19-005639PL Richard Corcoran, As Commissioner Of Education vs. Emily Sones Status: Closed Recommended Order on Friday, January 15, 2021.

Summary: Petitioner proved, by clear and convincing evidence, that Respondent violated rule 6A-10.081, and, therefore, violated section 1012.795, Florida Statutes. Recommend written letter of reprimand, pursuant to rule 6B-11.007.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

vs. Case No. 19 - 5639PL

E MILY S ONES ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was held in this case pursuant to sections 120.569 and

120.57(1), Florida Statutes (2020) , 1 before Administrative Law Judge ( " ALJ " )

Cathy M. Sellers of the Division of Administrative Hearings ( " DOAH " ) on

January 15, 2021, by Zoom Conference.

A PPEARANCES

For Petitioner: Charles T. Whitelock, Esq uire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Peter Caldwell, Esq uire

Florida Education Association

1516 Hillcrest Street, Suite 109

Orlando, Florida 32803

S TATEMENT OF T HE I SSUE

Whether Respondent engaged in conduct that violated

s ection 1012.795(1)(j), Florida Statutes, and/or Florida Administrative Code

1 All references to chapter 120, Florida Statutes, are to the 2020 codification.

Rule 6A - 10.081(2)(a)1 . , and if so, what is the appropriate penalty t o be

imposed against her Florida Educator ' s Certificate .

P RELIMINARY S TATEMENT

On April 18, 2019, Petitioner , Richard Corcoran, as Commissioner of

Education, filed an Administrative Complaint against Respondent,

Emily Sones. Respondent disputed the material facts alleged in the

Complaint and timely filed an E lection of R ights form , requesting an

administrative hearing. On October 21, 2019, t he case was referred to DOAH

for assignment of an ALJ to conduct a hearing pursu ant to sections 120.569

and 120.57(1).

The final hearing was initially scheduled to be held on January 7, 2020.

Pursuant to motions to continue the final hearing dated December 5, 2019;

March 17, 2020; and November 9, 2020 , the final hearing was continue d

three times for good cause shown, and ultimately rescheduled for January 15,

2021.

The final hearing was held on January 15, 2021. Petitioner presented the

testimony of Ana Sanchez and students H.B., A.A., and J.R . Petitioner ' s

Exhibit Nos. 1, 3, 4, 6, 7, 10, 11, and 13 were admitted into evidence without

objection, and Petitioner ' s Exhibit Nos. 2 , 5, 8, and 9 were admitted over

objection. Respondent testified on her own behalf and presented the

testimony of Jeanette Sierra - Funcia and Salvatore Schiavon e. Respondent ' s

Exhibit Nos. 1 through 10 were admitted into evidence without objection . 2

2 Respondent ' s Exhibit Nos. 1 and 6 are Miami - Dade County School Board Policies, of which

official recognition also has been taken.

The one - volume T ranscript of the final hearing was filed at DOAH on

February 2, 2021. The deadline for filing proposed recommended orders was

extended twice, to April 19, 2021. The parties timely filed their Proposed

Recommended Orders ("PROs") on April 19, 2021 , and both PROs have been

duly considered in preparing this Recommended Order .

F INDINGS OF F ACT

The Parties

1. Petitioner, the Commissioner of Education , is responsible for

determining whether there is probable cause to warrant disciplinary action

against an educator ' s certificate, and, if probable cause is found, for filing a nd

pros ecuting an administrative complaint pursuant to chapter 120.

2. Respondent holds Florida Educator Certificate No. 717826, which is

valid through June 30, 2025 , and cover s the area of p hysical e ducation (PE") .

3 . As of February 28, 2018, the date on which the conduct giving rise to

this proceeding occurred, Respondent was employed by Petitioner in a partial

assignment as a PE teacher at Coral Gables Preparatory Academy ("CGPA"),

formerly known as Coral Gables Elementary School, within the Miami - Dade

County School District ( " District " ). Respondent was simultaneously employed

in a partial teaching assignment at a different school in the District.

The Administrative Complaint

4. The Administrative Complaint charge s Respondent with having

engaged in inappropriate conduct on February 28, 2018, consisting of

throwing student s ' book bags, resulting in damage to electronic devices that

were in the book bags. The Administrative Complaint alleges that the

damage to the electronic devices was over $2,000.00.

5. Count 1 of the Administrative Complaint charges Respondent with

having violated section 1012.795(1)(j) 3 by having violated the Principles of

Professional Conduct for the Education Profession adopted by the State

Board of Education.

6. Count 2 of the Administrative Complaint charges Respondent with

having violated r ule 6A - 10.081(2)(a)1., 4 by having failed to make reasonable

effort to protect the student from conditions harmful to learning and/or to the

student ' s mental and/or physica l health and/or safety.

Evidence Adduced at the Hearing

7 . As noted above, t he incident giving rise to this proceeding occurred on

February 28, 2018 , at CGPA .

8. At the time of the incident, some students were on their way o ut to the

athletic field outside of the school for PE class, while others were on their

way out to the field for recess.

9 . An indeterminate number of students l eft their bookbag s in the

walkway near the exit door to the field, despite previously having been told

by Respondent to place their bookbags against a wall adjacent to the

walkway in order to ensure that no one tripped over bookbags .

10. Respondent moved the bookbags out of the walkway by "tossing" or

"throwing" them. 5 There is conflicting evidence regarding the force wi th

which Respondent moved the bookbags.

3 All references to chapter 1012, Florida Statutes, are to th e 2017 codification , which was in

effect at the time of the alleged conduct giving rise to this proceeding. See Orasan v. Ag. for

Health Care Admin., 668 S o . 2d 1062, 1063 (Fla. 1st DCA 1996)(law in effect at time of

alleged violations applies in disciplin ary proceedings).

4 The version of r ule 6A - 10.081 that was adopted by the State Board of Education on

March 23, 2016, was in effect at the time of the conduct giving rise to this proceeding, and,

therefore, applies to this proceeding. See Orasan , 668 So. 2d at 1063.

5 A key issue disputed by the parties is whether Respondent "tossed" or "threw" the

bookbags . This dispute appears to center around Respondent's culpability because ,

presumably, if she "threw" them, she did so in anger, without regard to whether the contents

would be damaged, thereby warranting a more severe penalty than if she had merely

11. Student J.R. credibly testified that he saw Respondent "furiously"

throwing the bookbags, including his bookbag. He testified that as a result of

Respondent's actions, his iPhone, which was in the bookbag, was broken and

had to be replaced. A photograph that was admitted as part of Petitioner's

Exhibit No. 8 depicts J.R.'s i P hone with the glass having been shattered.

J.R.'s signature and " 3/14/18, " the date on which he was interviewed as part

of the District's investigation of the incident, are written below the

photograph. J.R. also testified that his glasses, which were in his bookbag,

also were damaged as a result of Respondent's conduct. 6

12. Another student, H.B ., testified, credibly, that she witnessed

Res pondent throwing the bookbags "really hard." She testified that as a

result, her iPad and her brother's iPad, both of which were in her bookbag,

were broken. Two photographs that were admitted as part of Petitioner's

Exhibit No. 8 depict the damaged iPads. H.B.'s signature and the date of

March 14, 2018, the date on which she was interviewed as part of the

District's investigation of the incident, are written below the photographs.

13. A.A. also testified that she saw Respondent throwing the bookbags,

and t hat Respondent threw her bookbag with such force that it broke her

water bottle, which was inside the bookbag. A.A. testified that this upset her,

because the water bottle was her favorite one. 7

14. Salvatore Schiavone, the former principal of Southside E lementary

School ("SES"), testified on behalf of Respondent. Respondent is assigned to

"tossed" them, and the damage to the electronics was accidental . The undersigned does not

fi nd this label dispositive of the penalty imposed in this proceeding.

6 Because the Administrative Complaint does not charge Respondent with having damaged

students' property other than electronic devices, damage to J.R.'s glasses cannot form the

basis of discipline in this proceeding. However, the fact that J.R.'s glasses were damaged is

probative regarding the force with which Respondent threw the bookbags.

7 See footnote 3, above . Damage to A.A.'s water bottle cannot form the basis of discipline in

thi s proceeding because it was not charged in the Administrative Complaint . However, the

fact that her water bottle was broken as a result of Respondent having thrown her bookbag is

probative regarding the force with which Respondent threw the bookbags.

SES, and was so assigned during the time period of 2006 through 2017, when

Schiavone was principal. Schiavone testified, credibly, that he viewed

Respondent as "the con summate professional" and an outstanding teacher;

that he had never observed her having anger issues or causing property

damage; and that she was very well - liked by her students.

15. Respondent testified that on the day of the incident, students from

four classes were entering and exiting the sole doorway to and from the

athletic field, and that many of them had thrown their bookbags in a pile in

the walkway. She asked them more than once to move the bookbags , but

most of them did not do so, so she, with help from a few students, moved

them from the walkway to against the wall adjacent to the doorway exit to

the athletic field. She testified, credibly, that she did not know electronic

devices were in the bookba gs. She denied smashing the bookbags on the

ground and intentionally damag ing students' property.

16. Respondent entered into an agreement with the District under which

she received a written reprimand and agreed to pay $558.00 in restitution for

the dam age to the electronic devices.

17. Respondent has taught for over 27 years and has not previously been

subjected to discipline.

Findings of Ultimate Fact

1 8 . The evidence clearly and convincingly establishes that Respondent

threw some students' bookbags with sufficient force to damage electronic

devices inside the bookbags. This determination is based on the credible

testimony of the students who testified at the final hearing.

1 9 . Respondent moved the bookbags from the walkway, where students

were entering through, and exiting from, a doorway between the inside

corridor and the outside athletic field. The evidence clearly and convincingly

establishes that the bookbags had been piled in a location where they pose d a

potential tripping hazard. However, even if the bookbags were obstructing

the walkway and presented a potential tripping hazard, and notwithstanding

that Respondent had told the students to place their bookbags against the

wall, that did not justify Re spondent throwing the bookbags with the amount

of force sufficient to damage the contents in some of the bags .

20. Thus, the evidence clearly and convincingly establishes that in moving

students' bookbags with sufficient force to damage electronic device s inside

the bookbags, Respondent failed to make reasonable effort to protect the

students from conditions harmful to students' mental health and safety. To

this point, as discussed above, the evidence establishes that at least some of

the students were di stressed as a result of their electronic devices being

damaged. Thus, the evidence clearly and convincingly establishes that

Respondent violated rule 6A - 10.081(2)(a)1.

21. As a result of having violated rule 6A - 10.081(2)(a)1., Respondent

violated section 1012.795 (1)(j).

2 2 . However, the evidence clearly and convincingly establishes that

Respondent did not know that students' electronic devices were in some o f the

bookbags that were thrown, and the evidence does not establish that

Respondent intended to d amage students' property.

2 3 . Additionally, the evidence does not clearly and convincingly establish

that Respondent's actions caused over $2,000.00 worth of damage to the

electronic devices in students' bookbags. Although the evidence clearly and

convincingly establishes that Respondent's actions damaged some students'

electronic devices, no competent evidence was presented regarding the value

of the damaged electronic devices.

2 4 . There was no evidence presented showing that students' physical

health or safety was in any way harmed or adversely affected by

Respondent's actions in throwing the bookbags.

C ONCLUSIONS OF L AW

2 5 . DOAH has jurisdiction over the subject matter of, and the parties to ,

this proceeding , pursuant to sections 120.569 and 120.57(1).

2 6 . This is a proceeding to impose disciplin ary sanctions on Respondent ' s

educator certificate. Because disciplinary proceedings are penal in nature,

Petitioner is required to prove the allegations in the Adminis trative

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).

2 7 . Clear and convincing evidence " requires more proof than a

' preponderance of the evidence ' but less than ' beyond and to the exclusion of a

reasonable doubt. ' " In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). 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

lacking in confusion as to the facts in issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a fir m 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 Slomowitz v. Walker , 429

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

2 8 . Petitioner alleges in the Admin istrative Complaint that Respondent

violated section 1012.795(1)(j) , which authorizes the Education Practices

Commission ("EPC") to impose penalties against an educator 's certificate if

the person has " violated the Principles of Professional Conduct for th e

Education Profession prescribed by State Board of Education rules. "

2 9 . The Administrative Complaint also charges Respondent with having

violat ed r ule 6A - 10.081(2)(a)1 . The Principles of Professional Conduct for the

Education Profession prescribe d by State Board of Education include r ule 6A -

10 .081(2)(a)1 .

30 . Rule 6A - 10.081(2)(a)1. states that Florida educators must " make

reasonable effort to protect the student from conditions harmful to learning

and/or to the student ' s mental and/or physical hea lth and/or safety. "

31 . As discussed above, Petitioner proved , by clear and convincing

evidence , that Respondent failed to make reasonable effort to protect

students from conditions harmful to learning and/or to the students ' mental

and/or physical health and/or safety. Accordingly, it is concluded that

Respondent violated rule 6A - 10.081(2)(a)1. and, accordingly, violated

section 1012.795(1)(j).

3 2 . Florida Administrative Code Rule 6B - 11.007 establishes the guidelines

for de termining the appropriate penalty to be imposed on a person who has

committed an act for which the EPC may impose discipline. 8

3 3 . Pursuant to rule 6B - 11.007(2)(i)22 . , the penalty for violating the

Principles of Professional Conduct in violation of sectio n 1012.795(1)(j) ranges

from probation to revocation of an educator's certificate.

3 4 . However, rule 6B - 11.007(1)(a) provides for the consideration of

aggravating and mitigating factors in an individual case in which it is

appropriate to depart from the penalty ranges established in rule 6B -

11.007(2).

3 5 . Rule 6B - 11.007(3) states , in pertinent part :

Based upon conside ration of aggravating and

mitigating factors present in an individual case, the

Commission may deviate from the penalties

recommended in subsection (2). The Commission

may consider the following as aggravating or

mitigating factors:

(a) The severity of th e offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

8 The version of rule 6B - 11.007 that was adopted on April 9, 2009, was in effect at the time of

the conduct giving rise to this proceeding, and, therefore, applies to this proceeding.

* * *

(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;

* * *

(k) The actual knowledge of the educator pertaining

to the violation;

* * *

(n) Related violations against the educator in

another state including findings of guilt or

innocence, penalties imposed and penalties served;

* * *

(q) Pecuniary benefit or self - gain inuring to the

educator;

(r) Degree of physical and mental harm to a student

or a child; . . . .

36 . Here, t here are several mitigating factors that warrant disciplinary

action less severe than that prescribed under subsection (2) of the rule.

3 7 . Specifically, although the evidence establishes that Respondent's

actions resulted in damage to students' property, the evidence does not

establish that she intended to harm students or their property. The credible

evidence establishes that she did not anticipate that students would have cell

phones or other electronic devices in their bookbags . Thus, the evidence does

not establish that Respondent knew that the bookbags contained electronic

devices or that she intended to damage students' property.

3 8 . Moreover, Respondent's ac tions did not present any danger to the

public or to the students ' physical health. In fact, her motivation in moving

the bookbags was to protect the students ' physical health.

39. To this point, although the evidence establishes that Respondent's

actions upset at least some of the students whose property was damaged

when their bookbags were thrown, none of the students suffered any physical

harm as a result of Respondent's actions.

40 . Respondent engaged in the offending conduct only once.

4 1 . Importantly, Respondent has not previously been disciplined by the

EPC or the District, in over 27 years of employment as a teacher. According

to those familiar with her work, Respondent has otherwise been an

exemplary teacher.

4 2 . Although the damage cau sed by Respondent's actions was not

insubstantial, she has agreed to pay , and is in the process of paying,

restitution to the families of the students whose property she damaged. Thus,

she did not gain any pecuniary benefit as a result of her actions .

4 3 . The deterrent effect of discipline is already being served by

Respondent's agreement to make restitution. Moreover, Respondent is keenly

aware that under rule 6B - 11.007(5), an educator who commits violations for

which the EPC imposes a penalty on two prior occasions shall have their

certificate permanently revoked for a third or subsequent disciplinary case

appearing before the EPC. This rule also serves as a deterrent to future

violations of pertinent State Board of Education rules and statutes.

4 4 . No evidence was presented that Respondent has ever engaged in, or

been subjected to discipline for, any violations of statutes or rules of any

other state.

4 5 . Based on the foregoing Findings of Fact and Conclusions of Law , and

considering the aggravating and mitigating factors in rule 6B - 11.007(3), it is

determined that t he appropriate penalty for Respondent's actions at issue in

this proceeding is for the EPC to issue a written reprimand to Respondent ,

with a copy placed in her certification file, pursuant to section 1012.796(7)(f) .

R ECOMMENDATION

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

R ECOMMENDED that, pursuant to s ection 1012.796, the Education Practices

Commission issue a written reprimand to Respondent , with a copy placed in

her certification file, pursuant to section 1012.796(7)(f).

D ONE A ND E NTERED this 1 7 th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of June , 2021 .

C OPIES F URNISHED :

Lisa Forbess, Executive Director Randy Kosec, Jr., Chief

Education Practices Commission Office of Professional Practices Services

Department of Education Department of Education

Turlington Building, Suite 316 Turlington Building, Suite 2 24 - E

325 West Gaines Street 325 West Gaines Street

Tallahassee, Florida 32399 - 0400 Tallahassee, Florida 32399 - 0400

Peter Caldwell, Esq uire Charles T. Whitelock, Esq uire

Florida Education Association Charles T. Whitelock, P.A.

1516 East Hillcrest Street , Suite 109 300 Southeast 13th Street

Orlando, Florida 32803 Fort Lauderdale, Florida 33316

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT TO S UBMIT E XCEPTIONS

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.