22-000339PL Richard Corcoran, As Commissioner Of Education vs. Crystal Lee Ann Bunn Status: Closed Recommended Order on Friday, July 1, 2022.

Summary: Petitioner proved Counts I and II by clear and convincing evidence - that Respondent did not make reasonable efforts to protect the student from conditions harmful to his physical health and safety.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ANNY D IAZ , J R ., A S C OMMISSIONER OF

E DUCATION ,

Petitioner ,

vs. Case No. 22 - 0339P L

C RYSTAL L EE A NN B UNN ,

Respondent .

/

R ECOMMENDED O RDER

A duly - noticed final hearing was conducted in this case on April 27, 2022,

via Zoom teleconference, before Administrative Law Judge Suzanne Van Wyk

of the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Ron Weaver , Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Anthony Duran, Jr., Esquire

Tison Law Group

9312 North Armenia Avenue

Tampa, Florida 33612

S TATEMENT OF T HE I SSUE S

Whether Respondent violated section 1012.795(1)(j) , Florida Statutes

(2019), and Florida Administrative Code Rule 6A - 10.081(2)(a)1 . ; and, if so,

what penalty should be imposed. 1

1 Unless otherwise noted, all references to the Florida Statutes herein are to the 20 19

version , which was in effect when the actions alleged in the Administrative Complaint took

place.

P RELIMINARY S TATEMENT

On November 9, 2021, Petitioner filed an Administrative Complaint

against Respondent, alleging violations of section 1012.795(1)(j) and rule 6A -

10.081(2)(a)1. Respondent subsequently filed an Election of Rights form

disputing the allegations in the Administrative Complaint and requesting a

hearing. The case was referred to the Division of Administrative Hearin gs

(ÑDivisionÒ) on February 2, 2022, and assigned to the undersigned.

The case was set for final hearing on April 27, 2022, by Zoom conference

and commenced as scheduled. Petitioner presented the testimony of Christine

Tilford and Lisa Taft, paraprofessio nals at Harmony Community School

(ÑHarmonyÒ); Sandra Davenport, principal of Harmony; Osceola County

SheriffÔs Deputy Brian McMahon; Osceola County SheriffÔs Deputy Marta

Collings; and Dina Ryan, mother of A.S. Petitioner introduced Exhibits 1

through 10, which were admitted into evidence.

Respondent testified on her own behalf and introduced no exhibits.

A one - volume Transcript of the proceedings was filed with the Division on

June 6, 2022. The parties requested an extension of time to June 27, 2022, to

file their proposed recommended orders, which was granted. Petitioner timely

filed a Proposed Recommended Order which has been considered by the

undersigned in preparing this Recommended Order. Respondent did not

make a timely post - hearing filing. 2

2 RespondentÔs Proposed Recommended Order was filed after 5:00 p.m. on June 27, 2022. By

operation of Florida Administrative Code Rule 28 - 106.104(3), the document was deemed filed

on Jun e 28, 2022. Respondent did not file a motion for extension of time pursuant to r ule 28 -

106.204(4).

F INDI NGS OF F ACT

1. Petitioner is the chief educational officer of the state, with authority to

discipline Florida licensed educators following a finding of probable cause.

See § 1012.796(6), Fla. Stat. (2021).

2. Respondent holds Florida EducatorÔs Certificate 1162570, covering the

areas of Elementary Education, English for Speakers of Other Languages,

and Exceptional Student Education (ÑESEÒ), which is valid through June 30,

2021.

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

Respondent wa s employed as an Intellectual Disabilities Teacher at Harmony

in the Osceola County School District (Ñthe DistrictÒ).

4. On or about February 13, 2020, Respondent was working with A.S., a

six - year - old student who is autistic, non - verbal, and significantly

developmentally - delayed.

5. Petitioner gave A.S. a Barbie doll after he had completed an

assignment. A.S. walked over to another student and hit the student on the

head with the Barbie doll.

6. Respondent reprimanded A.S. for hitting the other student and

intentionally struck A.S. on the head with the doll. A.S. began to cry.

7. The strike resulted in a scratch on A.S.Ôs forehead and another close to

his right eye by the base of the bridge of his nose.

8. Respondent immediately sought to comfort A.S., and wrote a note for

him to be treated by the school nurse.

9. Christine Tilford, a paraprofessional in RespondentÔs classroom, was

working with another student across the room. Ms. Tilford witnessed the

incident.

10. At approximately 3:30 p.m., Ms. Tilford re ported the incident to

Sandra Davenport, HarmonyÔs principal.

11. Ms. Davenport began a n investigation into the incident by contacting

Deputy Brian McMahon, the school resource officer (ÑSROÒ).

12. Deputy McMahon interviewed Respondent and she admitted she hit

A.S. over the head with the doll. She also stated that she did not intend to

harm A.S.

13. Ms. Davenport then called the human resources department and was

told to begin an internal investigation before contacting the Department of

Children and Famili es (ÑDCFÒ).

14. Ms. Davenport interviewed Respondent, who admitted that she struck

A.S. on the head with the doll which resulted in scratches to his face.

Respondent also informed Ms. Davenport that she had arranged for A.S. to be

seen by the school nurse.

15. At that point, Ms. Davenport called DCF and reported the incident.

16. Deputy McMahon excused himself from the investigation at this

juncture, citing a conflict of interest in any criminal investigation due to his

position as SRO. Deputy McMahon cont acted his supervisor, who, in turn,

assigned a Ñroad deputyÒ to complete the investigation.

17. Deputy Marta Collings 3 was assigned to complete the investigation

into the incident. She interviewed Respondent, as well as the other parties

involved.

18. Res pondent provided both a written and verbal statement to Deputy

Collings. Respondent admitted that she intentionally hit A.S. on the head

with the Barbie doll and that A.S. immediately began to cry. Respondent

stated that she struck A.S. in a moment of frus tration because A.S.

frequently hit other students.

19. Deputy Collings observed a small laceration under A.S.Ôs right eye and

a red mark across his right eyebrow. She photographed A.S.Ôs face to

document his injuries.

3 On the date of the incident, Deputy CollingsÔ last name was Robinson.

20. Deputy Collings arrested Respond ent and charged her with child

abuse without great bodily harm. 4

21. RespondentÔs testimony at the final hearing was consistent with her

statements given to Ms. Davenport, Deputy McMahon, and Deputy Collings.

Respondent expressed remorse for her part in th e incident and indicated she

knew she was wrong when she struck A.S. on the head.

22. Respondent worked as an ESE instructor for over ten years and has no

prior discipline history.

23. On May 5, 2020, the District issued a letter of reprimand to

Respondent and reassigned her to work with children with Autism Spectrum

Disorder at Neptune Elementary School (ÑNeptuneÒ).

24. Respondent did not challenge the reprimand.

25. Respondent resigned from her position at Neptune , effective

November 6, 2020.

C ONCLUSIONS OF L AW

26 . The Division has jurisdiction over the subject matter of, and the

parties to , this action in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2021).

27 . This is a proceeding in which Petitioner seeks to discipline

RespondentÔs educatorÔs certificate.

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

any ambiguity construed in favor of the licensee. Elmariah v. DepÔt of Pro .

Reg ul . , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. DepÔt of Pro . Reg ul . ,

5 34 So. 2d 782, 784 (Fla. 1st DCA 1988).

29 . A license e may only be disciplined for those matters specifically

referenced in an administrative complaint against them. Trevisani v. DepÔt of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. DepÔt of Healt h , 714

4 Respondent was not prosecuted for the incident.

So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. DepÔt of Pro . Reg ul . , 563 So.

2d 805 (Fla. 1st DCA 1990).

30 . Because disciplinary proceedings are considered penal in nature,

Petitioner is required to prove the allegations in the Administrative

Comp laint 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).

31 . 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 th e 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)).

Administrative Allegations

32 . The Administrative Complaint contains the following material

allegations:

On or about February 13, 2020 , Respondent

inappropriately disciplined A.S., a male student on

the Autism Spectrum who is non - verbal and

significantly d elayed. Respondent struck A.S. over

the head with a doll resulting in a scratch to A.S.Ôs

face .

33 . The evidence was of such weight that the undersigned has a firm

conviction in the truth of those material allegations. Petitioner has proven

the material a llegations of the Administrative Complaint by clear and

convincing evidence.

34 . Based on the factual allegations in the Administrative Complaint,

Respondent is charged with the following alleged statutory violations:

Count 1: The Respondent is in violatio n of section

1012.795(1)( j ), Florida Statutes, in that Respondent

has violated the Principles of Professional Conduct

for the Education Profession prescribed by the

State Board of Education rules.

* * *

Count 2: The allegations of misconduct set forth

he rein are in violation of Rule 6A - 10.081(2)(a)1.,

Florida Administrative Code, in that Respondent

has failed to make reasonable effort to protect the

student from conditions harmful to learning and/or

to the studentÔs mental health and/or physical

health an d/or safety.

35. The referenced principle of professional conduct provides as follows :

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or susp ension of the individual

educatorÔs certificate, or the other penalties as

provided by law.

(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 studentÔs mental and/or physical health

and/or safety.

36. Based on the evidence adduced at the final hearing, Respondent was

responsible for creating a condition that was harmful to A.S.Ôs physical health

and safety.

37. Petitioner proved Count 2 of the Administrative Complaint Ð that

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

38. Petitioner proved Count 1 of the Administrative Complaint by virtue

of proving Count 2 (i.e., Respondent violat ed section 1012.795(1)( j ), because

Respondent violated the Prin ciples of Professional Conduct.).

Discipline to be Imposed

39 . The penalty range for a violation of section 1012.795(1)( j ) is from

reprimand to revocation. See Fla. Admin. Code R. 6B - 11.007(2) (j)1. In this

case, Petitioner is seeking a two - year suspension of RespondentÔs license.

40 . Pursuant to subsection (3) of the rule , the following mitigation and

aggravating factors may be considered by the Commission :

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of off enses;

(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, phy sical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalty imposed;

(i) The effect of the penalty upon the educatorÔs

livelihood;

(j) Any effort of rehabilitation by the educator;

(k) The actual knowledge of the educator perta ining

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 negligence 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

educ ator;

(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; and,

(t) Any other relevant mitigating or aggravating

factors u nder the circumstances.

41 . A number of mitigating factors should be considered in determining

the appropriate sanction for RespondentÔs offense: (1) Two years have elapsed

since the violation without any repeated conduct; (2) Respondent has never

been p reviously disciplined by the Commission; (3) Respondent has practiced

for over ten years in special education, a very demanding aspect of the

profession; (4) the degree of physical harm to A.S., two small scratches on his

face, was minor; and (5) Responden t was immediately remorseful for her

actions and provided honest and consistent testimony to her employer, the

SRO, the investigating officer with the Osceola County SheriffÔs office, as well

as this tribunal. The undersigned further considers, as evidence supporting

an appropriate penalty for RespondentÔs violation, the fact that the District

imposed only a reprimand against Respondent.

R ECOMMENDATION

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

R ECOMMENDED that the Education Pract ices Commission enter a final order

finding that Respondent violated section 1012.795(1)(j), and issue a written

reprimand to Respondent.

D ONE A ND E NTERED this 1st day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

Administrativ e 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 1st day of July , 2022 .

C OPIES F URNISHED :

Lisa M. Forbess, Executive Director Ron Weaver, Esquire

Edu cation Practices Commission Post Office Box 770088

Department of Education Ocala, Florida 34477 - 0088

Turlington Building, Suite 316

325 West Gaines Street Randy Kosec, Jr., Chief

Tallahassee, Florida 32399 - 0400 Office of Professional Practice s Services

Department of Education

Anthony Duran, Jr., Esquire Turlington Building, Suite 224 - E

Tison Law Group 325 West Gaines Street

9312 North Armenia Avenue Tallahassee, Florida 32399 - 0400

Tampa, Florida 33612

James Richmond, Acting General Counsel

Department of Education

Turlington Building, Suite 1544

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.