18-003355PL Pam Stewart, As Commissioner Of Education vs. Renya Jones Status: Closed Recommended Order on Thursday, November 15, 2018.

Summary: Respondent's reporting for duty to teach students while under the influence of alcohol constituted failure to make reasonable effort to protect students from harmful conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 18 - 3355PL

RENYA JONES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 25, 2018, a duly - noticed hearing was held in

F or t Pierce, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Nicholas Wolfmeyer, Esquire

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

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUE S

The issu es to be determined are whether Respondent reported

for duty while under the influence of alcohol in violation of

section 1012.795(1)(j), Florida Statutes (201 6 ) , and Florida

Administra tive Code Rule 6A - 10.081(2)(a)1. 1/ , as alleged in the

Administrative Co mplaint; and, if so, what sanction is

appropriate.

PRELIMINARY STATEMENT

Pam Stewart, as Commissioner of the Department of Education

(Petitioner or Commissioner), filed an Administrative Complaint

dated March 16, 2018, against Ms. Renya Jones (Respondent o r

Ms. Jones), alleging violations of section 1012.795(1)(j) and

rule 6A - 10.081(2)(a)1 . Respondent filed an Election of Rights

form on April 18, 2018, disputing allegations in the complaint

and requesting a hearing. On June 29, 2018, the case was

referre d to the Division of Administrative Hearings for

assignment of an Administrative Law Judge.

The case was noticed for hearing on August 23, 2018, and

after continuance, was heard on September 25, 2018. At hearing,

Petitioner presented the testimony of Ac tavis McQueen, a teacher

at Village Green Environmental Studies (Village Green); Sherri

Brown, then a teacher at Village Green; Mary Bergerman, media

clerk at Village Green; Cynthia Garcia, executive secretary at

Village Green; Officer Kenneth Rodriguez, o f the Safety and

Security Department of the St. Lucie County School Board; Gina

Dinello, technician at Absolute Testing/Consulting; and Aaron

Clements, director of employee relations at the St. Lucie County

School Board. Petitioner offered 47 exhibits: P - 1 through P - 12;

P - 14; P - 16 through P - 18; P - 20 through P - 24; P - 26 through P - 45;

and P - 47 through P - 52; all of which were admitted, with the

exception of P - 51. Exhibit P - 51 was the deposition of Ucola A.

Barrett - Baxter, then principal at Village Green, whi ch was

authorized prior to hearing to be submitted as a late - filed

exhibit, but not timely filed. Exhibit P - 52 was a composite

exhibit consisting of the testimony of Ms. Verna Brown

(Ms. Brown) as given in DOAH Case No. 17 - 4226, stipulated by the

parties to also be her testimony in this case, as well as t he

deposition testimony of Ms. Brown taken on August 16, 2018.

PetitionerÓs E xhibits P - 5, P - 6, P - 12, P - 21, P - 48 and P - 49 were

admitted over the objection that they were irrelevant.

RespondentÓs hearsay objections to PetitionerÓs E xhibits P - 10,

P - 11, P - 23, P - 24, P - 26, P - 27, P - 28, and P - 29 were sustained and

the exhibits were admitted with the caveat that they would be

considered only as supplementing or explaining other competent

evidence and could not i n themselves support a finding of fact.

Respondent testified on her own behalf and offered the

testimony of three employees at Village Green: Marcela Mars hall

Morgan, a Ðpaid volunteerÑ ; Julia Hughes, formerly a teacher; and

Andrew Copeland, a physical education teacher. Respondent

offered 8 exhibits, R - 1, R - 2, and R - 4 through R - 9, all of which

were admitted into evidence . E xhibits R - 2, R - 4, R - 6, and R - 9

were admitted over PetitionerÓs objection that they were not

relevant.

The two - volume Transcript of the proceeding was posted on

the DOAH docket on October 15, 2018. The time for filing

proposed recommended orders was extended until November 5, 2018,

in response to a joint motion. Both parties timely filed

proposed recommended orders that were consi dered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. The Commissioner is the state officer responsible for

investigating and prosecuting allegations of misconduct against

individuals holding educator certificates.

2. Ms. Jones held Flo rida Educator's Certificate No. 866702,

covering the area of Music, which was valid through June 30, 2018.

3. At all times pertinent to the Administrative Complaint,

Ms. Jones was employed as a m usic t eacher at Village Green in the

St. Lucie County Schoo l District.

4. On May 8, 2017, Ms. Cynthia Garcia reported to work at

Village Green around 7:30 a.m. The desk where visitors and staff

members sign in is adjacent to the front office where Ms. Garcia

works. Sometime between 7:30 a.m. and 7:50 a.m. , Ms. Jones signed

in at the desk and crossed the front office. Ms. Jones said hello

to Ms. Garcia and apologized for the way that she looked.

Ms. Jones had on no makeup and her hair or wig was unkempt.

Ms. Garcia asked Ms. Jones if she was okay because she was acting

a little giddy and didnÓt seem to be herself.

5. Ms. McQueen was in the hallway at Village Green going to

her classroom when Ms. Jones called out to her. Ms. McQueen went

over to her to see what she wanted. Ms. Jones was laughing and

to ld Ms. McQueen that the students would not recognize her because

she wasnÓt wearing any makeup. Ms. McQueen smelled alcohol and

noticed that Ms. JonesÓ was inappropriately dressed and that her

hair was untidy. Ms. McQueen testified that Ms. Jones was

slu rring her words, but she was able to understand what Ms. Jones

was saying. Ms. McQueen testified that Ms. Jones did not have any

coordination problems or trouble walking. Ms. McQueen told

Ms. Jones to go to her office to straighten herself up.

Ms. McQ ueen testified, ÐAnd my reason for doing that, because I

wanted to get her away from the students, so that I could go to

the office to get help, to tell administration.Ñ Ms. McQueen

testified that while she was talking with Ms. Jones, a few

students began waiting outside of the music room where they were

to rehearse for a musical production.

6. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen

told Ms. Brown that she thought Ms. Jones was drunk, or had been

drinking. Ms. Brown asked Ms. McQueen to take over her

responsibility to stay with the children who were having breakfast

so that Ms. Brown could go see Ms. Jones in the music room.

7. Ms. Brown testified that when she spoke to Ms. Jones:

[Y]ou could smell the alcohol, and her eyes

was sw ollen and the whites was red. And the

students kept trying to come through the back

part of the Î - itÓs like the stage, because

they was practicing. They practice in the

morning for a play. And I wanted to try to

keep the students from seeing her, so I like

get in front of her.

* * *

Because I didnÓt want them to see how she

looked. Because her hair was kind of wild and

her top was up, you can kind of see her

stomach. I didnÓt want the students to see

Ms. Jones like that.

8. Ms. Brown told Ms. Jones she needed to get herself

together, and Ms. Jones responded that she would leave the school.

Ms. Brown asked Ms. Jones if she wanted her to get someone to

help, was told no, and she then told Ms. Jones that she would tell

the school administrati on that they would need to get a substitute

teacher for the day.

9. This credible, eyewitness testimony of Ms. Jones Ó

colleagues that she smelled of alcohol, had swollen and bloodshot

eyes, exhibited slurred speech, and was acting in an unusual,

ÐgiddyÑ manner is sufficient evidence to reasonably infer that

Ms. Jones was under the influence of alcohol when she reported to

the school for duty on the morning of May 8, 2017.

10. Ms. McQueen and Ms. Brown left campus, with Principal

Barrett - BaxterÓs permis sion, to make sure that Ms. Jones had

arrived at her home. When t hey arrived, they saw her rental car

parked there.

11. Later the same morning, Ms. Jones returned to Village

Green. She went to the office area to talk to Principal Barrett -

Baxter. It was not clearly shown that Ms. Jones intended to

return to duty or be in contact with students when she returned.

12. Principal Barrett - Baxter said that she could smell

alcohol from across the desk, and confirmed the othersÓ earlier

observations that Ms. Jon esÓ appearance was unacceptable.

Ms. Garcia also credibly testified that the smell of alcohol was

so strong that it lingered in the room after she left.

13. Based on her observations and reports,

Principal Barrett - Baxter directed Ms. Jones to have a re asonable

suspicion drug test conducted. Officer Ken Rodriguez, who

transported Ms. Jones for the testing, also testified that he

smelled alcohol, that Ms. Jones was a Ðlittle foggy,Ñ and that she

appeared to be under the influence of alcohol.

14. Two bre athalyzer tests were conducted at Absolute

Testing, indicating that Ms. Jones had blood alcohol level

readings of .186 and .191.

15. The events after Ms. Jones returned to Village Green

were of little value in considering the charge in the

Administrative Complaint because of the interplay of two

circumstances: 1) Ms. Jones spent time at home alone after her

initial presentation at Village Green and before the time the

alcohol test was conducted; and 2) it was not clearly shown that

Ms. Jones was reportin g for duty to teach students when she

return ed to the school.

16. There was no evidence of any prior discipline involving

the Florida Educator Certificate of Ms. Jones.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction

o ver the parties and the subject matter of this case pursuant to

sections 120.569 and 120.57(1) , Florida Statutes (2018) .

18. Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructi onal

personnel. §§ 10 12.795(1) and 1012.796(6), Fla. Stat . (2018).

19 . Petitioner seeks to take action against RespondentÓs

educator certificate. A proceeding to impose discipline against a

professional license is penal in nature. It is PetitionerÓs

burden to prove the all egations in the Administr a tive Complaint

by clear and convincing evidence. Dep't of Banking & Fin. v.

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

Turlington , 510 So. 2d 292 (Fla. 1987).

20. Clear and convincing evidence has been said to re quire:

[T]hat 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 eviden ce 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

21. Respondent is substantially affected by the Department's

intended decision to discipline her Florida educator certificate

and has standing to maintain this proceeding.

COUNT 1

22. Count 1 alleges tha t Respondent was in violation of

section 1012.795(1)(j), in that she violated the Principles of

Professional Conduct for the Education Profession. Count 2 goes

on to allege the specific violation of these principles. Count 1,

standing alone, does not con stitute a distinct disciplinary

violation.

COUNT 2

23. Count 2 alleges that Respondent violated r ule 6A -

10.081(2)(a)1., which at the time of the alleged offense provided

that Florida educators:

Shall make reasonable effort to protect the

student from cond itions harmful to learning

and/or to the studentÓs mental and/or

physical health and/or safety.

24. Respondent argues that because she willingly left the

school when told to do so and had little contact with students,

she was not in violation of the rul e. This argument is rejected.

Although there was clear evidence of contact with a few students,

this evidence was not even required. In showing up for work,

signing in, and preparing to teach and supervise the students

rehearsing for the play while unde r the influence of alcohol,

Respondent failed to make reasonable effort to protect her

students from conditions harmful to studentÓs learning and their

mental health and safety. She did not, on her own, apparently

even realize that she should not be at th e school or be around

students in her condition.

25. It was only after she signed in that co - workers took

control, sent Respondent home, and arranged for another teacher

to take her place. This intervention was fortunate for the

students and avoided po ssible negative consequences. However,

RespondentÓs violation of the rule was complete at the point that

she arrived at the school to teach in her condition. It is clear

from the language of the rule that actual damage resulting from

her failure to take the actions reasonably required to protect

her students need not be proven. The lack of evidence that any

student suffered actual harm and Ms. JonesÓ cooperation when

directed to return home are mitigating factors, but not defenses

to her actions.

26. Petitioner proved by clear and convincing evidence that

Respondent violated section 1012.795(1)(j) and rule 6A -

10.081(2)(a)1.

Penalties

27. The Education Practices Commission adopted disciplinary

guidelines for the imposition of penalties authorized by

s ection 1012.795 in Florida Administrative Code Rule 6 B - 11.007.

28. At the time of the offense, rule 6B - 11.007(2)(i)16. ,

provided that probation to revocation was the appropriate range of

penalties for Ðfailure to protect or supervise students in

violati on of paragraphÑ 6A - 10.081(2)(a)1. 2/

29. Rule 6B - 11.007(2) also provided that the disciplinary

guidelines should be interpreted to include ÐRecovery Network

ProgramÑ and Ðadministrative fees and/or costsÑ with applicable

terms thereof as additional penalt y provisions.

30. Rule section 6B - 11.007(3) provided:

(3) Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Commission may

deviate from the penaltie s recommended in

subsection (2) . The Commission may co nsider

the following as aggravating or mitigating

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has

practiced and the contribution as an educator;

(g) The actual damage, physical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educatorÓs livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the educator

to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual neglige nce of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring to

the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

31. There was no evidence of actual physical or mental harm

to any student resulting from RespondentÓs actions on May 8, 2017,

though there was clear potential for harm. There was only a

single offense and there is no evidence of previous discipline.

While Respondent cooperated when directed to return to her home,

she knew or should have known not to put her students into the

situation in the first place. There was no evidence of efforts

toward rehabilitation. No evidence was presented as to

RespondentÓs p resent physical or mental condition connected with

a ny continuing use of alcohol.

32. No aggravating or mitigating circumstances are present

here to the extent necessary to warrant deviation from the wide

range of penalties already permitted within the guidelines.

RECOMMENDATION

Based upon the foregoing F indings of Fact and Conclusions of

Law, it is:

RECOMMENDED that the Education Practices Commission enter a

final order finding Respondent Renya Jones in violation of

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

Administrative Code R ule 6A - 10.081 (2)(a)1.; renewing her teaching

certificate and placing her on probation for a period of three

years; requiring her to obtain treatment through the Recovery

Network Program at a frequency and for a duration deemed

appropriate by the Commission; and requiri ng her to pay

administrative fees and costs.

DONE AND ENTERED this 1 5 th day of November, 2018 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 1 5 th day of November, 2018 .

ENDNOTE S

1/ All references to Florida Statutes or administrative rules are

to the versions in effect in May 2017 , the time of the events

described in the Administrative Complaint, except as otherwise

indicated.

2/ In 2017, rule 6B - 11.007 actually continued to reference rule

6B - 1.0 06(3)(a), the prior numbering of the principle of

professional conduct requiring Ð reasonable effort to protect the

student.Ñ The disciplinary guideline rule was not amended until

May 29, 2018. However, the nature of the offense is set out in

full in the disciplinary guideline rule and Respondent is not

prejudiced by the mislabeling.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Stre et

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Nicholas Wolfmeyer, Esquire

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

Post Office Box 2231

Orlando, Florida 32802

(eServed)

Matthew Mears, General Cou n sel

Education Practices Commission

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices and Services

Dep artment 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 Re commended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.