16-005124PL Pam Stewart, As Commissioner Of Education vs. Emily Randall Status: Closed Recommended Order on Tuesday, March 28, 2017.

Summary: Petitioner proved that Respondent failed to call in an absence and then lied repeatedly about it, and came to a pretermination meeting under the influence of alcohol. Recommend suspension and additional penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 5124PL

EMILY RANDALL,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 7, 2017, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings (Division)

conducted a disputed - fact hearing pursuant to section 120.57(1),

Florida Statutes (2016) , in Viera, Florida.

APPEARANCES

For Petitioner: Ron Weaver, E squire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Scarlett G. Davidson, Esquire

Culmer & Davidson, P.A.

840 Brevard Avenue

Rockledge, Florida 32955

STATEMENT OF THE ISSUE

The issue to be determined is whet her Respondent, Emily

Randall, is guilty of violating section 1012.795(1)(f), (g),

and (j), Florida Statutes ( 2014), and Florida Administrative Code

Rule 6A - 10.081(5)(a ), as alleged in the Administrative Complaint ;

and , if so, what penalty should be impose d for the violations

proven.

PRELIMINARY STATEMENT

On January 27, 2016, Pam Stewart, as Commissioner of

Education (Petitioner or the Commissioner), filed an

Administrative Complaint against Respondent, Emily Randall,

alleging that Respondent violated secti on 1012.795(1)(f), (g),

and (j), and r ule 6A - 10.081(5)(a) . Respondent filed a Revised

Election of Rights and on September 8 , 2016, the case was

referred to the Division for assignment of an administrative law

judge.

The case was originally scheduled for a two - day hearing to

be held November 14 and 15, 2016, in Viera, Florida. Ho wever,

due to health issues experienced by counsel for Respondent, the

matter was rescheduled twice and ultimately commenced and

completed on February 7, 201 7 .

Petitioner requested and received Official Recognition of

court records in State of Florida v. Emily Martin Randall , Case

No. 2014 - MM - 010473A (Sem inole County Court) , by Order dated

November 29, 2016 . The parties filed a Joint Pre - hearing

St ipulation that contained stipulate d facts needing no further

evidence at hearing that have been incorporated into the Findings

of Fact below. On January 30, 201 7 , Petitioner filed a Notice of

Filing Additional Undisputed Facts based upon responses to

Requests for Admissions, and at the co mmencement of the hearing,

the parties stipulated to the following paragraphs from the

Recommended Order in Brevard County School Board v. Emily M.

Randall , Case No. 15 - 0051 ( Fla. DOAH Dec. 30, 2015; Fla. BCSB

Mar . 1 7 , 2016): 1, 2, 5, 8, 21 through 23, a portion of 26, 27,

29, 31 through 35, a portion of 37, 38, 41, 42, 45, 46, and 51

through 53. The parties further agreed that references to

ÐPetitionerÑ in the findings from Case No. 15 - 0051 refer to the

Brevard County School Board , and those referen c es w ould be

amended to reflect the school board as oppose d to Petitioner in

this case.

At hearing, Petitioner presented the testimony of Mary

Kathryn Krell, James Hickey, Magali (Maggie) Drake Balado, and

Elizabeth Thedy, and PetitionerÓs Exhibits 1, 4, 8, 9 , 12 through

18, 20, 22, 24 th ro ugh 26, 32, and 34 were admitted into

evidence. Respondent testified on her own behalf and presented

the testimony of Daniel Fisher, Susan Sheppard, Enas Lahdo -

Messick, and Joan Adamson. RespondentÓs Exhibits numbered 2, 3 ,

and 24 were also admitted into evidence.

The one - volume Transcript of the hearing was filed with the

Division on February 21, 2017, and PetitionerÓs Proposed

Recommended Order was filed March 3, 2017. On Monday , March 6,

2017, Respondent filed a Motion for Extension of Time to File

Proposed Recommended Order, citing a misunderstanding regarding

the filing of the Transcript. Petitioner did not file an

objection to the extension, and Respondent was afforded until

March 21, 2017, to file its proposed recom mended order.

RespondentÓs Proposed Recommended Order was then timely

submitted, as was PetitionerÓs Supplement to its Proposed

Recommended Order, which was permitted by Order issued March 14,

2017. Both partiesÓ submissions have been considered in the

p reparation of this Recommended Order. All references to Florida

Statutes are to the 2014 codification, unless otherwise

specified.

FINDING S OF FACT

1. Respondent holds Florida EducatorÓs Certificate 701488,

covering the area of s chool p sychologist, w hich is valid through

June 30, 2018.

2. The Brevard County School Board (BCS B ) is the entity

charged with g overning and administering the school district and

is responsible for the supervision of the employees of the school

d istrict. The Commission er of Education, as Petitioner in this

case, is the state agency charged with the licensing and

regulation of educators in the State of Florida.

3 . At all times relevant to these proceedings, Respondent

was employed as a n itinerant school psychologist for BCSB .

Employment in an itinerant position means that Respondent was not

assigned to a particular school, but rather work ed at multiple

worksites within the District. Respondent had an office at the

north area office complex and also would report to three scho ols,

including Coquina Elementary School (Coquina Elementary ) in

Titusville .

4 . BCSB employed Respondent as a school psychologist in

1992. Since that time, Respondent performed her responsibilities

in an acceptable manner until the 2013 - 2014 school year.

5 . In practical terms, RespondentÓs duties included

performing student evaluations; designing intervention strategies

with teachers, administrators, and parents; and attending

meetings with those involved.

6 . Dr. Maggie Balado became the coordinator of

psychological services in August of 2013. As the coordinator,

she became RespondentÓs supervisor. At the beginning of both the

2013 - 2014 and the 2014 - 2015 school year s , Dr. Balado provided to

the school psychologists, including Respondent, her personal

c ontact information and that of her assistant, Ms. Beyer, so that

absences from work could be reported.

7 . On October 30, 2014, Respondent was assigned to be at

Coquina Elementary in Titusville. Coquina Elementary is located

approximately 40 miles from RespondentÓs home, and Respondent was

schedule d to be there to watch a meeting with En a s Messick,

Coquina ElementaryÓs guidance counselor. After the meeting with

Ms. Messick, Respondent had planned to evaluate a student. Due

to technical difficulties unk nown to Respondent, the meeting with

Ms. Messick was canceled.

8 . Respondent did not timely report to work at Coquina

Elementary on October 3 0, 2014. She also did not timely report

her absence from work on October 30, 2014, to Dr. Balado or

Ms. Beyer.

9 . On Thursday, October 30, 2014, Respondent drove to

Coquina Elementary in Titusville, Florida, at approximately

7:30 a.m. After sitting in the parking lot a t Coquina Elementary

for approximately an hour doing paperwork, Respondent drove home.

10 . Respon dent had adequate leave available to her to be

absent from work that day. Failure to report her absence from

work was a violation of a reasonable directive.

11 . During the afternoon of October 30, 2014, Dr. Laura

Rhinehardt, north area superintendent, co ntacted Dr. Balado

regarding an evaluation for a child at Coquina Elementary .

During the conversation, Dr. Rhinehardt mentioned that Respondent

was not at Coquina Elementary that day. Dr. Balado then

telephoned Respondent to ask where she was. Responden t told

Dr. Balado that she was in the parking lot at Coquina Elementary

when she was not. Respondent reported to Dr. Balado that she was

performing her duties at Coquina Elementary that day, when in

fact she was at home.

12 . Dr. Balado was suspicious of this statement and

directed that Respondent go into the school office and call her

back on the landline at the school. Although Respondent stated

that she would do so, she did not. She told Dr. Balado that she

went into the schoolÓs office as directed , b ut did not feel

comfortable using the schoolÓs telephone to call Dr. Balado back.

Respondent did not go into the schoolÓs office.

13 . Respondent lied to Dr. Balado when she told Dr. Balado

she was at Coquina Elementary when she was not.

14 . Dr. B alado t hen contacted Dr. Elizabeth Thedy, the

assistant superintendent for student services, and related to her

the events of the day. Dr. Thedy placed Respondent on paid

administrative leave on October 31, 2014.

15 . On November 4, 2014, Respondent, Dr. Thedy, and Jim

Hickey, director of Human Resources and Labor Relations, attended

a meeting to discuss the events of October 30, 2014.

16 . Respondent told Dr. Thedy and Mr. Hickey that she was

at Coquina Elementary on October 30 and that she could prove it.

She indicated that Ms. Messick would verify that she had been at

Coquina Elementary. Ms. Messick did not see Respondent at

Coquina Elementary on October 30, 2014, but did corroborate that

Respondent had telephoned her to advise that she would not be at

the sc hool.

17 . Respondent later stated that she sat in her car in the

parking lot at Coquina Elementary all day on October 30, 2014.

Mr. Hickey asked Respondent to provide a written statement

setting forth the events of October 30, 2014 . At that point,

Respo ndent admitted that she had not stayed at Coquina Elementary

all day as she previously stated.

18 . Following RespondentÓs admission and Mr. HickeyÓs

further consideration of her behavior , a pre - termination meeting

was scheduled for November 12, 2014, to d iscuss RespondentÓs

conduct. Dr. Balado, RespondentÓs supervisor, recommended

termination for Respondent, because she felt she could no longer

trust Respondent to be truthful with respect to either her

whereabouts or her work product. Because of her stat us as an

itinerant employee, Dr. Balado needed to be able to trust that

she was where she was supposed to be and performing her assigned

tasks, which are often time - sensitive. Dr. Balado no longer

trust ed Respondent .

19 . A second meeting was scheduled fo r November 21, 2014,

to discuss RespondentÓs future employment with the school

d istrict . Respondent remained on paid administrative leave

throughout the procedure of reviewing the allegations and

concerns regarding her performance and behavior.

20 . In an ticipation of the November 21, 2014, meeting, BCSB

staff conferred and decided to offer Respondent the opportunity

to be placed on a performance improvement plan, with a freeze on

her salary for the next school year, and an unpaid five - day

suspension. Had the meeting gone as BCSB staff hoped,

RespondentÓs disciplinary action would have been resolved with

RespondentÓs acceptance of these terms.

21 . Respondent, on the other hand, believed that BCSB staff

would be informing her that she was being terminated. There was

no documentation provided to Respondent that would have indicated

to her that termination was the only solution. Nor was there

anything provided to Respondent that would have alerted her to

the solution staff planned to propose.

22 . On the mo rning of November 21, 2014, Respondent drank

two to three glasses of wine before leaving her home to attend

the meeting . She then went to the meeting with Mr. Hickey,

Dr. Thedy, and Dr. Balado. She was accompanied by her husband

and her attorney.

23 . Re spondent was very emotional during the meeting. She

cried and at times appeared to be angry. She asked to be excused

within minutes of the beginning of the meeting, and then

returned. Meeting participants also described her as being

disheveled, having f lushed skin and red and watery eyes, and

shaking hands. Most importantly, Mr. Hickey, Dr. Thedy, and

Dr. Balado all believed that Respondent was emitting the strong

odor of alcohol, giving them reasonable cause to believe that she

was under the influence of alcohol.

24 . After conferring with one another, Dr. Thedy and

Mr. Hickey completed a reasonable suspicion observation form and

expressed concern that Respondent was intoxicated.

25 . Respondent submitted to a breathalyzer examination

conducted by Kat hy Krell, the Drug and Alcohol Program

Administrator for the school d istrict, after being directed to do

so. There was no evidence presented to indicate that she

objected to taking the test or to the manner in which it was

administered. 1/ Her attorney wa s present at the time she was

asked to submit to the test.

26 . Ms. Krell, who is now retired, had conducted

breathalyzer tests for the school d istrict for over 20 years.

She was certified by Intoxicators, the company that produces the

breathalyzer machin e used by the school d istrict, to administer

the breathalyzer test. The test was performed in accordance with

her standard procedure and was completed in the regular course of

business for BCSB , and included the statement signed by

Respondent that ÐI cert if y that I have submitted to the alcohol

test, the results of which are accurately recorded on this form.

I understand that I must not drive, perform safety - sensitive

duties, or operate heavy equipment because the r e sults are

positive . Ñ Respondent also a dmitted in her letter to the Office

of Professional Practice (PetitionerÓs Exhibit 32) that Ðthe

results confirmed I was under the influence.Ñ

27 . The results of the breathalyzer test indicate that, as

of approximately 2:45 p.m. on November 21, 2014, Resp ondentÓs

alcohol level as measured by the breathalyzer test was .104.

Based upon RespondentÓs appearance, be havior, and blood test

results from the breathalyzer test administered immediately after

the meeting, Respondent was under the influence of alcohol at the

time she met with Dr. Balado, Dr. Thedy, and Mr. Hickey .

28 . Upon receiving the results of the breathalyzer test,

BCSB withdrew the disciplinary offer it had presented to

Respondent.

29 . BCSB staff testified that when someone is on

administrative leave, they should be prepared to report to work

at any time, and be prepared to adhere to the behavioral

standards required in the workplace: in other words, to comply

with the zero - tolerance policy observed by the school d istrict in

terms of drug and a lcohol use while on duty. The letter placing

Ms. Randall on administrative leave did not state and Dr. Thedy,

who wrote the letter, acknowledged that Respondent was not

advised to be prepared to work while on administrative leave.

The letter simply instr ucted Respondent Ðnot to be on school

board property while on administrative leave.Ñ

30 . While the notice provided to Respondent placing her on

administrative leave did not expressly state th at she should not

drink before attending her pre - termination m eeting, it is

inconceivable that she would think that to do so was appropriate.

Moreover, BCSB Ós Drug - Free Workplace Technical Guide states in

per tinent part:

Alcohol, prescription, and over - the - counter

drugs are generally safe and acceptable when

used ac cording to proper instruction. Abuse

of legal drugs over time or used in

combination with another substance can result

in chemical dependency or poly - drug

addiction.

A. Employees will be free of alcoholic or

drug intoxication when on duty or on Board

pr operty. Employees are prohibited from the

manufacture or use of alcoholic beverages

while on Board property or while on duty with

the Board.

31 . Subsequent to the November 21, 2014, meeting,

Dr. Balado gave Respondent a referral to the school d istrictÓs

employment assistance program (EAP). The EAP is available to

employees with problems that adversely impact their ability to

perform their work assignments. When an employee in EAP

acknowledges his or her issue, participates, and agrees to seek

help for his or her problem, the employer typically works to

return the employee to the work environment. That did not happen

here.

32 . On November 22, 2014, the day after the meeting to

discuss her employment, Respondent was arrested in Seminole

County, Florida, for driving under the influence, with a blood

alcohol level of .15 or higher , in violation of section 316.193,

Florida Statutes . On December 16, 2014, Respondent entered a

plea of nolo contendere in State of Florida v. Emily Martin

Randall , Case No. 5920 14MM010473AXXXXX ( 18th Jud. Cir., in and

for Seminole Cnty.) to the amended charge of driving under the

influence with a blood alcohol level of below .15, a misdemeanor.

The trial court accepted the plea, found a factual basis for the

plea, and adjudicate d her guilty of the amended charge.

33 . Dr. Binggeli recommended that BCSB terminate

RespondentÓs employment on December 9, 2014.

3 4 . At hearing, Respondent testified that on the evening of

October 29, 2014, her adult son was arrested. Respondent

believ ed that the arrest was indicative of a more serious, long -

standing issue that her son battled. The news of her sonÓs

arrest devastated her , and she did not sleep because of her

emotional turmoil. She has, since the events described above,

participated in the EAP and sought independent counseling to deal

with the emotional issues present in her personal life.

3 5 . The news that Respondent received about her son was

troubling, and it is understandable that she would be upset by

this development. It does no t, however, justif y her failure to

simply report to her supervisor that she would not be attending

work on October 30 , 2014 . It was undisputed that she had

adequate leave to cover the absence. Under no circumstances does

her emotional state justify her r epeated fabrications regarding

her whereabouts when given numerous opportunities to tell the

truth.

3 6 . Respondent was terminated by BCSB on or about

December 16, 2014. She is not currently working in the education

field, but is instead performing admini strative tasks in her

sonÓs landscaping business.

CONCLUSIONS OF LAW

3 7 . The Division has jurisdiction over the subject matter

and the parties to this action in accordance with sections

120.569 and 120.57(1), Florida Statutes (2016).

3 8 . The Florida Educ ation Practices Commission (Commission)

is the state agency charged with the certification and regulation

of Florida educators pursuant to chapter 1012.

39 . This is a proceeding in which Petitioner seeks to

impose discipline against RespondentÓs educator certification.

Because disciplinary proceedings are considered to be penal in

nature, Petitioner must prove the allegations in the

Administrative Complaint by clear 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).

4 0 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less 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 which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lac king in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

prec lude evidence that is ambiguous.Ñ Westinghouse Elec. Corp. v.

Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1991).

4 1 . Section 1012.796 describes the disciplinary process 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 Department

of Management Services to hea r 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 Commission

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 teaching

certificate. The denial may provide that the

applicant may not reapp ly 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 may specify, including requiring

the certified teacher, administrator, or

su pervisor to complete additional appropriate

college courses or work with another

certified educator, with the administrative

costs of monitoring the probation assessed to

the educator placed on probation .

* * *

(e) Restriction of the authorized scop e 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 certification file of such

person.

(g) Imposition of an administrative

sanction, upon a per son 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 s uch terms and

conditions as the commission may specify.

4 2 . 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 and rules are

construed in terms of their literal meaning, and words used by

the Legislature may not be expanded to broaden their application.

Beckett v. Dep Ót 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).

4 3 . With these principles in mind, the Administrative

Complaint alleges the following factual bases for imposing

disci pline against Respondent:

3. On or about October 30, 2014, Respondent

reported to the Brevard County School

DistrictÓs School Psychologist coordinator

that she was performing her duties at Coquina

Elementary School that day, when in fact,

Respondent was a t home.

4. On or about November 21, 2014, Respondent

was required to attend a disciplinary meeting

with Brevard County School District staff to

discuss RespondentÓs absences from work.

During the disciplinary meeting, Respondent

was under the influence of alcohol.

Respondent exhibited characteristics of a

person under the influence of drugs or

alcohol, including erratic behavior, mood

changes, and bloodshot eyes. The Respondent

submitted to a reasonable suspicion test for

drugs and alcohol.

5. On or about November 22, 2014, in

Seminole County, Florida, Respondent was

arrested for Driving Under the Influence,

With Blood Alcohol of .15 or Higher.

Respondent pled nolo contendere to and was

adjudicated guilty of the amended charge of

Driving Under the In fluence, With Blood

Alcohol Level Below .15.

6. As a result of RespondentÓs conduct

alleged in paragraph 3 herein, Respondent was

terminated from her employment with the

Brevard County School District on or about

December 16, 2014.

4 4 . Petitioner has p roven the allegations in the

Administrative Complaint by clear and convincing evidence.

4 5 . Count 1 of the Administrative Complaint charges

Respondent with violating section 1012.795(1)(f), by having been

Ðconvicted or found guilty of, or entered a plea o f guilty to,

regardless of adjudication of guilt, a misdemeanor, felony, or

any other criminal charge, other than a minor traffic violation. Ñ

Respondent entered a nolo plea to the amended DUI charge, and the

judgement and sentence indicates that the trial judge adjudicated

her guilty. Petitioner has proven the charge in Count 1 by clear

and convincing evidence.

4 6 . Count 2 of the Administrative Complaint charges

Respondent with violating section 1012.795(1)(g), by being Ðfound

guilty of personal conduct that seriously reduces that personÓs

effectiveness as an employee of the district school board.Ñ In

this case, RespondentÓs misconduct impairs a fundamental tenet in

any workplace: the ability to rely on the honesty of an

employee. It is especially esse ntial where, as here, the

employee is one charged with assessing students with disabilities

and providing information that is critical to those studentsÓ

ability to succeed. RespondentÓs appearance at the pre -

termination meeting in an impaired state may h ave been the final

straw, but even without this behavior, Respondent violated the

trust placed in her by her absence from work without reporting in

and by her repeated lies to Dr. Balado and Mr. Hickey regarding

her absence. Petitioner has proven the viol ation charged in

Count 2 by clear and convincing evidence.

4 7 . Count 3 charges Respondent with violating section

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

Conduct for the Education Profession prescribed by the State

Board of Education ru les. By necessity, this count is dependent

upon a finding that Respondent violated Count 4, discussed below.

4 8 . Finally, Count 4 charges Respondent with violating rule

6A - 10.081(5)(a), by Ðfailing to maintain honesty in all

professional dealings.Ñ Re spondent lied to her supervisor, as

well as Mr. Hickey, the director of H uman R esources, on multiple

occasions, despite having several opportunities to set the record

straight. It was only after it became clear that her lies were

futile did she acknowledg e that she had not been truthful.

Petitioner has proven the charges in Counts 3 and 4 by clear and

convincing evidence.

49 . The Commission has established disciplinary guidelines

to provide notice of the typical range of penalties that the

Commission wil l impose when a certificateholder is found guilty

of violations of section 1012.795 or the Rules of Professional

Conduct for the Education Profession. Fla. Admin. Code

R. 6B - 11.007. For a violation of section 1012.795(1)(f), 2 / where

the underlying charg e was a misdemeanor, the range of penalties

is a reprimand to suspension. For a violation of section

1012.795(1)( g), the range is probation to revocation, and for a

violation of rule 6A - 10.081(5)(a), the range is suspension to

revocation.

5 0 . Rule 6B - 11. 007(3) also provides aggravating and

mitigating factors that the Commission may consider should it

wish to deviate from the disciplinary guidelines. While there is

no need for the recommendation in this case to deviate from the

guideline range, the factor s listed are helpful in determining

where along the guideline range the penalty should fall. Those

factors are as follows:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of tim e 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, cause by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty on the

educatorÓs livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Em ployment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the educator

to stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant aggravating or

mitigating factors under the circumstances.

5 1 . In this case, the factors listed in paragraphs ( a),

(c), (d), (e), (f), (i), (l), (m), and (s) have been considered.

Petitioner has recommended RespondentÓs certificate be suspended

for a period of two years; that she be required t o participate in

the Network Recovery Program; that following her suspension, that

Respondent be placed on probation for a period of two employment

years, subject to terms and conditions imposed by the Commission;

and that she be fined an administrative fine in the amount of

$1,000. Responden t, on the other hand, suggests that a reprimand

would be appropriate.

5 2 . Given the dishonesty that was exhibited in this case,

the undersigned fully expected that Petitioner would recommend

revocation. She did not. Something less than revocation is

app ropriate here, where the circumstances giving rise to these

unfortunate events were rooted in RespondentÓs reaction to a

family crisis. While her distraught reaction to her sonÓs

problems do es not excuse her behavior in any way, it makes her

behavior more understandable. Respondent has already lost her

job as a result of her actions. While something more than a

reprimand is appropriate, the penalty must serve both to deter

and rehabilitate. PetitionerÓs recommendation serves these

purposes. In light of the significant financial burden that

Respondent has already endured, however, a slightly shorter

suspension is suggested.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commi ssion

enter a f inal o rder finding that Respondent violated section

1012.795(1)(f), (g), and (j), Florida Statutes (2014), and

Florida Administrative Code Rule 6A - 10.081(5)(a), as alleged in

the Administrative Complaint. It is further recommended that the

Education Practices Commission suspend RespondentÓs certificate

for a period of 18 months; that it require Respondent to

participate in the Network Recovery Program; that after the

completion of her suspension, she be placed on probation for two

employment years, subject to terms and conditions imposed by the

Education Practices Commission; and impose an administrative fine

of $1,000.

DONE AND ENTERED this 28th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 28th day of March , 2017 .

ENDNOTE S

1/ RespondentÓs objection s to the alcohol testing form

(PetitionerÓs Exhibit 20) were to whether a proper foundation had

been established and whether the document constituted hearsay.

There was no motion to suppress the results or any objection

based upon improper testing conditions. In any event, the

breathalyzer results are but one factor in determining that

Respondent was impaired at the meeting. The other factors, such

as the sme ll of alcohol on RespondentÓs breath , her e rratic

behavior , including leaving the room almost immediately after the

meeting began ; her mood swings, from anger to agitation, and

anxiety ; her disheveled appearance; and her crying outbursts; all

support the administratorsÓ conclusion that she was impaired by

alcohol during the meeting. Moreover, none of the charges in the

Administrative Complaint are dependent on a positive breathalyzer

test. Count 1 relates to a separate i ncident, also involving

alcohol; Count 2 charges Respondent with reduced effectiveness,

which also is supported by the allegations directly related to

her absences; and Count 4 address es her honesty or lack thereof.

2 / Although the rule lists this as a v iolation of section

1012.795(1)(e), it is clear from the text that in 2014, the

codification of this substantive violation is at paragraph

(1)(f). Other violations are similarly referenced by the

description of the substantive violation as opposed to the

statutory subsection listed in the rule, which was last amended

in 2009.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallah assee, Florida 32399 - 0400

(eServed)

Scarlett G. Davidson, Esquire

Culmer & Davidson, P.A.

840 Brevard Avenue

Rockledge, Florida 32955

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Matthew Mears, General Cou nsel

Department of Education

Turlington Building, Suite 1244

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)

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 O rder should be filed with the agency that

will issue the Final Order in this case.