15-001580PL Pam Stewart, As Commissioner Of Education vs. Tracey Newton Status: Closed Recommended Order on Wednesday, November 25, 2015.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent's conduct violated the rules charged in the Administrative Complaint. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 1580PL

TRACEY NEWTON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law J udge Lisa Shearer Nelson of the Florida

Division of Administrative Hearings conducted a disputed - fact

hearing in this case on June 3 and August 26, 2015, in Ocala,

Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Dou glasville, Georgia 30154 - 0012

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE S

The issues to be determined are whether Resp ondent violated

section 1012.795(1)( j) , Florida Statutes (2013), and Florida

Administrative Code Rule 6A - 10.081(3)(a) and (3)(e) with respect

to her treatment of an autistic child in her classroom. If so,

then the appropriate penalty for her conduct must be determined.

PRELIMINARY STATEMENT

On October 14, 2014, Petitioner, Pam Stewart as Commissioner

of Education (Petitioner), filed an Administrative Complaint

against Respondent, Tracey Newton, alleging that she violated

section 1012.795(1)(j) and r ule 6A - 10.081(3)(a) and (3)(e) with

respect to her treatment of an autistic child in her classroom.

Respondent disputed the allegations in the Administrative

Complaint on October 31, 2014, and on March 20, 2015, the case

was referred to the Division of Administr ative Hearings

(Division) for assignment of an administrative law judge.

On April 1, 2015, a Notice of Hearing was issued scheduling

the hearing for June 3, 2015. On May 22, 2015, a Joint Pre -

Hearing Stipulation was filed in which the parties stipulated t o

RespondentÓs licensure and employment status at the time of the

allegations in the Administrative Complaint. While the hearing

began as scheduled on June 3, 2015, it was soon apparent that

more time was required to complete the presentation of evidence .

An additional day was noticed for August 26, 2015, and proceeded

as scheduled.

At hearing, Petitioner presented the testimony of Adrienne

Ellers, lead behavioral analyst for the Marion County School

District (the District) ; Laura Burgess, principal of Ma plewood

Elementary School (Maplewood) ; Claire Smith, an assistant

principal at Maplewood; Doris Tucker, dean of students at

Maplewood; Brian Greene, another assistant principal at

Maplewood; and Rose Cohen, director of equity assurance for the

District. P etitionerÓs Exhibits 1 through 9 were admitted into

evidence. 1/ Respondent testified on her own behalf and presented

the testimony of Susanne Quigle y, the teacher assistant in

Ms. NewtonÓ s classroom; Christine Spicoche and Barbara OÓBrien,

parents of form er students; and Bobby James, a member of the

Marion County School Board . RespondentÓs Exhibits 1 and 2 were

admitted into evidence.

The three - volume T ranscript of the proceedings was filed

with the Division on June 22 and September 18, 2015. At the

requ est of the parties, the time for filing post - hearing

submissions was extended to October 15, 2015. Both parties

timely filed Proposed Recommended Orders that have been carefully

considered in the preparation of this Recommended Order. All

references to t he Florida Statutes are to the 2015 codification

unless otherwise specified.

FINDING S OF FACT

1. Respondent is a teacher in the State of Florida. She

holds Florida EducatorÓs Certificate 952211, covering the areas

of elementary education, English for spe akers of other languages

(ESOL), and exceptional student education. RespondentÓs

certificate is valid through June 2016.

2. At all times relevant to the allegations in the

Administrative Complaint, Respondent was employed as an autism

spectrum disorder ( ASD) teacher at Maplewood.

3. Ms. Newton has been involved in teaching in Marion

County since 1999. She started as a teaching assistant, then

substitute taught while putting herself through school, then

obtained her bachelorÓs degree in varying exception alities and

began teaching full time. She also received her masterÓs degree

in 2007 in the area of interdisciplinary studies in curriculum

and instruction.

4. With the exception of an internship at Oak Crest

Elementary, all of Ms. NewtonÓs teaching exp erience was at

Maplewood. Her performance evaluations from the 2004 - 2005 school

year through the 2012 - 2013 school year all contain at least

satisfactory ratings, with the majority of the recent evaluations

rating her as highly effective or outstanding, de pending on the

evaluation tool used. The majority of her evaluations reference

her excellent classroom management skills.

5. At the beginning of the 2013 - 2014 school year, Maplewood

received an entirely new administrative team. Laura Burgess was

the new principal, Claire Sm ith and Brian Greene were newly -

appointed assistant principals, and Doris Tucker was the new

dean. The new administration started at Maplewood in July,

approximately a month before the beginning of the school year.

6. Ms. Newton had been teaching and continued to teach

autistic students. At the beginning of the school year, she was

assigned six students in her self - contained classroom, and had

the assistance of one teacherÓs aide, Susanne Quigley.

7. Ms. Newton believed strongly in the value of a

structured, disciplined classroom, especially when dealing with

autistic students. She believed that establishing the rules and

routine for the classroom created an environment where any child

could be taught, but that without structure and adherence to

routine, chaos would result and impair the learning process.

8. Her classroom management skills were well known and in

past years, well respected. Both Ms. Newton and Ms. Quigley

testified about the assistance she was asked to give to other

teachers and students with respect to class management and

discipline. Their testimony is credited.

9. After the start of the school year but before

September 3, 2013, Laura Burgess, MaplewoodÓs principal, was

notified by the Social Services Education T eam (SET team) for the

District that Maplewood would be receiving a new student, B.L.,

who had moved to the area from North Carolina. She also received

an Individualized Education P rogram (IEP) for B.L., which listed

his disability as autism spectrum diso rder. B.L.Ós IEP also

indicated that he had problematic behaviors that could impede his

learning, including oppositional defiance disorder, tantrums,

attention deficit disorder, and extreme violence. The

documentation provided to her did not include a be havi oral

intervention plan, and Ms. Burgess was concerned that B.L.Ós

placement at Maplewood did not match the needs identified in the

IEP. However, she determined that Ms. NewtonÓs class would be

the best placement for B.L., because Ms. Newton had a repu tation

for having a structured and disciplined classroom, and perhaps

B.L. would benefit from that kind of structure.

10. Ms. Burgess saw Ms. Newton that morning and told her

that she would be receiving a new student. Ms. Burgess described

the issues wit h the child, and said that if he ended up in

Ms. NewtonÓs class, she should document his behaviors in case he

needed to be moved to a therapeutic unit for behaviors (TUB

unit).

11. Ms. Newton understood from the conversation that

Ms. Burgess believed B.L. should be in a TUB unit, which did not

exist at Maplewood. However, later in the day Ms. Newton and her

aide, Susanne Quigley, were supervising her students on the

playground when she was approached by Claire Smith, one of the

new assistant principals. Ms. Smith informed her that B.L. would

indeed be placed in her class and gave her a copy of his IEP ,

with certain portions related to his behavior highlighted.

Ms. Newton expressed surprise at the placement, thinking that he

would be going to the TUB unit . Ms. Smith had met with B.L. and

his mother earlier in the day and felt that he could benefit from

Ms. NewtonÓs structured classroom. She also talked to Ms. Newton

about documenting his behaviors should a change be necessary.

12. Ms. Newton was concern ed about the addition to her

classroom because she already had six autistic students and, with

respect to B.L.Ós identified behaviors, ÐweÓve never had a child

like that at Maplewood.Ñ Nonetheless, B.L. was placed in her

classroom on September 3, 2013.

13 . Consistent with her usual practice, Ms. Newton began to

teach B.L. the rules of her classroom. For the first two days,

there were no major problems. There were instances where B.L.

did not want to comply with the directions she gave him or follow

the rules of the classroom, but with some coaxing, she was able

to get him to comply. Ms. Newton did not see the need to call

the front office for assistance on either of the first two days

B.L. was in her classroom, but then, Ms. Newton had never called

the front office for assistance with any child .

14. At the end of the first day, she had the opportunity to

speak with B.L.Ós mother briefly when she picked him up from

school. After Ms. Newton introduced herself, B.L.Ós mother

basically confirmed the conten ts of the IEP. According to what

B.L.Ós mot her told Ms. Newton , B.L. had lived previously with his

father and there had been issues both at school and at home with

disruptive and violent behavior. Ms. Newton told her they were

going to Ðwipe the slate cl eanÑ and asked if there was anything

that B.L.Ós mother wanted Ms. Newton to work on, and she

identified B.L.Ós behaviors a s an area for improvement.

Ms. Newton told B.L.Ós mother that Maplewood was a great school,

and Ð that would happen. Ñ

15. B.L.Ós thi rd day at Maplewood did not go well. At the

very beginning of the day, B.L. would not follow directions to

stand with the rest of his classmates at their designated spot

after getting off the bus. Instead, he plopped down in the

middle of the walkway , in the midst o f the area where children

we re trying to walk to their classes. He had to be coaxed all

along the way to get to class, and once there, refused to unpack

and sit down. He refused to follow any direction the first time

it was given, instead res ponding with shuffling feet, shrugging

shoulders, talking back, calling names, and wanting to lay his

head down on his desk instead of participate in class.

16. When it was time for the students in the class to go to

art, Ms. Quigley normally took them while Ms. Newton attended to

other responsibilities. According to Ms. Quigley, B.L. did not

want to go to art class, and had to be coaxed to walk with the

others to the art room. Once he got there, he did not follow

directions, did not want to participat e, and did not want to move

from the back of the room.

1 7 . Normally, Ms. Quigley might have let him stand and

watch if he remained quiet, but he was not being quiet: he was

touching things and grumbling and getting angry. Ms. Quigley

knew from prior e xperience that students with autism tend to

mimic the bad behavior exhibited by others, and one childÓs

actions could cause a chain reaction of bad behaviors. She felt

that if she did not remove him from the art room, the other

children would also start t o misbehave, and she did not want them

to follow B.L.Ós example.

1 8 . Ms. Quigley took B.L. out of the art classroom and went

back to the classroom in search of Ms. Newton. Ms. Newton was

not in the classroom, as she was attending to other

responsibilitie s. Ms. Quigley then took B.L. to the office, but

again, found no one there to assist her. B.L. was not happy

during any of these travels, and again had to be coaxed all along

the way. Once she got back to the art class, Ms. Quigley had

B.L. stand in the back of the classroom. She was trying to watch

him and also attend to the other students, but one of the other

student s knocked everything off the art table, so Ms. Quigley

added clean - up to her respon sibilities. At that point,

Ms. Newton came into the art room. Ms. Newton too k both B.L. and

the other misbehaving child back to the classroom while

Ms. Quigley stayed with the remaining students for the rest of

the art period.

1 9 . What remained of the afternoon became a battle of wills

between Ms. Newton and B.L.: Ms. Newton was trying to establish

the ground rules for behavior in her classroom with B.L., and

B.L. was determined not to follow those rules. The result was

Ms. Newton spending the bulk of the afternoon with B.L. and

Ms. Quigley attending to the needs of the other students in the

class. For at least part of this time, Ms. Newton placed B.L. in

time - out, with directions that he was to stand still with his

hands to his sides. For Ms. Newton, the purpose of time - out is

for a student to gather h is or her thoughts, to get himself or

herself together, and to remind the student of the rules of the

classroom . She wants a student to have time to think about his

or her actions, and wants to discuss with the student the nature

o f the problem presented by his or her behavior and how the

problem should be resolved. If a child stops behaving, time - out

may begin again. Ms. Newton put B.L. in time - out because he was

not following her directions to him. She talked to B.L. about

the rules of the classroom a nd where they are posted in the room,

and told him what he needed to do.

20. B.L. is very verbal and able to talk about his issues .

Ms. Qui gley described him as very high - functioning and not on the

same level as other children in the classroom. Instea d of

responding appropriately, B.L. was calling names, talking out,

and using curse words ; flailing his arms and legs, wrapping

himself in his sweatshirt so that his arms were in the body of

the sweatshirt as opposed to in the armholes, and covering his

fa ce so that he could not see obstacle s in his environment;

wandering around instead of staying still; kicking things in the

classroom, including a box and a door; throwing objects on the

floor, rolling around on the floor and spitting; and generally

resisti ng any instruction.

21. During the course of the afternoon, Ms. Newton

attempted to show B.L. what she wanted from him . For example,

she demonstrated how she wanted him to stand in time - out by

holding his arms in the area close to his wrists to demonstra te

standing still with his hands down. B.L. repeatedly resisted

this direction and tried to break away from Ms. Newton.

22. B.L. was not only resisting her, but at times appeared

to be butting his head against her and kicking her . He was at

other times rubbing his hands against his face. Ms. Newton told

B.L. he needed to stop rubbing his hands over his face, or she

would remove his glasses so that he did not hurt himself with

them. When B.L. continued h is resistant behaviors, she removed

his glasses an d eventually put them in his backpack. B.L.

continued to lightly slap his face with both hands. Ms. Newton

did not physically intervene , but testified that she gave B.L.

consistent verbal direction to stop hitting himself. Although he

clearly continued to slap his face for some time, Ms. Newton

testified that the movement was more like a pat than a slap, and

she did not believe that he was hurting himself. Her testimony

is credible, and is accepted.

23. Ms. Newton also told B.L. to quit flailing his ar ms and

putting his jacket over his head. She was concerned that he

could hurt himself given that he was standing (not still, as

directed) near the corner of a table. Ms. Newton told him if he

did not stop she would take his jacket from him. He did not a nd

she removed his jacket and placed it on a table in the classroom .

She did no t give B.L. the jacket back when he wanted it , because

she wanted B.L. to understand that there are consequences to not

following directions.

24. With approximately 30 minutes left to the school day,

Ms. Newton asked Ms. Quigley to call the front office for

assistance. Ms. Tucker, the dean at Maplewood, came to her

classroom . B efore Ms. TuckerÓs arrival, Ms. Newton was trying to

get B.L. to stand in the back of the room. He was not following

directions and had gone over to sit in a chair near the center of

the room. The chair was near a free - standing easel with teaching

implements attached to it, and it is reasonable to assume, given

B.L.Ós behavior, that Ms. Newton did not want him near the easel

because of the potential for harm. Each time he went to the

seat, Ms. Newton directed him away from it.

25. When Ms. Tucker arrived, he once again sat in the chair

he had been directed not to use. Ms. Newton removed him from th e

chair and told him again he was not to sit in it. B.L.

immediately went to another chair in the same vicinity and sat

down. Ms. Newton, took him by the arm and away from the chair,

and took him out of the room. From Dean TuckerÓs perspective,

B.L. was just trying to sit in a chair. From Ms. NewtonÓs

perspective, this was just one more instance in a litany of

instances where B.L. was refusing to follow her directions.

26. Dean Tucker was outside the room with B.L. when the

door closed. B.L. starting kicking and beating on the door ,

screaming that he wanted in, and opened the door . Ms. Newton

placed her arm on his chest and pushed against him to keep him

from entering the room, and asked Ms. Tucker to lock the door

from the outside, which she did. B. L. continued to kick and beat

at the door, and Dean Tucker called assistant principal Greene to

assist her.

27. When Mr. Greene arrived, B.L. was still kicking at the

door. He kept saying that he wanted in the classroom but would

not say why. Eventually Mr. Greene was able to calm B.L. enough

to find out that he wanted his backpack. Because it was close to

the end of the day, Mr. Greene took B.L. to the office but

instructed Ms. Tucker to retrieve his backpack from Ms. NewtonÓs

classroom.

28. Ms. Tuc ker returned to Ms. NewtonÓs classroom to

retrieve the backpack. Ms. Newton expressed frustration at the

decision to return the backpack to B.L., saying that meant Ðhe

won.Ñ From Ms. TuckerÓs and Mr. GreeneÓs perspectives, returning

the backpack to him m ade sense, in part because they were not

aware of the exchange related to the backpack earlier, and in

part because it was close to the end of the day and B.L. would

not be returning to the classroom that day. From Ms. NewtonÓs

perspective, the backpack h ad been taken from B.L. because she

had told him she would take it if he did not comply with her

directives, and he did not do so. She felt that returning the

backpack to him at that point was ensuring that B.L. had no

consequences for his bad behavior.

2 9. After completing their e nd - of - day responsibilities,

Mr. Greene and Ms. Tucker returned to the classr oom to speak to

Ms. Newton about B.L. Ms. Newton told them that he had been out

of control all day, kicking boxes, pushing chairs, and a danger

to hims elf and others . She stated that it was only B.L.Ós third

day in the classroom and it would take some time to live up to

expectations, but that he knew the rules and knew how to follow

them. Mr. Greene felt that Ms. Newton was clearly upset with

both him and Ms. Tucker with respect to how B.L. was handled .

Ms. Newton asked whether B.L.Ós parent had been called, and felt

that his parent should have been contacted as part of addressing

B.L.Ós behavior.

30. After speaking to Ms. Newton, Mr. Greene and Ms. T ucker

pulled the videotape for the afternoon in Ms. NewtonÓs classroom.

After scanning through the tape, Mr. Greene went to Ms. Burgess

and asked her to view it because the tapeÓs contents concerned

him . Once she did so, Ms. Burgess called Lisa Krysalka, the head

of human resources for the D istrict, and after discussion with

her, called both the Department of Children and Families and the

local sheriffÓs office. She also spoke to Ms. Newton and told

her she was to report to the District office the follow ing day,

and called B.L.Ós parent.

31. Rose Cohen investigated the matter for the District,

which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton,

Suzanne Quigley, and a Ms. Ballencourt, and watching the video.

Adrienne Ellers, the lead behavi or analyst for the District, was

asked to watch the video and to identify any deviations from the

TEACH program for student management accepted by the District.

Ms. Cohen recommended to the superintendent that Ms. NewtonÓs

employment be terminated, and th e superintendent presented that

recommendation to the School Board. Ms. Newton appealed the

recommendation and a hearing was held before the School Board,

which included a viewing of the video of her classroom. The

School Board rejected the superintenden tÓs recommendation for

termination by a 3 - 2 vote. However, Ms. Newton did not return to

Maplewood.

32. No evidence was presented to indicate that the

Department of Childr en and Families determined that there was any

basis for a finding of child abuse or neglect. Likewise, no

evidence was presented indicating that law enforcement took any

action against Ms. Newton. There was also no evidence to

indicate that B.L. was harmed.

33. The focus of much of the evidence in this ca se dealt

with the video from Ms . NewtonÓs classroom. The video,

PetitionerÓs Exhibit 1, is approximately two hours long. It is

from a fixed position in the classroom and i t shows some, but not

all, of Ms. NewtonÓs classroom. It has no sound. There are

parts of the video where, due t o lighting deficiencies and

similar skin color tones, it is difficult to tell exact ly what is

transpiring. There are also times when either Ms. Newton or

B.L., or both, are not fully within the view of the camera , and

sometimes they are not visible at all .

34. With those parameters in mind, the video does show some

of the interaction between Ms. Newton and B.L. What is clear

from the video is that Ms. Newton spends a great deal of time

talking to B.L. , and that she remains calm throughout the day.

B.L. does appear to comply with direction for short periods in

the video, but never for very long. The video show s Ms. Newton

holdi ng B.L. by the arms; pulling him up both by the torso and by

his arms; removing (but not ÐsnatchingÑ ) his eyeglasses; removing

hi s jacket with some resistance from him ; blocking his access to

his jacket ; and kicking his backpack away from his reach. It

also shows B.L. kicking items in the room, including a large box

near where he is standing; rolling around on the floor; flailing

h is arms and legs around when he is clearly being directed to be

still; and generally resisting any attempt at correction. The

video also shows that during the time Ms. Newton is focused on

B.L., the other students are engaged in learning, and Ms. Quigley

is able to work with them without assistance.

35. The Administrative Complaint alleges that ÐRespondent

and B.L. engaged in a tussle which resulted in B.L. falling to

the ground.Ñ A more accurate description would be that B.L.

resisted Ms. NewtonÓs att empts to show him how she wanted him to

stand, and in his struggling, he went to the ground. It appeared

to the undersigned that Ms. Newton was attempting to prevent his

going down, but was unable to do so safely.

36. The Administrative Complaint also al leges that

Respondent Ðgrabbed B.L. by the back of the neck and gripped

B.L.Ós neck for approximately 10 seconds.Ñ A more accurate

description would be that Respondent placed her hand at the back

of B.L.Ós neck and guided him with her hand at the base of his

neck for approximately 10 seconds. She did not grab him by the

neck or hold him that way; it appeared that she was protecting

him from falling backwards, as he pulled away from her.

37. Respondent did not, as alleged in the Administrative

Complaint, drag B.L. across the floor. She did attempt to get

B.L. to stand one of the many times that he flopped on the floor,

and he resisted her attempt. In that process , the two of them

did move across the floor a short distance, which appeared to be

due to B.L .Ós pulling away from her, but she was not dragging him

across the floor.

38. All of Ms. NewtonÓs actions were taken in an effort to

either instill the rules of the classroom in order to create for

B.L. an atmosphere for learning, or to prevent harm to ei ther

herself, B.L., or property in the classroom.

39. Ms. Quigley, who was present in the classroom during

most of the interchange depicted on the video, was more focused

on the other students in the class than she was on B.L. She has

seen a portion of t he video since the incident. Ms. Quigley

recalls hearing parts of the co nversation between B.L. and

Ms. Newton, and testified that Ms. Newton never lost control with

B.L., and understood from what she heard that Ms. Newton was

trying to get B.L. to fo llow the rules. Nothing Ms. Quigley saw

or heard caused her any concern.

40. Barbara OÓBrien and Christine Spicoche are both parents

of former students who testified on Ms. NewtonÓs behalf. Both

acknowledged that they had not s een the interaction between

Ms. Newton and B.L., 2/ but both have been in her classroom on

numerous occasions during the years that their children spent

with Ms. Newton: Ms. OÓBrienÓs son was in Ms. NewtonÓs class for

six years, while Ms. SpicocheÓs son was there for three years.

Bo th expressed a great deal of gratitude for the positive e ffect

Ms. Newton and her teaching methods have had on their sonsÓ

lives. With respect to both children, the mothers testified that

their sons went from children who were out - of - control to children

w ho were able to function appropriately both in the classroom and

in other places. As stated by Ms. Spicoche, ÐIt would be best

for him to be at a strong hand of a loving teacher who cares, who

wants the best for him than being at the fist of the legal sys tem

later.Ñ

41. At all times, Ms. NewtonÓs focus was to establish the

rules of the classroom so that B.L., like the other students in

her classroom, would be able to learn. B.L. was different from

the other students in her classroom, and she admitted h e was a

challenge. However, Ms. NewtonÓs actions in this case are

consistent with her general philosophy for teaching: to be firm,

fair, and consistent at all time s . Ms. Newton believes that if

you do n o t follow these principles, you have chaos in the

c lassroom, and where there is chaos, no one is learning. With a

disciplined, structured environment, Ms. Newton believes every

child can learn , and the atmosphere observed in her classroom is

consistent with her philosophy.

42. Ms. Burgess chose Ms. Newto nÓs classroom for B.L.

precisely because of her reputation as ha ving a disciplined

structured classroom. However, in her view, Ms. Newton should

have just given B .L. his backpack when he wanted it; should have

given him his glasses; should have let him ju st walk around the

room when he wanted to; and should have just let him kick the

door, rather than ever putting a hand on him. Ms. Burgess did

not explain (nor was she asked) how many children in the

classroom should be allowed to do what B.L. was doing, and

whether learning could still take place should each of the

children be allowed to wander, kick, and be disruptive.

CONCLUSIONS OF LAW

43 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action i n accordance with sections 120.569 and 120.57(1) , Florida

Statutes (2015) .

44 . The Florida Education Practices Commission is the state

agency charged with the certification and regulation of Florida

educators pursuant to chapter 1012, Florida Statutes.

45 . This is a proceeding in which Petitioner seeks to

suspend RespondentÓs educator certification. Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the

Administrative Complaint by cle ar and convincing evidence. DepÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

46 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but le ss than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida

Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to whi ch the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, w ithout hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 ( Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1st DCA 1991). Moreover, the allegations ag ainst Respondent

must be measured against the law in effect at the time of the

commission of the acts alleged to warrant discipline. McCloskey

v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5 th DCA 2013).

47 . Section 1012.796 describes the disciplinary p rocess for

educators, and provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint

and prosecute the complaint pursuant to the

provisions of chapter 120. An

administrative law judge shall be assigned

by the Division of Administrative Hearings

of the Dep artment of Management Services to

hear the complaint if there are disputed

issues of material fact. The administrative

law judge shall make recommendations in

accordance with the provisions of subsection

(7) to the appropriate Education Practices

Commissi on panel which shall conduct a

formal review of such recommendations and

other pertinent information and issue a

final order. The commission shall consult

with its legal counsel prior to issuance of

a final order.

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a tea ching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicantÓs

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission m ay specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educat or placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educatorÓs certificate.

2. Have his or her immediate supervisor

sub mit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certifica tion file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal , which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

48 . Charges in a disciplinary proceeding must be strictly

construed, with any ambiguity construed in favor of the licensee.

Elmariah v. DepÓt of ProfÓl Reg. , 574 So. 2d 164, 165 (Fla. 1 st

DCA 1990); Taylor v. DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784

(Fla. 1 st DCA 1988). Disciplinary statutes must be construed in

terms of the ir literal meaning, and words used by the Legislature

may not be expanded to broaden their application. Beckett v.

DepÓt of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1 st DCA 2008);

Dyer v. DepÓt of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1 st

DCA 1991). Finally, a licensee may only be disciplined for those

matters specifically alleged in the Administrative Complaint.

Trevisani v. Dep Ó t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005);

Ghani v. Dep Ó t of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); and

Will ner v. Dep Ó t of Prof Ól Reg. , 563 So. 2d 805 (Fla. 1st DCA

1990).

49 . The Administrative Complaint in this case is based upon

the following factual allegations:

3. On or about September 5, 2013,

Respondent engaged in the following

inappropriate conduct with 10 - year - old

student, B.L., who is diagnosed with autism

spectrum disorder:

a) Respondent left B.L. in timeout

unsupervised for an extended period of time;

b) Respondent grabbed B.L. by both wrists

and gripped his wrists intermittently for

approxim ately six minutes. Respondent and

B.L. then engaged in a tussle which resulted

in B.L. falling to the ground;

c) Respondent snatched a pair of glasses

off of B.L.Ós face and then continued to

grab B.L.Ós wrists;

d) Respondent pulled B.L. off of the floo r

on several occasions. On some occasions,

Respondent pulled B.L. off the floor by

grabbing B.L.Ós wrists;

e) Respondent sat at a studentÓs desk and

watched B.L. rub his eyes and slap himself

in the face numerous times. Respondent

provided no physical i ntervention during

these episodes;

f) Respondent removed B.L.Ó s jacket without

his permission;

g) Respondent grabbed B.L. by the neck and

gripped B.L.Ós neck for approximately 10

seconds;

h) Respondent dragged B.L. across the

floor;

i) Respondent dro pped B.L.Ós backpack on

the floor and twice kicked it while B.L.

watched. Respondent then kicked the

backpack harder, causing the back[pack] to

go airborne; and

j) as B.L. tried to take possession of his

backpack, Respondent kept the backpack

be y ond B.L. Ós reach.

4. There was no excuse or justification for

RespondentÓs conduct as described herein.

50 . Based upon these factual allegations, Petitioner

charged Respondent with failing to make reasonable effort to

protect a student from conditions harmf ul to learning and/or to

the studentÓs mental health, in violation of rule 6A -

10.081(3)(a), and intentionally exposing a student to unnecessary

embarrassment or disparagement, in violation of rule 6A -

10.081(3)(e). Should Respondent be found guilty of eith er of

these rule provisions, she would also be guilty of violating

section 1012.795(1)(j), by violating the Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules.

51 . Respondent cannot be found guilt y of violations for

which she was not charged. Here, she is not charged with

violating TEACH protocols adopted by the District; with use of

unreasonable force; or inappropriate use of restraint (which does

not appear to be defined in any rule or statute) ; or failure to

document the use of restraint.

52 . Count 2 asserts that RespondentÓs actions demonstrate

that she has failed to protect a student from conditions harmful

to learning and/or to the studentÓs mental health and/or physical

health and/or safe ty. The evidence shows, however, a teacher

trying to get a student to learn to operate within the rules

established for the classroom, so as to create an environment

where he can learn. There are times that Ms. Newton placed her

hands on B.L. and times w here he resisted her. There was no

evidence that B.L. was injured or harmed. T he more consistent,

credible evidence, tak en as a whole, does not provide clear and

convincing evidence that Respondent violated rule 6A -

10.081(3)(a).

53. Count 3 asserts tha t Respondent intentionally exposed a

student to unnecessary embarrassment or disparagement, in

violation of rule 6A - 10.081(3)(e). This count is also not

supported by clear and convi ncing evidence. Neither B.L. nor his

parent testified in these proceedings. There is no evidence that

he was embarrassed at all. Moreover, when other children were in

the room, they were involved in their own learning activities.

When they looked at B. L., it appeared that they were watching his

misbehavior, as opposed to watching Ms. Newton. The evidence

taken as a whole simply does not support the violation charged in

Count 3.

54. Given the conclusions reached with respect to Counts 2

and 3, Count 1 is also not supported by clear and convincing

evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Education Practices

Commission enter a Final Order dismissing the Administrative

Com plaint.

DONE AND ENTERED this 25th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 25th day of November , 2015 .

ENDNOTE S

1/ PetitionerÓs Exhibit 1 is the video tape fro m Ms. NewtonÓs

classroom the day of the incident giving rise to these

proceedings.

2/ Clearly, neither parent could speak to the allegations in the

Administrative Complaint and their testimony is not relied upon

for the purpose of determining whether R espondent committed the

allegations in the Administrative Complaint. Their testimony is

included to demonstrate Ms. NewtonÓs reputation in the community

with respect to teaching.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Prac tices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Mari an 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)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the rig ht to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.