13-004253PL Dr. Tony Bennett, As Commissioner Of Education vs. Rebecca Sampson Carey Status: Closed Recommended Order on Monday, June 30, 2014.

Summary: Teacher not guilty of 3 charges for actions when students gave her a live bat found on campus; no protocols for bat encounters despite known bat problems. Recommend reprimand for 1 rule violation: 2 judgment calls not reasonable to protect students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. TONY BENNETT, AS

COMMISSIONER OF EDUCATION,

Petitioner,

vs. Case No. 13 - 4253PL

REBECCA SAMPSON CAREY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Febr uary 21, 2014, the final hearing was held in this

case in Largo, Florida, before Elizabeth W. McArthur,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 56 75

Douglasville, Georgia 30154

For Respondent: Aaron J. Hilligas, Esquire

Florida Education Association

Suite 109

1516 East Hillcrest Street

Or lando, Florida 32803

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committed the

acts alleged and violations charged in the Administrative

Complaint and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On July 8, 2013, Dr. Tony Bennett, as Commissioner of

Education (Petitioner), issued an Administrative Complaint

alleging that Rebecca Sampson Carey (Respondent) violated section

1012.795(1)(d) and (j), Florida Statutes (2011), 1/ and Florida

Administrative Code Rule 6A - 10.081(3)(a) and (5)(a). 2/

Respondent timely requested an administrative hearing to

contest the alleged facts and charges. The case was forwarded to

the Division of Administrative Hearings, where it was assigned to

Administrative Law Judge Lawrence Jo hnston and set for hearing on

December 9, 2013. Respondent Ó s unopposed motion for continuance

was granted, and the hearing was reset for January 14, 2014. On

December 20, 2013, the parties jointly moved for a second

continuance, which was granted, and th e hearing was rescheduled

for February 21, 2014. The case was transferred to the

undersigned, who conducted the hearing as rescheduled.

Prior to the final hearing, the parties filed a joint pre -

hearing stipulation, in which they stipulated to a number of

facts. To the extent relevant, the parties Ó stipulated facts

have been incorporated in the findings below.

At the hearing, Petitioner presented the testimony of Susan

Vilardi, Reuben Hepburn, Valencia Walker, and students B.H. and

J.S. (students are refer red to by initials for privacy reasons).

Petitioner Ó s Exhibits 1 through 5 were admitted in evidence.

Respondent testified on her own behalf and also presented the

testimony of student T.P., Julie Clark, and Princess Fleming.

Respondent Ó s Exhibits 1, 2, and 4 through 9 were admitted.

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

Ma rch 19, 2014. Respondent Ós two unopposed motions to extend the

deadline for filing proposed recommended orders (PROs) were

granted. The parties timely filed PRO s by the extended deadline,

which have been considered in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner, on behalf of the Education Practices

Commission, is charged with the responsibility of certifying and

regulating public school teac hers in Florida.

2. Res p ondent is a teacher. She hol d s Florida Educator Ó s

Certificate 928 8 1, covering the areas of biology and e arth - space

s cience. The certificate is valid through June 30, 20 1 8.

Respondent has never had any disciplinary action taken a gainst her

educator Ó s certificate, which she has had for 11 years.

3. At all times pertinent to this proceeding , R espondent was

emplo y ed as a s cience t eacher at Dunedin High School in the

Pin e llas County School District. Except for a letter of reprimand

regarding the events giving rise to Petitioner Ó s Administrative

Complaint, there was no evidence that Respondent has a history of

discipline by Pinellas County School District.

4. By all accounts, Respondent is an excellent teacher. She

has never receiv ed an evaluation rating less than Ð effective, Ñ and

most recently, she was rated as Ð highly effective, Ñ the highest

rating available. Two of her students who testified at the final

hearing described Respondent as an excellent teacher; and beyond

their word s, the demeanor of the students conveyed their

admiration for Respondent. Her students were plainly troubled by

giving testimony that could result in trouble for their teacher;

nonetheless, the students gave honest, credible testimony and they

are to be c redited for doing so.

5. The charges in the Administrative Complaint are based

on Respondent Ó s role in connection with a small live bat found

on the Dunedin High School campus.

6. On December 7, 2011, in the early morning before

classes began, Dunedin Hi gh School s t udent J.S. found a small

bat (approximately three inches long) next to a vending

machine in a courtyard on campus. The bat appeared to be

injured or ill. J.S. scooped up the bat with his hands and

went inside the school.

7. T.P., another Dun edin High School student, saw J.S. in

a hallway holding the bat. J.S. asked T.P. what he should do

with the bat, and T.P. said they should take the bat to one of

the science teachers, because Ð [w]hat else are you going to do

with it? You don Ó t want to le t it die. [A science teacher]

can probably take care of it or something and let it go. Ñ

Respondent was T.P. Ó s science teacher, so the students brought

the bat to Respondent.

8. There was no protocol established at Dunedin High

School for dealing with an imals found on campus. Informally,

when students found animals, they would often bring them to

the science teachers, following the logic expressed by T.P.

The science teachers kept a few cages for small animals, and

they would use those cages to secure a nimals brought to them

on these occasions. However, the evidence established that as

of December 2011, teachers and students had received no

instructions or guidance of any kind from the school

administration or the district regarding what they should do,

or were required to do, if they find animals on campus.

9. Dunedin High School Principal Reuben Hepburn offered

testimony suggesting that teachers were required to alert

administration if a student brought an animal to the teacher.

W hen asked to identif y the source of this requirement, he was

unable to do so, admitting in effect that there was no such

requirement. Instead, Mr. Hepburn could only cite his belief

that , as of December 2011, it was Ð common knowledge Ñ among

teachers that they should alert ad ministration if a student

brings an animal to the teacher. He also said that it was

Ð common knowledge Ñ that teachers should not take an animal

found on campus into the classroom. However, he admitted that

he did not know how Respondent would know that.

1 0. Mr. Hepburn knew of the presence of bats on campus

before December 2011. He described a significant problem with

bats in the summer of 2011, when bats were getting in the

walls of the Ð band room. Ñ Mr. Hepburn said that the bats

Ð were dealt with Ñ and they had to clean, spray, and wipe down

the whole area to eliminate the bat urine and fecal matter,

Ð because [the bats] carry rabies and they carry diseases[.] Ñ

The problem had not been corrected by the time students

returned to school in the late summer, and the band students

had to be temporarily relocated to the auditorium and

cafeteria until the band room could be used again.

Mr. Hepburn did not provide any specific notice to the

teachers about this bat problem or provide information about

rabies; agai n, he expressed his belief that it was Ð commonly

known among staff members, Ñ because there were conversations

about it. No non - hearsay evidence substantiated that belief.

11. Rather than assuming that the presence of bats to

such a degree as to requi re substantial corrective measures to

the band room was Ð commonly known, Ñ and rather than assuming

that all teachers, staff, and students would understand the

risks and know exactly what to do if they saw a bat or signs

of bat presence, a reasonable effort to protect the physical

health and safety of students and others on campus would have

been to provide written guidance or instructions to teachers,

staff, and students on exactly what to do, and what not to do,

if they encounter a bat or other animal. In formation

regarding rabies should have been made available to educate

those on campus of the risks presented by the presence of

bats, and to alleviate misconceptions that are prevalent in

Ð common knowledge Ñ about the disease.

12. In the absence of such in formation, instructions, or

guidance, Respondent acted reasonably on the morning of

December 7, 2011, when she took the bat from the students,

immediately secured the bat in a cage that she had in her

stockroom, and admonished T.P. and J.S. to wash their h ands

and to tell any other persons who had touched the bat to wash

their hands. Respondent thought that the hand - washing

directive was appropriate because the bat could be carrying

diseases or germs. However, Respondent did not think that

rabies was a co ncern with this lethargic bat. Although

Respondent knew about rabies in general, she was under the

misimpression that an animal with rabies would display signs

of aggression and would be foaming at the mouth.

13. By the time Respondent secured the bat in a cage,

students were entering the classroom for the first period

class, and were clamoring around to see the caged animal.

However, Respondent removed the caged bat from the classroom,

placing it out of sight in the stockroom, which is attached to

the c lassroom through a doorway behind Respondent Ó s desk.

14. The bat remained in the cage out of sight in the

stockroom through the first four periods, while Respondent

taught . After fourth period, there was a lunch break ; it was

common for several students to come to Respondent Ó s classroom

for their break . This day, N.H., a student in Respondent Ó s

fourth period, lingered after class; another student, B.H.,

joined them for her lunch break; and then T.P. came by with a

friend to check on the bat and ask if th ey could take the bat

home. Respondent told them no, because they did not know what

was wrong with the bat.

15. Respondent brought the cage out to her desk for the

students to look at during their break. Respondent told the

students not to touch the bat . However, the students were

excited to see the bat and kept asking Respondent to let them

touch the bat. The students managed to touch the bat without

Respondent knowing about it at first; apparently there was

enough room between the cage Ó s narrow slats for fingertips to

come in contact with the bat. Ultimately, Respondent gave in

to the students Ó urgings and allowed them to touch the bat.

She believed her concerns were moot by then, because the

students had already touched the bat before she relented.

16. Julie Clark, another science teacher whose classroom

was across the hall , and a good friend of Respondent Ó s, also

came into Respondent Ó s classroom during the break. She looked

at the bat and was not sure if it was alive, because it was so

lethargic. She reached in the cage and touched the bat on its

back; the bat barely moved its head in response. Although

Ms. Clark testified that the reason why teachers would secure

animals in the small cages was to keep students from being

able to touch the anim als that could have diseases such as

rabies, Ms. Clark did not believe that she risked contracting

rabies by touching the bat on its back.

17. The impression given from all of the testimony

describing the post - fourth period break was that these few

studen ts and Ms. Clark made brief contact with the bat while

the bat remained in its cage, very lethargic and barely

responsive to the contact. There was no evidence indicating

that the bat was removed from the cage and passed around; the

students did not play with the bat or handle the bat (as J.S.

had in scooping the bat up and walking through the hallways

cradling the bat). Instead, they touched the bat, making only

brief contact. As one student described the brief contact,

she just wanted to see how the ba t felt, so she touched the

bat on its head, because that was the softest part.

Respondent made the students wash their hands after touching

the bat. At the end of the break, Respondent secured the cage

and returned the caged bat to her stockroom.

18. At several points throughout the school day, T.P.

returned to Respondent Ó s classroom to repeat his request to

take the bat home. He added that his family likes to

rehabilitate animals. Nonetheless, Respondent told T.P. it

would not be a good idea for T.P . to take the bat home.

19. At the end of the school day, T.P. returned to

Respondent Ó s classroom to again ask if he could take the bat

home; this time, he said that his father gave his permission.

T.P. was holding his cell phone and told Respondent that his

father was on the line, and would confirm that it was all

right to let the bat go home with T.P. Respondent took the

phone, and saw that the cell phone display showed the phone

number and identified the caller as Ð Dad. Ñ Respondent also

looked up T.P . Ó s contact information to verify that the same

phone number was in their system for T.P. Ó s father. T.P. Ó s

father told Respondent that he agreed to let T.P. take the bat

home with him, and that if the bat was still alive the next

day, they would take it t o an animal hospital. Respondent

agreed to let the bat go home with T.P.

20. Respondent determined from T.P. and his father that

T.P. had a ride home from school and would not be taking the

school bus. T.P. confirmed that he told Respondent that he

had a ride waiting for him. Respondent made a carrier for the

bat, placing the bat in a styrofoam cup and then securing a

piece of cheesecloth over the top and around the sides of the

cup, held in place with a rubber band. T.P. then put the bat

carrier in hi s backpack.

21. Although T.P. thought he had a ride with another

student, by the time he got to the parking lot, his ride had

left. He did not go back to report that to Respondent, but

instead, just boarded the school bus. He did not tell others

on the bus that he had a bat secreted in his backpack, and he

rode home with the bat hidden away, without incident.

22. Sometime after school, student N.H. told her mother

about the exciting day she had at school, where she got to

touch a bat. Her mother, who w as the public information

officer for Pinellas County Health Department, called Susan

Vilardi, a senior community health nurse for the health

department, to ask Ms. Vilardi if she heard about the bat at

Dunedin High School. N.H. Ó s mother identified Respon dent as

the teacher who had the bat that student N.H. touched.

23. Ms. Vilardi began an investigation. She did not try

to contact Respondent that evening. Instead, Ms. Vilardi went

to Dunedin High School the following morning before classes

began, arriv ing at 6:30 a.m. She went to the office first and

explained that she wanted to talk with Respondent about the

bat incident. Principal Hepburn was not yet in; the secretary

manning the office told Ms. Vilardi where Respondent Ó s

classroom was, but did not issue a visitor Ó s pass to

Ms. Vilardi in accordance with the school Ó s security

procedures, so that persons seeing her would know that she was

authorized to be in the school.

24. Ms. Vilardi went unescorted to Respondent Ó s classroom

to wait for Respondent , who was not there yet. Respondent was

getting ready for classes, making copies and talking to

Ms. Clark.

25. Respondent arrived at her classroom just before the

Ð five - minute bell Ñ sounded to signal that school would begin

in five minutes, at 7:00 a.m. At 6:55 a.m., Ms. Vilardi

approached Respondent outside her classroom and told her she

wanted to talk to her about the bat. Although the evidence

was conflicting, Respondent credibly testified that

Ms. Vilardi did not clearly and immediately identify he rself

as an investigator with the health department. She wore a

Department of Health, Pinellas County Health Department ,

identification badge, but it was not clearly visible. Even if

the badge had been visible, Ms. Vilardi should have

immediately identif ied herself and announced the official

purpose for her visit. The more credible evidence established

that she failed to do so, giving Respondent some reasonable

doubt as to whether the person confronting her may have been a

disgruntled parent (who also co uld have been an employee of

the health department, like N.H. Ó s mother was).

26. Despite her concerns, Respondent allowed Ms. Vilardi

into the classroom. In the five minutes remaining before

school began: Ms. Vilardi asked Respondent questions about

t he bat and its whereabouts; Ms. Vilardi addressed the risk

that the bat could have rabies; Respondent then expressed

concern about a prior bat encounter on campus, when Respondent

brought a bat home and all of her family handled the bat;

Ms. Vilardi fille d out part of an intake form in which she

wrote down what she characterized as direct quotes from

Respondent; Ms. Vilardi had Respondent fill out the part of

the intake form with her address, 3/ telephone number, and other

personal information; and while Re spondent was trying to fill

out the form, Ms. Vilardi asked for the names of the students

Respondent knew had touched the bat.

27. Respondent did not tell Ms. Vilardi that she let the

bat go home with T.P. with his father Ó s permission; instead,

Respondent was vague, telling Ms. Vilardi only that the bat

was no longer on the premises, and that Ð we let it go. Ñ

Although Respondent was not dishonest, Respondent should have

been more forthcoming about where the bat went. Respondent

did, however, give Ms. Vila rdi T.P. Ó s name, and the name of

the few other students she knew had touched the bat, and told

Ms. Vilardi that she should follow up with the students.

Ms. Vilardi wanted all of the named students Ó addresses and

phone numbers, but Respondent directed Ms . Vilardi to the

administrative office, as she was not comfortable giving out

that information. 4/

28. While Respondent and Ms. Vilardi were talking and

filling out paperwork, students began coming into Respondent Ó s

classroom. Ms. Vilardi attempted to g et Respondent to keep

the students out so she could finish her questioning and

complete her forms; Respondent agreed for a brief period of

time, but then the students were getting restless and curious,

and Respondent told Ms. Vilardi that she needed to let the

students come in because it was time for school to start and

she had a class to teach.

29. Ms. Vilardi left Respondent Ó s classroom and proceeded

to the administrative office, as suggested by Respondent, with

the student names provided by Respondent . By the time

Ms. Vilardi arrived at the office, between 7:00 a.m. and

7:05 a.m., Mr. Hepburn had arrived, and after morning

announcements he Ð cleared his decks Ñ to work with Ms. Vilardi,

beginning at 7:08 a.m., to interview the students named by

Respon dent. 5 /

30. By 8:50 a.m., Ms. Vilardi had interviewed T.P.,

learned that Respondent had let the bat go home with T.P. with

his father Ó s permission, and knew that the bat had spent the

night in a box on T.P. Ó s front porch. Ms. Vilardi immediately

went to T.P. Ó s home and retrieved the bat from the porch. The

bat had not survived overnight, as it had been a cold night.

31. Ms. Vilardi made arrangements for the dead bat to be

transported to the nearest lab, in Tampa, where it was tested.

It was not until m id - afternoon the next day, Friday,

December 9, 2011, when Ms. Vilardi received the test results,

which were positive for rabies.

32. Ms. Vilardi tracked down Principal Hepburn at around

2:30 p.m. Friday afternoon, calling him on his cell phone. He

had le ft work early that day and was tending to personal

matters. Ms. Vilardi informed the principal of the positive

rabies results, and they agreed that Ms. Vilardi would come to

the school the following Monday, December 12, 201 1 , to explain

about the rabies v accine protocol and begin administration to

any of the students and teachers who had touched the bat and

who agreed to vaccinations. No evidence was offered to

suggest that it was imprudent or risky to wait until Monday,

December 12, 201 1 , to address the potential exposures to a

rabid bat that occurred on Wednesday, December 7, 201 1 .

33. Respondent was on pre - arranged leave Friday,

December 9, 2011, to take her three - year old daughter to a

hospital for testing for a serious medical condition.

Respondent did not return to her home until Friday evening.

She had messages on her phone from both Mr. Hepburn and

Ms. Vilardi, to inform Respondent of the positive rabies

result. Ms. Vilardi asked that Respondent call her to work

out a schedule for the rabies v accin es , and Respondent did so.

34. Beginning on Monday, Respondent, Ms. Clark, and four

students received the rabies vaccination series. 6 / Petitioner

offered no evidence to prove any actual harm suffered by

students or teachers because of their contact with the bat, or

because of having to undergo the vaccinations.

35. The evidence established that the most common rabies

variants responsible for human rabies in the United States are

bat - related. While 94 percent of the bats tested for rabies

are not r abid, any potential exposure to a bat should be taken

seriously. As Mr. Hepburn acknowledged, any bat encounter

should be treated as if the bat has rabies.

36. The most common way to transmit rabies is by bites or

scratches from an infected bat. Non - bi te transmission of

rabies is rare. However, it is at least theoretically

possible for a rabid bat to transmit the disease through

mucous membranes coming into contact with a microscopic cut or

scratch on someone Ó s skin. For example, if a bat licks itself

and while the saliva is still wet on its fur, a person Ó s skin

opening, cut cuticle, or tiny scratch comes into contact with

the saliva, the rabies virus could be transmitted that way.

Anything short of this type of non - bite contact -- such as if

saliva com es into contact with intact skin, or a skin opening

comes into contact with a part of the bat that is not wet with

saliva -- is not considered an Ð exposure, Ñ and the vaccination

protocol is not necessary.

37. Under the circumstances described above, the cha nces

of there actually having been an exposure are extremely remote

if not impossible. There was no proof that the hypothetical

of a bat licking its fur and being touched on fur still wet

with saliva was actually possible for the lethargic bat that

could barely move its head when touched.

38. Nonetheless, even the slightest chance of exposure to

rabies presents a tremendous risk of danger, absent timely

vaccinations. The result of untreated rabies is nearly always

death.

39. No evidence was presente d to suggest that the rabies

vaccination protocol followed for the four Dunedin High School

students and two teachers was insufficient or too late to

completely eliminate the risk of any adverse consequences from

having touched the bat.

40. The credible e vidence did not establish that

Respondent Ó s failure to provide more details regarding the

whereabouts of the bat had any adverse impact on Ms. Vilardi Ó s

investigation or the timeliness of rabies vaccines to those

who touched the rabid bat. Instead, the ev idence established

that Ms. Vilardi learned all of the details by 8:50 a.m., less

than two hours after she spoke with Respondent. Even if

Respondent had given Ms. Vilardi all of the information at

7:00 a.m., no evidence was offered to prove that Ms. Vilar di

would have learned of the positive rabies results any earlier

on Friday afternoon. Moreover, even if Ms. Vilardi had

learned of the positive results earlier on Friday afternoon,

it is by no means clear that the rabies vaccines would have

started any so oner. By the time Ms. Vilardi reached

Mr. Hepburn, they still might have opted for the same Monday

meeting to discuss and begin the rabies vaccine protocol.

41. Petitioner contends that Respondent should be

punished for Ð knowingly providing false info rmation to

Ms. Vilardi during the investigation. Ñ (Pet. PRO at 10).

Petitioner points to Ms. Vilardi Ó s intake notes indicating

that Respondent said that she took the bat home and then

released it.

42. The evidence did not substantiate Ms. Vilardi Ó s not es

regarding what Respondent told her about the bat. Respondent

credibly explained that Ms. Vilardi confused what Respondent had

told her about a bat that Ms. Clark had found on campus the prior

year -- it was that bat which Respondent took home, and that i s what

Respondent told Ms. Vilardi.

43. Respondent acknowledged that she did not provide all of

the details to Ms. Vilardi regarding where the bat went, telling

her only that Respondent did not have the bat, and Ð we let it go. Ñ

It was true that Responden t did not have the bat, and it was true

that Respondent, T.P., and T.P. Ó s father together agreed to Ð let

the bat go Ñ home with T .P. While Respondent should have been more

forthcoming with Ms. Vilardi in saying exactly what was done with

the bat, Responden t gave the investigator the names of T.P. and

the other students, and told the investigator to follow up with

the students. The investigator did so and learned in a short time

exactly where the bat was. Respondent did not give Ms. Vilardi

false informati on; Respondent gave Ms. Vilardi incomplete

information, while also giving accurate information that allowed

Ms. Vilardi to quickly obtain the complete information she needed.

Respondent did not intend to deceive or mislead Ms. Vilardi;

otherwise, Responde nt would not have given T.P. Ó s name to

Ms. Vilardi, nor would she have told Ms. Vilardi that she should

follow up with T.P.

44. On December 15, 2011, Respondent was called to a meeting

with the Pinellas County School Board Ó s Office of Professional

Stan dards (OPS), for an investigation conducted by OPS

investigator Valencia Walker. Respondent explained what happened,

why she did not provide more details to Ms. Vilardi, and why she

made a mistake writing down her new address.

45. At that meeting, Valen cia Walker and Principal Hepburn

talked about previous bat problems at Dunedin High School.

Respondent and Julie Clark, in attendance as the faculty

representative, were quite surprised to hear the matter - of - fact

discussion about a history of bat problems , when nothing had been

done in the aftermath of those problems to ensure that all

students and teachers know exactly what they needed to do when

they encounter a bat. Ms. Clark urged Ms. Walker and Mr. Hepburn

to establish written protocols right away fo r teachers, students,

and others, so they would know exactly what to do when

encountering a bat or other animal. Ms. Walker and Mr. Hepburn

assured Ms. Clark they would do so as soon as possible. However,

according to Ms. Clark, nothing has been done to this day.

46. Mr. Hepburn said that after this incident, he had

something put in the teacher Ó s manual to say that teachers should

report animals to administration or to the plant operator . U nder

these circumstances, it is somewhat alarming that more spe cific,

more widely - circulated written guidance was not immediately

provided by the school or the district when requested in early

2012 . Moreover, a statement in the teacherÓs manual that teachers

are to report animals to administration or the plant operat or does

little to address the lack of specific protocols directing

everyone on school campus what to do and what not to do when a bat

is encountered, or the lack of specific information about the

risks and signs of rabies.

4 7 . Had the school and/or the district reacted to prior

evidence of Ð bat problems Ñ on th e Dunedin High School campus by

ensuring that specific information and instructions were provided

so that teachers, students, and others who might encounter bats or

other animals would know exactly what was expected of them and

exactly what to do, the December 2011 incident likely would never

ha ve occurred. Students like J.S. and T.P. would not have b e en

left to wonder what they should do with a bat they we re cradling

in their hands; they would kno w, because they would have been

told, not to touch animals, particularly bats, if they find them

on campus. Instead, those with knowledge of the bat problem were

willing to leave the matter to Ð common knowledge Ñ instead of

factual information and specific protocols .

4 8 . Under the circumstances, with the information provided

and not provided by school administration and by the district, it

is difficult to fault Respondent for her actions. Respondent did

not share in the Ðcommon knowledgeÑ of a bat probl em, or what she

should do when encountering a bat . Respondent did not have

sufficient knowledge of the risks and signs of rabies . No

credible evidence was offered to prove that Respondent should have

somehow known these things. Thus, f or the most part, Respondent

acted reasonably . However, Respondent could have done two things

that would have been more reasonable to protect students from

potential harm. First, Respondent sh ould have exercised better

judgment by not relenting to the pleas of a few stude nts to let

them touch the bat , when a more reasonable precaution would have

been to keep the caged bat away from students in her classroom . 7 /

Respondent also should have been more forthcoming with Ms. Vilardi

by telling her that Respondent let the bat go home with T.P. and

that T.P. should be interviewed first. That would have been a

reasonable step that would have allowed Ms. Vilardi to retrieve

the dead bat a little sooner, even if that would not have made a

difference for the reasons previously noted.

49. The OPS meeting and investigation resulted in issuance

of a February 22, 2012, letter of reprimand to Respondent

regarding the bat incident. Ms. Walker wrote the letter, which

contains comments about Respondent Ó s actions that were not borne

out by the credible evidence in this record, and that were

inappropriate. 8 / Respondent objected to the letter because of

the inappropriate comments, and a revised letter was issued on

March 13, 20 1 2, to address a few, but not all, of the concerns

Respondent had expressed. Ms. Walker Ó s strident tone and harsh

characterization of Respondent Ó s actions were not proven to be

justified, based on the more credible evidence.

Ultimate Findings

50. It is determined, as a matter of ultimate fact, that

Respondent Ó s actio ns, as found above, were neither Ð gross

immorality Ñ nor Ð act[s] involving moral turpitude. Ñ

51. It is determined, as a matter of ultimate fact, that

Respondent failed to make reasonable effort to protect students

from conditions harmful to their physical health and/or safety .

Respondent had two judgment lapses that fell short of the required

reasonable effort : Respondent should not have relented and allowed

a few students to touch the bat ; and Respondent should h ave been

more forthcoming by telling Ms. V ilardi that Respondent let the

bat go home with T.P . , instead of just naming T.P. and the other

students and telling Ms. Vilardi to follow up with them .

52. It is determined, as a matter of ultimate fact, that

Respondent was not dishonest with Ms. Vila rdi, and, thus, did not

fail to maintain honesty in all of her professional dealings.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2013).

54. In this proceeding, Petitioner seeks to discipline

Respondent Ó s educator Ó s certificate. Petitioner bears the burden

of proving the allegations in the Administrative Complaint by

clear and convincing evidence. Dep Ó t of Banking & Fi n. v.

Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Florida

Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue.

The evidence must 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.

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

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

Westinghouse Electr ic Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 986, 988 (Fla. 1st DCA 1991)) ( Ð Although this standard of

proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous . Ñ ).

55. The Administrative Complaint char ges Respondent with

violating section 1012.795(1)(d) and (j), Florida Statutes. In

pertinent part, section 1012.795 provides:

(1) The Education Practices Commission may

suspend the educator certificate of any

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

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 period of time, after which

the holder may return to teach ing 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 otherwise 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 support; 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.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

Ð Gross Immorality Ñ Charge

56. Petitioner contends that Respondent Ó s actions in

December 2011 constituted Ð gross immorality. Ñ As a matter of law

and as a matter of fact, that charge does not fit Respondent Ó s

actions. The charge is so ill - fitting that it can only be

characterized as overreaching.

57. There is no State Board of Education rule defining

Ð gross immorality . Ñ A bsent a rule definition, a s a matter of law

and agency precedent, the charge cannot be l odged.

58. The viability of Ð gross immorality Ñ charges under

section 1012.795(1)(d) in the absence of a rule definition has

been the subject of recent analysis in a series of cases

resulting in f inal o rders by the Education Practices Commission.

59. In C appi Arroyo v. Dr. Eric J. Smith, as Commissioner

of Education ( Arroyo ), Case No. 11 - 2799 (Fla. DOAH May 31, 2012;

Fla. EPC Nov. 5, 2012), Administrative Law Judge F. Scott Boyd

analyzed the charged violation of Ð gross immorality Ñ under

section 1012.795(1) (d), as follows:

109. The Ethics in Education Act, Chapter

2008 - 108, Laws of Florida, added the phrase

Ð as defined by rule of the State Board of

Education Ñ to what now appears as section

1012.795(1)(d). It is unclear whether this new

language modifies o nly Ð an act involving moral

turpitude Ñ or if it instead modifies the entire

phrase Ð gross immorality or an act involving

moral turpitude. Ñ The absence of a comma after

the word Ð immorality Ñ suggests that it modifies

the entire phrase. In any event, when

construing penal statutes, any statutory

ambiguity should be resolved in favor of

Petitioner. Cilento v. State , 377 So. 2d 663,

668 (Fla. 1979) (where criminal statute is

ambiguous, construction most favorable to

accused should be adopted). See also

§ 7 75.021, Fla. Stat. ( Ð The provisions of this

code and offenses defined by other statutes

shall be strictly construed; when the language

is susceptible of differing constructions, it

shall be construed most favorably to the

accused. Ñ ). This portion of the s tatute is

thus only violated if an educator is guilty of

gross immorality as defined by rule of the

State Board of Education.

110. The State Board of Education has not

defined the term Ð gross immorality Ñ by rule.

No evidence was presented that Petitioner Ó s

behavior met any such rule definition. No

evidence shows that Petitioner was guilty of

gross immorality as defined by rule of the

State Board of Education.

Arroyo Rec. Order at 41 - 42. The Education Practices Commission

adopted the Recommended Order, including these conclusions of

law, as its Final Order, issued on November 5, 2012.

60. The Arroyo analysis has been followed in Recommended

Orders, which, in turn, have been adopted in Education Pr actices

Commission Final Orders, as recently as last mon th. See, e.g. ,

Torreya Davis v. Pam Stewart, as Comm Ó r of Ed. , Case No. 13 - 2501

(Fla. DOAH Dec. 13, 2013; Fla. EPC March 28, 2014); Pam Stewart,

as Comm Ó r of Ed. v. Elaine Anderson , Case No. 13 - 1347 (Fla. DOAH

Dec. 16, 2013; Fla. EPC March 28, 2014) ; Dr. Tony Bennett as

Comm Ó r of Ed. v. Doreen Whitfield , Case No. 13 - 3360PL (Fla. DOAH

Jan. 18, 2014; Fla. EPC May 20, 2014).

6 1 . In its PRO, Petitioner did not mention this precedent,

nor offer any explanation as to why the legal analysis set forth

in these o rders is not correct and controlling. It is concluded

that the agency precedent adopting and following Arroyo is

correct and controlling. Respondent cannot be found guilty of

gross immorality in violation of section 1012.795(1)(d), because

there is no ru le of the State Board of Education defining Ð gross

immorality Ñ as required by the statute. 9 /

6 2 . Even if the older interpretations of Ð gross immorality Ñ

were still agency precedent, the conclusion would be that

Petitioner did not prov e Ð gross immorality . Ñ The credible

evidence did not show that Respondent violated pr oper moral

standards, much less that she acted in Ð flagrant disregard Ñ of

proper moral standards. Petitioner proved only that Respondent

had a lapse in judgment on one occasion by letting a few students

to touch the bat. While teachers are held to a high moral

standard, that high standard does not function to transform mere

bad judgment calls into acts of gross immorality.

Ð Moral Turpitude Ñ Charge

6 3 . Petitioner also contends that Respond ent is guilty of

engaging in acts of moral turpitude, in violation of section

1012.795(1)(d). As of December 2011, the pertinent rule

definition of Ð moral turpitude Ñ was as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vil eness 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 tur pitude.

Fla. Admin. Code R. 6A - 5.056(6).

6 4 . Petitioner failed to prove that Respondent is guilty of

Ð moral turpitude Ñ as so defined. The Administrative Complaint

does not charge, and Petitioner did not prove, that Respondent

committed a crime of any k ind. It follows that the re was no

charge and no proof that Respondent committed the particular sort

of crime defined as moral turpitude, i.e., one that is evidenced

by an act of baseness, vileness or depravity.

6 5 . As with the Ð gross immorality Ñ charge, it is

unfathomable that Petitioner contends that Respondent Ó s acts

could possibly be considered crimes, or even mere acts, of

baseness, vileness, or depravity. The evidence established no

act even remotely within the specter of moral turpitude.

Pr inciples of Pr ofessional Conduct Charges

6 6 . The remaining statutory violation charged in the

Administrative Complaint is section 1012.795(1)(j), which

requires proof of a violation of the Principles of Professional

Conduct for the Education Profession prescribe d by rule of the

state Board of Education. This charge is linked to, and

predicated on, the charged rule violations. The Administrative

Complaint charges Respondent with violating rule 6A - 10.081(3)(a)

and (5)(a), which are two provisions in the rule codi fication of

the Principles of Professional Conduct for the Education

Profession. Thus, there can be no violation of section

1012.795(1)(j) alone; instead, there is no statutory violation

unless there is a predicate rule violation under one of the two

prov isions charged.

6 7 . In pertinent part, rule 6A - 10.081 provides:

(1) The following disciplinary rule shall

constitute the Principles of Professional Conduct

for the Education Profession in Florida.

(2) Violation of any of these principles shall

subject the individual to revocation or

suspension of the individual educator Ó s

certificate, or the other penalties as provided

by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from con ditions harmful to learning

and/or to the student Ó s mental and/or physical

health and/or safety.

* * *

(5) Obligation to the profession of education

requires that the individual:

(a) Shall maintain honesty in all professional

dealings.

6 8 . Petit ioner proved that Respondent violated rule 6A -

10.081(3)(a) by not making reasonable effort to protect students Ó

physical health or safety. As found above, Respondent acted

reasonably to protect students by taking the bat from J.S. and

T.P. when they broug ht it to her, securing the bat in a cage, and

placing the cage in Respondent Ó s stockroom during the school day

while Respondent taught her classes. Respondent acted reasonably

by acquiescing with T.P. Ó s father Ós request to let the bat go home

with T.P., w ith the father Ó s permission. However, by acceding to

the requests of a few students during the post - fourth period break

to let them touch the bat (after they had already done so

surreptitiously), Respondent crossed the line. Respondent failed

to make rea sonable effort to protect those students Ó physical

health or safety when she allowed the students to open the cage

and touch the bat.

69 . Respondent Ó s actions in this regard were neither

malicious nor patently dangerous. Nonetheless, Respondent knew

th at there was at least a generalized risk that the bat could

carry diseases and that it was not a good idea for the bat to be

handled. Even though Respondent believed that having the students

wash their hands after touching the bat was sufficient to protec t

them from harm, Respondent was at least partially responsible for

the students Ó potential exposure to harm to begin with by agreeing

to let them open the cage and touch the bat.

70. Respondent also fell short of the required reasonable

effort to protect students by not being more forthcoming with

Ms. Vilardi. Respondent should have said that she let the bat go

home with T.P. That would have been a more reasonable effort to

protect students than just disclosing T.P.Ós name and telling Ms.

Vilardi to fol low up with T.P. and the other students.

7 1 . Petitioner argued that Respondent was dishonest with Ms.

Vilardi, in violation of rule 6A - 10.080(5)(a) , by intentionally

giving Ms. Vilardi false information . The evidence on this point

was conflicting; the more credible evidence did not establish that

Respondent was dishonest, based on the facts found above.

Discipline/Mitigating Circumstances

7 2 . Petitioner charged Respondent with four distinct

violations : gross immorality; moral turpitude; failure to make

reasonable effort to protect students from conditions harmful to

health or safety; and failure to maintain honesty in all

professional dealings . The discipline proposed by Petitioner for

all four violations is suspension of Respondent Ó s educator Ó s

certif icate for two years, followed by two years of probation.

7 3 . Petitioner did not meet its burden of proving three of

the four violations charged. Accordingly, the proposed discipline

is plainly out of proportion to the single violation established.

7 4 . P etitioner Ó s proposed discipline was not explained by

reference to Petitioner Ó s disciplinary guidelines rule. See Fla.

Admin. Code R. 6B - 11.007.

7 5 . The low end of the normal discipline range for the

violation found in this case is probation, before consi deration of

any mitigating or aggravating circumstances. If mitigating

circumstances did not warrant reduced discipline in this case

below the low end of the range , then probation would be the

recommended discipline, for no longer than one school year.

7 6 . The record evidence does not support any disciplinary

action that would remove Respondent from the classroom for even a

short period. Respondent Ó s lapse in judgment does not detract

from her value and contributions as a high school teacher. Under

the circumstances found here, any such discipline would be wholly

out of proportion to the violation .

7 7 . Considerat ion of mitigating circumstances supports a

reduction in disciplin e below the normal range .

7 8 . A compelling m itigating circumstance that makes

Respondent Ó s violation only slight is that Respondent was not

armed with the specific information that could have, and should

have, been made available to her and to everyone on a school

campus with a history of bat problems. Respondent was never

instruc ted regarding what should and should not be done when

encountering a bat. Respondent had no actual knowledge of the

risks and signs of rabies and other diseases, and how to minimize

those risks. Respondent Ós failure to exercise better judgment

means that she fell short of making reasonable effort to protect

students, but it was not a knowing failure. RespondentÓs lack of

actual knowledge mitigates against the severity of discipline that

should be imposed. See Fla. Admin. Code R. 6B - 11.007(3)(k).

7 9 . Co nsideration of the o ther factors in Petitioner Ó s

disciplinary guidelines rule a dds to the weight in favor of

leniency. Respondent has a spotless record; her contributions as

an excellent, highly effective teacher are unquestioned. No

actual harm was show n to have been caused by Respondent Ó s lapse in

judgment. Respondent is contrite, having gotten quite an

education through this process; she would not make the same

judgment call s again. See Fla. Admin. Code R. 6B - 11.007(3)(a)

through (j), (r).

80 . Reco gnizing that despite Ms. Walker Ó s harsh comments,

Pinellas County School District deemed the appropriate discipline

(under a lower standard of proof) to be a letter of reprimand, the

undersigned recommends that a letter of reprimand be issued, as

the appro priate mitigated discipline for Respondent Ó s violation of

one rule that was established by the record evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order:

(1) determining that Respondent, Rebecca Sampson Carey,

committed a single violation of section 1012.795(1)(j) by

violating Florida Administrative Code Rule 6A - 10.080(3)(a);

(2) dismissing all other charges in the Administrative

Complaint ; and

(3) issuing a letter of reprimand to Respondent for her

violation of rule 6A - 10.080(3)(a).

DONE AND ENTERED this 30th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 30 th day of June , 2014 .

ENDNOTE S

1/ The Administrative Complaint is based on events that occurred

in December 2011. Accordingly, although the Administrative

Complaint does not identify the version of the statutes or rules

on which charges are predicated, the charges must be based on the

law in effect at the time of the acts claimed to be violations.

Childers v. Dep Ó t of Env tl . Prot. , 696 So. 2d 962, 964 (Fla. 1st

DCA 1997). Therefore, unless otherwise indicated, references

herein to statutes are to the Florida Statutes (2011).

2/ As of December 2011, the Principles of Professional Conduct

for the Education Profession in Florida were codified in Florida

Administrative Code Rule 6B - 1.006. Effective January 1, 2013,

the rule was re - designated as rule 6A - 10.081. The Administrative

Complaint charges Respondent with violating paragraphs (3)(a) and

(5)(a) of the re - designated rule, which, as a matter of form, did

not exist in December 2011. However, since the substance of the

rule paragraphs charged has not changed since the events at issue

took place, all references herein will be to the re - designated

rule to avoid confusion.

3/ Respondent made a mistake when writing down her address on

Ms. Vilardi Ó s intake form, as she had recently moved. Although

Petit ioner questioned Respondent at the hearing about whether she

intended to mislead Ms. Vilardi with this false information, the

Administrati ve Complaint does not allege facts regarding the

address error as a basis for charges against Respondent, nor does

Pet itioner contend in its PRO that Respondent Ó s address mistake

was a violation of the statutes or rules charged. Had the

Administrative Complaint alleged that Respondent Ó s address

mistake violated the rule requiring Respondent to maintain

honesty, the under signed would have found that no violation was

proven, because the credible evidence does not establish that

Respondent was being dishonest. Respondent explained that she

had recently moved, and in the confusion of the rush interview

session, she made a mi stake. The mistake was understandable,

easily correctable, and corrected by Respondent as soon as it was

called to her attention. The error did not impede or affect the

investigation at all.

4/ Respondent said that she was concerned about the privacy l aws

protecting student information, including their names, addresses,

and phone numbers. Respondent explained that when Ms. Vilardi

said that there was a risk of rabies , Respondent decided that she

needed to provide the student names, notwithstanding priv acy

concerns. However, Respondent directed Ms. Vilardi t o the

administrative office to ask for student addresses and phone

numbers from someone who knew what information could be

disclosed. While RespondentÓs concerns about privacy laws were

reasonable, after Respondent revealed the student names,

including T.P.Ós name, she would not have been disclosing any

additional protected information if Respondent had disclosed that

she let the bat go home with T.P. and that Ms. Vilardi should

question T.P. first. Respondent could have exercised better

judgment in this regard, although it is recognized that the

conditions of RespondentÓs interview with Ms. Vilardi were

challenging and may have contributed to the lapse in judgment.

5/ Given the length of time th at has passed since the events at

issue, details offered by witnesses were often sketchy, and

witnesses often expressed their inability to recall.

Petitioner Ó s witnesses Ms. Vilardi and Mr. Hepburn did not admit

to lack of recall, but perhaps they should have, because there

were many inconsistencies between their versions of what took

place. The most reliable testimony they offered was with respect

to the timeline of certain events that they had recorded in

contemporaneous or near - contemporaneous notes. T heir testimony

about other aspects of the investigation, ev en when recorded in

their notes, was not reliable. For example, Ms. Vilardi

testified from her notes that she and Mr. Hepburn interviewed

seven students and three adults. However, Mr. Hepburn re corded

in his Ð bat incident timeline Ñ memo that he and Ms. Vilardi

interviewed only four students: J.S., N.H., T.P., and B.H. In

addition, Ms. Vilardi testified that she and Mr. Hepburn

interviewed T.P. with his mother, who had come to school for the

int erview, and that the mother interrupted the interview to say

that she wanted Ms. Vilardi to go get the bat from her front

porch. In contrast, Mr. Hepburn testified that after he and

Ms. Vilardi interviewed T.P., Ms. Vilardi telephoned the family

and reach ed T.P. Ó s mother at home to ask for permission for

Ms. Vilardi to come get the bat. Ms. Vilardi also testified that

her intake form Ð was the documentation of [her] conversation

[with Respondent], Ñ but Ms. Vilardi later said that she believed

Respondent pr ovided her the names of a couple of students who had

touched the bat. Inexplicably, Ms. Vilardi did not write down on

the intake form the names of students identified by Respondent as

having touched the bat. While the undersigned does not attribute

malic ious motives on the part of Ms. Vilardi or Mr. Hepburn as

the reason for the inconsistencies in their testimony and notes,

the unexplained inconsistencies cast doubt on their credibility

and the reliability of their testimony.

6 / A stipulated finding of fact in the joint pre - hearing

stipulation was that following the positive rabies test, Ð four

students and two adults were administered rabies vaccines. Ñ The

evidence was consistent with the parties Ó stipulation. However,

Ms. Vilardi Ó s testimony was incon sistent with the other evidence

and the parties Ó stipulation. She testified from her notes that

rabies vaccines were given to the same seven students and three

adults that she claimed to have interviewed with Mr. Hepburn.

7 / Respondent did not fail to m ake reasonable efforts to protect

students from harm by acceding to T.P. Ó s father Ó s request to let

the bat go home with T.P., because T.P. Ó s father told Respondent

that he had given T.P. his permission to do so. When T.P. Ó s

father approved of T.P. taking the bat home, Respondent Ó s role as

protector of T.P. Ó s health and safety was displaced by T.P. Ó s

father assert ing his prerogative over T.P. Since Respondent was

never instructed that she was required to do something different

with the bat , she drew on her experience from one year earlier,

when Ms. Clark kept a bat found on campus in a cage for the

school day and then agreed to let Respondent take the bat home to

her family. Had Respondent and Ms. Clark been briefed on the

risks of rabies and provided spec ific protocols for encounters

with bats, they would have acted differently on both occasions.

8 / The February 22, 2012, letter of reprimand included the

following: Ð [Y]ou stated that a Pinellas County Health Service

employee came to visit you at school on December 8, 2011, because

a rabid bat was exposed to students. Ñ The letter emphasized

Respondent Ó s mistake when she wrote down her new address: Ð You

stated, Ò You do not know why, but you gave her the wrong

address. Ó You wanted to clarify your stateme nt by stating a

second response to me that Ò you mistakenly gave her the wrong

address. ÓÑ The letter did not describe the timing and setting of

Ms. Vilardi Ó s Ð visit Ñ with Respondent (i.e., a rushed meeting in

the five minutes before class began), and inste ad, suggested a

leisurely meeting of some length: Ð You stated that you

eventually sent the Health Service Employee to the front office

as they would provide the needed student information. Ñ The

letter did not mention that Respondent provided student name s and

directed Ms. Vilardi to the administrative office to follow up

with the students known to have come in contact with the bat

(which was not yet known to be rabid). Instead, the letter gave

the contrary impression: Ð [Y]ou admitted that you did not

co mmunicate with administration the conversation with the Health

Service Employee or the fact that the Health Service Employee had

concerns that a rabid bat was exposed to students. Ñ The

inaccurate facts and misplaced tone of this letter lend credence

to Re spondent Ó s testimony that at the OPS meeting, Ms. Walker was

belligerent, badgered Respondent until she broke out in tears,

and told Respondent that she lied.

9 / In its PRO, Petitioner offered older administrative cases as

Ð agency precedent Ñ that resort ed to the following definition of

ÐimmoralityÑ in Florida Administrative Code Rule 6A - 5.056(2):

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring t he

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual Ó s service in the

community.

Extrapolating from that definition, the term Ð gross immorality Ñ

was described in prior administrative cases as Ð an act of

misconduct that is serious, rather than minor in nature; it is a

flagrant disregard of proper moral standards. Ñ Frank T. Brogan,

as Comm Ó r of Ed. v. Mansfield , Case No. 96 - 0286 (Fla. DOAH Aug.

1, 1996; Fla EPC Oct. 18, 1996). The administrative d ecisions

relied on by Petitioner cannot be fairly characterized as Ð agency

precedent Ñ that survived the 2008 legislative mandate for the

promulgation of rule definitions, particularly in light of the

very recent agency precedent so concluding.

COPIES FURN ISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

Aaron J. Hilligas, Esquire

Florida Education Association

Suite 109

1516 East Hillcrest Street

Orlando, Florida 32803

Gretchen Kelley Brantley, Executive Director

Education Pra ctices Commission

Department of Education

Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

M arian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.