20-002510PL Richard Corcoran, As Commissioner Of Education vs. Christine A. Hutton Status: Closed Recommended Order on Tuesday, December 8, 2020.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent was under the influence of marijuana and encountered students while at HR annex and on TDA on August 30, 2018. Recommended dismissal of Administrative Complaint.

P RELIMINARY S TATEMENT

On November 5, 20 19, Richard Corcoran, as Commissioner of Education

( " Petitioner " ), filed an Administrative Complaint against Respondent,

alleging violations of section 1012.795(1)(j) and rule 6A - 10.081(2)(a)1. On

December 4, 2019, Respondent filed an Election of Rights an d request for a

hearing involving disputed issues of material fact to contest the allegations.

On June 1, 2020, the Education Practices Commission ( " EPC " ) referred the

matter to DOAH to assign an Administrative Law Judge to conduct the final

hearing.

The final hearing was initially set for August 13, 2020, but was continued

to September 17, 2020, at the request of the parties. On September 3, 2020,

Petitioner filed an unopposed motion for continuance . That same date, the

undersigned granted the motion and reset the final hearing for October 22,

2020.

The final hearing was conducted as scheduled on October 22, 2020. At the

outset of the hearing, Petitioner moved ore tenus to amend paragraph three

of the Administrative Complaint to replace the date of Septe mber 4, 2018,

with August 30, 2018. Respondent did not oppose the motion. Accordingly, the undersigned granted the motion.

At the hearing, Petitioner presented the testimony of Vericcia A.

McCreary, Frank Sisto, and Aaron R. Clements. Petitioner ' s Exhibi ts 1

through 14 were received into evide nce. Respondent testified on her own

behalf. Respondent ' s Exhibits 2, 4 through 14, 16, 20 and 21 were received

into evidence.

The one - volume final hearing Transcrip t was filed at DOAH on

November 19, 2020. The par ties timely filed proposed recommended orders,

which were considered in the preparation of this Recommended Order. On

October 5, 2020, the parties filed their Amended Joint Pre - Hearing

Statement, in which they stipulated to certain facts. These facts have been incorporated into this Recommended Order as indicated below.

Unless otherwise indicated, all statutory and rule references are to the

versions in effect at the time of the alleged violations .

F INDINGS OF F ACT

1. Petitioner is responsible for inve stigating and prosecuting complaints

against individuals who hold educator certificates and are alleged to have

violated se ction 1012.795 and related administrative rules.

2. Respondent holds Florida Educator ' s Certificate No. 987944, covering

the areas o f Elementary Education, Mathematics and Middle Grades Integrated Curriculum, which is valid through June 30, 2023.

3. At the time of the allegations in the Administrative Complaint ,

Respondent was employed as a m athematics teacher at Northport K - 8 School

( " Northport) in the St. Lucie County School District ( " SLCSD " ). Respondent

began teaching at Northport in 2006.

4. On August 10, 2018, the SLCSD initiated an investigation into alleged

misconduct by Respondent regarding an incident which occurred during o pen

house at Northport. School Board Policy 6.301 states that " the

Superintendent is authorized to place employees on administrative

assignment and/or leave as necessary during an investigation. "

5. Respondent was initially placed on Temporary Duty Assign ment

( " TDA " ) at the school district ' s publications center pending the results of the

investigation. On August 15, 2018, Respondent was placed on TDA at her

home. The investigation was not completed until September 17, 2018.

Respondent remained on TDA at he r home from August 15, 2018, until she

was terminated by the SLCSD on October 9, 2018 .

6. While Respondent was on TDA, she re mained on pay status. On

August 10 and 15, 2018, Respondent received a Notice of Investigation and

TDA specifically directing her " not to enter any St. Lucie County Public

Schools property other than the location you have been assigned to without

the written permission of Aaron Clements, Director of Employee Relations or

his designee until this matter is resolved. " Respondent was als o directed " not

to discuss your TDA assignment or the reason you are on TDA with anyone

other than your representative or a Human Resources administrator " and

" not [to] engage witnesses or potential witnesses. " Respondent was warned

that failure to follow these directives will be considered insubordination and

may result in disciplinary action up to and including termination .

7. While on TDA at home, Respondent did not have any job duties other

than the requirement to check - in with Mr. Clements ' s office ea ch weekday

morning by telephone between 7:30 a.m. and 8:00 a.m.

8 . On August 30, 2018, Mr. Clements contacted Respondent and directed

that she come to the school district ' s human resources office ( " HR " ) to sign a

meeting notice for September 4, 2018.

9. At the time, the HR office was located at the school district ' s annex

building located off University Drive in Port St. Lucie. There were various

school district offices in the annex building, including HR, Office of Professional Practices, Risk Management , Finance, and Student Assignment .

10 . On the morning of August 30, 2018, Respondent left her home with

her daughter, whom she dropped off at a community college. Respondent then

drove to the HR office. Respondent was unable to find a parking spot near the

entrance to the building so she had to park far away at the back of the

parking lot. Respondent had to walk a substantial distance from her vehicle

to HR, which caused her to be in extreme physical pain due to her underlying

medical issues.

11. Upon a rriving at HR, Respond ent first encountered

Christine Paratore, an application clerk. Ms. Paratore observed that

Respondent " appeared to be very disoriented, " and " was staggering and

unable to sit erect in the chair. " Ms. Paratore noted that Respondent " al most

fell out of the chair several times. " At hearing, Respondent testified that the

pain in her body made it difficult for her to sit, and that when she sat, she

stretched her whole body in an effort to alleviate the pain .

12. Ms. Paratore contacted Ms. McCreary, who was Mr. Clements ' s

assistant, to let her know Respondent had arrived. Ms. McCreary went to

greet Respondent and let her know that Mr. Clements was on the telephone

and that he would be with her in a minute. Ms . McCreary returned to her

desk a nd , shortly thereafter, Respondent, on her own, entered Mr. Clements ' s

office. Ms. McCreary explained to Respondent that Mr. Clements was still on the telephone, that she needed to go back out and wait, and that he would be

with her in a minute.

13. Short ly thereafter, Ms. McCreary and Mr. Clements met with

Respondent. Ms. McCreary observed that Respondent appeared to be very unstable, confused, had difficulty walking, and almost fell out of her chair. Mr. Clements observed that Respondent was very confuse d, paranoid, stumbling, and swaying side to side when she walked. Based on their

observations, Ms. McCreary and Mr. Clements believed Respondent was

" under the influence of something. "

14. While at HR, Mr. Clements told Respondent he " felt she was under t he

influence of something, " to which Respondent replied, " Yeah, I am. "

Respondent stated she was taking multiple medications such as m orphine

and Xanax. Respondent had a prescription for opioi ds. Respondent attempted

to remove all of the medications from h er purse to show Mr. Clements, but

was instructed by him not to do so.

15. Mr. Clements provided Respondent with the school district ' s policy on

reasonable suspicion testing, and informed her he was sending her to an

alcohol/drug testing facility for a re asonable s uspicion alcohol/drug test.

Mr. Clements contacted a school district security officer/sworn law

enforcement officer, Officer Sisto, to come to the HR office to transport

Respondent for the reasonable suspicion alcohol/drug test.

16. Officer Sisto arrived at HR on the morning of August 30, 2018. He

approached Respondent wearing a tac vest, an exposed gun, and a badge. He

testified that Respondent " seemed a little agitated " and " upset, " which was

" normal in these circumstances. " Officer Sisto explai ned to Respondent she

was not in police custody, that he was not acting as a law enforcement officer,

and that he was there simply as an employee of the school district to

transport Respondent to the testing facility.

17. While en - route to the testing fac ility, Respondent stated she had not

been drinking, but advised that she does take prescription medications. Based on his experience and observation of Respondent, Officer Sisto also

believed Respondent was under the influence of " something. "

18. Officer Sisto transported Respondent to a facility where an

alcohol/drug test w as performed. After the test, Officer Sist o drove

Respondent to her home because , in her condition, he thought she would be a

danger to herself or others if allowed to drive home.

19. On September 6, 2018, Mr. Clements received the results of

Respondent ' s alcohol/drug test. Respondent tested negative for al cohol, but

tested positive for marijuana and m orphine.

20. The sole purported factual basis for Petitioner ' s claim against

Responde nt is set forth in paragraph three of the Administrative Complaint.

Specifically, Petitioner alleged that on August 30, 2018, when Respondent

was on TDA at home " and subject to being called to work in the classroom,

she responded to Human Resources while u nder the influence of drugs. "

Petitioner further alleged: " Had Respondent been asked to return to the

classroom, she would have jeopardized the health, safety, and welfare of

students. "

21. In its Proposed Recommended Order, Petitioner does not contend th at

Respondent was under the influence of opioids when she went to the school

district annex and while on duty on August 30, 2018, which is

understandable given that Respondent had a prescription for opioids. Rather,

Petitioner argues that it " proved by cle ar and convincing evidence that

Respondent was under the influence of marijuana at the time she went to the

school district annex and while on duty on August 30, 2018. " Pet. Proposed

Recommended Order , ¶ 28. According to Petitioner, " [t]his finding is

supp orted by the testimony of Petitioner ' s witnesses, who all testified about

Respondent ' s appearance, her unusual behavior, and statements. There is

sufficient evidence without the urinalysis test results to support the

conclusion that she was under the influ ence of marijuana. " Id .

22. At hearing, Respondent acknowledged she smoked marijuana during

the evening of August 29, 2018, and that she did not have a prescription for

the marijuana. Respondent does not dispute that she knowingly ingested

marijuana while on TDA at home and does not dispute the accuracy of the

test results showing that she had done so.

23. Although Respondent smoked marijua na during the evening of

August 29, 2018, and while on TDA at home, that does not necessarily mean

she was under the influence of marijuana when she reported to HR on the morning of August 30, 2018, and while on TDA on August 30, 2018, as

alleged in the Administrative Complaint.

24. At hearing, Respondent testified that while she was at HR on the

morning of August 30, 2 018, she was anxious and in significant pain due to

her underlying medical conditions. Since 2005, Respondent suffered from

medical problems that caused pain in her back and legs. Respondent was also

anxious about her continued employment.

25. No expert t estimony was presented at hearing to demonstrate, clearly

and convincingly, that Respondent was, in fact, under the influence of marijuana when she reported to HR on the morning of August 30, 2018, or

while on TDA on August 30, 2018. The drug test results do not even show the

level or amount of marijuana in Respondent ' s system at the time of the test.

Although Petitioner ' s appearance and behavior may have been unusual when

she was observed at the HR annex on August 30, 2018, this does not

necessarily mean t hat Respondent was, in fact, under the influence of

marijuana at that time or while on TDA on August 30, 2018. Respondent may

have been under the influence of " something " as testified to by Petitioner ' s

witnesses, and/or she may have been exhibiting physic al manifestations of

extreme pain . Respondent had underlying medical conditions which made

walking very painful . In sum, Petitioner failed to present clear and

convincing evidence at hearing that Respondent was, in fact, under the

influence of marijuana wh en she reported to HR on August 30, 2018, and

while on TDA on August 30, 2018, as alleged in the Administrative

Complaint .

26. Even if Respondent was under the i nfluence of marijuana on

August 30, 2018, however, Petitioner ' s allegations are premised on

R espondent being called to work in the classroom . Respondent was not called

to work in the classroom, there were no student classes at the school district ' s

annex building, and Respondent did not encounter any students on

August 30, 2018. In fact, Responden t was taken out of the classroom pending

the school district ' s investigation precisely so that she would have no contact

with students. Respondent was on TDA assignment in her own home from

August 15 until October 12, 2018, and was expressly forbidden from coming

to the school campus while on TDA without prior written permission from Mr. Clements.

27. Had Respondent been suddenly su mmoned to a classroom on

August 30, 2018, she would have interacted with children. However, she was

not summoned to a classroo m and was, in fact, prohibited from doing so. Instead, Respondent was summoned to HR to pick up a meeting notice at a

school building annex that did not contain any classrooms. There was no

evidence that any school children encountered or spoke to Responde nt on the

morning of August 30, 2018, and Respondent denied seeing or encountering

any students.

28. Because Respondent did not encounter any students on August 30,

2018, Petitioner did not establish that Respondent failed to protect students

from conditi ons harmful to learning or to their mental or physical health

and/or safety. In sum, under the particular facts of this case, Petitioner failed

to demonstrate by clear and convincing evidence that Respondent is guilty of conduct in violation of section 101 2.795(1)(j) and r ule 6A - 10.081(2)(a)1., by

failing to make reasonable effort to protect students from conditions harmful

to learning and/or to any student ' s mental and/or physical health and/or

safety.

1

C ONCLUSIONS OF L AW

29 . DOAH has jurisdiction over th e parties and subject matter of this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

30 . Petitioner seeks to take action against Respondent ' s educator ' s

certificate as provided in section 1012.795. A proceeding to impose discipline

agai nst a professional license is penal in nature, and Petitioner bears the

burden to prove the allegations in the Administrative Complaint by clear and

convincing evidence. Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlin gton , 510 So. 2d 292 (Fla. 1987).

31 . The clear and convincing evidence standard 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 expli cit

and the witnesses must be lacking in conf usion as to the facts in issue. The

evidence must be of such weight that it produces in the mind of the trier of

1 To the extent Petitioner suggests that Respondent was under the influence of marijuana on

August 30 , 2018, and as such, violated rule 6A - 1 0.081(2 ) (a)1. by endangering her own

children at home and other children along her driving route to HR on August 30, 2018, such

contentions are beyond the scope of the Administrative Complaint, and in any event, not

proven by clear and convincing evidence.

fact a firm belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established. " Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

32 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the context of each

alleged violation. Holmes v. T urlington , 480 So. 2d 150, 153 (Fla. 1 st DCA

1985 ); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995) .

33. Charges in a disciplinary proceeding must be strictly construed, with

any ambiguity construed in favor of the licensee. Munch v. Dep ' t of Prof ' l

Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) . In

addition, the allegations set forth in the Administrative Complaint are those

upon which this proceeding is predicated. Cottrill v. Department of Ins. , 685

So. 2d 1371, 1372 (F la. 1st DCA 1996). Due process prohibits Petitioner from

taking disciplinary action ag ainst a licensee based on conduct not specially

alleged in the Administrative Complaint . Id. ; see also Delk v. Dep ' t of Prof ' l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 199 2) .

34 . Turning to the instant case, Count I of the Administrative Complaint

alleged that Respondent violated s ection 1012.795 (1)(j), in that she violated

the Principles of Professional Conduct for the Education Profession prescribed by State Board of Edu cation rules. Section 1012.795 provides , in

pertinent part , that:

(1) The Education Practices Commission may

suspend the educator certificate of any

instructional personnel or school administrator, 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 person may return to teaching as

provided in subsection (4); may revoke the educator

certificate of any person, thereby denying that

person the right to teach or otherwise be employed

by a district school board or public school in any

capacity requiring direct contact with students for

up to 10 years, wi th reinstatement subject to

subsection (4); may permanently revoke the

educator certificate of any person thereby denying

that person the right to teach or otherwise be

employed by a di strict school board or public school

in any capacity requiring direct contact with

students; may suspend a person's educator

certificate, upon an order of the court or notice by

the Department of Revenue relating to the

payment of child support; or may imp ose 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.

35 . Count I cannot constitute an independent violatio n, but rather is

dependent upon a corresponding violation of the rules constituting the

Principles of Professional Conduct.

36. Count II of the Administrative Complaint alleged that Respondent

violated rule 6A - 10.081(2)(a)1., by failing to make reasonable effort to protect

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

health and/or physical health and/or safety. Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules

pursuant to secti ons 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

37 . Consistent with this rulemaking authority, the State Board of

Education promulgated rule 6A - 10.081, Principles of Professional Conduct for

the Education Profession in Florida . Rule 6A - 10.081( 2 ) (a)1., provides, in

pertinent part:

( 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 ph ysical health

and/or safety .

38 . Turning to the present case, Petitioner failed to prove by clear and

convincing evidence that Respondent is guilty of conduct in violation of

section 1012.795(1)(j), and rule 6A - 10.081( 2 )(a) 1 . As detailed above,

Petitione r failed to prove by clear and convincing evidence that Respondent

was under the influence of marijuana on August 30, 2018, when she reported

to HR at the school district ' s building annex and while on TDA on August 30,

2018, as alleged in the Administrativ e Complaint.

39. Even if Respondent had been under the influence of marijuana on

August 30, 2018, when she reported to HR and on TDA, however, she did not

encounter any students on August 30, 2018. Accordingly, Petitioner failed to

prove by clear and conv incing evidence that Respondent is guilty of violating

section 1012.795(1)(j), and rule 6A - 10.081( 2 )(a) 1., by failing to make

reasonable effort to protect students from conditions harmful to learning

and/or to students ' mental health and/or physical health and/or safety. 2

R ECOMMENDATION

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

R ECOMMENDED that the Education Practices Commission enter a final order

dismissing the Administrative Complaint.

2 In its Proposed Recommended Order, Petitioner acknowledges that this is a case of first

impression and an attempt to extend the application of rule 6A - 10.081(2)(a)1. beyond a

situation where a teacher is alleged to have violated rule 6A - 10.081(2)(a)1. while in the

pr esence of students at school . Such an extension of rule 6A - 10.081(2)(a)1. is not warranted

under the particular facts of this case and a plain reading of rule 6A - 10.081(2)(a)1. Moreover,

the case of Gerald Robinson, as Commissioner of Educat ion v. Aydelott , Case No. 12 - 0621PL

(Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012), upon which Petitioner relies to justify an

extended application of the rule, is factually distinguishable from the instant case. In

Aydelott , a teacher communicated dire ctly with a 14 - year - old female student in his class by

D ONE A ND E NTERED this 8th day of Dece mber, 2020 , in Tallahassee, Leon

County, Florida.

D ARREN A. S CHWARTZ

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of December , 2020 .

C OPIES F URNISHED :

Lisa M. Forbess, Interim Executive Director

Education Practices Commission

Department of Education

Turlington Building, Su ite 316 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Tobe M. Lev, Esquire

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

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

sending her hundreds of inappropriate text messages, which the Administrative L aw J udge

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

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Randy Kosec, Jr., Chief

Office of Professional Practices Services

Department of Educat ion

Turlington Building, Suite 244 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O 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.