17-000128PL Pam Stewart, As Commissioner Of Education vs. Keary Ryland A/K/A Keary White Status: Closed Recommended Order on Wednesday, June 7, 2017.

Summary: Petitioner proved that Respondent violated sections 1012.795(1)(g) and (j) and rule 6A-10.081(3)(a). Recommend probation and Recovery Network Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART , AS COMMISSIONER OF

EDUCATION ,

Petitioner ,

vs. Case No. 1 7 - 0128 PL

KEARY RYLAND , a/k/a KEARY

WHITE ,

Respondent .

______________________________/

RECOMMENDED ORDER

This case was heard on April 21, 2017 , by video

teleconference at locations in Tallahassee and Pensacola,

Florida, before E. Gary Early, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

For Respondent: Keary Page W hite, pro se

121 San Ca rlos Avenue

Gulf Breeze, Florida 32561

STATEMENT OF THE ISSUE S

Whether Respondent violat ed section s 1012.795 (1)( f),

(1)(g), and (1)( j) , Florida Statutes , and Florida Administrative

Code R ule 6A - 10.081 (3)(a) , as alleged in the Amended

Administrative Complaint ; and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On September 26, 2016 , the Commissioner of Education

e xecuted an Amended Administrative Complaint against Respondent

which alleged that , on several occasions, Res pondent was

involved in alcohol - related incidents either involving or in the

presence of students, which incidents warranted discipline.

On October 24, 2016, Respondent timely filed an election of

rights by which s he requested a formal hearing. The matter was

referred to the Division of Administrative Hearings for an

evidentiary hearing.

The hearing was scheduled for March 20, 2017 . Upon motion

filed by Petitioner , and for good cause shown, the hearing was

continued until April 21, 2017 .

On April 17 , 201 7 , the parties filed their Joint Prehearing

Stipulation , wherein the parties stipulated to paragraphs 1

and 3, and a portion of paragraph 5 of the Amended

Admini strative Complaint, each of which is ad opted and

incorporated herein.

The final hearing was convened on April 21, 2017 , as

scheduled. At the final hearing, Petitioner presented the

testimony of Santa Rosa C ounty D eputy S heriff Christina Ann

Reaves ; Gulf Breeze P olice O fficer Jermel Kidd; Lacey Barrett;

Jon Hartley; Joshua Hartley , a student at Gulf Breeze High

School ; Mary Klisart , a student at Gulf Breeze High School ;

Amy Parker, a teacher at Gulf Breeze High School; Ashley Turner,

a guidance coun selor at Gulf Breeze High School; Jon Watts, an

assistant principal at Gulf Breeze High School; Jason Weeks, who

was, at all times relevant to this proceeding, the p rincipal of

Gulf Breeze High School; and Conni Carnley, who was, at all

times re levant to this proceeding, the d irector of Employee

Evaluations and Accountabi lity for the Santa Rosa C ounty School

D istrict. PetitionerÓs Exhibits 1 through 7, 9 through 1 2 ,

14 through 16, 19 through 21, 23, 24 , 26, and 27 w ere received

in evidence. PetitionerÓs Exhibit 26 is the transcript of the

deposition of Jordan Brayton , who was, at all times relevant to

this proceeding, a student at Gulf Breeze High School.

PetitionerÓs Exhibit 27 is the transcript of the deposition of

Amelia Smith, who was, at all times re levant to this proceeding,

a student at Gulf Breeze High School. During the hearing, it

was established that both depositions were properly noti c ed,

though Respondent attended neither. Based on the sworn

testimony of the deponents, it is found that both M r . Brayton

and Ms. Smith reside more than 100 miles from the Pensacola and

Tallahassee hearing locations, and both are out of the state of

Florida . Therefore, the use of their depositions is allowed

pursuant to Florida Rule of Civil Procedure 1.330(a)(3) , as

adopted by Florida Administrative Code Rule 28 - 106.206. The

deposition transcripts have been accepted in lieu of live

testimony, and have been given the evidentiary weight as if the

deponents offered their testimony at the final hearing.

In h er case in chief, Respondent testified on h er own

behalf . Respondent Ós Exhibit s 1 and 2 were received in

evidence . 1/

A one - volume Transcript of the proceedings was filed on

May 8, 2017 .

Respondent submitted a Proposed [Recommended] Order (PRO)

on April 28, 2017. To the extent that PRO contains information

outside of the record of this proceeding, that information has

not been considered. The PRO was otherwise considered.

Petitioner timely filed a Proposed Recommended Order which ha s

been considered in the preparation of this Recommended Order.

The relevant and material actions that form the basis for

the Administrative Complaint occurred between January 2015, and

May 26, 2015 . This proceeding is governed by the law in effect

at the time of the commissi on of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Accordingly, all statutory and

regulatory references are to the ir 201 5 version, unless

otherwise specified.

FINDINGS OF FACT

Based upon the demeanor and credibility of the witnesses

and other evidence presented at the final hearing and on the

entire record of this proceeding, the following Findings of Fact

are made:

1. The Florida Education Practices Commission is the state

ag ency charged with the duty and responsibility to revoke or

suspend, or take other appropriate action with regard to

teaching certificates as provided in sections 1012.795 and

1012.796 , Florida Statutes (2016) . § 1012.79(7), Fla. Stat .

2. Petitioner, a s Commissioner of Education, is charged

with the duty to file and prosecute administrative complaints

against individuals who hold Florida teaching certificate s and

who are alleged to have violated standards of teacher conduct.

§ 1012.796(6), Fla. Stat .

3 . Respondent holds Florida Educator's Certificate

1128573, covering the areas of Elementary Education, English,

English for Speakers of Other Languages (ESOL) and Middle Grades

Integrated Curriculum, which is valid through June 30, 2021.

During the 20 13 - 2014 school year, until her voluntary

resignation effective June 3, 2015, Respondent was employed as a

language arts teacher at Gulf Breeze High School. Since that

time, Responde nt has been employed as a third - grade teacher at a

private Christian a cademy in Pensacola, Florida.

M aterial Allegations

4 . The material a llegations upon which the alleged

violations are predicated are, in their entirety, as follows:

3. On or about July 19, 2008, Respondent

illegally operated a boat while under the

influe nce of alcohol. As a result of

conduct, she was arrested and charged with

Boating Under the Influence. On or about

February 18, 2009, Respondent was

adjudicated guilty of Boating Under the

Influence.

4. In or ar ound January 2015 through

March 2015, Res pondent provided a forum

where underage students illegally consumed

alcohol and/or consumed alcohol in the

presence of students. This conduct

includes, but is not limited to, instances:

(a) in or around February 2015, wherein

Respondent provided alcohol to underage

students; and

(b) on or about March 20, 2015, when

Respondent drove to J.H.'s, a student's,

home, while under the influence of alcohol,

and thereafter, attempted to drive J.H.

while so inebriated.

5. On or about April 24, 2015, Respondent

illegally operated a motor vehicle while

under the influence of alcohol. On or about

May 26, 2015, as a result of the

aforementioned conduct, Respondent was

arrested and charged with DUI - Second

Conviction More Than Five (5) Years After

Prior Co nviction. On or about April 7,

2016, Respondent pled nolo contendere to an

amended charge of Reckless Driving;

adjudication was withheld.

Count 1

5 . Count 1 alleged a violation based upon Respondent

having Ðbeen convicted or found guilty of, or entered a plea of

guilty to, regardless of adjudication of guilt, a misdemeanor,

felony, or any other criminal charge, other than a minor traffic

violation.Ñ The Count was based on the two incidents described

in paragraphs 3 and 5 of the Amended Administrative C omplaint as

follows:

Boating Under the Influence - - 2008

6 . On or about July 19, 2008, Respondent was maneuvering a

boat onto a trailer at the Navarre Beach boa t ramp. Her husband

was driving the ir vehicle , and had backed their trailer into the

water. As a result of actions at that time, Respondent was

placed under arrest for Boating Under the Influence (BUI) , a

misdemeanor ( her husband was arrested for Driving Under the

Influence ) . Respondent entered a p lea of no contest to the BUI

offense and , on February 18, 2008, was adjudicated guilty .

Subsequent to the final hearing, counsel for Petitioner

researched the issue and discovered that the incident occurred

prior to RespondentÓs initial certification as a teacher. As a

result, Peti tioner correctly concluded and stipulated Ðthat no

disciplinary action should be taken as a result of this

conviction.Ñ

Driving Under the Influence - - 2015

7 . On April 24, 2015, Respondent and a friend drove, in

the friend Ó s car, to Pensacola Beach for drinks. Respondent

left her car in a Publix parking lot. Upon their return,

Respondent correctly perceived that she was not fit to drive

home. Her phone was dead, so she got into her car and started

it in order to charge th e phone. She called her son and asked

that he come pick her up. At some point after calling her son,

Respondent called her soon - to - be ex - husband , from whom she was

in the process of a bitter divorce, and engaged in a heated and

animated discussion with him. A complaint was called in , and

Officer Kidd was dispatched to the scene.

8 . Upon his arrival , Officer Kidd observed Respondent in

her car, with the engine running, Ðyelling at someone on the

phone.Ñ H e noticed a bottle of Crown Royal in the center

console. Respondent refused to perform field sobriety tasks.

Office KiddÓs observations of Respondent while she was in the

car and upon her exiting the car led him to believe that she was

impaired. Respondent had b een in the car, with the engine

running, and was clearly in control of the vehicle regardless of

her intent to drive . Although RespondentÓs son arrived on the

scene to take her home, Respondent was arrested and transported

to jail. 2 /

9 . Respondent was charged with DUI. The charges were

reduced, and she entered a nolo plea to reckless driving . T he

trial judge withheld adjudication.

C ount 2

10 . Count 2 alleged a violation based upon Respondent

having Ð been found guilty of personal conduct that seriously

reduces that personÓs effectiveness as an employee of the

district school board.Ñ The Count was based on the incidents

described in paragraph 4 of the Amended Administrative

Complaint .

March 20, 2015 -- The Garage

11 . On or about March 20 , 2015, over spring break, J oshua

Hartley was at Pen sa cola Beach with friends , including

RespondentÓs son . He had his fatherÓs car. Apparently,

JoshuaÓs father, Jon Hartley had been trying for some time to

reach Joshua and have him return the car. Joshua and his group

of friends had plans to stay at the beach into the evening.

RespondentÓs son suggested t hat Respondent, who he knew to be at

the beach, could follow Joshua home, and then return him to his

friends at the beach. Respondent was called, and she followed

Joshua from the beach to his house, a drive of perhaps

1 5 minutes.

12 . When Joshua and Res po ndent arrived at the house,

Mr. Hartley, Ms. Barrett, and a third man were sitting and

drinking in the open garage. Other than agreement that

Respondent and Joshua showed up at the house at the same time ,

t he description of the events by Joshua Hartley, Mr. Hartley,

and Ms. Barrett were so divergent that the three might well have

been in different places .

13 . Ms. Barnett described the incident as occurring

between 8:00 and 8:30 p.m., when it was dark . She testified

that Joshua and Respondent pulled up in separate vehicles , and

that Mr. Hartley initially approved of Joshua returning to the

beach with Respondent as a good deed, since Joshua purportedly

indicated that ÐsheÓs really drunk.Ñ She indicated that Joshua

got int o the passenger seat of RespondentÓs vehicle , whereupon

Respondent put the vehicle in gear, and lurched forward, almost

hitting Mr. HartleyÓ s vehicle. At that time, Ms. Barrett

indicated that Mr. Hartley ran down, startled by the driving

error, told Joshua that he could not go with her, and offered to

let Respondent stay with them until she sobered up. Ms. Barrett

further described Respondent as essentially falling out of her

bathing suit, barefoot, staggering, with slu r red and vulgar

speech , an d highly intoxicated. After about an hour, and as

Respondent was preparing to leave , Ms. Barnett testified that

Joshua , who had remained with the adults in the garage since his

arrival , went to his room. Ms. Barnett testified that

Respondent then excused he rself to use the restroom.

Ms. Barnett testified that after 15 minutes or so, she went

inside, and found Respondent Ðexiting JoshuaÓs bedroom. Ñ Her

description of the event is not accepted, and her veiled

insinuation that something improper occurred -- for which no

evidence exists -- did not go unnoticed.

14 . Mr. Hartley described the incident as occurring

between 6:00 and 7:00 p.m. He testified that Jo shua and

Respondent arrived at the house in RespondentÓs car with Joshua

as the passenger . He w as ÐpositiveÑ that Joshua was not driving

because he was 15 years old and did not have a driverÓs license .

When they pulled into the driveway, Mr. H artley testified that

he walked down to the vehicle and that Joshua got out of the

car . Mr. Hartley was unsure if Joshua stayed in the garage at

all, but at most went to his room after a matter of minutes.

Respondent joined the adults in the garage . Mr. Hartley

indicated that Respondent Ðlooked like she had been at the

beachÑ and , though her speech wa s not slurred, he could tell she

had been drinking because he could smell alcohol and by Ðthe way

she was speaking.Ñ His description of Respondent was far from

the florid state of intoxication as described by Ms. Barnett .

Mr. Hartley offered no descripti on of Respondent Ós vehicle

lurching forward, Respondent staggering, or of Joshua asserting

that Respondent was really drunk. Finally, his concern that

Ðthe grown, intoxicated woman [as described by counsel in his

question] was in your 15 year old sonÓs bedroomÑ was based

solely on Ms. Bar nettÓs description of what she claimed to have

seen.

15 . Joshua testified that he dr ove to his house in his

fatherÓs black Lincoln Aviator, and that Respondent followed in

her white Ford Expedition. It was daylight, around 4:00 in the

afternoon. Upon their arrival, Respondent pulled onto the grass

next to the driveway. Mr. Hartley was mad , possibly about

Joshua having the car, would not let him return to the beach,

and sent him to his room within a minute of his arrival. Joshua

testified that Respondent was in typical beach attire. He had

no complaint as to RespondentÓs actions either at the beach or

at his house, and did not see her drinking. He did, however,

indicate that ÐtheyÑ told him that Ðshe might have been drunk or

something.Ñ He testified that a fter Respondent spent some time

with the adults in the garage , s he then went ins ide to use the

restroom. JoshuaÓs door was open, and Respondent stood at the

door and apologized if she had gotten him into trouble. She

then left.

16 . Given the dramatic divergence in the stories of the

witnesses, the evidence is not clear and convincing that

anything untoward occurred when Respondent agreed to give Joshua

a ride to his house to return his fatherÓs car, and offered to

return him to hi s friends at the beach. Though credible

evidence suggests that Respondent had alcohol on her breath,

there was no evidence that she was Ðunder the influence of

alcohol,Ñ that she was not able to lawfully drive a vehicle , or

that Joshua suspected that she had been drinking. Ms. BarrettÓs

more dramatic testimony that Respondent was drunk and

staggering, falling out of her clothes, with her speech slurred

and profane, and the intimation that she was in JoshuaÓs bedroom

in that condition, is not accepted.

17 . The evidence adduced at the hearing was not clear and

convincing that , on March 20, 2017, Respondent engaged in

personal conduct that seriously reduce d her effectiveness as an

employee of the district school board.

February 15, 2015 -- Mardi Gras

18 . There was a good bit of evidence and testimony take n

that Petitioner was seen drunk and staggering down the street at

the 2015 Pensacola Mardi Gras, and was seen and assisted by

students in tha t condition . However, the basis for the Amended

Administrat ive Complaint was not that Respondent was publically

intoxicated, but that she Ð provided alcohol to underage

students .Ñ

19 . Pensacola has a Mardi Gras event with a parade and

floats. In 2015, ÐFat TuesdayÑ was on February 17. The big

2015 M ardi G ras pa rade was on Sunday , February 15.

20 . Respondent had a group of friends that were in a Mardi

Gras Krewe and she had been helping them with the float. She

apparently drank a good bit. By the time her friends were ready

to join the parade, around noon to 1:00 p.m., Respondent

determined that she was drunk enough that she should go to the

hotel room the group had rented. Unlike the evidence for the

ÐGarageÑ incident, the evidence was convincing that Respondent

was very intoxicated .

21 . Ms. Smith testified that Respondent joined a group of

alumni and students at a Subway parking lot where they had

gathered to watch the parade. The evidence is persuasive that

Respondent came upon the scene by happenstance, and that the

parking lot was not her destination. While there, Respondent

very likely consumed one or more ÐJello - shots.Ñ However, the

suggestion that Respondent was in any condition to have brought

the Jello - shots with her to the parking lot is rejected.

Rather, the evidence supports that the shots were there, and

that she partook. It would not have been out of character for

Respondent to have taken them and handed them around.

Furthermore, the testimony that Respondent was distributing

beers to students is, for the same reason, sim ply not plausible.

22 . After a while, Ms. Smith , followed but not assisted by

Mr. Brayton, assisted Respondent to her hotel. Respondent was,

by this time, in a state co lloquially known as Ðfalling - down

drunk.Ñ She could not walk unassisted, and at one point la id

down on a picnic table. It was at this time that Respondent and

Ms. Smith were photographed, a picture that received some

circulation.

23 . Ms. Smith finally delivered Respondent to her hotel,

where R espondentÓs son saw them and relieved Ms. Smith of any

further duties. Mr. BraytonÓs testimony that he thereafter

entered RespondentÓs hotel room was not supported by Ms. Smith

or others. His testimony regarding RespondentÓs son and his

friends at the ho tel was not clear and convincing.

January 2015 - - The House Party

24 . Amelia Smith testified to an alleged incident in the

fall of 2014 in which she was at RespondentÓs house and students

were having a party in the garage at which students were

drinking. There was no allegation in the Amended Administrative

Complaint as to any event in the fall of 2014 .

25 . Ms. Klisart testified to an incident involving

student s drinking at RespondentÓs hou se around the Martin Luther

King holiday, which in 2015 was on January 19. That corresponds

to PetitionerÓs statement that she returned to her house after

an evening celebrating her birthday, 3 / to find her son and his

friends having a party in the garage at which students were

drinking. The allegation in the Amended Administrative

Complaint that Respondent provided a forum where underage

students illegally consumed alcohol in January 2015 was

adequately pled .

26 . The evidenc e supports a finding that Respondent had

been drinking when she arrived at her house. The evidence is

not clear and convincing that she joined the students in the

garage, but she clearly knew the party was ongoing, that it

involved high school students, that the students were drinking,

and that she made no effort to put a halt to the party .

Notoriety of the Incidents

27 . The evidence is clear and convincing that the

incidents described herein were widely known by students at Gulf

Breeze High School, by other teachers, and by the school

a dministration.

Counts 3 and 4

28 . Count 3 alleges that Ð Respondent has violated the

Principles of Professional Conduct for the Education Profession

prescribed b y State Board of Education rules. Ñ Count 4 alleges

Ð that Respondent has failed to make reasonable effort to protect

the student from conditions harmf ul to learning and/or to

student's mental health and/or physical health and/or safety . Ñ

29 . R ule 6A - 10.081(3)(a) Ðdoes not require evidence that

Res pondent actually harmed [ a studentÓs ] health or safety.

Rather, it requires a showing that Respondent failed to make

reasonable efforts to protect the student from such harm.Ñ

Gerard Robinson , as Comm Ór of Educ . v. William Randall Aydelott ,

Case No. 12 - 0621PL , RO at 76 ( Fla. DOAH Aug. 29, 2012; EPC

Dec. 19, 2012). Under the circumstances described herein,

Petitioner proved that Respondent , by allowing, if not

condoning, student drinking at her home in January 2015 , failed

to m ake reasonable effort to protect students from harm .

CONCLUSIONS OF LAW

A. Jurisdiction

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (2016) .

B. Standards

31 . Section 1012.795(1), which establishes the violations

that subject a holder of an educator certificate to disciplinary

sanctions , provides , in pertinent part, that :

(1) The Education Practices Commission may

suspend the educator certificate of any

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

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or no tice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(f) Has been convicted or found guilty of,

or entered a plea of guilty to, regardless

of adjudication of guilt, a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic violation.

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school b oard.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

32 . Rule 6A - 10.081( 3 )( a ) provides that:

Obligation to the student requires that the

individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

C. Burden and Standard of Proof

33 . Petitioner bears the burden of proving the specific

allegations of wrongdoing that support the charges alleged in

the Administrative Complaint by clear and convincing evidence

before disciplinary action may be taken against the professional

license of a teacher . Tenbroeck v. Castor , 640 So. 2d 164, 167

(Fla. 1 st DCA 1994); § 120.57(1)(j), Fla . Stat . ; see also DepÓt

of Banking & Fin. , Div. of Sec. & Inv. Prot. v. Osborne Stern

and Co. , 670 S o. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla . 1987); Pou v. DepÓt of Ins. and Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

34 . 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). The clear and convincing

evidence level of proof

[E] ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

C lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the

witnesses testify must be distinctly

rem embered; the testimony must be

precise and explicit and the witnesses

must be lacking in confusion as to the

facts in issue. The evidence must be

of such weight that it produces in the

mind of the trier of fact a firm belief

or conviction, without hesitancy, as to

the truth of the allegations sought to

be established.

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

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

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

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguo us." Westinghouse Elec. Corp., Inc. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

35 . Sec tion 1012.795 is penal in nature and must be

strictly construed , with any ambiguity construed against

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Latham v.

Fl a . CommÓ n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 199 7); see

also Beckett v. DepÓt of Fin. S ervs . , 982 So. 2d 94, 100 (Fla.

1st DCA 2008 ) ; Dyer v. DepÓt of Ins. & Treas . , 585 So. 2d 1009,

1013 (Fla. 1st DCA 1991).

36 . The allegations set forth in the Administrative

Complaint are those upon which this proceeding is predicated.

Trevisani v. DepÓt of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005) ; s ee also Cottrill v. DepÓt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits the imposition

of disciplinary sanctions based on matters not specifically

alleged in the notice of charges. See Pilla v. Sch. Bd. of Dade

Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); Texton v.

Hancock , 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see also

Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d 1324, 1325 (Fla.

1st DCA 1985) ( Ð For the hearing officer and the Board to have

then found Dr. Sternberg guilty of an offense with which he was

not charged was to deny him due process. Ñ ). Thus, the scope of

this proceeding is properly restricted to those issues of fact

and law as framed by Petitioner. M.H. v. DepÓt of Child. & Fam.

Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

D . Count 1 - - Section 1012.795(1)( f )

37 . Count 1 of the Administrative Complaint charged

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

convicted or found guilty of, or entered a plea of guilty to,

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

any other criminal charge, other than a minor traffic

violation. Ñ

38 . Count 1 is based on two incidents -- a 2008

adju dication of guilt on a misdemeanor charge of Boating U nder

the Influence, and a 2015 plea of nolo contendere to a

misdemeanor charge of reckless driving, for which adjudication

was withheld.

Boating Under the Influence - - 2008

39 . The BUI offense was withdrawn, based on the

determination that it could not form the basis for a

disciplinary action. See , e.g. , Taylor v. DepÓt of ProfÓ l Reg . ,

534 So. 2d 782 , 784 (Fla. 1st DCA 1988) . Based on PetitionerÓs

statement in the Proposed Recommended Order, Taylor is

dispositive, and the pre - licensure 2008 BUI cannot form the

basis for post - licensure discipline.

Reckless Driving - - 2015

40 . Although Respondent was initially charged with driving

under the influence (DUI), the charge was reduced to reckless

driving. Adjudication was withheld.

41 . The Commissioner has determined that reckless driving

is more than a minor traffic violation. Dr. Eric J. Smith, as

Comm'r of Educ. v. Tina Adams , Case No. 09 - 5392PL (Fla. DOAH

Feb. 18 , 2010; Fla. EPC June 24, 2010).

42 . In order to sustain a violat ion based on a criminal

incident, there must have been a conviction or finding of gui lt,

or a plea of guilty , none of which exist with regard to the 2015

incident.

43 . The lesser plea of nolo contendere when adjudication

is withheld is not sufficient to support a violation of section

1012.795(1)(f) , a conclusion that finds support in the reporting

requirements in section 1012.795(5), which requires that:

Each district school superintendent and the

governing authority of each universi ty lab

school, state - supported school, or private

school shall report to the department the

name of any person certified pursuant to

this chapter or employed and qualified

pursuant to s. 1012.39:

(a) Who has been convicted of, or who has

pled nolo contend ere to, a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic infraction . (Emphasis

added).

44 . That the L egislature required reporting of a plea of

nolo contendere for a person holding a certificate , but did not

make such a nolo contendere plea a criteria for discipline under

a different subsection of the same statutory section is clear

evidence that the L egislature did not intend for a plea of nolo

contendere, without adjudication, to be a sufficient basis for

discipline. Ð When the legislature has used a term, as it has

here, in one section of the statute but omits it in another

section of the same statute, [the court] will not imply it where

it has been excluded.Ñ Leisure Resorts, Inc. v. Frank J.

Rooney, Inc. , 654 So. 2d 911, 914 (Fla. 1995); see also J.S. v.

C.M. , 135 So. 3d 312, 317 (Fla. 1st DCA 2012); Beshore v. DepÓt

of Fin. S ervs . , 928 So. 2d 411, 412 (Fla. 1st DCA 2006).

45 . Respondent entered a nolo plea to the amended reckless

driving charge, and the trial judge withheld adjudication .

Therefore, since Respondent was not Ðconvicted or found guilty

of, or entered a plea of guilty Ñ to the 2015 charge of reckless

driving , the reckless driving incident is not a ground for

discipline.

46 . Petitioner has not proven a violation of section

1012.795(1)(f) as alleged in Count 1 by clear and convincing

evidence.

E. Count 2 - - Section 1012.795(1)(g)

47 . Count 2 of the Administrative Complaint charged

Respondent with violating section 1012.795(1)(f) by exhibiting

Ðpersonal conduct that seriously reduces [her] effectiveness as

an employee of the district school board .Ñ

48 . As to the January 2015 Ð h ouse party,Ñ Petitioner

proved that, by her not shutting down the party and by allowing

high school students to use her house as a venue for a party at

which alcohol was openly consumed, the respect that is owed by

students to Respondent was compr om ised, which reduced her

effectiveness as a teacher.

49 . As to the February 15, 2015, ÐMardi Gras incident,Ñ

Petitioner proved that Respondent appeared in public in a

grossly intoxicated state, joined students in public ly consuming

alcoholic beverages, and relied on a student to assist her in

walking to her hotel. Respondent was photographed in that state

of intoxication, which became widely known. Thus, Respondent

engaged in conduct that reduced her effectiveness as a te acher .

50 . As to the March 20, 2015, Ð g arage incident,Ñ the

evidence was not clear and convincing that Respondent engaged in

any activity that was illegal or inappropriate. Thus,

Petitioner has failed to prove that Respondent engaged in

conduct that red uced her effectiveness as a teacher .

51 . Petitioner proved a violation of section

1012.795(1)( g ) as alleged in Count 2 as to the house party and

Mardi Gras incidents by clear and convincing evidence.

F. Counts 3 and 4 - - Section 1012.795(1)(j) and Rule 6A -

10.081(3 )( a )

52 . Count 3 of the Administrative Complaint charge d

Respondent with violating section 1012.795(1)(j) by having

violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

Rules. Thus, Count 3 does not constitute an independent

violation, but rather i s dependent upon a corresponding

violation of the rules constituting the Principles of

Professional Conduct.

53 . Count 4 of the Administrative Complaint charge d

Respondent with violating rul e 6A - 10.081( 3 )( a ) by failing to

make reasonable effort to protect h er students from conditions

harmful to learning , to their mental or physical health , or to

their safety .

54 . T he evidence in this case demonstrates that

Respondent , either expressly or tacitly, provided students with

a place to drink and party a s a result of the January 2015 house

party incident . A s such, Respondent failed to make reasonable

effort to protect students from condition s that would be

reasonably expected to expose them to risk to their health and

safety .

55 . Petitioner proved a violation of section

1012.795(1)( j ) and rule 6A - 10.081(3)(a) as alleged in Count s 3

and 4 as to the house party by clear and convincing evidence.

G . Penalty

56 . Florida Administrative Code Rule 6 B - 11.007(2)

establishes the range of penalties for violati ons of various

statutory and regulatory provisions as follows:

(2) The following disciplinary guidelines

shall apply to violations of the below

listed statutory and rule violations and to

the described actions which may be basis for

determining violations of particular

statutory or rule provisions. Each of the

following disciplinary guidelines shall be

interpreted to include Ðprobation,Ñ

ÐRecovery Network Program,Ñ Ðletter of

reprimand,Ñ Ðrestrict scope of practice,Ñ

Ðfine,Ñ and Ðadministrative fees and/or

costsÑ with applicable terms thereof as

additional penalty provisi ons. The terms

ÐsuspensionÑ and ÐrevocationÑ shall mean any

length of suspension or revocation,

including permanent revocation, permitted by

statute, and shall include a comparable

period of denial of an application for an

educatorÓs certificate.

57 . T he recommended penalty for a violation of section

1012.795(1)(g) for e ngaging in personal conduct which seriously

reduces effectiveness as a district school board employee is

Ð Probation - Revocation.Ñ Fla. Admin. Code Rule 6B -

11.007(2)( f ) .

58 . S ection 1012.795(1)(j) is not one of the specific

statutory provisions listed in the penalty guidelines . Rather,

it is incorporated in rule 6B - 11.007(2)(j) , as among the

Ð [o] ther violations of Section 1012.795, F.S. ,Ñ with a guideline

penalty of ÐProbation Î Revocation or such penalty as is

required by statute.Ñ

59 . Rule 6B - 11.007(2) (i)16. lists a guideline penalty of

ÐProbation Î RevocationÑ for Ð[f]ailure to protect or supervise

studentsÑ in violation of rule 6A - 10.081 (3)(a) . 4 /

60 . Rule 6B - 11.007(3) establishes aggravating and

mitigating factors to be applied to penalties calculated under

the guidelines . The facts of this case demonstrate that there

are no aggravating or listed mitigating factors to warrant

deviation from the recommended penalty rang es .

61 . As to the recommended penalty, and reco g nizing the

authority of the Education Practices Commission to establish the

appropriate penalty for a proven offense, the undersigned notes

the following: Several of the allegations in the Amended

Administrative Complaint were not proven. Those that were,

i.e., the house party and the Mardi Gras incident, occurred

during a period of time in which Respondent was in the throes of

a difficult and bitter divorc e. As re cognized by Ms. Smith,

Respondent was Ðlonely and sad.Ñ While providing no excuse, it

places her actions , exclusively fueled by alcohol, in some

context. Respondent has , since the last alleged incident on

April 24, 2015 , completed a rehabilitati on program. She has,

for the past two years, taught without incident at a private

Christian elementary school in Pensacola . It is this type of

person for w hom the Department of EducationÓs Recovery Network

Program would seem to have been designed. The recommendation

made herein is predicated on those factors.

RECOMMENDATION

Upon consideration of the F indings of F act and C onclusions

of L aw reached herein , it is RECOMMENDED that the Education

Practices Commission enter a final order finding that Respondent

violated sections 1012.795 ( 1)(g) and (1)(j), and rule 6A -

10.081(3)(a). It is further recommended that Respondent be

placed on probation for a period of five years, and be required

to obtain treatment through the Recovery Network Program at a

frequency and for a duration deemed appropriate by the Education

Practices Commission .

DONE AND ENT ERED this 7th day of June , 2017 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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

t his 7th day of June , 2017 .

ENDNOTE S

1/ Petitioner objected to the introduction of RespondentÓs

Exhibit 2 on the basis that it was not identified in

RespondentÓs prefiled exhibit list, and due to RespondentÓs

failure to properly authenticate the document. RespondentÓs

Exhibit 2 was originally prefiled with the undersigned as

PetitionerÓs Exhibit 8 , though i t was not introduced during

PetitionerÓs case in chief. Thus, the undersigned found that

there was no surprise or prejudice to Petitioner from

RespondentÓs use of the exhibit. As to the issue of

authenticity, counsel for Petitioner admitted that he would not

have provided a non - authentic document with PetitionerÓs

exhibits. Furthermore, the admission and consideration of the

evidence is within the discretion of the undersigned pursuant to

the evidentiary standard set forth in section 120.569(2)(g),

Florida Statutes. See Fla. Indus. Power Users Gp. v. Graham ,

209 So. 3d 1142 (Fla. 2017) ( Ð We find that the Commission has

discretion on whether to apply the Florida Evidence Code . . .

to its proceedings. Ñ ).

2/ The police report noted that RespondentÓs car was over the

parking space line and was in contact with another vehicle.

Though it is not unreasonable to believe that Respondent put her

car into gear at some point, there was insufficient non - hearsay

evidence to determine that she hit the other car and not vice

versa.

3 / A ccording to the police reports in evidence , RespondentÓs

birthday is January 12 . The Ðmatters assertedÑ in the police

report being unrelated to the date of Respondent Ó s birthday, the

report is not hearsay as to that information.

4 / Rule 6A - 10.081 was transferred from Florida Administrative

Code R ule 6B - 1 .006 on January 11, 2013. T he penalty guidelines

continue to cite to rule 6B - 1.006 in setting penalty ranges.

R ule 6A - 10.081(3)(a) is substantively identical to the last

iteration of rule 6B - 1.006(3)(a). Since the facts alleged and

the text of the rule allegedly violated were clear for Count 4 ,

and since there is no evidence that Respondent was misled or

harmed by the citation in the penalty guidelines to a rule that

is no longer in effect as numbered, the penalty guideline in

rule 6B - 11.007(2) (i)16. shall be applied to the violation of

rule 6A - 10.081(3)(a).

COPIES FURNISHED :

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Depa rtment of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

(eServed)

Keary Page White

121 San Carlos Avenue

Gulf Breeze, Florida 32561

(eServed)

Matthew Mears, General Counsel

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 wi thin

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.