13-002437TTS Broward County School Board vs. Serena Jones Status: Closed Recommended Order on Tuesday, July 15, 2014.

Summary: Petitioner failed to prove, by a preponderance of the evidence, that just cause exists to suspend Respondent without pay and terminate her employment on the basis of immorality or moral turpitude.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

Case No. 1 3 - 2 4 3 7TTS

SERENA JONES ,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2013), before Cathy M.

Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on May 7 through 8 , 2014 , by

video teleconference at sites in Lauderdale Lakes a nd

Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Gibbs , Esquire

Law Offices of Carmen Rodrigu ez

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Christopher J. Whitelock , Esquire

Whitelock and Asso ciates , P.A.

300 Southeast Thirteenth Street

Fort Lauderdale , Florida 33 316

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists,

pursuant to section 1012.33 (1)(a) , Florida Statutes, for

Petitioner to suspend Respondent without pay and terminate her

employment as a teacher.

PRELIMINARY STATEMENT

On or about January 2 , 201 2 , Petitioner , Broward County

School Board, took action against Respondent , Serena Jones, to

suspend her without pay and terminate her employment as a

teacher. Respondent timely requested an administrative hearing

to contest Petitioner ' s action, and the matter was referred to

DOAH to conduct a hearing pursuant to sections 120.569 and

120.57(1). This case was assigned DOAH Case No. 12 - 0778, but

w as dism issed on March 11, 2013, pending resolution of a related

criminal proceeding against Respondent.

Following resolution of the criminal matter, on July 2,

2013, the parties jointly moved to reopen the case. Petitioner

filed an Amended Administrative Co mplaint on July 12, 2013. The

final hearing initially was set for Septembe r 24 and 25, 2013,

but p ursuant to the parties ' Joint Motion for Continuance, was

rescheduled for November 12 and 13, 2013.

On October 29, 2013, Petitioner filed a Motion for Sum mary

Recommended Order Deeming Facts Established Consistent with

Court Order before the Circuit Court in and for Broward County,

Florida, seeking issuance of a Summary Recommended Order based

on facts established in a dependency proceeding order issued by

the Circuit Court of Broward County. By Order dated

November 22, 2013 , the undersigned denied the motion.

Pursuant to the Joint Motion for Continuance , filed on

November 4, 2014, the final hearing was again rescheduled for

December 17 - 20, 2013. On D ecember 13, 2013, the parties again

requested continuance of the final hearing, and the final

hearing was rescheduled for January 27 - 29, 2014. Pursuant to

Petitioner ' s Emergency Motion for Continuance , filed on

January 24, 2014, due to ongoing discovery d isputes between the

parties , the final hearing was rescheduled for May 7 and 8,

2014.

The final hearing was held on May 7 and 8, 2014 .

Petitioner presented the testimony of Detective Ann Suter, an

investigator with the Broward County Sheriff ' s Office Sp ecial

Victims Unit; Dr. Jason Shulman, a pediatric physician; D.B.J.;

and D.S.J. Petitioner proffered Exhibit N umbers 1, 3A, 3B, 4,

8, 9, 12, 13, 14, and 21 for admission into evidence. Exhibit

N umbers 3B, 9, and 12 were admitted without objection, and

E xhibit N umbers 1, 3A, 4, 8, 13, 14, and 21 were admitted into

evidence over objection. The court took official recognition of

sections 827.03 and 39.01, Florida Statutes (2010). 1 / Respondent

testified on her own behalf and presented the testimony of

Stev en Williams, principal at Driftwood Middle School; and

David Golt, Chief of Police for the Broward County School

District. Respondent did not proffer any exhibits for admission

into evidence .

The two - volume Transcript was filed on May 30, 2014 , 2 / and

the parties were given until June 9, 2014, to file thei r

proposed recommended orders, then were granted an extension of

time p ursuant to Petitioner ' s motion . The Proposed Recommended

Orders were timely filed on June 16, 2014, and the undersigned

has duly con sidered them in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a duly - constituted school board charged

with the duty to operate, control, and supervise all free public

schools within the School District of Broward Co unty, Florida,

pursuant to Florida Constitution Article IX, section 4(b) , and

section 1001.32.

2. Respondent has been employed as a teacher in the

Broward County Public School District , pursuant to a

professional services contract , for approximately five years.

Before that, she was a teacher in the Miami - Dade County School

System for approximately six years. During the timeframe

relevant to this proceeding, the 2010 - 2011 school year,

Respondent w as employed as a language arts teacher at Driftwood

Middle School.

3. The undisputed evidence established that Respondent is

a very good teacher who enjoyed excellent rapport with students

and parents, did not experience discipline problems in her

classroom, and was very dependable and efficient. She routin ely

received " highly effective " teaching evaluations ratings.

4 . Respondent is married to Darren Jones, Sr. , and is the

mother of three children, D.B.J., D.S.J., and D.J.J. 3 / At the

time of the events giving rise to this proceeding, D.B.J. was

16 year s old, D.S.J. was nine years old, and D.J.J. was six

years old.

II. Events Giving Rise to this Proceeding

A. The December 26, 2010, Incident

5 . The primary event that precipitated this proceeding

occurred on or about December 26, 201 0 .

6 . That da y, Respondent, Darren Jones , D.B.J., D.S.J. , and

D.J.J. went to church. After they returned home , a dispute

arose between D.B.J., Darren Jones, and Respondent regarding

D.B.J. ' s use of Facebook and other issues related to her

behavior .

7 . O ver a period of approximately two years leading up to

the December 26, 2010 incident, numerous disputes had arisen

between D.B.J., Darren Jones, and Respondent over D.B.J. ' s

behavior. A s a result , D.B.J. often was disciplined through

both corporal and non - corporal fo rms of punishment. The

corporal punishment typically was administered by Darren Jones ÏÏ

w ho stands six feet, five inches tall ÏÏ using a belt, and

consisted of beatings ranging from minor to severe . 4 /

8 . W hen Darren Jones administered corporal punishment,

Respondent typically was present and neither objected nor

i ntervene d to stop the punishment .

9 . A t the time of the December 26, 2010 dispute , the

family was in the kitchen and Darren Jones was preparing dinner .

As the dispute escalated, Darren Jones ordered D.B.J. to go

upstairs to her parents ' master bedroom to receive a beating .

10 . D.B.J. went upstairs to prepare herself for the

beating . 5 / At the time, she was wearing a long - sleeved shirt and

jeans.

1 1 . Darren Jones also summon ed Respondent, D.S.J., and

D.J.J . to the master bedroom to witness him beat D.B.J. D.S.J.

and D.J .J. were forced to witness the beating so that they would

understan d what would happen to them if they misbehaved.

1 2 . Darren Jones ordered D.B.J. to lie down on the bed.

Using an extension cord, he repeatedly struck her on her hands,

arms, shoulders, back, thighs, ankles, and buttocks. A t some

point during the beating, D.B.J. rolled off the bed and onto the

floor in an attempt to escape the blows, but Darren Jones

conti nued to strike her with the cord.

1 3 . During this beating, Respondent was present and

witnessed the entire episode but did not intervene to stop

Darren Jones from beating D.B.J.

1 4 . Respondent also did not excuse D.S.J. or D.J .J. from

witnessing the b eating.

1 5 . During the course of the beati ng, D.B.J. urinated on

herself. After the beating was over, she went to t he bathroom

to clean herself up and ru n cold water over her hands to help

alleviate the pain and enable her to move her fingers.

1 6 . Following the beating, D.B.J. was summoned downstairs

for the family dinner. She testified, credibly, that she was

injured to the extent that she had diff iculty getting down the

stairs , but neither asked for nor received assistance from

anyone .

1 7 . D.B .J. suffered severe pain during and after the

beating. As noted above, she was so traumatized during the

beating that she urinated on herself. S he was severely bruised

and s uffered cuts on, and significant swelling of, various parts

of her body. 6 / Her h ands were so swollen that they were clenched

and she was unable to fully open them or move her fingers for

days after the beating. She continued to suffer swelling and

pain for at least a month after the beating.

1 8 . At no time on December 26, 2010, d id Respondent check

to see if D.B.J. was injured as a result of the beating. It was

not until the following day that Respondent became aware that

D.B.J. had been injured, when she went upstairs to wake D.B.J.

and noticed that she had not changed her cloth ing from the

previous day. At that point, D.B.J. told Respondent she was

injured and Respondent observed that D.B.J. ' s skin was broken as

a result of the beating. Respondent ' s explanation as to why she

did not know that D.B.J. was injured until the follo wing day is

that D.B.J. did not tell her she was injured.

19. Upon discovering that D.B.J. was injured, Respondent

gave D.B.J. ice to put on her hands and Neosporin cream for the

cuts. Respondent also provided cream to D.B.J. to treat her

bruises. Respo ndent did not contact a physician or otherwise

s eek medical attention for D.B.J. ' s injuries.

B. Other Alleged Conduct

2 0 . There is conflicting evidence regarding whether

Darren Jones beat D.B.J. in January 2011 . D.B.J. testified that

in early January 2 011, Darren Jones beat her with a belt and

that Respondent was not in the room when the beating occurred .

Respondent denied that Darren Jones beat D.B.J. in January 2011.

D.S.J. testified that she did not recall Darren Jones beating

D.B.J. in January 201 1. On balance, the evidence does not

persuasively establish that Darren Jones beat D.B.J. in

January 2011 . H owever, even if it were shown that such a

beating did, in fact, take place , the re is no credible evidence

establishing that Respondent actually wi tnessed the beating so

as to have been in a position to intervene , had it bec o me

severe.

2 1 . The credible evidence establishes that Darren Jones

spanked D.J.J. with a belt on December 26, 2010, for sleeping in

church and hitting D.S.J.

2 2 . Although t he evidence establishes that D. S .J. and

D. J .J. may , at times , have been subject to corporal punishment

administered by Darren Jones or Respondent, the evidence does

not establish that such punishment rose to the level of abuse or

that either child was harm ed as a result of the punishment.

2 3 . The persuasive evidence does not support a finding

that a " pattern " of child abuse existed in the Jones ' household

or that Respondent participated in or allowed a pattern of abuse

to occur .

C. The Investigation

2 4 . On or about January 6, 2011 , the Broward County

Sheriff ' s Office ( " BSO " ) received a complaint through the child

abuse reporting system regarding the alleged abuse of D.B.J. by

Darren Jones. 7 /

2 5 . As a result , on or about January 11, 2011, a BSO Ch ild

Protective Services inv estigator and deputy were sent to the

Jones ' residen ce . T he investigator interviewed D.B.J. and

observed her injuries , and ordered Respondent and Darren Jones

to bring the children to the clinic for physical examination.

2 6 . On the evening of January 14, 2011, Respondent and

Darren Jones took D.B.J., D.S.J., and D.J.J. to the Nancy J.

Cotterman Center ( " NJCC " ) , where they were interviewed and

physically examined by Detective Ann Suter and Dr. Jason

Shulman .

2 7 . Dr. Shulma n is a pediatric physician who, as part of

his medical practice, works with Broward County ' s C hild

P rotection T eam. Dr. Shulman was working at the NJCC on the

night of January 14, 2011, when D.B.J., D. S.J., and D.J.J. were

brought in for examination.

2 8 . That night, Dr. Shulman examined D.B.J. and took 101

photographs of her body as part of the investigation to

determine whether she had been subjected to abuse.

29 . The photographs showed that as a result of the

December 26, 2010 beating, D.B.J. had numerous scabs, marks ,

bruises, and scars on her hands, arms, shoulders, back, legs ,

thighs, ankles, and buttocks. Even though nearly three weeks

had passed since she was beaten, some of the places on D.B.J. ' s

b ody where she was struck with the cord stil l were open or

scabbed. Many of these scabs, marks , bruises, and scars were

curvilinear in shape , showing the cuts and impressions left on

and in D. B .J . ' s skin by the looped extension cord used to beat

her. The photographs also showed swelling and extens ive

bruising and discoloration of D.B.J. ' s body, particularly on her

hands, ankles, back, thighs, and buttocks. At the time of the

examination, D.B.J. still was experiencing pain from the

beating. Although the testimony at hearing did not precisely

estab lish how many blows Darren Jones landed on D.B.J. ' s body, 8 /

the photographic evidence appears to show as many as 60 discrete

marks on her body made by the beating. Under any circumstances,

the evidence clearly shows that the beating was not " quick " and

co nsisted of far more than a few blows.

3 0 . During his examination of D.B.J., Dr. Shulman

interviewed her to determine how she had suffered the injuries.

D.B.J. told Dr. Shulman that she had been beaten by her father

with an extension cord.

3 1 . After his examination and interview of D.B.J.,

Dr. Shulman prepared a report of findings in which he found,

based on his medical examination and interview of D.B.J., that

she had been severely physically abused by Darren Jones.

Dr. Shulman ' s report recommended that D.B.J., D.S.J., and D.J.J.

be removed from the home and provided safe alternative

placement .

3 2 . On January 14, 2011, D.B.J., D.S.J., and D.J.J. were

removed from the Jones home and placed in the protective custody

of ChildNet. 9 /

3 3 . On or abou t January 15, 2011, Darren Jones was

arrested and charged with aggravated child abuse , pursuant to

section 827.03, Florida Statutes (2010) , for the beating he

inflicted on D.B.J. on December 26, 2010.

3 4 . The criminal case against Darren Jones was disp osed of

by nolle prosequi in March 2013 .

3 5 . In March 2011, Respondent was arrested and charged

with three counts of neglect o f a child, pursuant to section

827.03(3)(a ).

3 6 . The criminal case against Respondent was disposed of

by nolle prosequi in March 2013 .

3 7 . In September 2011, after Respondent and Darren Jones

had received individual and family counseling, D.S.J. and D. J .J.

were returned to reside in the Jones ' home.

3 8 . The Circuit Court of the Seventeenth Judicial Circuit

in and for Brow ard County, Florida, Juvenile Division,

determined in Case No. 2011 - 471 CJ - DP(A) that , pursuant to

section 39.01(2), Florida Statutes, Darren Jones physically,

emotionally, and/or mentally abused D.B.J. by beating her with

an extension cord. 10 / The court ordered that D.B.J. be

permanently removed from the Jones home and placed in foster

care with the Department of Children and Families. D.B.J.

remained in foster care until she no longer was a minor. 11 /

III. The Final Hearing

39 . At the final hearing, Respondent claimed that in

hindsight , she would have stopped Darren Jones ' beating of

D.B.J. had she known that he was going to use a cord or that

D.B.J. would suffer continual pain as a result of the beating.

Respondent claimed that she did not interven e at the time

because, based on her own childhood experiences of being beaten

by her mother, she did not view the beating rendered by

Darren Jones on D.B.J. as constituting child abuse. E ven after

seeing the photographs of D.B.J. ' s injuries taken by Dr. S hulman

almost three weeks after the beating, she did not characterize

it as " severe. "

4 0 . Respondent testified that had the beating gone on for

what she considered an " excessive amount of time, " she would

have intervened. S he characterized the beating as , rather, " a

very quick discipline. "

4 1 . Respondent and her husband act as a team in raising

their children and support each other , rather than inter vening

and undercut ting each other , in disciplin ing the children.

Respondent testified, credibly, t hat she is not afraid of her

husband and d oes not believe he would have hit her had she

intervened to stop the beating of D.B.J.

4 2 . Respondent expressed regret at the turn of events

resulting from the beating. She is sorry that D.B.J. was

injured by th e beating , and clearly is sorry about the

consequences of the beating ÏÏ the arrests of her and

Darren Jones, her husband ' s job loss and resulting financial

difficulties , loss of their home and car, and loss of custody of

their children for a period of time.

4 3 . T he sole evidence regarding the notoriety element of

the immorality charge against Respondent consisted of a general

statement by Driftwood Middle School principal Steven Williams

that he was aware of the allegations regarding Respondent " based

on the media " but was not familiar with the details of the case ;

n o specific evidence was presented regarding the notoriety of

Respondent ' s conduct. T he record also is devoid of evidence

showing that Respondent ' s conduct brought her or the education

profes sion into public disgrace or disrespect and impair ed her

service in the community.

IV. Findings of Ultimate Fact

4 4 . In this proceeding, Petitioner seeks to suspend

Respondent without pay and terminate her employment as a teacher

on the basis of jus t cause , 12 / pursuant to section 1012.33 (1)(a) ,

and Florida Administrative Code Rule 6A - 5.056 . 13 /

4 5 . As more fully addressed below, Petitioner bears the

burden of proof , by a preponderance of the evidence, to

establish each element of each offense with w hich Respondent is

charged .

4 6 . Also as more fully addressed below, the determination

whether Respondent committed the charged offenses is a question

of ultimate fact to be determined by the trier of fact in the

context of each alleged offense .

Immorali ty

4 7 . Based on the evidence presented, it is determined that

Petitioner did not prove that Respondent ' s conduct amounted to

immorality, as defined in rule 6A - 5.056(2).

4 8 . There is no question that Respondent ' s conduct was

inconsistent with the stan dards of public conscience and good

morals. I t is hard to envision that, absent duress or imminent

threat, a person having a conscience and being of good moral

fiber could witness his or her own child being severely beaten

with an extension cord and not i ntervene to stop the beating ÏÏ

r egardless of the circumstances that precipitated the beating.

This is particularly the case when that person is entrusted in

his or her professional life with ensuring the safety of

children. It is also hard to envision th at a person having a

conscience and being of good moral fiber would force nine - and

six - year - old children to witness the beating.

49 . However, the evidence does not establish the existence

of the other elements necessary for a finding of immorality

under rule 6A - 5.056(2) . Although t here is some evidence

generally establish ing that there was media coverage of

Respondent ' s removal from her employment posi tion, no specific

evidence was presented regarding coverage of her underlying

conduct . Th us, there is no evidence from which the undersigned

can infer " notoriety. " Further, R espondent ' s conduct took place

in a completely private setting ÏÏ her own home . Under these

circumstances, impair ment of service in the community cannot be

inferred and must specifical ly be shown by the evidence. 14 /

Here, t he record is devoid of s uch evidence , so the undersigned

cannot infer that this element is met.

5 0 . Accordingly, it is determined that Respondent did not

engage in conduct constituting immorality under rule 6A -

5. 056(2).

Moral Turpitude

5 1 . It also is determined that just cause does not exist

under section 1012.33(1)(a) to suspend and terminate Respondent

on the basis of moral turpitude.

5 2 . Unquestionably, Respondent ' s conduct in choosing not

to interven e t o stop Darren Jones ' severe beating of D.B.J. with

an extension cord , and in forcing her two younger children to

watch their sister suffer the beating, involved act s of

baseness, vileness or depravity in the private and social

duties, which, according to t he accepted standards of the time a

man o wes to his or her fellow man or to society in general.

5 3 . The undersigned rejects Respondent ' s claims that

Darren Jones ' beating of D.B.J. was a " quick discipline . " The

photographic evidence, supported by Dr. S hulman ' s testimony,

establishes that D.B.J. was struck with the cord numerous times

ÏÏ perhaps as many as 60 , based on the photographic evidence ÏÏ and

in any event, more than 30 times . The sheer number of blows to

D.B.J. ' s body belies any credible claim tha t the beating was of

short duration ; this beating took place over a period of

minutes. Respondent had more than ample time to intervene, but

chose not to. Further, she subjected her two very young

children to mental trauma by forcing them to witness thei r

sister being beaten.

5 4 . T he undersigned also finds incredible Respondent ' s

claim that she did not perceive Darren Jones ' beating of D.B.J.

as severe when it occurr ed . Darren Jones is a large man,

approximately six feet, five i nches tall. Using an ex tension

cord, h e struck D.B.J. numerous times with such force that even

th r ough her jeans and long - sleeved shirt, D.B.J. was so severely

lacerated and bruised that almost three weeks later, she still

was experiencing pain and bruising and her wounds had no t fully

healed. Respondent ' s conduct in standing by and watching a

sixteen - year - old girl receive such a severe beating without

intervening, while forcing nine - and six - year - old children to

watch, is indicative of baseness, vileness or depravity in the

pri vate duties, which, according to the accepted standards of

the time, a man owes to his or her fellow man.

5 5 . However, as more fully discussed below, section

1012.33(1)(a) requires , for a finding of just cause on the basis

of moral turpitude, that the per son be " convicted of or found

guilty of, or [ enter ] a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude. "

§ 1012.33(1)(a), Fla. Stat. (2010). Here, the criminal charges

a g ainst Respondent were disposed of by nol le prosequi. S he was

not convicted of or found guilty of, and did not enter a plea of

guilty to, any c rime involving moral turpitude.

5 6 . Accordingly , the undersigned is constrained to find

that just cause , pursuant to section 1012.33(1)(a) , does not

exist to suspend Respondent without pay and terminate her

employment on the basis of moral turpitude.

CONCLUSIONS OF LAW

5 7 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1) , F lorida Statutes .

5 8 . In this proceeding, Petitioner seeks to suspend

Respondent without pay and terminate her employment for just

cause pursuant to section 1012.33 (1)(a) and rule 6A - 5.056.

59 . Respondent is an instructional employee, as that term

is de fined in section 1012.01(2). Petitioner has the authority

to suspend and terminate instructional employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

6 0 . To do so, Petitioner must prove, by a preponderance of

the evidence, that R espondent committed the alleged violations,

and that such violations constitute a basis for suspension and

termination. McNeil l v. Pinellas Cnty. Sch. Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. ,

569 So. 2d 883 (Fla. 3d DC A 1990).

6 1 . As noted above, w hether Respondent committed the

charged violations is a question of ultimate fact to be

determined by the trier of fact in the context of each alleged

violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla.

1985); McKi nney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA

1995).

6 2 . Section 1012.33 (1)(a) , Florida Statutes (2010) ,

provides in relevant part:

(1)(a) Each person employed as a member of

the inst ructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contract s, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education :

immorality , misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turp itude .

6 3 . Rule 6A - 5.056 15 / defines the bases for charges

enumerated in section 1012.33 (1)(a ) and provides in pertinent

part:

6A - 5.056 Criteria for Suspension and

Dismissal.

The basis for charges upon which dismissal

action against instructional pers onnel may

be pursued are set forth in Section 231.36,

F.S. The basis for each of such charges is

hereby defined:

* * *

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

su fficiently 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, vi leness 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 tu rpitude.

Each of these grounds is addressed below.

Immorality

6 4 . To support a finding of just cause to discipline a

teacher on the basis of immorality under rule 6A - 5.056(2), the

evidence must establish both that : a) that the teacher engaged

in condu ct inconsistent with the standards of public conscience

and good morals ; and b) that the conduct was sufficiently

notorious so as to [1] disgrace or bring disrespect to the

individual or the teaching profession and [2] impair the

teacher ' s service in the c ommunity. See McNeill v. Pinellas

C nty. Sch . Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996 ).

6 5 . As discussed above, the evidence establishes that the

first element of immorality is met. It cannot be seriously

questioned that Respondent ' s conduct in decli ning to intervene

in Darren Jones ' beating of D.B.J. and in forcing D.S.J. and

D.J.J. to witness the beating is inconsistent with the standards

of public conscience and good morals .

6 6 . However, Petitioner did not provide sufficient

evidence to prove t hat the other elements of immorality are met .

The only evidence presented regarding the notoriety element wa s

the testimony of Principal Steven Williams, which show ed only a

general awareness on his part regarding the grounds for

Respondent ' s removal from her teaching position. This evidence

is not sufficient to show that Respondent ' s conduct was " widely

and unfavorably known, " and, thus, " notorious . " St. Lucie Cnty.

Sch. Bd. v. Contoupe , Case No. 13 - 0410 (Fla. DOAH Nov. 7, 2013),

St. Lucie Cnty. Sch. Bd . (Jan. 14, 2014); Miami - Dade Cnty. Sch.

Bd. v. Diaz - Almarez , Case No. 12 - 3630 ( Fla. DOAH July 30, 2013 ) ,

modified in part , Miami - Dade Cnty. Sch. Bd. (Oct. 30, 2013);

Broward Cnty. S ch. Bd. v. Deering , Case No. 05 - 2842, 2006 Fla.

Div. Admin. Hear. LEXIS 3 67, at *13 - 14 (Fla. DOAH July 31,

2006 ). Further, even assuming that Respondent ' s conduct was

" notorious, " Petitioner did not present any evidence showing

that Respondent ' s service in the community has been impaired ÏÏ an

element of the offense that cannot be inferred from the conduct

itself in cases where, as here, the conduct occurred in a

private setting. See Walker v. Highlands Cnty. Sch. Bd. , 752

So. 2d 127, 128 (Fla. 2d DCA 2000)(disallowing inference of

impairment when conduct took place in private s etting); see also

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996)(reversing school board order concluding that conduct

constituted immorality where competent substantial evidence

supported ALJ ' s finding that conduct did not impair ind ividual ' s

service in the community).

6 7 . For these reasons, Petitioner did not meet its burden

to prove , by a preponderance of the evidence, that Respondent ' s

conduct constituted immorality under rule 6A - 5.056.

6 8 . Accordingly, Petitioner has not sh own just cause under

section 1012.33(1)(a) to suspend Respondent without pay and

terminate her employ ment on the basis of immorality.

Moral Turpitude

69 . The evidence also does not support a determination

that just cause exists under section 1012.33(1 )(a) to suspend

Respondent without pay and terminate her employment on the basis

of moral turpitude .

7 0 . L egislative intent is the polestar that guides a

court ' s s tatutory construction analysis. Metro. Cas. Ins. Co.

v. Tepper , 2 So. 3d 209, 213 (Fla. 20 09 ) . I n determining the

meaning of a statute , the c ourt look s to the intent of the

Legislature in enacting that statute . Carlile v. Game & Fresh

Water Fish Com m ' n , 354 So. 2d 362, 364 (Fla. 1977 ). When

interpreting a statute and attempting to discern le gislative

intent, courts must first look to the actual language used in

the statute. J o shua v. City of Gainesville , 768 So. 2d 432, 435

(Fla. 2000) ; Moonlit Waters Apartments, Inc. v. Cauley , 666 So.

2d 898, 9 00 (Fla. 1996).

7 1 . Where a statute ' s language is clear and unambiguous ,

legislative intent must be derived from the words used in the

statute without resort to rules of statutory construction .

Therrien v. State , 914 So. 2d 942, 945 (Fla. 2005) ; Forsythe v.

Longboat Key Beach Erosion Contr ol Dist . , 604 So. 2d 452, 454 - 55

(Fla. 1992) ; Tropical Coach Line, Inc. v. Carter , 121 So. 2d

779, 782 (Fla. 1960) .

7 2 . Here , t he plain language of section 1012.33(1)(a)

requires, for a finding of just cause on the basis of moral

turpitude, " being conv icted or found guilty of, or enter ing a

plea of guilty to , regardless of adjudication, any crime

involving moral turpitude. " § 1012.33(1)(a), Fla. Stat.

(2010)(emphasis added).

7 3 . The statute ' s plain language expressly limits the

circumstances under which just cause on the basis of moral

turpitude may be found to those where the person has been

convicted of a crime involving turpitude, found guilty of a

crime involving moral turpitude, or entered a plea of guilty to

a crime involving moral turpitude.

7 4 . As noted above , the criminal charges against

Respondent were disposed of nolle prosequi , w hich means that the

state dropped the charges and terminated the prosecution of its

case against her. See Purchase v. State , 86 6 So. 2d 208 (Fla.

4th DCA 20 04)(nolle prosequi constitutes dismissal of criminal

charges). Respondent was not convicted or found guilty of any

crime involving moral turpitude, and she did not enter a plea of

guilty to a crime involving moral turpitude. 16 / Accordingly, the

statute ' s express requirements for finding just cause on the

basis of moral turpitude are not met.

7 5 . R elying on the clause in section 1012.33(1)(a) stating

that " [j] ust cause inclu des, but is not limited to . . . , "

Petitioner asserts that the statutory constr uction canon ejusdem

generis 17 / dictates that the non - exclusive list of offenses in

the statute should be read to encompass acts of moral turpitude,

since such acts bear a close affinity to the enumerated

offenses. This position is contrary to well - establ ished rules

of statutory interpretation.

7 6 . As noted above, w he re the statute ' s plain language is

clear and unambiguous , there can be no resort to statutory

construction. Here, the statute plainly defines and limits what

is required ÏÏ conviction, findin g of guilty, or guilty plea ÏÏ in

order to find just cause on the basis of moral turpitude. Thus ,

there is no basis for resorting to ejusdem generis in this case.

7 7 . Further more , e j usdem generis is inapplicable where the

particular words in the statute embrace all objects of the class

mentioned, thereby exhausting the class. Schleman v. Guaranty

Title Co. , 15 So. 2d 379 (Fla. 1943). That is , when the

particular words in the statute exhaust a class ÏÏ here, the

specific circumstances under which just cau se o n the basis of

moral turpitude may be found ÏÏ the statute ' s general words must

refer to words outside of that particular class . See Sperling

v. White , 30 F. Supp. 2d 1246, 1253 ( D.C. Cal. 1998) , citing

United States v. Mescall , 215 U.S. 26 (1909). Thu s , the

" including, but not limited to " clause in section 1012.33(1)(a)

cannot be read to expand the class of circumstances under which

just cause may be found on the basis of moral turpitude.

7 8 . I nvoking ejusdem generis to expand the circumstances

u nder which just cause on the ba s is of moral turpitude may be

found also would violate the established principle that statutes

must be interpreted and applied in a manner that gives meaning

and effect to all of their provisions. Bennett v. St. Vincent ' s

Me d. Ctr., Inc. , 71 So. 3d 828, 838 (Fla. 2011)( " when a court

interprets a statute, it must give full effect to all statutory

provisions " ); Dennis v. State , 51 So. 3d 456 (Fla. 2010)(it is a

basic rule of statutory construction that the Legislature does

not intend to enact useless provisions, and courts should avoid

interpreting a statute in a way that would render part of it

meaningless). Here, the specific words in section 1012.33(1)(a)

limit the class of offenses involving moral turpitude that

constitute just cause to those in which there is a conviction or

finding of guilt, or a guilty plea, to a crime involving moral

turpitude. Applying ejusdem generis in this case to include

acts of moral turpitude would negate the express limits in

section 1012.33(1)( a) that the Legislature has placed on the

circumstances in which just cause may be found on the basis of

moral turpitude. 18 /

79 . Petitioner asserts that case law obviates the

requirement in section 1012.33(1)(a) that there be a conviction

or finding of guilt or a guilty plea in order to find just cause

on the basis of moral turpitude. However, Petitioner relies

almost exclusively 19 / on cases interpreting an entirely different

statute ÏÏ section 1012.795 ( and its precursor s , section s 231.28

and 231.2615) c odifying the grounds on which the Education

Practices Commission may take disciplinary action a gainst a

teaching certificate. 20 /

8 0 . In contrast to section 1012.33(1)(a) , section

1012.795 21 / require s, and histori cally has required, only that

the person be determined to have committed an act involving

moral turpitude ÏÏ not that there have been a conviction or guilty

finding of, o r guilty plea to, a crime involving moral

turpitude. Consistent with the plain language of that statute,

the cases Petitioner c ites hold that it is not necessary that a

teacher even be charged with , much less convicte d of , a crime in

order to be determined guilty of an act of moral turpitude.

However, these cases interpret a completely different ÏÏ and here,

completely in apposite ÏÏ statute that enumerates different

circumstances and imposes a different standard on which

di scipline may be based. As such, the se cases do not apply to

this proceeding. 22 /

8 1 . T o the extent Petitioner posits that the " acts of

moral turpitude " standard in section 1012.795 is imported into ,

or otherwise applie s to, a just cause determination under

section 1012.33(1)(a ) because cases brought under each of these

statutes apply the same rule (rule 6A - 5.056(6) 23 / ) defining

" moral turpitude , " that position is rejected . The rule only

describes conduct that constitutes " moral turpitude. " E ach of

the s tatute s establish ÏÏ in plain terms ÏÏ the specific

circumstances under which conduct constituting m oral turpitude ,

as determined under t he rule , is subject to discipl ine pursuant

to that particular statute . Clearly , t he rule does not, and

cannot, have the effect of changing the plain language of

section 1012.33(1)(a) to e ncompass acts of moral turpitude. See

Willette v. Air Prods . , 700 So. 2d 397, 399 (Fla. 1 st DCA

1 997)(rejecting argument that rule should be applied in a manner

that is at odds with express statutory language); Dep ' t of Bus.

Reg. v. Salvation, Ltd. , 452 So. 2d 65, 66 (Fla. 1 st DCA 1 984)

( administrative rule cannot enlarge, modify, or contravene

provis ions of statute).

8 2 . For these reasons, Petitioner did not demonstrate that

just cause exists, pursuant to section 1012.33(1)(a), to suspend

Respondent without pay and terminate her employment as a teacher

on the basis of moral turpitude .

8 3 . In sum , Petitioner has not demonstrated that just

cause exists, pursuant to section 1012.33(1)(a), to suspend

Respondent without pay and terminate her employment as a

teacher .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Broward County School

Board, enter a final order finding that there is no just cause ,

pursuant to section 1 012.33(1)(a), Florida Statutes, to suspend

Respondent without pay and terminate her employment; reinstating

her employm ent as a teacher with the Broward County School

System ; and awarding back pay commencing on the date of her

suspension.

DONE AND ENTERED this 15 th day of Ju ly , 2014, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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

t his 15 th day of J u ly , 2014.

ENDNOTES

1 / The 2010 versions of these statutes were officially

recognized because they were the versions in effect at the time

of the conduct at issue in this proceeding.

2 / The first volume of the final hearing Transcript was filed

with DOAH on May 23, 2014, and was not marked as Volume I of II.

A Notice of Filing Transcript was issued by DOAH on May 27,

2014. In reviewing the Transcript, the undersigned realized

that a second volume of the Transcript had not been filed. The

court repo rter was contacted and the second volume was filed

with DOAH on May 30, 2014. Pursuant to Florida Administrative

Code Rule, only when the complete document has been received by

the office agency clerk is it deemed to have been filed. In

this case, the co mplete Transcript was received on May 30, 2014,

for purposes of commencing the time for filing proposed

recommended orders under rule 28 - 106.216.

3 / Hereafter, Darren Jones, Sr., is referred to as " Darren

Jones " and the minor children are referred to b y their initials.

4 / D.B.J. characterized the corporal punishment she received

over the years as ranging from a minor " pop " to a severe

" beating " or " whooping. " She characterized the beating she

received on December 26, 2010, as a " super whooping. " Tha t

beating was, in her words, " not one that you lightly forget. "

5 / D.B.J. credibly testified that to prepare herself for the

beatings, she often would don layers of clothing to help cushion

her body from the blows.

6 / D.B.J. ' s testimony regarding th e severity of the injuries she

suffered from the December 26, 2010, beating was corroborated by

physical evidence in the form of photographs taken by pediatric

physician Dr. Jason Shulman, who examined D.B.J. on January 14,

2011, at the Child Protective Se rvices Center.

7 / One of D.B.J. ' s friends observed her injuries as they were

dressing for gym class. The friend wanted to tell her mother,

but D.B.J. begged her not to tell. Apparently, D.B.J. ' s friend

did report what she had seen and, ultimately, the Broward County

Sheriff ' s Office was contacted.

8 / In response to a question regarding how many times she was

struck during the December 26, 2010 beating, D.B.J. testified ,

credibly, that she had " over 30 bruises. "

9 / ChildNet is the Department of Children and Families '

designated Community Based Care lead agency in Broward and Palm

Beach counties. ChildNet manages the system of foster care and

related services for abused, abandoned, and neglected children

in these counties.

1 0 / The Dependency Order was admitted into evidence in this

proceeding. It constitutes hearsay and was not shown to fall

within an exception in sections 90.803 or 90.804, so cannot be

used as the sole basis of a finding of fact in this proceeding.

See § 120.57(1)(c), Fla. Stat. Petitioner seeks to rely on the

Dependency Order to establish that Darren Jones committed child

abuse as that term is defined in section 39.01(2); however, the

child abuse determination in the Dependency Order is neither

necessary for, nor relevant to, this proceeding. The record in

this proceeding is replete with competent substantial evidence

showing that Darren Jones willfully beat D.B.J. with an

extension cord on December 26, 2010, and that the beating

inflicted significant and lasting physical injury on her and

harmed her.

1 1 / D.B.J. describes her current relationship with her parents

as a " good one on an adult level. " She visits them, spends

nights and weekends with them in their home, and attends church

and family events with them.

1 2 / The Amended Administrative Complaint generally cites Florida

Administrative Code Rules 6B - 1.001 and 6B - 1.006 as grounds for

suspending and terminating Respondent ' s employment. However, it

does not specifically identify any provisions of either rule

that Respondent is alleged to violate, and does not allege with

any specificity why her conduct violates any provision of either

rule. Given the breadth of topics addressed in these rules, the

Amended Administrative Complaint fails to provide adequate

notice to Respondent regarding the specific charges under rules

6B - 1.001 and 6B - 1.006 against which she would need to defend at

the final hearing. See Seminole C nty . Bd. of Cnty. Comm ' rs. v.

Long , 422 So. 2d 938 (Fla. 5 th DCA 1982) (administrative

complaint must be specific enough to inform the accused with

reasonable certainty of the nature of the charge). Of further

note is that, other than a general citation in the " preliminary

statement, " Petitioner ' s Proposed Recommended Order does not

address either of the se rules as a basis for its proposed

recommendation to suspend Respondent without pay and terminate

her employment.

1 3 / In footnote 2 of its Proposed Recommended Order, Petitioner

states that Florida Administrative Code Rule 6B - 4.009, rather

than rule 6A - 5.056, applies to this proceeding. The correct

rule citation is to rule 6A - 5.056, 1983 version, as shown by the

rule ' s history. See https://www.flrules.org/gateway/

ruleNo.asp?id=6A - 5.056 . The rule originally was adopted as rule

6B - 4.09 and was transf erred to rule 6B - 4.009 on April 5, 1983.

On that same date, rule 6B - 4.009 was then transferred to rule

6A - 5.056, so the latter is the correct citation to the rule.

Petitioner is correct that the 1983 version of the rule applies

to this proceeding, since Respondent ' s conduct occurred b efore

July 8, 2012, the date the most recent amendment to the rule

went into effect.

1 4 / See Walker v. Highlands Cnty. Sch. Bd. , 752 So. 2d 127, 128

(Fla. 2d DCA 2000).

1 5 / See supra note 13. The version of the rule per tinent to

this proceeding went into effect on April 5, 1983.

1 6 / Petitioner asserts that Respondent ' s admission that she

agreed to physical punishment of D.B.J. and allowed the

punishment to be conducted with an extension cord in the

presence of D.S. J. and D.J.J. constituted a crime of moral

turpitude. Apart from the obvious point that Respondent ' s

admission is not a crime, the conduct to which she admitted was

not determined to constitute a crime. In fact, the undisputed

evidence establishes that t he criminal charges against her were

dropped. Petitioner also argues that Respondent ' s admission

that it was reasonable to expect that striking D.B.J. with an

extension cord would harm her establishes that she committed

" neglect of a child " under section 827.03 ÏÏ a criminal statute.

Again, Respondent ' s conduct was not determined to constitute a

crime and the charges against her were dropped. Further, the

undersigned obviously lacks the authority to determine that

Respondent ' s conduct constituted a crime.

1 7 / Ejusdem generis is a statutory construction canon that

provides that, where the enumeration of specific things is

followed by a more general word or phrase, the general phrase is

construed to refer to a thing of the same nature as the

preceding spec ific things. Eicoff v. Denson , 896 So. 2d 795

(Fla. 5 th DCA 2005).

1 8 / Moreover, even if statutory construction were appropriate in

this case, the canon of expressio unius est exclusio alterius

would dictate that the commission of acts of moral turpi tude ÏÏ an

express ground for discipline under section 1012.795 ÏÏ must be

excluded from the bases for finding just cause under section

1012.33(1)(a). It is well - established that when the legislature

includes particular language in one section of a statute, b ut

not in another section of the same statute, the omitted language

is presumed to have been intentionally excluded. Maggio v. Fla.

Dep ' t of Labor and Employ. Sec. , 899 So. 2d 1074, 1080 (Fla.

2005); Bd. of Trustees of Fla. State Univ. v. Esposito , 991 So .

2d 924, 926 (Fla. 1 st DCA 2008).

1 9 / Petitioner cites Broward County School Board v. Smith , Case

No. 05 - 3554 (Fla. DOAH Sept. 5, 2006) , Broward Cnty. Sch. Bd.

(Dec. 19, 2006), as support for its position that all that is

required for just cause under section 1012.33(1)(a) is that

Respondent have committed an act involving moral turpitude. The

recommended order in that case, which was adopted without

modification by the School Board, relied on cases brought under

section 1012.795, which expressly only requires an act involving

moral turpitude. The Smith order did not acknowledge the

different standards in sections 1012.33(1)(a) and 1012.795

regarding moral turpitude and did not explain its reliance on

case law interpreting a completely different statut e than the

one at issue in that proceeding. The undersigned conducted

exhaustive administrative and judicial case law research on this

issue and notes that a substantial majority of Division of

Administrative Hearings orders addressing this issue have

fai thfully followed the plain language of section 1012.33(1) in

declining to find that an act of moral turpitude is sufficient

to find just cause under section 1012.33(1)(a). See, e.g. ,

School Bd. of Osceola Cnty. v . Epstein , Case No. 92 - 1573, 1992

Fla. Div. Admin. Hear. LEXIS 6566 (Fla. DOAH July 27, 1992) .

The undersigned declines to follow Smith and adheres to the

majority view.

20 / In 2000, section 231.28, th e precursor to section 1012.795

was renumbered as section 231.2615. Ch. 2000 - 301, § 27, Laws of

Fla. As part of the enactment in 2002 of the " Florida K - 20

Education Code, " the Legislature repealed chapter 231 and

enacted chapter 1012, including section 1012.795. Ch. 2002 - 387,

§§ 757, 1058, Laws of Fla. Throughout these amendments, the

statute c onsistently has required only that the person have

committed an " act " of moral turpitude to be subject to

discipline by the Education Practices Commission against his or

her teaching certificate.

2 1 / As noted above, the statutory language requiri ng only an act

of moral turpitude as a basis for imposing discipline on a

teaching certificate has remained consistent. Accordingly,

references herein to section 1012.795 also are meant to refer to

sections 231.28 or 231.2615 to the extent those versions of the

statute were in effect at the time of the cases cited.

22 / Petitioner cites Adams v. Professional Practices Council ,

406 So. 2d 1170 (Fla. 1 st DCA 1981), a case brought under

section 231.28 (the precursor to section 1012.795), involving

disciplin e against a teaching certificate. There, the court

noted that teachers traditionally are held to a high moral

standard in a community. A substantial body of case law

establishes that this is indeed the case. However, that does

not justify applying an in applicable statutory standard in this

case to arrive at a particular result.

23 / See note 13 , supra .

COPIES FURNISHED:

Robert Runcie, Superintendent

Broward County School Board

600 Southeast 3rd Avenue

Fort Lauderdale, Florida 33301

Christophe r J. Whitelock, Esquire

Whitelock and Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Carmen Rodriguez, Esquire

Law Offices of Carmen Rodriguez, P.A.

Suite 411

15715 South Dixie Highway

Palmetto Bay, Florida 33157

Pam St ewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1 244

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.