17-000798PL Pam Stewart, As Commissioner Of Education vs. Gary Schrade Status: Closed Recommended Order on Friday, June 23, 2017.

Summary: Petitioner proved that Respondent violated rule 6A-10.081(3)(a), though the violation was minor and without malice. Recommend a reprimand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART , AS COMMISSIONER OF

EDUCATION ,

Petitioner ,

vs. Case No. 1 7 - 0798 PL

GARY SCHRADE ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 3, 2017 , in DeLand , Florida, before E. Gary Early, a

designated administrative law judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwi ca , P.A.

Post Office Box 5276

Gainesville , Florida 32627

STATEMENT OF THE ISSUE S

Whether Respondent violat ed section 1012.795 (1)(j) , Florida

Statutes , and Florida Administrative Code R ule s 6A -

10.081 ( 2 )(a) 1 . and 6A - 10.081(2)(a) 5 . , as alleged in the

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

PRELIMINARY STATEMENT

On November 29 , 2016 , the Commissioner of Education

e xecuted an Administrative Complaint against Respondent which

alleged that , Ð[ o ] n or about November 30, 2015 , during class,

Respondent postured himself in an aggressive or threatening

manner toward eighth grade student, H.H., and stated to H.H.,

Òcome on you little pussy ass bitch, hit me, so I can send your

ass to jail,Ó or words to that effect.Ñ As such, Petiti oner

alleged that Respondent Ðfailed to make reasonable effort to

protect [H.H.] from conditions harmful to learning and/or

[H.H.]Ós mental health and/or physical health and/or safety,Ñ

and Ðintentionally exposed [H.H.] to unnecessary embarrassment

or disparagement.Ñ

On Jan uary 9, 2017 , Respondent , through counsel, filed an

E lection of R ights by which he requested a formal hearing. 1 / The

matter was referred to the Division of Administrative Hearings

for an evidentiary hearing.

The hearing was set for May 3, 2017, and was convened as

scheduled .

On April 24, 2017 , the parties filed their Joint Pre -

hearing Statement, which contained seve ral stipulations of fact,

each of which is adopted and incorporated herein.

At the final hearing, Petitio ner presented the testimony of

Brian Goddard, the E xceptional Student Education (E SE ) assistant

p rincipal at DeLand Middle School (DMS) ; H.H., who w as a student

in RespondentÓs class at the time of the alleged incident; T.H. ,

who was a student in a nearby class room at the time of the

alleged incident ; Rhonda Gillis - Parker, a campus advisor at D MS ;

and Sandy Hovis, Director of Professional Standards for Volusia

County Schools. Petitioner offered no exhibits into evidence.

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

behalf , and presented the testimony of Thomas Robinson, a

teacher in the Self - contained Emotionally Behaviorally Disabled

(SC - EBD) department at D MS . Respondent Ós Exhibit 1 was received

in evidence .

A one - volume Transcript of the proceedings was filed on

May 18, 2017 .

Both parties timely filed P roposed Recommended O rders which

have been duly considered by the undersigned in the preparation

of this Recommended Order.

The actions that form the basis for the Administrative

Complaint occurred in November 2015 . This proceeding is

governed by the law in effect at the time of the commission of

the acts alleged to warrant discipline. See McCloskey v. DepÓt

of Fin. Servs. , 1 15 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

1. The Florida Education Practices Commission is the state

agency 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, as 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 . (2016).

3 . Respondent holds Florida Educator's Certificate 471010,

covering the areas of Educational Leadership, Social Science ,

and Exceptional Student Educati on, which is valid through

June 30, 2019.

4. Prior to the 2015 - 2016 school ye ar , Respondent had been

a school teac her for 27 years, 24 in Georgia, and three in

Hawa ii . He has never had his teaching certificate disciplined

before the instant case.

5 . After the 2014 - 2015 school year, Respondent moved from

Hawaii to DeLand to be near his elderly parents.

6 . At all times pertinent hereto, Respondent was employed

as an E SE t eacher at D MS in the S C - EBD student department .

7 . As the name infers, t he SC - EBD department is self -

contained, with EBD students being entirely segregated from the

general student population. The SC - EBD department is located in

a four - classroom building at DMS . The four classrooms are

interconnected. The classrooms of Respondent and Mr. Robinson

adjoined at their back doors. The SC - EBD program has

approximately 15 total students, with a student - to - st aff ratio

of three to one . Students rotate through the three classroom s

dedicated to the SC - EBD department in two - period blocks , and

Mr. Robinson was very familiar with RespondentÓs class room and

the students .

8 . SC - EBD students have a wide range of emotional and

behavioral disabilities. The SC - EBD department is the m ost

restrictive environment into which students can be legally

placed in the school system, due in part to students in the

department having been continuously disruptive in the general

student classrooms. To qualify for the department, the student

Ð behaviors have got to be significant. They cannot be your

typical misbehavior. Ñ

9 . According to Mr. Robinson, whose testimony is credited,

positions in the SC - EBD department are not desirable, and

experience high turnover. Mr. Robinson, having taught EBD

students for 19 years -- an anomaly -- has learned to navigate

the EBD environment over the years. However, given the severity

of the EBD studentsÓ behavioral issues, even Mr. Robinson, with

his years of experience and hard - earned student rapport , has

Ðlost his coolÑ with them.

10 . The 2015 - 2016 school year started in late August 2015.

The classroom position ultimately filled by Respondent was

vacant, the previous yearÓs teacher having left on short notice.

From the beginning of the school year until Respondent was

hired, the class was staffed by a mix of substitutes and

paraprofessionals. As a result, the class was significantly

more unruly and disruptive than normal , with student s acting

out, and their behaviors escalating and becoming more s evere .

11 . Prior to his being hired at DMS, Respondent had no

experience with EBD settings or with any other kind of severe

special education setting , a fact known to Mr. Goddard.

1 2 . Respondent began teaching a SC - EBD class at DMS on

September 14, 2015. Mr. Robinson credibly testified that

Respondent was placed in an ext remely difficult position.

EBD students generally do not accept change well, and do not

accept authority figures. From the beginning of the year until

Respondent was hired, cl assroom management rules had not been

consistently enforced by the substitutes and paraprofessionals

assigned to the class. When Respondent was thrown into the

classroom, and began enforcing the rules, the students got out

of sorts, and began to buck the change and RespondentÓs

authority. Referral of students for disciplinary reasons was

not uncommon.

1 3 . Respondent received CPI training, and STARTS program

training, which included training in Odyssey . 2 / The 12 required

h ours of non - crisis CPI interve ntion training is normally

provided over a t wo - day workshop. Eighty - five percent of the

training is de - escalation training as to how to deal with

students that become out of control. The rest is for restraint

training , i.e. Ðactual hand - to - hand,Ñ and for post - incident

therapeutic rapport . STARTS training is a four - day program

conducted on Saturdays, and is usually done before the start of

the school year. It includes a half - d ay of overview, con tent -

specific training for EBD students, two half - d ays of classroom

management for EBD, and one full day of instruction on the EBD

curriculum. Given the timeframes for receiving training, it

would appear that RespondentÓs training would not have concluded

until well into October.

1 4 . Although Mr. Goddard testi fied that a district EBD

program specialist visited the campus once a week, DMS created

no formal or informal mentorship program, and Mr. Goddard did

not have specifics as to any special support. Mr. Goddard

testified that he did rely on Mr. Robinson, who was Ðvery much

the helpful hand in terms of training and teaching the teachers

in their -- the program, as well as the paraprofessionals.Ñ

15 . Student H.H. was well known to the D M S administration,

with frequent situations in which administration had to deal

with him for hyperactiv ity, profanity , and physical contact with

other students . Mr. Goddard knew him to be easily provoked.

Mr. Goddard further testified that, as to negatively

confrontational situations with H.H. , Ð most staff and students

that's -- that was the reaction. I can't remember specifically

any moment in time it was [Respondent] directly, but I'm sure it

was within his classroom. . . . It was multiple settings for

H.H. Ñ As stated by T.H., Ð[H.H.] just gets upset for the most

simplest things. Ñ

16 . S tudents H.H. and L.Y. were Ða very toxic

combination . Ñ They Ð would perform for one another to kind of

one up each other ,Ñ and their negative behaviors could be

ÐinflamedÑ by one another. Both students had probation officers

and were in an d out of the juvenile justice system. There had

been discussion at both the EBD level and the administrative

level that H.H. and L.Y. should not be paired in the same

classroom , with agreement that they should be separated Ð at all

costs Ñ to avoid potential flare - ups .

17 . P rior to November 30, 2015, and despite the

recognition that they should not be in class together, H.H. and

L.Y. were removed from their elective classes due to their

behaviors and Ð their inability to be in a gen - ed set ting , Ñ and

were placed together in RespondentÓs classroom during seventh

period, which was RespondentÓs EBD sixth - grade world history

class.

18 . Both Mr. Robinson and Mr. Goddard indicated that H.H.

had expressed the desire to see that Respondent got fired,

though Mr. Goddard testified that ÐH.H. probably says that about

every staff member on DeLand Middle School's campus, including

myself.Ñ

19 . On November 30, 2015, H.H. and L.Y. arrived late to

RespondentÓs classroom . The testimony from various witnesses as

to the subsequent events was inconsistent and contradictory in

several major areas.

H.H.Ós V ersion of E vents

20 . H.H. testified t hat L.Y. and Respondent had a n earlier

confrontation, 3 / witnessed by H.H., and that L.Y. Ðwas already

out of the classroomÑ before any interaction between H.H. and

Respondent. H.H.Ós testimony was confirmed by Respondent, who

testified that Ð where L.Y. was at that time, I do not know. He

had gone already. Ñ

21 . H.H. testified that after L.Y. left the classroom, 4 /

he was sitting, working on the computer, and asked Ms. Lord, the

paraprofessional in RespondentÓs classroom who was Ðsitting,

like, maybe, t wo chairs away from me , Ñ to help him with a quiz.

At that time, he testified that Respondent became angry with him

talking to Ms. Lord . 5 / H.H. testified that Respondent Ðgot into

my faceÑ and yelled at him . Other than the vague statement that

Respondent got into his face, H.H. offered no support for a

finding that Respondent was Ðposturing.Ñ H.H. and Respondent

had an exchange , whereupon H.H. walked out of the door , during

which H.H. testified that Respond ent hit him with his shoulder .

22 . After he was outside, H.H. testified that Respondent

Ð poked his head out and he was just, like, Pussy - ass bitch. Ñ

H.H. testified that Ms. Gillis - Parker was by the door when he

walked out of the classroom, and was within a few feet of him

when Respondent made his alleged Ðpussy - ass bitchÑ statement.

H.H. returned, and stood blocking the door. His full body was

inside , but he did not go Ðall the way in the classroom .Ñ He

testified that he was r eady to fight Respondent . H.H. then

testified that Respondent Ðsaid something about [H.H.Ós]

mother . Ñ 6 / H.H. was Ð fittinÓ to, like, to try to, like, fight

him,Ñ when Ms. Parke r - Gillis grabbed him and told him to leave

and go to the office.

T.H.Ós Version of Events

23 . T.H., who was in a nother EBD classroom, testified that

H.H. had gone to the classroom door , and Ðkind ofÑ nicely ask ed ,

Ðin a normal voice,Ñ to go to the main office. 7 / He testified

that Respondent Ðsaid no,Ñ whereupon H.H. walked out. He stated

that Respondent then went to the doo r and said ÐCome back here

you fucking pussy.Ñ Despite T.H.Ós apparent ability to see

RespondentÓs classroom do or, and to hear conversation made in a

normal voice, h e described no other statements or actions

related to the incident.

Ms. Gillis - ParkerÓs Version of Events

24 . Ms. Gillis - Parker described a scene very different

from any of the main actors. She testified that , at sometime

after 3:00 p.m., she was returning to the campus after opening

the gate to the sch o ol fence to allow buses to come in. She

then heard a teacher yelling Ðpussy - ass kid.Ñ At that point,

Ð the foot went heavier on the golf cart ,Ñ and she rolled up to

RespondentÓs classroom.

25 . When she arrived, Ms. Gillis - Parker claimed that , as

the door to the classroom was Ðslinging openÑ (implying that i t

was closed when she first came on the scene) , she heard Ðdirty

ass bitchÑ and could c learly see through the crack at the hinge

end of the outward - opening door that Respondent was inside the

classroom, Ð posturing himself in a -- to me, threatening

manner .Ñ She stated (contrary to the testimony of both H.H. and

Respondent) that L.Y. was in the classroom heading to engage

himself in the confrontation. She testified that Respondent

then said something to H.H. about Ðyour dirty mother.Ñ 8 / She

then removed H.H. from the classroom, and handed him off to a

school resource deputy who was a step o r two behind her.

26 . After having been prompted by counsel , 9 / Ms. Gillis -

Parker Ð remembered Ñ that she had first heard Respondent say

Ð[c] ome on you little pussy - ass bitch, hit me so I can send your

ass to jail ,Ñ the very words alleged in the Administrative

Complaint. Despite everyone who was directly involved in the

incident agreeing that the incident with L.Y. had concluded and

he had left the room before anything regarding H.H. and

Respondent transpired, Ms. Gi llis - Parker testified that Ð[y] ou

do not t alk to a child like I heard Mr. Schrade talking to H.H.

and L.Y. Ñ

27 . Despite testimony that she heard RespondentÓs outburst

well before she came on the scene , Ms. Gillis - Parker later

testified that she heard a Ðdirty ass bitchÑ comment after she

arrived on the scene when H.H. and Respondent were both in the

classroom , and when the door was Ðslinging open . Ñ She claimed

she heard a different Ðdirty motherÑ remark after she was in the

room Ð probably a step in [wh en] I'm talking to H.H. Ñ She

testified that she was about three steps into the room when she

got to H.H.

RespondentÓs Version of Events

28 . Respondent testified that H.H. had come into the

classroom late, after havi ng been sent out of his seventh - perio d

elective P.E. class. Respondent was teaching sixth - grade world

history. Respondent had only just finished with an incident

with L.Y., who had also been returned to RespondentÓs classroom

after having been dismissed from his elective class, engaged in

disruptive behavior, and had left the classroom.

29 . Respondent testified that, upon his entrance into the

classroom, H.H. was disruptive, talking , and engaging the other

students in conversation. Respondent approached H.H., who was

sitting at a desk, and told him that he did not appreciate H.H.

disrupting the class. H.H. raised up out of his chair, giving

Respondent the impression that H.H. was going to hit him.

Respondent said Ða re you going to hit me?Ñ and indicated that

H.H. might have to return to juvenile detention if he did so.

Respondent testified, credibly, that he was not trying to

embarrass or provoke H.H., but was reminding him of the possi ble

consequences of his actions , stating that ÐI donÓt want to get

hit by anybody, and I donÓt want to hit anybody . . . . I was

trying to get his attention. IÓm trying to keep him from

continuing to make the same mistakes and going back to his --

where heÓs incarcerated, whatever. I wanted him to w ake up, I

guess, so to speak.Ñ Although Respondent indicated that he was

probably closer to H.H. than the distance recommended in STARTS

training, he denied being aggressive, indicating rather that he

was Ð[s] imply talking to him . . . [and] verbally confronting

him about his behavio r.Ñ

30 . After the exchange, H.H. got up and brushed

RespondentÓs shoulder as he headed for the door to leave. When

he left the classroom, Respondent testified that , Ð out of a

moment of stress, Ñ he stuck his head out of the door, and said

Ð[d]onÓt be a w ussy. Ñ Respondent agreed that Ð it's probably not

the best word to use. Ñ Though acknowledging that the term was,

in retrospect, not the right choice, Respondent Ð didn't want

[H.H.] to continue going down that road of -- he wasn't going

down the right road. That's all there is to it. Ñ At the time

Respondent made the statement, he believed that H.H. and he

Ð were the only two people outside of anywhere close to proximity

. . . . I t was he and I by ourselves. There's no other person

to hear for him to be embarrassed about other than to not like

me saying that. Ñ

Ultimate Findings

31 . Notwithstanding the harshness of the allegation,

evidence of the statement -- as a lleged -- was subject to

significant contradiction and confusion between witnesses. The

testimony was not precise, varied in many important respects,

and was not of such weight that it produced a firm belief or

conviction of the truth of the allegations.

32 . The allegation that Respondent Ð postured himself in an

aggressive or threatening manner toward eighth grade student,

H.H., and stated to H.H., Òcome on you little pussy ass bitch,

hit me, so I can send your ass to jail ÓÑ is not supported by

clear and convinci ng evidence.

33 . The testimony of Ms. Gillis - Parker as to the timing

and sequence of events was simply too riddled with

inconsistencies -- both internal and comparative to other

testimony -- to be plausible. Her testimony that she could

clearly see th rough the crack at the hinge end of a door that

was being slung open, while hurrying to get to the scene, and to

be able to accurately assess the situation and determine if

someone was ÐposturingÑ was not credible. To the extent there

was ÐposturingÑ invo lved, it was likely on the part of H.H., who

was ÐfittinÓ to, like, to try to, like, fight [Respondent]. Ñ

34 . T.H. described a scene that included none of the

actions preceding the utterance of the alleged statement , and

the action leading to H.H. leaving the classroom was not

anything like that described by either H.H. or Respondent.

35 . The descriptions of the events offered by R espondent

and H.H. were not dramatically different. They both describe a

basic set of circumstances in which Respondent confronted H.H.,

H.H. left the classroom, Respondent said something to H.H., and

H.H. returned to the classroom. The specifics are different .

36 . What was proven by evidence that was credible, clear,

and convincing was this: H.H. arrived late to RespondentÓs

seventh - period classroom and was, upon his entry, disruptive to

RespondentÓs teaching. Respondent then admonished H.H. which,

as was not uncommon, caused H.H. to react. The suggestion that

H.H. -- who had jus t witnessed his ÐtoxicÑ compatriot, L.Y.,

leave the classroom -- was seated and working at his computer,

and that his simple request to Ms. Lord for assistance triggered

Respondent , is not plausible. 10 / Seeing H.H. rise from his desk,

Respondent asked if H.H. was going to hit him and , for reasons

that were not intended to be aggressive or provoking, suggested

that such an act could result in a stint in detention. As H.H.

was leaving the room, they brushed against each other. Nothing

further can be drawn from that incidental contact , and such does

not constitute Ðphysical contactÑ between the two. 11 / Finally,

in an admittedly poor choice, but one taken without forethought

or malicious intent, Respondent stuck his head out of the door

to tell H.H. to stop being a Ðwussy.Ñ That statement caused

H.H. to return to the classroom door, ready to fight.

Ms. Gillis - Parker, who had just come onto the scene, then

grabbed H.H. and told him to leave.

37 . After the incident, DMS conducted an investigation .

Mr. Goddard could not recall who was interviewed, other than

Respondent, Ms. Gillis - Parker, H.H., and L.Y. 12 / There was no

evidence to suggest that Ms. Lo rd was interviewed, and

Mr. Robinson was not interviewed. On December 1, 2015 , a

meeting was held with D MS administration, Respondent, and his

union representative. Since Respondent was on probationary

status, having been hired barely two months earlier, he was

given the option to sign a letter of resignation or to be let

go . Respondent consulted with his union representative, and

elected to resign from his position. The school district did

not make any findings regarding the incident.

38 . Following the November 30 incident, H.H.Ós grades were

not impacted and he moved on to the next grade level at the end

of the school year. There was no evidence that H.H .Ós mental

health was affected by the incident. However, rule 6A -

10.081(3)(a) Ð does not require evidence that Respondent actually

harmed [ H.H. ] 's health or safety. Rat her, 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).

39 . It is impossible -- and illogical -- to overlook the

situation into which Respondent was thrust after 27 years of

incident - free teaching. Unlike Mr. Robinson, who had not only

been at DMS for almost two decades, but who had taught H.H. and

L.Y. since they had been in sixth grade, Respondent was thrown

into a class midway into a term, a class until which had been

increasingly out of control due to the stream of substitutes and

paraprofessionals who unsuccessfully tried to impose order. On

to p of that, and despite a school - wide recognition that H.H. and

L.Y. should not be placed in a classroom together, DMS decided

to do just that after both were removed from their seventh -

period elective classes. That said, the undersigned agrees with

Mr. Ro binson that Respondent calling H.H. a ÐwussyÑ was not the

right thing to do, and would not foster a positive learning

environment for H.H.

40 . What also cannot be overlooked is the relatively mild

nature of the action that was proven in this case, i.e., that in

a moment in which Respondent Ðlost his cool,Ñ he called H.H. a

Ðwussy.Ñ The evidence was not clear and convincing that

Respondent was Ðposturing,Ñ or that he made any physical contact

with H.H. The evidence indicates that there was no intent or

expectation on the part of Respondent that the statement was, or

could have been overheard.

CONCLUSIONS OF LAW

A. Jurisdiction

41 . 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

42 . 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 teac hing 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

student s for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by la w, if the

person:

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

43 . Rule 6A - 10.081 , as it existed in 2015, 13 / provide d, in

pertinent part, that:

(3) 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.

* * *

( e ) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

C. Burden and Standard of Proof

44 . 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 Se c. & 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 Treas . ,

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

45 . 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 p roof

[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 wi thout

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

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such

weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

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

ambiguous." Westinghouse Elect ric Corp. v. Shuler Bros . ,

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

46 . Sec tion 1012.795 is penal in nature and , as such,

Ð must always be construed strictly in favor of the one against

whom the penalty would be imposed and are never to be extended

by construction. Ñ Griffis v. Fish & Wildlife Conserv. Comm'n ,

57 So. 3d 929, 931 (Fla. 1st DCA 2011). Penal statutes must be

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

the Legisla ture 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 1997); 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). Any

ambiguities must be construed in favor of the licensee. Lester

v. Dep't of Prof'l Reg. , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

47 . The allegations se t 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 . The Administrative Complaint

Count 1 - Section 1012.795(1)(j)

48 . Count 1 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 1 does not constitute an independent

violation, but rather i s dependent upon a corresponding

violation of the rules constituting the Principles of

Professional Conduct.

Count 2 - Rule 6A - 10.081(3)(a) 14 /

49 . Count 2 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 is students from conditions

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

their safety .

50 . T he evidence in this case demonstrate d that Respondent

called H.H. a Ðwussy.Ñ The evidence did not prove that

Respondent ÐposturedÑ or made any of the more inflammatory acts

or statements. The statement was made in the moment , and

Respondent believed there was no one with in earshot to hear it .

According to Mr. Goddard, H.H. was no stranger to profanity, and

the term ÐwussyÑ would not in itself have been harmful to his

mental health . T here was no competent, substantial, or

persuasive evidence to demonstrate that the statement was the

result of m alice, and no evidence that it was made with the

intent to embarrass , ridicule, or humiliate H.H. Nonetheless,

the statement was careless, and unnecessarily caused H.H. to

react negatively . Under the circumstances described herein,

Petitioner proved that Respondent failed to make reasonable

effort to protect H.H. from a condition reasonably contemplated

to be harmful to h is mental health in violation of rule 6A -

10.081(3)(a).

Count 3 - Rule 6A - 10.081(3)( e ) 15 /

51 . Count 3 of the Administrative Complaint charged

Respondent with violating rule 6A - 10.081(3)( e ) by intentionally

expos ing H.H. to unnecessary embarrassment or disparagement .

52 . A violation of th e substantively identical predecessor

to the rule cannot occur Ð in the absence of evidence that the

teacher made a conscious decision not to comply with the rule. Ñ

Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

53 . As set forth herein, t here was no competent,

substantial, or persuasive evidence to demonstrate that the

ÐwussyÑ statement was made with intent to embarrass or disparage

H.H. , nor was there evidence that the statement was made as a

conscious decision not to comply with the rule . As such,

Petitioner failed to prove that Respondent violat ed rule 6A -

10.081(3)(e) .

E. Penalty

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

establishes the range of penalties for violations 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

addition al penalty provisions. 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 cer tificate.

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

statutory provisions listed in the penalty guidelines . Rather,

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

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

pen alty of Ð Probation Î Revocation or such penalty as is

required by statute .Ñ 16 /

56 . R ule 6B - 11.007(2) (i)16. lists a guideline penalty of

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

students Ñ in violation of rule 6A - 10.081 (3)(a) .

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

mitigating factors to be applied to penalties calculated under

the guidelines . 17 /

58 . The facts of this case demonstrate that there are no

aggravating factors.

59. The following mitigating factors exist:

Rule 6B - 11.007(3) ( a) - The severity of the

offense, being an uncalculated ,

unintentional, but careless error, was very

mild;

Rule 6B - 11.007(3)(b) - There was no danger

to the public;

Rule 6B - 11.007(3) ( c) - The incident was

singular, the re were no repetitions;

Rule 6B - 11.007(3) ( e) - Respondent has never

before been subject to discipline by the

Commission (or by any other state in which

Respondent taught) ;

Rule 6B - 11.007(3) ( f) - Respondent was in his

28th year of teaching;

Rule 6B - 11.007(3) ( g) and (r) - Given the

lack of any effect on H.H. Ós academic

advancement, there was no actual damage

caused by the violation , and no actual

mental harm ;

Rule 6B - 11.007(3)( i ) - An excessive penalty

under the facts of this case would

unnecessarily inhibit RespondentÓs re -

em ployment as a teacher;

Rule 6B - 11.007(3)(n) - There have been no

related violations against Respondent in

another state ; and

Rule 6B - 11.007(3)(t) - The facts set forth

in paragraphs 1 2 , 17, 18, 39, and 40 should

be considered in substan tial mitigation of

any penalty in this case.

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 rule 6A - 10.081(3)( a ). It is further recommended that

Respondent be issued a letter of reprimand.

DONE AND ENTERED this 23rd day of June , 201 7 , 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

this 23rd day of June , 201 7 .

E NDNOTE S

1 / The date of RespondentÓs receipt of the Administrative

Complaint was not shown. However, the issue of the timeliness

of the Election of Rights was not contested. Thus, the Election

of Rights is accepted as having been timely filed.

2 / The evidence suggested that the Odyssey training, which was

the academically - oriented component of START , was insufficient

to non - existent. However, as there w as no allegation that the

inadequate Odyssey training carried over into other elements of

START training , the adequacy of the Odyssey training is not

relevant.

3 / There was testimony devoted to what may have transpired

between L.Y. and Respondent. However, the Administrative

Complaint included no allegations as to anything having to do

with L.Y. , and L.Y. did not testify. Having not been alleged,

t hose events cannot form the basis for discipline. Nonetheless,

the evidence , such as it was, was not clear and convincing that

any act violative of the Principles of Professional Conduct for

the Education Profession occurred between L.Y. and Respondent .

4 / H.H. testified variously that L.Y. was Ðescorted . . . out of

the room,Ñ that Ðhe just walked out,Ñ or that he did not know

because he ÐwasnÓt really fully paying attention.Ñ

5 / Ms. Lord would appear to have been a critical witness to the

events -- perhaps the person in the best position to observe

what happened. However, she was not a witness. There was no

evidence that she was even interviewed, despite Respondent

having iden tified her as a witness to the incident. Her

testimony may well have served to dispel the many

inconsistencies in the description of events.

6 / H.H. could not Ðremember fullyÑ what Respondent said about

his mother.

7 / It was not clear whether T.H. th ought H.H. was upset at the

time, since H.H. asked to leave the room in a normal voice.

However, T.H. did testify that :

A . . . when [H.H.] gets upset, he has to

talk to an administrator right away.

Q Does he get upset a lot?

A Kind of. It depends on the situation.

Q What makes him upset?

A Like -- like when people say no to him it

makes him upset. When -- he just gets upset

for the most simplest things.

8 / Why the alleged comment about H.H.Ós Ðdirty mother , Ñ if said,

would not have made it into the Administrative Complaint is a

mystery. However, since it did not, it cannot form the basis

f or discipline. Nonetheless, the evidence is not clear and

convincing that it was actually uttered.

9 / Ms. Gillis - ParkerÓs recollection was Ðref reshedÑ by the

following:

Q Okay. Now, you -- you've seen the

administrative complaint in this case,

haven't you?

A I've seen my statement and -- yeah. Can

I see that, so I can see if I've seen it?

Probably have, yeah.

Q Well, let me just tell you what it says.

A I don't think I've seen that.

Q It alleges in here that on or about

November 30th, 2015, during class,

respondent Mr. Schrade postured himself in

an aggressive or threatening manner toward

eighth grade student, H.H. (a minor). And

stat ed to H.H. (a minor) -- and I'm going to

use this exact quote, because we're alleging

that this came from you , "Come on you little

pussy - ass bitch, hit me so I can send your

ass to jail." Or words to that effect. Is

that what you heard?

A Yes, sir.

(e mphasis added).

In explaining why she had not said that earlier, d espite the

instruction to describe the eve nt Ðin painstaking detail,Ñ

Ms. Gillis - Parker stated that she Ð [s]kipped over [it] because I

got emotional on it.Ñ Given that Ms. Gillis - ParkerÓs

description of the alleged statement differs from that of H.H.,

T.H., and Respondent, and was only recalled after pure

recitation, her testimony is not accepted.

10 / The finding on this issue is bolstered by inconsistent

testimony from H.H. that, at firs t, Respondent confronted him

because he was asking Ms. Lord for help, but later that Ms. Lord

was not in the room during the incident because she may have

left to get coffee. In that regard, he was unable to recall

Ð whether she was in the room or not when all this happened .Ñ

The inconsistency in such a n essential fact affects whether

H.H.Ós testimony can be deemed to be Ðclear and convincing.Ñ

11/ Furthermore, Ðphysical contact Ñ was not alleged in the

Administrative Complaint and cannot form a basis for discipline.

1 2 / Mr. Goddard indicated that L .Y. was interviewed as part of

the investigation, and that he told Mr. Goddard Ð the same thing

that Mrs. Parker told [him] that happened in the classroom .Ñ

The evidence established that L.Y. was not in the classroom when

the incident with H.H. occurred.

13 / The rule s cited in the A dministrative Complaint, rule s 6A -

10.081(2)(a) 1. and 6A - 10.081(2)(a)5. , di d not come into effect

until March 23, 2016. However, the language is identical to the

rule in effect in 2015, and Respondent was on notice as to the

substance of the violations with which he was charged.

14 / See endnote 13 .

15 / See endnote 13 .

16 / It should be noted that numerous serious infractions have

the same penalty guideline range of ÐProbation - RevocationÑ as

does the generic ÐotherÑ category , including: obtaining or

attempting to obtain a Florida educatorÓs certificate by

fraudulent means; being incompetent to teach or to perform

duties as an educator; b eing guilty of gross immorality or an

act involving moral turpitude; engaging in personal conduct

which seriously reduces effectiveness as a district school board

employee; misappropriation of money; using a position for

personal gain; s exual mi sconduct; a lcohol or drug - related

offenses; p ossession of controlled substances; i mproperly

assisting a student with standardized testing; engaging in

inappropriate electronic communications, transmissions, or

downloads involving gambling; and failing to r eport child abuse.

Each of th o se listed infractions is far more serious than the

minor incident in this case, one taken with out evidence of

intent to embarrass or humiliate the student.

In addition to the foregoing, other far more serious infractions

tha n the one proven here include a reprimand within the

recommended penalty range , including: committing criminal

misdemeanors; misuse of corporal punishment; harassment or

discrimination of students on the basis of race, color,

religion, sex, age, origin, political beliefs, handicap, sexual

orientation, or family status; harassment or discriminat ion

which interferes with an individualÓs performance or work; and

improperly assisting a student with testing.

In short, the effort to establish a Ðcatch - allÑ category for all

unlisted violations , with a penalty range of ÐProbation -

RevocationÑ has , in this case , resulted in a guideline that is

disproportionate to the nature and severity of the offense.

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

Code R ule 6B - 1 .006 on January 11, 2013. However, the penalty

guidelines rule continues 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 there is no

evidence that Respondent was misled or harmed by the citation in

the penalty gu idelines to a rule that is no longer in effect as

numbered, the penalty guideline in rule 6B - 11.007(2) (i)16. for a

violation of rule 6B - 1.006(3)(a) shall be applied to the

corresponding violation of rule 6A - 10.081(3)(a).

COPIES FURNISHED :

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 5276

Gainesville, Florida 32627

(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

D epartment of E ducation

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 Order should be filed with the agency that

will issue the Final Order in this ca se.