19-005153PL Richard Corcoran, As Commissioner Of Education vs. Elizabeth Felix Status: Closed Recommended Order on Friday, March 27, 2020.

Summary: Respondent did not fail to make reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. The recommendation is dismissal of the Administrative Complaint.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

Case No. 19 - 5153PL

vs.

E LIZABETH F ELIX ,

Respondent .

/

R ECOMMENDED O RDER

On January 23 and 24, 2020, the final hearing was held in this case in

Altamonte Springs, Florida, before Brian A. Newman , Administrative Law

Judge of the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Ron Weaver, Es quire

Law Office of Ron Weaver

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Toby Lev, Esquire

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

231 East Colonial Drive

Orlando, Florida 32801

S TATEMENT OF T HE I S SUE S

The issues in this case are whether Respondent committed the acts

alleged and violations charged in the Administrative Complaint; and, if so,

what discipline should be imposed.

P RELIMINARY S TATEMENT

On July 31, 2019, Richard Corcoran, as Commissione r of Education

(Petitioner), issued an Administrative Complaint alleging that Elizabeth

Felix (Respondent) violated section 1012.795(1)(j), Florida Statutes (2017), 1

and Florida Administrative Code Rule 6A - 10.081(2)(a)1.

Respondent timely requested a hear ing involving disputed issues of

material fact to contest the charges against her . The case was forwarded to

the Division of Administrative Hearings and a final hearing was set for

November 27, 2019 .

After one continuance at Respondent ' s request , the fin al hearing was

rescheduled for January 23 and 24, 2020. On January 6, 2020, this case was

transferred to the undersigned who conducted the hearing as rescheduled.

Prior to the final hearing, the parties filed a J oint P re - hearing

S tipulation, in which they stipulated to certain facts. To the extent relevant,

the parties ' stipulated facts have been incorporated in the findings below.

At the hearing, Petitioner presented the testimony of Acacia Vierbicky,

Kimberly Ann Smith, Natalie Hatch, Anna Gonzalez, Cor y Baker, Juan

Colon, Chanda Nguyen , and Michelle Hartley . Petitioner ' s Exhibits 1 through

16 were admitted in evidence . Respondent testified on her own behalf and

presented the testimony of Isaac Bowen, Traci Dice, Claudia Tyler, and

Deborah Zuk . Responden t ' s Exhibits 1 through 13 were admitted in evidence.

1 The Administrative Complaint is based on events that occurred in October 2017.

Accordingly, although the Administrative Complaint does not identify the version of the

statutes or rules on which charges are predicated, the charges must be based on the law in

effect at the time of the acts claimed to be violations. Childers v. Dep ' t of Envtl. Prot. , 696

So. 2d 962, 964 (Fla. 1st DCA 1997). Therefore, unless otherwise indicated, references herein

to statutes are to the Florida Statutes (2017).

The two - volume T ranscript of the final hearing was filed on February 26,

2020. The parties timely filed P roposed R ecommended O rders , which have

been considered in preparing this Recommended Order.

F IND INGS OF F ACT

1. Petitioner , on behalf of the Education Practices Commission, is charged

with the responsibility of certifying and regulating public school teachers in

Florida.

2. Respondent is a teacher. At the time of the allegations in the

Administrativ e Complaint, Respondent held Florida Educator ' s Certificate

1266409, covering the area Exceptional Student Education (ESE).

Respondent ' s Background

3. Respondent earned a bachelor ' s degree in special education from

New York University and a master ' s degree in early childhood special

education . From 1998 to 2015 s he taught ESE in self - contained classrooms

(classrooms dedicated to ESE student s) in New York .

4. Respondent moved to Florida and began working for Orange County

Public Schools , where she was emplo yed in February 2015 as an ESE teacher

at Ocoee Elementary School (Ocoee Elementary) . For reasons unrelated to

this case , Respondent was moved to the position of behavioral specialist (a

non - classroom position) , but returned to ESE classroom teaching in th e fall of

2017.

5. Crisis Prevention Intervention (CPI) is a " best practice " crisis de -

escalation protocol used district - wide in Orange County Public Schools.

Respondent is CPI trained and certified.

6 . In June 2017, Respondent injured her shoulder and ank le at work while

she was attempt ing to pick a student up from the floor . She returned to work

after a few weeks of physical therapy . She continues to have pain in her

shoulder and ankle. Respondent also suffers from asthma and recurrent

nerve pain.

7 . By a ll accounts , Respondent was a dedicated and effective ESE teacher

at Ocoee Elementary . She used her own funds to purchase supplies for her

ESE students, including exercise balls for autistic students to prevent them

from rocking in standard - issue chairs. H er evaluations from Ocoee

Elementary were all " effective " or " highly effective. " All of the witnesses who

had occasion to observe Respondent in the classroom gave her high marks .

There is no evidence that Respondent ever acted in anger or frustration with

a student . She is accused of having done so in the incident at issue here.

Respondent ' s Classroom

8 . For the fall of 2017 , Respondent taught ESE students in a self -

contained classroom at Ocoee Elementary. The grade level of her students

spanned three gra des, from second to fourth grade . The class size was

approximately 12 students . The students were autistic and/or intellectually

disabled .

9 . Paraprofessionals were assigned to assist Respondent in the classroom,

including Cory Baker, Chanda Nguyen, and M ichelle Hartley.

10 . The classroom had a designated " safe space, " a small open area

approximately three to four feet wide located between a large portable closet

on wheels , a file cabinet on one side, and a wall on the other side . The safe

space floor was covered with a soft mat and pillows . P osters on the safe space

wall show ed students how to breathe , relax , and decompress .

11 . A bathroom was located inside the classroom . The door opened out to

the classroom. The door could be locked from the inside . Res pondent and the

paraprofessionals assigned to the classroom had access to a n Allen key t o

unlock the bathroom door , but a disc had to be " popped " off of the lock to use

it .

12 . Ocoee Elementary had a " crisis team " that could be called to assist

when a stu dent was in crisis, including removing the student if necessary .

The crisis team included Juan Colon, who was the school ' s behavior

specialist, and Isaac Bowen , a behavior trainer. The crisis team typically

respond ed to a call for assistance within one to two minutes.

The Incident with Student E.T.

13 . E.T. was assigned to Respondent ' s ESE classroom for the fall of 2017 .

He was 12 years old at that time . The other students ranged from seven to

nine years of age. At approximately 5 ' 6 " , E.T. was not only the largest

student in the class, but he was also larger, and about four inches taller , than

Respondent .

14 . E.T. was considered to be intellectually disabled . He was learning on a

first or second grade level and his IQ was below 70. Some of the other

student s in the classroom were autistic , but E.T. was not.

15 . A Behavior Intervention Plan (BIP) is a written plan that identifies

problematic behaviors of a particular ESE student and strategies staff should

use to address the m . E.T. had a BIP that listed thre e problematic behaviors:

(1) noncompliance (that is , refusing to perform tasks, by saying words like

" no, " " this is stupid, " making faces or squeaking noises , or simply walking

away ) ; (2) physical aggression (including aggressive posturing towards his

peer s and throwing small objects like pencils, erasers , and papers); and

(3) elopement (defined as walking away from staff).

16 . On t he morning of October 12, 2017, E.T. began engaging in disruptive

behavior that ultimately required his removal from the classr oom . The

disruptive behavior began when E.T. crawled under the desk of one or more

other students and grabbed crayons and pencils that were not his .

Respondent attempted to de - escalate and redirect E.T. with oral instructions ,

but her attempts failed .

17 . Ultimately, Respondent call ed the crisis team for help with E.T .

Mr. Bowen arrived at Respondent ' s classroom within a short time with two

other behavior trainers . The rest of the class was taken to the playground .

Respondent and Mr. Bowen sat with E.T. at a table to work on compliance

tasks , and E.T. ' s behavior and mood improved . Respondent and Mr. Bowen

walked with E.T. to the playground to retrieve the rest of the class .

Respondent, E.T. , and the rest of the class went back to the classroom .

Mr. Bowen an d the other behavior trainers left to respond to another call. On

the way back to Respondent ' s cla ssroom, E.T. refused to walk in line with the

other students. O ne of the paraprofessionals walked with E.T. and redirected

him back to the line.

18 . Back in t he classroom, E.T. ' s disruptive behavior resumed . He grabbed

pencils and crayons that were not his and crawled under the desks of other

students . He also blew mucus out of his nose, spit saliva onto his hands, and

wiped his mucus and saliva all over his bo dy. Respondent attempted to

redire ct E.T. , initially by ignoring his behavior . When that failed , she

attempted to redirect him with instructions and incentives . This strategy also

failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen

a nd Ms. Hartley , to take the other students to the sensory room, an activity

room located outside of Respondent ' s classroom. The class was removed in

the hope that E.T. ' s behavior would improve once he was denied an audience

of his peers. Respondent asked M s. Baker to remain in the classroom with

her to assist with E.T. When E.T. ' s behavior did not improve, Respondent and

Ms. Baker called the crisis team again , but this time they were unable to

reach Mr. Colon or Mr. Bowen because they were either responding to other

calls for help or in a radio " dead zone. "

19 . Respondent thought E.T. might respond better if he was allowed to

talk with his mother , so she called E.T. ' s mother and allowed him to talk to

her on the class telephone . At that time , E.T. was under a table in the

classroom pretending to be a turtle . E.T. feigned illness (fake coughing) and

told his mother he wanted to go home . He also asked for potato chips to eat .

The call terminated and E.T. refused to come out from under the table . After

repeated unsuccessful attempts to coax E.T. out from under the table without

laying hands on him, Respondent carefully pulled E.T. from under the table ,

maki ng sure he did not hit his head . E.T. was not injured in any way in the

process .

20 . Respondent then took E .T. to the classroom safe space . Once in the

safe space, E.T. started to crawl under the portable wheeled closet.

Respondent was concerned E.T. would injure himself in the process Ð

legitimately so Ð and lifted him up and held him against the wall . E.T. made

h imself go limp to beco me " dead weight " and slumped down to the floor mat .

Respondent lifted him back to his feet again and E.T. slumped back down to

the floor . This process was repeated several times until E.T. reached on top of

the clos et and grabbed a ba sket of toys, causing the basket contents to fall to

the safe space floor . The basket included toy train cars made of die cast

metal. E.T. grabbed one of the train cars off the floor and threw it over the

head of Ms. Baker , who was standing in the middle o f the classroom . He

threw another train car at Respondent, striking her in the head .

21 . Respondent stepped on one of the train cars and fell hard against the

wall , pinning E.T. between her and the wall. E.T. said , " My chest hurts, my

heart hurts , " and " I think I am going to die. " Respondent ' s shoulder hurt and

she was short of breath. Having reached her physical limits, Respondent

decided to remove E.T. from the safe space because she was concerned he

would be able to reach other items on top of the close t, including a heavy

paper slicer with a sharp cutting arm. Respondent ' s plan was to transport

E.T. out of the classroom to the " calm - down " room, a n empty class room used

to allow students in crisis to decompress . The calm - down room is located

about 20 to 3 0 yards from Respondent ' s classroom.

22 . Respondent guided E.T. out of the safe space and toward the

classroom door , with his arm under her armpit . This would be an approved

CPI transport hold but for the fact that CPI transport requires two adults to

tran sport a student in crisis in this manner , with each of the student ' s arms

under the armpits of an adult on each si d e of the student . Ms. Baker Ð who

was also CPI - trained Ð did not offer to serve as the second adult or provide

any other assistance to Respondent while she was struggling to transport

E.T. out of the safe space .

23 . E.T. Ð apparently unfazed by falling with Respondent against the safe

space wall moments earlier Ð started to laugh and grabbed crayons off the

desk of another student as he was being guid ed toward the classroom door .

E.T. pulled away from Respondent and started walking quickly ahead of her .

Respondent tried to maintain a hold on E.T. , but was unable to do so without

help from anyone (such as Ms. Baker, who continued as a spectator to

Respo ndent ' s struggles) . E.T. announced he was going to the bathroom and

headed for the bathroom door . Respondent rushed to stop him, but tripped

and landed hard against the bathroom door with E.T. Respondent was

concerned Ð legitimately so Ð that E.T. could lock h imself in the bathroom and

create a mess or injure himself before the key to the bathroom could be

accessed . Respondent applied all of her weight to the bathroom door , while

E.T. held onto the doorknob , to prevent him from accessing the bathro om.

R esponden t held E.T. against the bathroom door , using her forearm against

his chest . Respondent then struggled to lead E.T. away from the bathroom

door and toward the classroom exit door, sliding with him against the wall .

24 . Natalie Hatch, a staffing specialist at Ocoee Elementary, and

Mr. Colon entered the classroom door when Respondent was struggling to

keep E.T. out of the bathroom . Mr. Colon immediately assisted Respondent to

escort E.T. to the calm - down room using the dual - hold CPI transport position .

25 . On the way to the calm - down room, E.T. was crying and upset and he

continued to wipe mucus and saliva on his body. In the calm - down room, E.T.

tore paper and threw it on the floor . After about 15 minut es , he calm ed down

and Mr. Colon talked to him about the importan ce of following instructions.

Ms. Colon asked E.T. to pic k the paper off the floor and E.T. complied .

Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to

Respondent ' s classroom. There were no further incidents involving E.T. that

day . E.T. was not injured, physically or otherwise.

26 . The F indings of F act regarding the incident with E.T . are based

almost entirely on Respondent ' s testimony , which the undersigned found to

be highly credible . The findings are also consistent with the cred ible

testimony of Mr. Colon , who found nothing wrong with Respondent ' s attempt

to keep E.T. from going into the bathroom by holding him against the

bathroom door , nor did he find anything wrong with anything else he

witnessed after entering Respondent ' s cl assroom .

27 . Ms. Baker stood in the middle of the classroom while Respondent

struggled with E.T. Ms. Baker could not see all of the safe room interactions

between Respondent and E.T. , because her field of view was blocked by the

closet and cabinet that fo rmed the bound ary of the safe space . Ms. Baker

made repeated calls to the crisis team , but otherwise failed to offer any

assistance to Respondent . Ms. Baker did not voice any objection to the

manner in which Respondent physically interacted with E.T.

28 . The following day, Ms. Baker complained to administration that

Respondent physically mistreated E.T. This led to an investigation of the

incident and ultimately to Respondent ' s termination.

Rejection of Corey Baker ' s Testimony

29 . Petitioner relies chiefly on the testimony of Ms. Baker to prove its

case . For the reasons that follow, Ms. Baker ' s testimony was not credible and

has not been accorded any weight.

30 . Ms. Baker ' s account of the incident differed from Respondent ' s in that

she contends Respondent " manhandl ed " E.T . out of frustration, including :

" snatching " him out from under the table when he was pretending to be a

turtle ; and repeatedly slamming E.T. hard against the wall of the safe room ;

and later the bathroom door . Essentially, Ms. Baker accuses Respondent of

physically mistreating E.T. out of frustration with his conduct that day .

31 . Ms. Baker ' s testimony is rejected where it conflicts with the testimony

of Respondent and Mr. Colon for several reasons . First, Ms. Baker ' s field of

view of the safe space was obstructed. No credit has been given to her

testimony about what occurred when E.T. and Respondent were in the safe

space together , because she could not see all of what happened there . That

she would offer testimony describing events she co uld not have seen casts

doubt on her overall veracity.

32 . Ms. Baker ' s credibility also suffers from her admitted failure to

intercede in any way to aid a student she now claims to have been physically

mistreated for a prolonged period of tim e. If, as Ms. Baker contends ,

Respondent " manhandled " E.T. while the three were alone in the classroom,

then Ms. Baker should have attempted to separate the two or at least warn

Respondent that she was being too rough; she did neither. Here is

Ms. Baker ' s explanation f or why she stood idle when Respondent and E.T.

struggled :

Q. So why didn ' t you jump into that space and help

her lift him up? Why didn ' t you do something?

A. Because, like I said, I do not feel comfortable

with it being a blind corner [referring to the s afe

space] and already seeing stuff done that shouldn ' t

have been done . If somebody came in, it would have

literally looked like we were both just trying to take

this kid out.

In other words, Ms. Baker claims she did nothing to protect E.T. because she

m ight also get into trouble. This explanation is rejected . It is inconceivable

that Ms. Baker would sit back and do nothing if she believed Respondent was

mistreating E.T. The rational explanation for why Ms. Baker did nothing to

intercede to stop Responden t is that Respondent ' s actions were app ropriate

under the circumstances .

33 . Finally, Ms. Baker ' s credibility suffers from her embellishment of the

incident, including the trauma she claims to have suffered after - the - fact.

Ms. Baker testified that the inc ident was so traumatic t hat she had

n ightmares for a week or two afterwards. She went so far as to blame the

stress of witnessing the incident for ending her re lationship with her

boyfriend . There was no evidence that E.T. was injured in the slightest .

Ind eed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons

that were not his after he left the safe space with Respondent. Ms. Baker

grossl y distorted the resulting trauma she claims to have suffered .

34 . For all of these reasons Ð and the under signed ' s observation of the

demeanor of the witnesses who testified live at the final hearing Ð

Ms. Baker ' s account of the incident with E.T. is found to be grossly

exaggerated and unreliable, and is given no weight. 2

The OCPS Investigation

35 . Petitioner al so offered the testimony of Acacia Vierbicky , an

investigator for Orange County Public Schools (OCPS) . Ms. Vierbicky was

charged with investigating the incident involving E.T. after Ms. Baker

complained to administration .

36 . Ms. Vierbicky testified that during the investigation , Respondent

admitted to her that she " snatched " E.T. ' s arm from underneath the table

when he was pretending to be a turtle, and pinned him against the wall Ð face

first Ð in the safe space .

37 . T he Administrative Complaint does not al lege facts regarding the

manner in which Respondent removed E.T. from under the table as a

predicate for any charges . Regardless, Respondent denied that she " snatched "

E.T. from under the table and explained why she removed him from

underneath the table. R espondent ' s testimony was credible and is accepted

over Ms. Vierbicky ' s recollection of what she was told during her

investigation.

2 Additional evidence was offered to im peach Ms. Baker ' s credibility. First, to suggest bias,

Respondent and Ms. Baker were close friends at one time, but that relationship soured the

summer before this incident occurred. Second, a nother teacher testified that Ms. Baker came

forward with false allegatio ns against her in an attempt to get her fired. Finally, another

witness testified that Ms. Baker is prone to exaggerate events involving students in general.

While all of this testimony may be true, it is unnecessary to rely upon it to reach the

conclusion that Ms. Baker ' s testimony is unreliable .

38 . The characterization of whether Respondent " pinned " or " held " E.T.

against the wall of the safe space with the weight of her body is no t an

import ant distinction here. What is important is that Respondent did so to

prevent E.T. from crawling under the wheeled closet or grabbing dangerous

items from the top of the closet. Holding E.T. against the wall under these

circumstanc es Ð whether an approved CPI hold or not Ð was entirely

reasonable to prevent E.T. from hurt ing himself or others . Ms. Vierbicky ' s

testimony as to her recollection of Respondent ' s admissions is rejected where

it differs from Respondent ' s live testimony. 3

Cri sis Prevention Intervention

39 . CPI is not the law; it has not been adopted by statute or rule.

40 . Petitioner offered the testimony of Kimberly Ann Smith, an expert in

CPI and behavior analysis . Ms. Smith testified credibly that pinning or

holding a stude nt against a wall or holding a student with his arm behind his

back is not an approved CPI hold . But, as Ms. Smith repeatedly

acknowledged, CPI is a " best practice " protocol . As such, restraining a

student with a non - CPI approved hold can be reasonable und er certain

circumstances even if it is not the " best practice. "

41 . Ms. Smith testified that it is acceptable to physically restrain a

student when the student may hurt himself or others . Ms. Smith also agreed

that E.T. could have injured himself crawlin g under the wheeled closet and

that throwing the metal trains presented a legitimate safety concern . The

CPI training materials offer examples of approved holds that one teacher can

apply to restrain a student, but these holds are not appropriate for a stu dent

3 Ms. Vierbicky ' s investigative summary of the incident inv olving E.T. was admitted as an

e xhibit in this proceeding , as were the witness statements she collected during her

investigation. Although admitted, thes e exhibits have not been relied upon here because they

are largely hearsay . See § 120.57(1)( c), Fla. Stat. It is also noteworthy that there are obvious

material omissions from Ms. Vierbicky ' s investigative summary, including the failure to

mention that E.T . grabbed and threw metal trains while in the safe space and the failure to

mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on

hearsay, the investigative summary represents an incomplete assessment of the incident

with E.T. , and is unreliable for this reason alone.

who is taller than the teacher. In fact, these holds should only be used on a

student who is at least a head shorter than the teacher . E.T. is significantly

taller than Respondent . Petitioner offered no evi dence of a CPI - approved hold

that would have been appropriate for Respondent to use under the

circumstances she confronted with E.T.

42 . Petitioner also offered testimony from Ms. Hatch to show that

Respondent did not use a CPI - approved restraint when E.T. was attempting

to enter the bathroom . Ms. Ha tch testified that when she entered the

classroom , she saw Respondent holding E.T. with his face against the wall

wi th his hand behind his back . This differs from Mr. Colon ' s testimony , which

was that Respondent was holding E.T. with his back against the b athroom

door with her forearm on his chest. Although Mr. Colon ' s and Ms. Hatch ' s

recollection of the position ing of Respondent and E.T. differ, the distinction is

not material. Respondent had a legitimate concern to keep E.T. from entering

the bathroom und er the circumstances , and her attem pts to do so Ð although

not a CPI - approved hold Ð were reasonable under the circumstances.

43 . For all of these reasons, Respondent ' s admitted failure to use CPI -

approved holds to restrain E.T. is not evidence that she failed to make

reasonable effort to protect E.T. from any potentially harmful conditions , or

that she exposed him to a risk of mental or physical harm .

Ultimate Findings

44 . It is determined, as a matter of ultimate fact, that Respondent , in fact,

made reasonab le effort to protect E.T. from conditions harmful to learning

and/or to his mental or physical health and/or to his safety.

C ONCLUSIONS OF L AW

45 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this pro ceeding. §§ 120.569 and 12 0.57(1),

Fla. Stat. (2019).

46 . In this proceeding, Petitioner seeks to discipline Respondent ' s

educator ' s certificate. Petitioner bears the burden of proving the allegations

in the Administrative Complaint by clear and convincing evidence. Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Florida

Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

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 Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983) ) . Accord Westinghouse Electric Corp.,

Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) ( " Although

this standard of proof may be met where the evidence is in conflict, ... it

seems to preclude eviden ce that is ambiguous. " ).

47 . The Admin istrative Complaint charges Respondent with viol ating

section 1012.795(1) (j) . S ection 1012.795 provides , in pertinent part :

(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 a s

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 schoo l 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 law, if the person:

* * *

(j) Has violated the Principles of Professional

Conduct for the Education Profession prescribed by

State Board of Education rules.

Section 1012.795(1)(j) requires proof of a violation of the Principles of

Professional Conduct f or the Education Profes sion prescribed by rule of the

S tate Board of Education. Thus, t his charge is linked to and predicated on

the charged rule violation , which is rule 6A - 10.081(2 )(a )1 . :

(a ) Obligation to the student requires that the

individual:

1 . Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student ' s mental and/or physical health

and/or safety.

48 . The Administrative Complaint alleges that Respondent violated this

rule by restraining E.T. in a non - CPI approved hold, by holding his arms

behind his back and forcibly pushing him against a wall multiple times.

49 . As found above, Respondent did not fail to make reasonable effort to

protect E.T. from conditions harmful to his learning and/or to h is mental or

physical health and/or to his safety. Although Respondent restraine d E.T.

using admittedly non - CPI - approved methods, she had no other reasonable

choice under the circumstances (and none was shown to exist) , because E.T. ' s

conduct presented a r isk of harm to himself and others if she failed to act .

Respondent did the best she could under difficult conditions given her

physical limitations and her paraprofessional ' s failure to offer physical

assistance . There is no evidence that E.T. was injured in any way and he

returned t o the classroom without further incident that day af ter he

decompressed in the calm - down room .

50 . The CPI protocols have not been adopted by rule . As such, the failure

to follow unadopted CPI protocols alone cannot be the basis for disciplinary

action against Respondent . See § 120.57(1)(e)1 . ( " An agency or an

administrative law judge may not base agency action that determines the

substantial interests of a party on an unadopted rule È. " ) . While it is possible

that using a non - CPI - approved restraint could be part of a factual scenario

that could give rise to discipline, the violation of the predicate rule would

have to be proven (i . e . that the teacher failed to make reasonable effort to

protect the student from the requisite harmfu l conditions). If, for example,

Respondent repeatedly slammed E.T. against the wall and otherwise

" manhandled " him out of anger Ð as Ms. Baker accused Ð then disciplinary

action would have b een warranted for using non - CPI - approved holds in that

manner .

51 . Bu t that factual scenario was not proven here . Instead, t he credible

evidence established that Respondent ' s conduct was reasonable in all

respects and that she restrained E.T. to protect him, not to harm him.

Petitioner failed to establish that Respondent vi olated rule 6A - 10.081(2)(a)1 . ,

and therefore failed to establish a violation of section 1012.795(1)(j).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Educatio n Practices Commission enter a f inal o rder

dismissing the Administrative Complaint.

D ONE A ND E NTERED this 27th day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

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 27th day of March , 2020 .

C OPIES F URNISHED :

Tobe M. Lev, Esquire

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

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Ron Weaver, Esquire

Law Office of Ron Weaver

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

De partment of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building , Suite 1244

325 West Gaines Street

Tallahassee, Florida 323 99 - 0400

(eServed)

Randy Kosec, Jr., Chief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parti es 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.