15-000335PL Pam Stewart, As Commissioner Of Education vs. Monroe Shannon Status: Closed Recommended Order on Friday, July 31, 2015.

Summary: Petitioner failed to show Respondent was guilty of gross immorality or acts of moral turpitude, but proved sexual harassment, failure to protect from conditions harmful to mental health, and impaired effectiveness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Petitioner,

vs. Case No. 15 - 0335PL

MONROE SHANNON,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 9, 2015, a duly - noticed hearing was held by video

teleconference at locations in West Palm Beach and Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock and Associates, P.A.

Suite E

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316 - 1924

For Respondent: Dedrick D. Straghn, Esquire

26 Southwest 5th Avenue

Delray Beach, Florida 33444 - 2512

STA TEMENT OF THE ISSUE S

The issues to be determined are whether Respondent, Monroe

Shannon, violated sections 1012.795(1)(d), (g), or (j), Florida

Statutes (2011), 1/ and implementing administrative rules, as

alleged in the Administrative Complaint, and , if so , what are the

appropriate sanction s ?

PRELIMINARY STATEMENT

On or about July 15, 2014, Pam Stewart, as c ommissioner of

Education ( c ommissioner or Petitioner), filed an Administrative

Complaint against Mr. Monroe Shannon (Mr. Shannon or Respondent).

Mr. Sh annon subsequently filed an Election of Rights form on

August 4, 2014, disputing the allegations in the Administrative

Complaint and requesting a hearing. On January 20, 2015, the

case was referred to the Division of Administrative Hearings for

assignment of an Administrative Law Judge .

After two continuances and the filing of an Amended

Administrative Complaint, the hearing was conducted on June 9,

2015. The parties stipulated to certain facts, which were

accepted and have been incorporated into the Find ings of Fact

below. At hearing, Petit i oner presented the testimony of

Ms. Janis Rosencrans, a language arts teacher at Congress Middle

School (Congress); T.S., a student at Congress; Ms. Gina Marie

Dempsey, an eighth - grade teacher at Congress; Ms. M.D., m other of

a former student at Congress; S.D., a former student at Congress;

and Ms. Felicia Banks, a reading teacher at Congress. Petitioner

offered Exhibits P - 1 through P - 3, P - 5, P - 6, and P - 9 through P - 13,

which were admitted into evidence. Exhibit P - 13 was a deposition

of Ms. Michele Regan, formerly an English teacher at Congress,

who was unavailable as a live witness. The testimony of

Ms. Sandra Gero, the c hief of Human Resources in the School

District of Palm Beach County, and Exhibits P - 14 and P - 15 w ere

also offered by Petitioner as rebuttal evidence and were

accepted. Respondent testified on his own behalf and offered the

testimony of Ms. Lena Roundtree Wallace, retired former principal

of Carver Middle School (Carver) . He also offered ten exhibits :

R - 1 through R - 3; R - 5 through R - 8; and R - 10 through R - 12 . A ll his

exhibits were admitted into evidence. At the request of the

parties for additional time, July 24, 2015, was set as the

deadline to file proposed recommended orders.

The two - volume Tran script of the proceeding was filed with

the Division of Administrative Hearings on June 26, 2015.

Petitioner timely filed a proposed recommended order.

Respondent, under the mistaken impression that a filing made

after 5:00 p.m. , would be docketed as rec eived on that same

business day, filed a proposed recommended order at 11:43 p.m. ,

on July 24, 2015. Consistent with Florida Administrative Code

Rule 28 - 106.104(1), it was shown as filed on the following

Monday, July 27, 2015. However, it has been determ ined that

Petitioner suffered no prejudice as a result, and the proposed

recommended orders of both Petitioner and Respondent were

considered in the preparation of this Recommended Order.

FI NDING S OF FACT

1. The c ommissioner is responsible for investigati ng and

prosecuting allegations of misconduct against individuals

holding Florida e ducator c ertificates.

2. Mr. Shannon holds Florida Educator Certificate 734423,

c overing Educational Leadership, School Principal, and Business

Education , which is valid thr ough June 30, 2018.

3. At all times material to this case, Mr. Shannon was

employed as an assistant principal at Congress in the Palm Beach

County School District. He is a 16 - year employee of the School

District.

4. Mr. Shannon was transferred to Congre ss as assistant

principal during the early portion of the 2011 - 2012 school year.

5. Ms. Gina Marie Dempsey was an eighth - grade teacher at

Congress during the 2011 - 2012 school year. She had been

introduced to Mr. Shannon early in the school year and saw h im

frequently in the lunchroom or hall, but other than that , had

little reason to be in contact with him , for he was the assistant

principal for the seventh grade. Ms. Dempsey credibly testified

that Mr. Shannon was a little inappropriate in his comments to

her. He asked her where her friends hung out, whether he could

be her friend on Facebook, and if she wanted to go out with him

for drinks. When he asked her out, she indicated she did not

hang out with administration.

6. On September 15, 2011, ther e was an open house at

Congress. Ms. Dempsey was dressed up, wearing stiletto heels.

As the open house concluded, Ms. Dempsey was walking down the

hall toward her car when she encountered Mr. Shannon. No one

else was in the hall. He told her, " I really like those heels.

I would like to see you only in those heels. " As he made this

statement, Mr. Shannon was rubbing his hand in the general area

of his genitals. He then asked Ms. Dempsey if she needed an

escort to her car. She said no. Mr. Shannon sa id, " It is

getting dark and you need protection. " Ms. Dempsey told him that

she had an Easton bat in her car and that she could take care of

herself. Mr. Shannon said, " All right, all right. " Ms. Dempsey

felt that the heel comment was " off color. " She believed his

statements and actions were inappropriate, especially for a

married administrator to direct to a teacher. Ms. Dempsey

reported the incident to her assistant princip al , Ms. Cheryl Van

Voorhies, saying she did not want Mr. Shannon in her classr oom or

her hallway.

7. Ms. Michele Wertman (now Ms. Regan) graduated from

Florida Atlantic University in 2009. During the 2011 - 2012 school

year, she was 23 years old and had taught for two years. She was

teaching seventh - grade English at Congress. Sh ortly after the

start of the school year, a student in her fourth - period class,

which was always difficult to manage, made an inappropriate

sexual remark toward her. Ms. Wertman went to Mr. Shannon, as

the new assistant principal for the seventh grade, to find out

what should be done. Rather than assist her, Mr. Shannon told

her, " Well, you know you are a sexy teacher, what do you expect? "

or words to that effect. Ms. Wertman immediately reported the

incident to Ms. Janis Rosencrans, the Classroom Teache rs

Association representative, who credibly testified that

Ms. Wertman was visibly upset and in tears when she did so.

Ms. Rosencrans in turn advised the principal, Ms. Harris, about

the incident.

8. This incident made Ms. Wertman upset and uncomfortable ,

particularly since Mr. Shannon had earlier asked if she was on

Facebook, asked if she and her roommate wanted to go out for

drinks, and asked if he could take her out. She had declined and

had never socialized with Mr. Shannon. She did not feel it was

appropriate for an assistant principal to be seeking a personal

relationship with a teacher he supervised.

9. Ms. Wertman continued to have problems with the behavior

of her students in her fourth - period class . She concluded it was

just a bad combination of students, since her other four classes

were wonderful. She approached Mr. Shannon to see if some

students could be switched because the existing classroom dynamic

was not at all conducive to learning. In response, Mr. Shannon

told her that perhaps sh e needed to transfer to a " west school "

and that she was probably " too white " to work at Congress, which

was a predominately black school. Ms. Wertman was shocked and

upset and started crying in Mr. Shannon ' s office. She had gone

to Congress as a student and never felt that she was out of place

because of her race or color. Mr. Shannon then told her that " if

you don ' t do A, B, or C, then, it will cost you your job and you

won ' t be here next year. " Ms. Wertman did not know what

Mr. Shannon meant by this last remark, but became insulted and

angry at the way Mr. Shannon was treating her. She immediately

left and went to see Ms. Rosencrans. After hearing Ms. Wertman ' s

story, Ms. Rosencran s told Ms. Wertman that she should go to the

principal, which she did . Ms. Harris told Ms. Wertman that she

would report the incident.

10. On several occasions, Mr. Shannon would use his key to

enter Ms. Wertman ' s locked classroom unannounced. While

Mr. Shannon, as the assistant principal for seventh grade, had

authority to observe seventh - grade teachers and evaluate them,

Ms. Wertman never received any evaluations from any of these

visits. She stated:

And he would just take his aide key and he ' d

walk in and he ' d stalk around the classroom

and holding his belt buckle an d he kind of

like threw his weight around, like just his

body language.

Ms. Wertman felt intimidated and uncomfortable with these visits.

On one of these occasions, Mr. Shannon told her fourth - period

students:

You know, you guys should really listen to

Ms. Wertman. You have a really, you know,

sexy teacher . . . . You have a fine looking

teacher here.

11. Ms. Wertman felt that she was being sexually harassed

by Mr. Shannon and that Ms. Harris was allowing it to go on. She

thought that if this was how the school system operated, she

could not teach any longer. She quit her job on the last day

before the Christmas break. She did not return to teaching

during the rest of that school year and the year following.

12. S.D., formerly an eighth - grade s tudent at Congress,

also testified about an incident involving Mr. Shannon. She

testified that he told her that he " wished she was old enough, "

that he told her she " couldn ' t handle him , " and that he " grabbed

her [best friend ' s] behind. " That testimony, however, was not

clear and convincing.

13. First, her testimony was a bit unclear as to when and

where the statements were made. She said the statements were

made in a conference room with another assistant principal

present. But at another point in h er testimony , she said that

Mr. Shannon made the comment " walking through the hallway just

saying that he wished I was old enough. "

14. Second, while she alleged that at least one other

student and another assistant principal were present when the

state ments were made, there were no corroborating statements or

testimony from them that they heard the statements or why they

might not have heard them if they were made.

15. Third, there were inconsistencies between her written

statement given on the date of the incident and her later

testimony at hearing. In her written statement , she stated that

Mr. Shannon touched her face , but said nothing about him

inappropriately touching her friend. At hearing , she stated that

he had earlier " grabbed her [best frie nd ' s] behind , " but said

nothing about him touching her face. If Mr. Shannon had " grabbed

the behind " of her friend, it seems remarkable that that incident

would not have been part of her original written statement.

16. Finally, Mr. Shannon testified th at S.D. was being

confrontational and that there was nothing sexual about the

conversation. He testified that S.D. had balled up her fists and

that comments that he " wished she was old enough " and about her

" not being able to handle him " w ere related to h er

aggressiveness. At one point during cross - examination, S.D.

seemed to concede that this might be the case:

Q: Isn ' t it true when he said he wished you

were old enough, again, that was in response

to you coming at him physically and him

wishing you w ere not a minor at the time?

A: Yep.

S.D. ' s testimony, taken as a whole, was simply not precise or

explicit enough to leave a firm conviction as to the truth of

her allegations.

17. On February 2, 2012, T.S., an eighth grader at

Congress, encountere d Mr. Shannon in the hall. Mr. Shannon put

his arm around her and whispered in her ear, " You need a man. "

T.S. testified that Mr. Shannon ' s putting his arm around her did

not make her feel uncomfortable, but that Mr. Shannon ' s

whispering that " you need a man " in her ear did. T.S. testified

that as far as she knew , in the crowded hallway with all of the

students busy making their way to their classes, she was the only

one that witnessed the conversation. At her next class, T.S.

asked her reading teacher, Ms. Banks, if she " could keep a

secret. " When Ms. Banks told her she could, T.S. then replied,

" well, I can just say it because they [the other students] know. "

After T.S . relayed what had happened, Ms. Banks directed T.S. to

write a statement about the incident.

18. In February 2012, Mr. Shannon was investigated for

alleged acts of sexual harassment.

19. In a letter from Ms. Mara Stafford, the d irector of

Recruitment and Retention for the School District of Palm Beach

County, dated February 16, 2012 , Mr. Shannon was advised that he

was to be the assistant principal at Citrus Grove Elementary

School. He did not begin working there, however, because he was

subsequently called and told he would not be reporting to the new

position.

20. On May 16, 20 12, Mr. Shannon received a letter from

Ms. Janis Andrews, chief academic officer of the School District

of Palm Beach County, advising him that he would not be

recommended for reappointment. The letter advised him that he

could apply for vacant positions for which he qualified. His

employment was thereby terminated a couple of weeks later at the

end of his contract period.

21. Mr. Shannon applied for a teaching position with many

schools. There was an opening at Carver , and he was interviewed

by the p ri ncipal there, Ms. Lena Wallace. Mr. Shannon was hired

for the teaching position and was reassigned to Carver .

22. Mr. Shannon was issued a letter of reprimand by the

School District dated August 20, 2012.

23. Mr. Shannon ' s actions and remarks toward Ms. Dempsey

when he encountered her in the hall after the open house

constituted sexual harassment.

24. Mr. Shannon ' s actions directed toward Ms. Wertman, his

comments to her, and comments about her to her students,

constituted sexual harassment and disc riminatory conduct.

25. Mr. Shannon ' s actions directed toward Ms. Wertman and

his comments to and about her, unreasonably interfered with

Ms. Wertman ' s performance of her professional and work

responsibilities.

26. Mr. Shannon ' s conduct toward T.S., a n eighth - grade

female student, constituted sexual harassment and failed to

protect her from conditions harmful to learning or her mental

health. However, there was insufficient evidence that he exposed

her to unnecessary embarrassment or disparagement.

2 7. These inappropriate behaviors of Mr. Shannon seriously

reduced his effectiveness as an employee in the School District.

28. There was no evidence that Mr. Shannon engaged in any

inappropriate behaviors after he was given a teaching position at

Carver beginning with the 2012 - 2013 school year. Ms. Wallace,

aware of allegations against Mr. Shannon, advised him that if

there were any incidents involving him, that she would " fire him

immediately, and it would stick. " Ms. Wallace testified that

Mr. Shanno n was very student - oriented, did everything that was

expected of him, and worked professionally. At the time of the

hearing, Mr. Shannon had been employed as a teacher at Carver for

three school years.

29. There was no evidence that Mr. Shannon ' s teacher

certificate has been subjected to prior discipline.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

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

(2015).

31. Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructional or

administrative personnel holding educator certificates.

§§ 1012.795(1) and 1012.796(6), Fla. Stat.

32. Section 1012.01(3) provides in part:

" Administrative personnel " includes K - 12

personnel who perform management activities

such as developing broad policies for the

school district and executing those policies

through the direction of personnel at all

levels within the district. Admini strative

personnel are generally high - level,

responsible personnel who have been assigned

the responsibilities of systemwide or

schoolwide functions, such as district school

superintendents, assistant superintendents,

deputy superintendents, school princip als,

assistant principals, career center

directors, and others who perform management

activities.

33. Petitioner seeks to take action against Respondent ' s

educator certificate as provided in sections 1012.795 and

1012.796. A proceeding to impose discip line against a

professional license is penal in nature, and Petitioner bears the

burden to prove the allegations in the Administr a tive Complaint

by clear and convincing evidence. Dep ' t of Banking & Fin. v.

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

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

34. Clear and convincing evidence has been said to require:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be p recise 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 alleg ations sought to be

established.

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

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

35. Respondent is substantially affected by Petitioner ' s

intended decision to discipline his Florida ed ucator certificate

and has standing to maintain this proceeding.

COUNT 1

36. Section 1012.795(1)(d) provided that persons who are

" guilty of gross immorality or an act involving moral turpitude

as defined by rule of the State Board of Education " may have

their licenses disciplined by the Education Practices Commission.

37. The Ethics in Education Act, Chapter 2008 - 108, Laws of

Florida , added the phrase " as defined by rule of the State Board

of Education. " It is unclear whether this new language was

inten ded to modify only " an act involving moral turpitude " or if

it instead modifies the entire phrase " gross immorality or an

act involving moral turpitude. " The absence of a comma after

the word " immorality " suggests that it modifies the entire

phrase. In a ny event, when construing penal statutes, any

statutory ambiguity should be resolved in favor of Respondent.

Cilento v. State , 377 So. 2d 663, 668 (Fla. 1979) (where

criminal statute is ambiguous, construction most favorable to

accused should be adopted). Cf. also § 775.021, Fla. Stat.

( " 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. " ). The fi rst portion of section

1012.795(1)(d) is only violated if an educator is guilty of

gross immorality as defined by rule of the State Board of

Education.

38. At the time of the offenses charged, the State Board

of Education had not defined the term " gr oss immorality " by

rule. 2/ No evidence was presented that Respondent ' s behavior met

any such rule definition. No evidence shows that Respondent was

guilty of gross immorality as defined by rule of the State Board

of Education.

39. At the time of the off enses charged, the State Board

of Education had defined the term " moral turpitude, " at least as

it relates to crimes. Florida Administrative Code Rule

6A - 5.056(6) entitled , " Criteria for Suspension and Dismissal "

provided :

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not it s prohibition by

statute fixes the moral turpitude.

40. This is almost identical to the definition of moral

turpitude adopted by the Florida Supreme Court in Florida Bar v.

Davis , 361 So. 2d 159 (Fla. 1978) ( " A crime involves moral

turpitude if it is an act of baseness, vileness, or depravity in

the private and social duties which a man owes to his fellow men

or to society in general. Unless the offense is one which by

its very commission implies a base and depraved nature, the

question of moral turp itude depends not only on the nature of

the offense, but also on the attendant circumstances . . . . " ).

41. Even if it was assumed that a definition of moral

turpitude as a category of crimes was applicable here, none of

the conduct proven, when consideri ng all attendant

circumstances, constituted an act of baseness, vileness, or

depravity.

42. Petitioner failed to prove by clear and convincing

evidence that Respondent violated section 1012.795(1)(d).

COUNT 2

43. Section 1012.795(1)(g) provided that t he Education

Practices Commission may suspend the educator certificate of a

person who , upon investigation, has been found guilty of personal

conduct that seriously reduces that person ' s effectiveness as an

employee of the district school board.

44. While there was no direct testimony regarding

reduction of effectiveness presented at hearing, under some

circumstances, such evidence is not necessary . S eriously

reduced effectiveness may be shown simply from the nature of the

misconduct. See, e.g. , Purvis v . Marion Cnty. Sch. Bd. ,

766 So. 2d 492 (Fla. 5th DCA 2000) (lying under oath and

resisting arrest was misconduct that supported inference that

effectiveness was impaired); Walker v. Highlands Cnty. Sch. Bd. ,

752 So. 2d 127 (Fla. 2d DCA 2000) (commotion in class, including

intoxicated student, showed class was out of control such that

no evidence of impaired effectiveness was necessary, misconduct

" spoke for itself " ). The conduct of Respondent here, sexual and

racial harassment of teachers while in a super visory assistant

principal position, causing one teacher to stop teaching in the

middle of the school year, is of such a nature to justify an

inference that his effectiveness as an employee was necessarily

seriously impaired.

45. Petitioner proved by cle ar and convincing evidence that

Respondent violated s ection 1012.795(1)(g).

COUNT 3

46. Count 3 alleges that Respondent is in violation of

section 1012.795(1)(j), in that he has violated the Principles of

Professional Conduct for the Education Profession. Counts 4

through 8 go on to allege specific violations of these

principles. Count 3 , therefore , does not constitute a distinct

disciplinary violation.

COUNT 4

47. Count 4 alleges that Respondent violated Florida

Administrative Code Rule 6B - 1.006(3)(a), 3/ which at the time of

the alleged offense provided:

Shall make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s mental and/or

physical health and/or safety.

48. Respondent ' s actions of putting his arm around T.S., an

eighth - grade female student , and whispering to her that she

" need [ ed ] a man " was completely inappropriate coming from an

assistant principal. The statement disturbed T.S. and made her

feel uncomfortable. Respondent failed to make reasona ble effort

to protect T.S. ' s mental health.

49. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6B - 1.006(3)(a) .

COUNT 5

50. Count 5 alleges that Respondent violated rule

6B - 1.006(3)(e), providing that an individual shall not

intentionally expose a student to unnecessary embarrassment or

disparagement.

51. While Respondent ' s conduct toward T.S. was clearly

inappropriate, there was no evidence that it was observed by any

other student or staff. T.S. herself did not appear embarrassed

by the incident, because rather than speaking to her teacher

privately, she told what had happened in front of all of the

students in her class and apparently had already told some of

them earlier. There was no other evidence that Respondent

o therwise intentionally exposed T.S. to unnecessary

embarrassment or disparagement.

52. Petitioner failed to prove by clear and convincing

evidence that Respondent violated rule 6B - 1.006 (3)(e).

COUNT 6

53. Count 6 alleges that Respondent violated rule

6B - 1.006(3)(g) , which provided that an individual shall not

harass any student on the basis of sex and shall make reasonable

effort to assure that each student is protected from harassment.

54. Respondent ' s conduct toward T.S. was sexual in nature,

which under the circumstances constituted harassment on the basis

of sex.

55. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6B - 1.006 (3)(g).

COUNT 7

56. Rule 6B - 1.006(3)(h) provided that an individual:

Shall not exploit a r elationship with a student

for personal gain or advantage.

57. The testimony of T.S. that Mr. Shannon put his arm

around her and whispered in her ear, " You need a man , " was

credited. However, this single incident, while clearly

inappropriate, was insuff icient to clearly show that Mr. Shannon

was exploiting his relationship with T.S. for personal gain or

advantage.

58. Petitioner failed to prove by clear and convincing

evidence that Respondent violated rule 6B - 1.006(3)(h).

COUNT 8

59. Rule 6B - 1.006(5 )(d) provided that an individual:

Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual ' s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

60. Respondent ' s sexual and racial comments and actions

toward Ms. Dempsey and Ms. Wertman constituted harassment and

discriminatory conduct. This conduct unreasonably interfered

with Ms. Wertman ' s performance of her professional and work

responsibilities, causing her to resign her position before the

end of t he school year.

61. Petitioner proved by clear and convincing evidence

that Respondent violated rule 6B - 1.006(5)(d) .

PENALTIES

62. The Education Practices Commission adopted disciplinary

guidelines for the imposition of penalties authorized by section

1 012.795 in Florida Administrative Code Rule 6 B - 11.007.

63. Rule 6B - 11.007(2)(f) provided that probation to

revocation was the appropriate range of penalty for " engaging in

personal conduct which seriously reduces effectiveness as a

district school board employee " in violation of s ection

1012.795(1)(g). 4/

64. Rule 6B - 11.007(2)(i)16. provided that probation to

revocation was the appropriate range of penalty for " [f]ailure

to protect or supervise students in violation of paragraph

6B - 1.006(3)(a), F.A.C. "

6 5. Rule 6B - 11.007(2)(i)10. provided that reprimand to

revocation was the appropriate range of penalty for harassment

of a student on the basis of sex in violation of paragraph

6B - 1.006(3)(g).

66. Rule 6B - 11.007(2)(i)11. provided that reprimand to

revocat ion was the appropriate range of penalty for

" [h]arassment or discrimination which interferes with an

individual ' s performance or work in violation of paragraph

6B - 1.006(5)(d), F.A.C. "

67. Rule 6B - 11.007(2) further provide d that the guideline

penalties sh all be interpreted to include " probation, " " fine, "

and " administrative fees and/or costs , " with applicable terms ,

as additional penalty provisions. The rule provide d that

" revocation " shall mean any length of revocation and shall

include a comparable peri od of denial of an application for an

educator certificate.

68. Rule 6B - 11.007(3) provided:

(3) Based upon consideration of aggravating

and mitigating factors present in an

individual case, the Commission may

deviate from the penalties recommended

in sub section (2). The Commission may

consider the following as aggravating or

mitigating factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e ) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) T he deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator ' s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and

pen alties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring

to the educator;

(r) Degree of physical and mental h arm to a

student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

69. No aggravating or mitigating circumstances are present

here to the extent necessary to warrant deviation from the wide

range of penalties already permitted within the guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMM ENDED that the Education Practices Commission enter

a final order finding Respondent, Monroe Shannon, in violation

of sections 1012.795(1)(g) and (j) and implementing rules

6B - 1.006(3)(a), 6B - 1.006(3)(g), and 6B - 1.006(5)(d).

It is further RECOMMENDED tha t the Education Practices

Commission impose upon Mr. Shannon a fine of $500.00 for each

offense, for a total fine of $2 , 000.00, and revoke his educator

certificate for a period of two years.

It is further RECOMMENDED that educational employment upon

rece rtification be subject to three years of probation as

provided by section 1012.796(7)(d) with conditions determined by

the Education Practices Commission to be reasonably necessary to

ensure that there will be no threat to students and that he will

be capa ble of resuming the responsibilities of an educator .

DONE AND ENTERED this 31st day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The De Soto 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 31st day of July , 2015 .

ENDNOTE S

1/ All references to Florida Statutes or administrative rules

are to the versions in effect during the 2011 - 2012 school year ,

except as otherwise indicated.

2/ Florida Administrative Code Rule 6A - 10.083 became effective

on May 27, 2015, establishing standards relating to gross

immorality and acts of moral turpitude for purposes of section

1012.795(1)(d).

3/ During the 2011 - 2012 school year, Florida Administrative Code

Rule 6A - 10.081(3)(a) did not yet exist. Rule 6B - 1.006(3)(a),

the substantively identical rule at that time, was not

renumbered until January 11, 2013. The other counts in the

Administrative Complaint were similarly misdrafted. More

attention by Petitioner would save the undersigned considerable

time ; however, the facts alleged and the text of the rule

al legedly violated were clear for each count, and Respondent was

not misled or harmed by these defects in pleading.

4/ Section 1012.795 was renumbered by chapter 2008 - 108,

section 32, Laws of Florida. Although the rule was subsequently

amended in 2009, it continues to reference the old numbering of

the paragraphs in the statute. While the references in the rule

should be updated, the nature of the offenses is set out in full

in the rule, and Respondent is not prejudiced by the

mislabeling.

COPIES FURN ISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Education Practices Com mission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Charles T. Whitelock, Esquire

Whitelock and Associates, P.A.

Suite E

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316 - 1924

(eServed)

Dedrick D. Straghn, Esquire

26 Southwe st 5th Avenue

Delray Beach, Florida 33444 - 2512

(eServed)

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 sho uld be filed with the agency that

will issue the Final Order in this case.