the specimen

bottle in a laboratory bag along with the testing laboratory ' s

copy of the Form.

20 . Step 4 requires the collector to certify that " the

specimen given to me by the donor identified in the

certification section on Copy 2 of this form was collected,

labeled, sealed, and released to the Delivery System noted in

accordance with applicable requ irements. " To complete Step 4,

the collector must sign and date the form, fill in the time that

the specimen was collected, and identif y the courier service to

which the specimen bottle is released. After the collector

completes Steps 1 through 4 of the Form, the donor completes

Step 5 .

21 . Step 5 requires the donor to certify that h e or she

provided the specimen to the collector and did not adulterate

the specimen, that the specimen bottle was sealed with a tamper -

evident seal in his or her presence, and that the information

and numbers provided on the F orm and label affixed to the bottle

were correct.

2 2 . Upon arriving at OMC, Respondent was called into the

portion of the facility where drug testing is conducted. She

provided the F orm to OMC ' s m edical assistant, Jackie Scialabba ,

who was on duty at that time. Scialabba completed Step 1 of the

F orm, and instructed Respondent to place her belongings in a

locker, wash her hands, and provide a urine specimen in the

collection cup.

2 3 . While Resp ondent was in the restroom providing the

specimen, S cialabba completed Step 4 of the Form. Specifically,

she signed and dated the form, filled in the portion of the Form

stating the " Time of Collection " as 4:25 p . m . , and checked the

box identifying the de livery service courier .

2 4 . Respondent emerged from the restroom and handed

Scialabba the specimen to pour into a specimen bottle for

sealing and delivery to the testing laboratory. At that time,

Scialabba discovered that Respondent had not provided a specimen

of sufficient quantity to be tested .

2 5 . Scialabba provided water to Respondent so that she

would be able to produce a specimen of s ufficient quant ity for

testing. Respondent waited in the lobby of the facility until

she was able to provide another specimen.

2 6 . Scialabba ' s shift ended at 5:00 p.m. and she left for

the day . By the time Respondent was able to provide another

specimen, Scialabba wa s gone . Before she left, Scialabba

informed Christin Visbal, also a medical assistant at OMC, 6 that

Respondent ' s drug test was incomplete and that Visbal needed to

complete the test. Scialabba left the partially completed Form

with Visbal.

2 7 . Sciala bba testified that Respondent did not complete

Step 5 of the Form in her presence.

2 8 . Once Respondent indicated she was able to provide

another specimen , Visbal called Respondent back into the testing

facility . Both Visbal and Respondent stated that th ey were the

only people present in the testing facility at that time. 7

2 9 . Visbal had Respondent her wash her hands, gave her the

specimen collection cup , and instructed her regarding providing

the specimen.

30 . At that time, Respondent provided a urine specimen of

sufficient quantity to meet the testing requirements.

3 1 . V isbal checked the temperature of the specimen as

required on Step 2 of the Form , and completed the portion of

Step 2 requiring verification that the specim en temperature was

between 90 and 100º Fahrenheit. 8

3 2 . Visbal poured the urine into a specimen bottle , sealed

the bo ttle with a tamper - evident seal, and had Respondent

initial the seal. Respondent then completed Step 5 of the Form ,

which constituted h er certification that the specimen bottle was

sealed with a tamper - evident seal in her presence . 9

3 3 . Visbal placed the sealed urine specimen and the

testing laboratory ' s copy of the Form in a bag , and sealed the

bag.

3 4 . Visbal provided Respondent with the donor copy of the

Form . R espondent collected her belongings from the locker and

left the facility.

3 5 . B ecause Scialabba had prematurely completed Step 4 of

the Form while attempting to collect Respondent ' s specimen

before she left work for the day , Visbal was unable to complete

Step 4 .

3 6 . However, Visbal provided a sworn statement and

testified at hearing regarding the substance of the

certification in Step 4 ÏÏ specifically, that the urine specimen

given to her by Respondent was collecte d, labeled, sealed, and

released to the d elivery s ervice 10 in accordance with applicable

requirements. The evidence establishes, and the undersigned

determines, that Visbal correctly follow ed the established

protocol in collecting, labeling, sealing, and releasing the

specimen to the courier in accordance with the applicable chain

of custody requirements . Accordingly, the chain of custody for

Respondent ' s urine specimen was maintained .

3 7 . Scialabba ' s paperwork e rror did not compromise t he

chain of custody for Respondent ' s urine specimen .

3 8 . On February 7, 2011, FirstLab provided a document

titled " Part icipant Call Test Edit " to the RNP , show ing a

positive test result for cocaine metabolite. The document bear s

" Specimen ID No. 8543245 " ÏÏ the same s pecimen identification

number as was listed on the Form that Respondent brought to OMC

on January 28, 2011 , for use in her drug test that day .

3 9 . Respondent does not dispute that the tested specimen

yielded a positive test result for cocaine metabolite . S he

maintains that she did not produce the tested specimen.

Respondent ' s Subsequent Random Drug Test Results

40 . Since January 28, 2011, Respondent has been randomly

tested for drug use each month . Respondent ' s drug test results

have been negative every time that she has been tested since the

January 28, 2011 test ÏÏ nine times as of the hearing date.

4 1 . Respondent served a subpoena duces tecum on FirstLab

in August 2011, seeking to obtain all docum ents related to

Respondent ' s random drug test results, including the negative

test results. The subpoena provided the correct spelling of

Respondent ' s full name but did not list her social security

number , employee identification number , date of birth, ad dress,

or school system by which she is employed . Instead of producing

Respondent ' s test results, FirstLab produced test results for

another teacher having a similar name who is employed by Miami -

Dade County Public School s . 11

Ultimate Fact s Regarding Alleged Violation and Penalty

4 2 . For the reasons set forth above , the undersigned

determines that the chain of custody for Respondent ' s urine

specimen was maintained. The evidence does not support an

inference that Respondent ' s specimen was tampered w ith , tainted,

or otherwise compromised in the collection, sealing, labeling,

or delivery process.

43. Therefore, either Respondent had cocaine metabolite in

her system when she donated the urine specimen on January 28,

2011, or the testing laboratory or MRO made a mistake in testing

or reporting the test results of her urine specimen. Respondent

maintains it is the latter, but did not present any persuasive

evidence to support her position.

44. To that point, FirstLab ' s error in producing the wrong

p erson ' s records in response to Respondent ' s subpoena does not

provide a sufficient basis to infer that in this case, FirstLab

reported another person ' s drug test result instead of

Respondent ' s. It shows only that FirstLab makes mistakes when

not provided sufficiently specific information about the person

whose records are being subpoenaed.

4 5 . Accordingly, t he undersigned finds that Petitioner has

demonstrated, by clear and convincing evidence , that Respondent ,

in violation of p aragraph 2(G ) of the Final Order, consum ed ,

inject ed , or ingest ed a controlled substance not prescribed or

administered for a legitimate medical purpose , as revealed by

the random drug test to which Respondent submitted on

January 28, 2011 .

4 6 . However, there is no evi dence in the record showing

that Respondent ' s violation of the Final Order presented any

danger, or caused physical or mental harm to any students or to

the public. Nor is there any evidence that the violation caused

any actual damage, physical or otherwi se, or that Respondent

benefit ed from th e violation. To the contrary, the sole

evidence shows that Respondent is a good teacher who has

performed well as a public school employee for thirty - one years .

T here is no evidence that the violation has in any wa y impaired

her performance of her duties as a classroom teacher.

4 7 . Moreover, the sole evidence regarding Respondent ' s

subsequent random drug test results shows that Respondent is now

complying with the Final Order , and apparently has complied ever

si nce he r January 28, 2011, test. This evidences Respondent ' s

contrition and her recognition of the seriousness of this

matter.

48 . At hearing, Petitioner elicited testimony from

Respondent regarding her criminal history, and an excerpt of the

transcript of the EPC hearing , during which her criminal history

was discussed , was admitted into evidence. 12 However, her

criminal history and alleged failure to report that history were

the basis for the EPC ' s Final Order imposing penalties against

Respondent , inc luding the probation that she now is charged with

violating. Respondent already has been penalized by the EPC on

these bases , and they are not relevant to this proceeding.

49 . As justification for the penalty it seeks, Petitioner

asserts that Respondent " never accepts responsibility for her

own behavior , but blames others for her miscreant deeds. "

However, the evidence does not support this position . With

respect to the hearing before the EPC that resulted in issuance

of the Final Order , Respondent offered a plausible explanation

for not having previously reported her criminal history on her

Florida Educator ' s Certificate applications ÏÏ specifically, that

when she filled out the previous certification application

forms, she did not realize that the fo rm required the reporting

of all prior criminal history, including offenses for which

adjudication had been withheld. Indeed, w hen she filled out a n

updated version of the application form that apparently was

clearer regarding criminal history disclosure requirements , she

reported all prior offenses. 13 Respondent acknowledged

responsibility for her actions more than once during the EPC

hearing. Moreover, the undersigned finds credible Respondent ' s

testimony that she understood she was to be drug tested on a

monthly basis as a condition of her probation. 14 To the extent

Respondent may have been incorrect regarding this detail , that

mistake is more likely attributable to confusion (which is

understandable under the circumstances) rather than lack of

truthful ness on her part.

CONCLUSIONS OF LAW

5 0 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120.57(1), Fla. Stat.

5 1 . This is a penal disciplinary proceeding against

Respondent ' s C ertificate brought by the EPC pursuant to s ection s

1012.796(8) , 1012 . 795 (6)(a) , and 1012.796 (1) (l) , Florida

Statutes.

5 2 . Section 1012. 796(8) states in pertinent part:

Violations of the provisions of a final

order shall result in an order to show ca use

issued by the clerk of the Education

Practices Commission .... Upon failure of

the educator, at the time and place stated

in the order, to show cause satisfactorily

to the Education Practices Commission why a

1 5

penalty for violating the provisions of a

f inal order should not be imposed, the

Education Practices Commission shall impose

whatever penalty is appropriate as

established in s. 1012.795(6).

5 3 . Section 1012. 795(6)(a) provides in pertinent part:

When an individual violates any provision

of a final order of the Education Practices

Commission, the Department of Education may

request an order to show cause be issued by

the clerk of the commission. The order shall

require the individual to appear before the

commission to show cause why further

pen alties should not be levied against the

individual ' s certificate pursuant to the

authority provided to the Education

Practices Commission in subsection (1 ) . . .

The Education Practices Commission may

fashion further penalties under the

authority of subse ction (1) as it deems

appropriate when it considers the show cause

order.

5 4 . Section 1012.795(1)(l) provides in pertinent part:

" (1) The Education Practices Commission ... may impose any ...

penalty provided by law, if the person: ... (l) [h] as violated

any order of the Education Practices Commission. "

5 5 . Collectively, these statutes authorize the EPC to take

disciplinary action against persons who violate a n EPC final

order.

5 6 . It is well - established that in penal disciplinary

proceedi ngs , the p etitioner has the burden to prove the alleged

violation s by clear and convincing evidence. Ferris v.

Turlington , 5 10 So. 2d 292, 294 (Fla. 1987) . See In re Henson ,

913 So. 2d 579, 590 (Fla. 2005); see also D ep ' t of Banking &

Fin. v. Osborne Ster n & Co. , 670 So. 2d 932, 935 (Fla. 1996) .

5 7 . The c lear and convincing evidence standard 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.

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

58 . As discussed herein, Petitioner demonstrated that t he

chain of custody of the urine specimen donated by Respondent was

maintained and was not compromised by what amounted to a

paperwork irregularity. See Southern Bakeries, Inc. v. Florida

Unemployment Appeals Comm ' n , 545 So. 2d 898 (Fla. 2d DCA 1989)

( pap erwork discrepancy on chain of custody form regarding

collection date not a basis for determining urine test results

unreliable where donor testified regarding specimen donation

date and testing laboratory staff testified regarding integrity

of specimen co ntainer seal ) .

59 . Respondent did not provide any per suasive evidence to

substantiate her position that the urine specimen she donated on

January 28, 2011, identified on the chain of custody form as

" Specimen ID No. 8543245, " and the urine specimen iden tified on

the February 7, 2011, Participant Call Test Edit document as

" Specimen ID No. 8543245 " are not the same specimen , and that

the specimen was not hers . See State v. Taplis , 684 So. 2d 214

(Fla. 5 th DCA 1996), rev . dismissed sub nom . Taplis v. State ,

703 So. 2d 453 (Fla. 1997) ( party attempting to exclude evidence

on chain of custody basis must show probability of mistake or

tampering). Se e also Davis v. State , 788 So. 2d 308 (Fla. 5 th

DCA 2001) (t o bar introduction of evidence on chain of custo dy

basis , defendant must show probability of tampering; mere

possibility of tampering insufficient ) .

6 0 . The evidence clearly and convincingly shows that

Respondent violated the Final Order, p aragraph 2(G) by

consuming, injecting or ingesting a controlled substance not

prescribed or administered for a legitimate medical purpose.

Accordingly, Respondent violated sections 1012.796(8),

1012.795(6)(a), and 1012.796(1)(l).

6 1 . Having determined that Respondent violated the EPC ' s

Final Order, and, consequently, the cited statutes, the next

issue is the penalty that should be imposed against her

Certificate. Florida Administrative Code Rule 6B - 11.007,

entitled " Disc i plinary Guidelines, " governs t he imposition of a

penalty in this proceeding. 15 The rule provides in pertinent

part:

(1) When the Education Practices

Commission finds that a person has committed

any act for which the Commission may impose

discipline, the Commission shall impose an

app ropriate penalty within the ranges set

forth for various acts or violations in the

following disciplinary guidelines....

(2) The following disciplinary guidelines

shall apply to violations of the below

listed statutory and rule violations and to

the des cribed actions which may be basis for

determination violations of particular

statutory or rule provisions. Each of the

following disciplinary guidelines shall be

interpreted to include " probation, "

" Recovery Network Program, " " letter of

reprimand, " " restr ict scope of practice, "

" fine, " and " administrative fees and/or

costs " with applicable terms thereof as

additional penalty provisions. The terms

" suspension and revocation " shall mean any

length of suspension or revocation,

including permanent revocation, permitted by

statute, and shall include a comparable

period of denial of an application for an

educator ' s certificate.

...

(h) Violating any order of the Education

Pract ices Commission in violation of Section

1012.795(1)(k), F.S., or paragraph 6B -

1.006(5)(p), F.A.C. Probation - Revocation

6 2 . Rule 6B - 1.006 , entitled " Principles of Professional

Conduct for the Education Profession in Florida , " provides that

a violation of any principles listed in the rule shall subject

the individual to revocation or suspension of the individual ' s

educator ' s certificate, or other penalties provided by law.

Fla. Admin. Code R. 6B - 1.006(2). Rule 6B - 1.006(5)(p) states :

" (5) Obligation to the profession of education requires that the

individual: ... (p) [s] hall comply with the conditions of an

order of the Education Practices Commission imposing probation,

imposing a fine, or restricting the authorized scope of

practice. "

6 3 . Pursuant to these provisions, the penalty that may be

imposed on Respondent for violating the EPC ' s Final Order ranges

from probation to revocation of her Certificate.

6 4 . Rule 6B - 11.007(3) sets forth a list of aggravating and

mitigating factors that may be considered in determining the

penalty to be imposed in a particular case . These are:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The lengt h of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, c aused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator ' s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violatio n;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

6 5 . Respondent ' s violation is serious. This is the second

time within a year that Respondent has been subject to

disciplin ary action by the EPC , and her positive drug test

occurred barely a month after entry of the EPC ' s Final Order

placing her on probat ion and imposing the drug testing. These

circumstances constitute aggravating factors pursuant to rule

6B - 11.007( 3 ) (a), (c), (d), (e), and (k ) .

6 6 . However, as discussed above, there is no evidence that

Respondent ' s violation of the Final Order present ed any danger

or caused harm to any students or to the public , c aused any

damage, or resulted in any pecuniary gain or other benefit to

Respondent . Moreover, t here is no evidence that her violation

in any way impaired her performance of her duties as a te acher.

Indeed, the evidence shows that Respondent has a positive

history as a good classroom teacher and career counselor for at -

risk students . In that vein, the undersigned is concerned that

suspending Respondent ' s Certificate for three years, as

Petiti oner urges, may effectively end the career of a good

classroom teacher , who, by all accounts, is an effectiv e and

caring educator . Such a result would be both unduly harsh and

counterproductive. Also as discussed above, Respondent has

tested negative for every drug test to which she has been

subjected since January 28, 2011, evidencing that she is

contrite and earnest about complying with the Final Order and

keeping her job. Collectively, t hese circumstances constitute

mitigating factors pursuant to rule 6B - 11.007(3)( b) , (f), (g),

(h), (i), (j), (l) , (m), (o), (q), and (r).

6 7 . Considering the specific circumstances in this case in

light of the aggravating and mitigating factors , the undersigned

determines that suspending Respondent ' s Certificate for a period

of six consecutive calendar months, followed by a two - year

probationary period, is appropriate. 16

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that t he Education Practices Commission

enter a Final Order determining that Respondent violated the

December 14, 2011, Final Order of the Education Practices

Commission , and suspending Respondent ' s Florida E ducator ' s

C ertificate for a period of six consecutive calendar months,

followed by two years of probation.

DONE AND ENTERED this 1 7 th day of November , 2011, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of November , 2011 .

E N D N O T E S

1 The February 7, 2011, RNP lett er and May 6, 2011, Education

Practices Commission Order refer to a violation of "Paragraph

2(G)" of the Final Order. However, the operative provision is

in paragraph "G.", not "(G)", of the Final Order. Nonetheless,

to avoid confusion, this Recommended Order refers to "Paragraph

2(G)" and uses similar format in re ferring to other paragraphs

of the Final Order.

2 Final Order, paragraph 2(H). Respondent is required to

authorize direct reporting of the test results to the RNP and

the employer.

3 Respondent has contracted with Quest Diagnostics to conduct

the specimen testing laboratory services . T he form provided to

Respondent to take to OMC was a Quest Diagnostics Form.

4 The evidence is not clear as to whether the RNP or

Respondent's employ er provided the Form; however, that

distinction is not material to this proceeding. The relevant

facts are that Respondent was provided the Form either by the

RNP or her employer and that OMC did not provide the Form.

5 The MRO is the physician who rea ds and certifies the results

of the drug test , and reports the results to the RNP and the

employer. Here, the MRO is employed by FirstLab, another

healthcare services entity. The MRO is identified on Step 1 of

the Form.

6 OMC has a sister urgent care f acility, Urgent Medical Center

("UMC"). OMC closes at 5:00 p.m., but UMC closes at 8:00 p.m.

Visbal and Scialabba are employed by both facilities. Visbal

was on duty at UMC after 5:00 p.m. on January 28, 2011.

7 Respondent testified in deposition and Visbal provided a sworn

statement. Both documents were admitted into evidence.

8 Visbal initially testified that Scialabba completed Step 2 of

the Form, but subsequently clarified that she had taken the

urine sp ecimen temperature and completed the portion of Step 2

of the Form verifying that the temperature was within the

specified range, and that Scialabba had checked the box

indicating the courier service. Visbal's clarified testimony is

consistent with her sw orn statement that she marked the

temperature portion of the Form. The undersigned finds her

testimony on this point credible.

9 Respondent testified at hearing that she had filled out Step 5

of the Form in Scialabba ' s, not Visbal ' s, presence. Howev er,

Respondent ' s testimony conflicts with that of Scialabba and

Visbal, both of whom testified to the effect that Respondent

completed Step 5 in Visbal ' s presence. Moreover, Respondent ' s

hearing testimony conflicts with her own deposition testimony,

in wh ich she testified that she completed Step 5 after she had

provided the specimen to the second laboratory technician (i.e.,

Visbal). The undersigned finds Respondent ' s hearing testimony

on this point unpersuasive.

10 I n this case, the delivery service wa s the Quest Diagnostics

c ourier .

11 These test results were admitted into evidence as

Respondent's Exhibit 4.

12 The transcript of the EPC hearing was offered by Petitioner

and admitted into evidence for the limited purpose of impeaching

Respondent's credibility.

13 Respondent's full disclosure on the new application form led

to the charges in the Administrative Complaint regard ing her

prior failure to disclose her criminal history.

14 Respondent apparently was given a large package of documents

in connection with her probation. Respondent testified that she

had not closely read the documents, but her understanding was

that s he was to be drug tested on a monthly basis as a condition

of her probation.

15 The rule citation to section 1012.795(1)(k), Florida Statutes,

is incorrect. The correct statutory provision is section

1012.795(1)(1), which authorizes the EPC to impose d iscipline if

the person "[h]as violated any order of the [EPC]." A review of

the statutory history reveals that when section 1012.795 was

enacted in 2002, this provision was codified at sub - sub section

(k); when the statute was amended in 2008, this provis ion was

re - lettered as sub - sub section (1). Rule 6B - 11.007(2) was

amended in 2007 to add sub - sub section (h), which cited to

section 1012.795(1)(k). The most recent amendment to rule 6B -

11 - 007, effective 2009, revised other provisions, but did not

update t his provision to reflect the 2008 statutory amendment.

16 In recommending this penalty, the undersigned also considered

the range of penalties recommended for different types of

violations in other teacher disciplinary cases tried before the

Division. S ee Dr. Eric J. Smith , as Comm'r of Ed. v. Mays , Case

No. 11 - 0743PL (Fla. DOAH June 18, 2011; Fla. EPC Oct. 10,

2011)(two - year suspension recommended for various violations,

such as impairment by drugs and alcohol while in the classroom

and numerous incidents of being late or absent); Dr. Eric J.

Smith , as Comm'r of Ed. v. Brown , Case No. 10 - 10515PL (Fla. DOAH

May 11, 2001; Fla. EPC Oct. 6, 2011)(two - year suspension

recommended for falsification of student grade records and

misrepresenting completion of courses); Dr. Eric J. Smith , as

Comm'r of Ed. v. A mie , Case No. 10 - 10514PL (Fla. DOAH April 27,

2001; Fla. EPC July 27, 2011)(two - year suspension recommended

where teacher behavior caused risk of harm and actual harm to

students); Jim Horne , as Comm'r of Ed. v. Adams , Case No. 03 -

3165PL (Fla. DOAH July 11 , 2004; Fla. EPC Dec. 3, 2004)(one - year

suspension where teacher behavior caused actual harm to

student); John L. Winn , as Comm'r of Ed. v. Parets , Case No. 05 -

3220PL (Fla. DOAH April 4, 2006; Fla. EPC Feb. 20, 2007)(30 - day

suspension where teacher assiste d students on FCAT exam); Frank

T. Brogan , as Comm'r of Ed. v. Sanders , Case No. 98 - 0705 (Fla.

DOAH Aug. 26, 1998; Fla. EPC Mar. 31, 1999)(six - month suspension

where teacher behavior caused severe actual harm to student).

COPIES FURNISHED :

Johnny A. Gaspard, Esquire

15025 Northwest 77th Avenue, Suite 116

Miami, Florida 33014

Brent McNeal, Esquire

Department of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399 - 0400

Kath leen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Educatio n

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Suite 1514

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.