17-004217PL Pam Stewart, As Commissioner Of Education vs. Frank Ardo Status: Closed Recommended Order on Friday, January 12, 2018.

Summary: Commissioner proved teacher was engaged in inappropriate relationship and text messaging with student. Texts were authentic and clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 17 - 4217PL

FRANK ARDO,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 28 , 2 017, A dministrative Law Judge (ALJ)

J. Lawrence Johnston of the Division of Administrative Hearings

(DOAH) conducted a disputed - fact hearing in this case by video

teleconference at sites in Fort Myers and Tallahassee .

APPEARANCES

For Petitioner: Charles T. Whit elock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post O ffice Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

Whether Respondent, a high school teacher , should be

disciplined under sections 1012.795 and 1012.796 , Florida

Statutes (2014), 1/ for an inappropriate relationship and

inapp ropriate communications with a student; and, if so, the

appropriate discipline .

PRELIMINARY STATEMENT

On March 16, 2016 , the Petitioner filed a n Administrative

Complaint against the Respondent. The two - count Administrative

Complaint charged the Respondent with violating section

1012.795(1)(g) for being guilty of personal conduct that

seriously reduces effectiveness as a t eacher , and section

1012.795(1)(j ) for violating the Principles of Professional

Conduct for the Education Profession. The charges arose from an

alleged inappropriate relationship and inappropriate

communications with a student.

The Respondent disput ed the charges and request ed a formal

hearing . The Petitioner forwarded the case to DOAH for

assignment to an ALJ. It was designated DOAH c ase 16 - 6534PL and

scheduled for hearing on January 17, 2017. The PetitionerÓs

witnesses, who were not under subpoena, failed to appear. The

Petitioner voluntarily dismissed, and the DOAH file was closed.

On July 25 , 2017, the matter was again referred to DOAH and

was re - opened a s DOAH case 17 - 4217 PL. The Respondent moved to

dismiss based on the voluntary dismissal of DOAH case 16 - 6534PL.

The motion was denied. The final hearing was scheduled for

October 3, but it was continued due to Hurricane Irma a nd

rescheduled for November 28.

On September 28, the Petitioner was granted leave to file an

Amended Administrative Complaint that added some allegations and

restated the charges in six counts, with the specific rule

violations alleged in counts 3 through 6.

At the final hearing on November 28, the Petitioner called

five witnesses: Deborah Cox, assistant principal at Gulf Coast

High Sc hool; Collier County SheriffÓs C orp oral Michael Sutton;

SheriffÓs D etective Matthew Usher; Valerie Wenrich, executive

direc tor of Human Resources for the Collier County School

District; and Ian Dohme, a Department of Education investigator.

The PetitionerÓs Exhibits 1 through 5 and 11 through 14 were

admitted in evidence, subject to hearsay objections. The

RespondentÓs objec tions to the admissibility of several exhibits

were sustained.

The Respondent objected to the admissibility of the

PetitionerÓs Exhibit 6 on several grounds, including

authenticity. The exhibit appeared to consist of copies of text

messages that were offe red as evidence of inappropriate

communications between the Respondent and one of his students,

H.D. The student and her mother could have addressed the

authenticity of the exhibit, but they did not appear to testify.

Ruling was reserved on the Responden tÓs authenticity objection.

The Respondent , who also could have addressed the

authenticity of the exhibit, did not testify and offered no

evidence.

At the end of t he hearing , the Petitioner was granted a

seven - day continuance to give her time to demons trate that H.D.

and her mother were under valid subpoena s and that the Petitioner

should be granted a longer continuance to allow her to enforce

the subpoenas in circuit court under section 120.569(2)(k)2.,

Florida Statutes (2017). Instead, it was demonst rated that

neither witness was under a valid subpoena , and t he evidentiary

record was closed.

A Transcript of the final hearing was filed on December 11.

After written arguments were considered, the PetitionerÓs

Exhibit 6 was admitted over objection wi thout the testimony of

H.D. and her mother, and deadlines were established for proposed

recommended orders. The partiesÓ proposed recommended orders

have been considered.

FINDING S OF FACT

1. The Respondent holds Florida Educator Certificate

946095, cover ing social science. The certificate is valid

through June 30, 2019.

2. In the 2014/2015 school year, the Respondent was

teaching social science at Gulf Coast High School in Collier

County.

3. In October 2014, t he Respondent began communicating with

his student, H.D., by text messages. There were numerous texts

sent on a regular basis over the course of about two months.

Most of these messages did not relate to classroom matters, which

violated school district policy. Many were highly personal and

clearly inappropriate. Thirty - three times, the Respondent

referred to his student as Ðbaby.Ñ Nine times, he wrote,

Ðmiss u.Ñ Nine times, he said she was Ðbeautiful. Ñ Five times,

he said she was Ðcute.Ñ In one message , the Respondent asked the

student to meet him at the mall during winter break for him to

buy her a Christmas gift. He also texted her on Christmas Eve

and on Christmas morning. In one text, he asked to take her to

dinner. In one message , the Respondent asked the student if she

minded i f he rubbed her leg. In another, he apologized for

hugging her and kissing her on the nose.

4. When these text communications came to the attention of

the schoolÓs administration, an investigation was initiated. On

January 15, 2015, the Respondent was informed of the

investigation and was given an opportunity to explain. The

Respondent declined. He was then escorted off campus.

5. The school district referred the matter to law

enforcement, which also investigated. When interviewed by law

enforcem ent, the Respondent exercised his right to remain silent.

No criminal charges were brought against the Respondent because

H.D. and her mother did not want to press charges and because

there was no evidence of sexual misconduct by the Respondent.

6. Aft er the law enforcement matter was closed, the school

district again confronted the Respondent about the charges, and

he again declined to respond. Instead, he resigned his

employment on February 9, 2015. The school superintendent

accepted the resignation but specified that the Respondent

resigned ÐNot in Good Standing.Ñ As a result, the Respond ent is

not eligible for rehire i n any capacity by the school district.

His misconduct and ineligibility for rehire clearly reduces his

effectiveness as an employe e of the school district.

CONCLUSIONS OF LAW

7 . Because the Petitioner seeks to impose license

discipline, she has the burden to prove the allegations by clear

and convincing evidence. See DepÓt of Banking & Fin. v. Osborne

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

Turlington , 510 So. 2d 292 (Fla. 1987). This Ðentails 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 evid ence must be of

sufficient weight to convince the trier of fact without

hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See

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

1983). ÐAlthough this standard of proof may be met where th e

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

is ambiguous.Ñ Westingho use Elec . Corp. v. Shuler Bros ., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

8 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the on e against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. DepÓt of

Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

8 88 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal stat ute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.Ñ

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

9 . The grounds proven in support of the PetitionerÓs

assertio n th at the RespondentÓs license should be disciplined

must be those specificall y alleged in the Amended Administrative

Complaint . See e.g. , Trevisani v. DepÓt of Health, 908 So. 2d

1108 (Fla. 1st DCA 2005); Cottrill v. DepÓt of Ins. , 685 So. 2d

1371 (Fla. 1st DCA 1996); Kinney v. DepÓt of State , 501 So. 2d

129 (Fla. 5th DCA 1987); Hunter v. DepÓt of ProfÓl Reg. ,

458 So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits the

Petitioner from taking disciplinary action against a licensee

based on matters not spec ifically alleged in the charging

instruments, unless those matters have been tried by consent.

See Shore Vill. Prop. OwnersÓ AssÓn, Inc. v. DepÓt of Envtl.

Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. DepÓt of

ProfÓl Reg. , 595 So. 2d 966, 967 ( Fla. 5th DCA 1992).

10. Count 1 charges the Respondent with being guilty of

personal conduct that seriously reduces his effectiveness as an

employee of the school district, in violation of section

1012.795(1)(g), Florida Statutes. The evidence was clear and

convincing that the Respondent violated this statute through his

inappropriate relationship and co mmunications with his student,

H .D.

11. The Respondent contends that the standard of proof was

not met as to this charge (or the others) because the st udent

(and her mother) did not testify. In this case, the standard was

met even without their testimony.

12 . The Respondent also contends that this charge was not

proven because of the absence of proof of a serious reduction in

the RespondentÓs effecti veness as an employee of the school

district. In this case, the evidence was sufficient. The

Respondent is ineligible for employment in the school district

due to his resignation ÐNot in Good StandingÑ in the face of the

school districtÓs action to termi nate his employment for an

inappropriate relationship and inappropriate communications with

a student.

13 . Count 2 charges the Respondent with being in violation

of section 1012.795(1)(j) by violating the rules setting out the

Principles of Professional Conduct for the Education Pr ofession.

Count 2 is derivative of the rule violations charged in Counts 3

through 6.

14 . Count 3 charges a violation of Florida Administrative

Code R ule 6A - 10.081(3)(a) 2/ for failure to Ð make reasonable effort

to protect t he student from conditions harmful to learning and/or

to the studentÓs mental and/or physical health and/or safety. Ñ

There was no evidence of Ð conditions harmful to learning and/or

to the studentÓs mental and/or physical health and/or safety. Ñ

This viola tion was not proven.

15 . Count 4 charges a violation of rule 6A - 10.081(3)(e) for

intentionally exposing a student to unnecessary embarrassment or

disparagement. While it is clear that the RespondentÓs

relationship with his student was inappropriate, as were his

communications with her, there was no evidence that she was

embarrassed or disparaged by them. This violation was not

proven.

16 . Count 5 charges a violation of rule 6A - 10.081(3)(f) for

intentionally violating or denying a studentÓs legal rig ht.

There was no evidence of a violation or denial of a studentÓs

legal right. This violation was not proven.

17 . Count 6 charges a violation of rule 6A - 10.081(3)(h) for

exploiting a relationship with a student for personal gain or

advantage. The Re spondentÓs inappropriate relationship and

communications with H.D. proved this violation.

18 . Under section 1012.795(1), the possible discipline for

violations includes suspension for up to five years, revocation

for up to ten years, and permanent revoc ation. If a certificate

is revoked f or a fixed period of time, it is not automatically

reinstated at the end of the period of revocation. Under section

1012.795(4) , re - application is required . Under section

1012.756(2)(e), an applicant must be of good m oral character.

19 . In her proposed recommended order, the Petitioner

states that she is seeking either permanent revocation or

revocation for a fixed period of time (the length of which is not

specified) . If revocation is not permanent, the Petitioner would

request that recertification be conditioned upon evaluation by a

provider selected by the Recovery Network Program (RNP) to ensure

that the Respondent would pose no threat to students, and a

period of probation of not less than five years, with stan dard

conditions.

20 . Those conditions of recertification do not appear to be

appropriate. First, RNP is to Ðassist educators who are impaired

as a result of alcohol abuse, drug abuse, or a mental condition

to obtain treatment. Ñ £ 1012.798(1), Fla. Sta t. (2017). There

is no evidence that the Respondent is impaired as a result of any

of those conditions. Second, there is no provision in section

1012.56 to certify an applicant who is of good moral character on

some kind of probationary status. The appl icant either

demonstrates good moral character, which entitles him to an

educator certificate, or he does not. (The temporary

certificates described in section 1012.56(7) are something

different.)

2 1 . Under Florida Administrative Code R ule 6B - 11.007(2) ,

the penalties for the violations proven in this case range from

probation to revocation. Rule 6B - 11.007(3) sets out aggravating

and mitigating factors for deviations from the penalty range.

C onsideration of t he aggravating and mitigating factors does n ot

warrant a deviation, especially given the breadth of the penalty

range in the rule, but it does suggest that a stiff penalty would

be appropriate , and t he Respondent has offered no evidence or

rationale that would support a lesser penalty.

RECOMMENDAT ION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order finding the Respondent guilty on Counts 1, 2,

and 6 , and revoking his Educator Certificate. If the revocation

is not permanent, it should be for at least five years, after

which he would be able to re - apply for certification and try to

demonstrate good moral character.

DONE AND ENTERED this 12th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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

File d with the Clerk of the

Division of Administrative Hearings

this 12th day of January , 2018 .

ENDNOTE S

1/ Unless otherwise indicated, the Florida Statutes cited refer

to the 2014 codification, which contains the statutes that were

in effect in late 2014 when the alleged violations occurred .

2/ All rule citations are to the Florida Administrative Code

rules that were in effect in late 2014 , when the alleged

violations occurred.

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)

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 3239 9 - 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 Order should be filed with the agency that

will issue the Final Order in this case.