22-000626PL Manny Diaz, Jr., As Commissioner Of Education vs. Marshall Gerald Pettway Status: Closed Recommended Order on Friday, September 2, 2022.

Summary: Petitioner failed to establish, by clear and convincing evidence, that Respondent violated section 1012.795(1), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5.

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 - 06 26PL

M ARSHALL G ERALD P ETTWAY ,

Respondent .

/

R ECOMMENDED O RDER

On July 15, 2022, Administrative Law Judge Robert J. Telfer III, of the

Division of Administrative Hearings (D OAH ), conducted an evidentiary

hearing pursuant to section 120.57(1), Florida Statutes (2019), via Zoom .

A PPEARANCES

Fo r Petitioner: R on Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Mark Herdman, Esquire

U.S. Highway 19 North, Suite 110

Clearwater , Florida 3 3761

S TATEMENT OF T HE I SSUE S

The issues are whether Respondent, Ma rshall Gerald Pettway, violated

section 1012.795(1) . Florida Statutes, and Florida Administrative Code Rules

6A - 10.081(2)(a)1 . and 6A - 10.081(2)(a)5 . as alleged in the June 28, 2021,

Administrative Complaint; and, if so, what disciplinary penalty should be

imposed.

P RELIMINARY S TATEMENT

On June 28, 2021, Petitioner , Richard Corcoran, as Commissioner of

Education (Petitioner or Commissioner), 1 filed an Administrative Complaint

against Dr. Pettway, alleging violations of section 1012.795(1)(j), and rules

6A - 10.081(2)(a)1 . and 6A - 10.081(2)(a)5. Dr. Pettway timely filed an Election

of Rights form, disputing the allegations and requesting a hearing. On

February 25, 2022, Petitioner referred this matter to DOAH for assignment

of an administrative law judge.

On March 9, 2022, the undersigned noticed this matter for final hearing

on May 25, 2022, in Ocala, Florida. On May 12, 2022, Petitioner filed an

Unopposed Motion to Continue Final Hearing; on May 13, 2022, the

undersigned entered an Order Granting Continuance and Rescheduling Final

Hearing, which rescheduled the final hearing to July 15, 2022, in Ocala ,

Florida . After a telephonic status conference on July 13, 2022, in which

Petitioner disclosed that all of its witnesses would appear remotely via Zoom,

the und ersigned entered an Amended Notice of Hearing by Zoom Conference,

in which the final hearing remained scheduled for July 15, 2022.

On July 15, 2022, the undersigned conducted the final hearing via Zoom.

Petitioner presented the testimony of: Ginger Cruze, the principal of West

Port High School (West Port); Renee Johnson, who was the student services

manager at West Port; S.C. , the mother of student L.W.; L.W., a student in a

class that D r. Pettway taught at West Port who is the subject of one of the

allega tions in the Administrative Complaint; B.G., a former student in a class

that Mr. Pettway taught at West Port; L.G., a former student in a class that

1 Mr. Corcoran, the former Commissioner of Education, filed the June 28, 2021,

Administrative Complaint. Mr. Corcoran subsequently step ped down from his position as

Commissioner, and the Governor appointed Manny Diaz, Jr., as Commissioner , whereupon

the style of this case was amended accordingly.

D r. Pettway taught at West Port; and Laraine Mancuso, a registered nurse

who formerly worked at West Por t. The undersigned admitted PetitionerÔs

Exhibits P1, 3 through 5, 7, and 9 through 12 into evidence, noting

RespondentÔs hearsay objections to Exhibits P3, 7, and 9 through 11.

The undersigned also notes that the student who was the subject of the

other allegation in the Administrative Complaint, J.R., did not appear to

testify at the final hearing. As the undersigned conducted the final hearing

via Zoom, J.R.Ôs electronic device appeared in the Zoom waiting room, but

once admitted to the final hearing, J .R. did not activate the electronic device

or attempt to communicate in any way at the final hearing, after multiple

delays and opportunities to do so.

Dr. Pettway testified on his own behalf , and did not call any additional

witnesses. The undersigned ad mitted Exhibits R1 through 4 into evidence

without objection.

The one - volume Transcript was filed with DOAH on August 9, 2022.

Petitioner and Respondent, thereafter, timely submitted proposed

recommended orders.

Except where otherwise indicated, all ref erences to the Florida Statutes in

this R ecommended Order are to the 2019 edition , as the Administrative

Complaint contains allegations from the 2018 - 19 school year . See McCloskey

v. DepÔt of Fin. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) (holding th at

statutes and rules in effect at the time of the allegations apply, unless

otherwise specified).

F INDINGS OF F ACT

1. The Commissioner is the agency head of the Florida Department of

Education (Department). The Commissioner is responsible for investiga ting

allegations of misconduct against persons holding Florida educator

certificates. Upon a finding of probable cause, Petitioner is responsible for

filing an administrative complaint, and if the educator disputes its

allegations, prosecuting the administ rative complaint pursuant to

chapter 120.

2. At the time of the allegations contained in the Administrative

Complaint, Dr. Pettway h eld Florida EducatorÔs Certificate 540678, which

covered the area of art, and is valid through June 30, 2024.

3. At the time of the allegations contained in the Administrative

Complaint, the Marion County School District (MCSD) employed Dr. Pettway

as an art teacher at West Port.

Alleged Incident with J.R.

4. The Administrative Complaint alleges the following:

On or about Octo ber 16, 2018, Respondent failed to

exercise due care in dealing with a disruptive

student. JR, an eleventh - grade male student, tried

to force his way into the classroom after being told

by Respondent that he was not allowed to return

without a pass. Respon dent pushed back forcefully

on the door that JR was attempting to enter

through resulting in JRÔs hand being slammed in

the door and injured.

5. In the Joint Pre - hearing Stipulation, the parties stipulated:

On October 16, 2018, JR, an eleventh - grade male

student, tried to force his way into RespondentÔs

classroom after being told by Respondent that he

was not allowed to return to class without a pass.

JR was attempting to enter through the classroom

door by putting his hand on the door. JRÔs hand

was inju red.

6. The Joint Pre - hearing Stipulation also contains, in its ÑStatement of

Contested Facts,Ò the following contested issue:

Whether Respondent pushed back forcefully on the

door while J.R was attempting to enter, resulting in

J.R.Ôs hand being slammed in the door and injured.

7. At the final hearing, Petitioner presented the testimony of

Ms. Mancuso, who testified that she was the school nurse on the date of this

incident, and that J.R. came to the clinic with some cuts on his left middle

finger and b etween his fingers, along with some bleeding.

8. However, as noted in the Preliminary Statement above, J.R. did not

testify at the final hearing (despite ÑappearingÒ as a participant in the zoom

waiting room, the undersigned then admitting J.R.Ôs electron ic device to the

final hearing, and after numerous unsuccessful attempts by the undersigned

and PetitionerÔs counsel to prompt J.R. to start his device and testify).

Petitioner did not present any additional testimony or evidence concerning

this 2018 incid ent.

Alleged Incident with L.W.

9. The Administrative Complaint alleges the following:

In or around January of 2019, Respondent made

inappropriate statements to LW, a ninth - grade

female student. Examples include but may not be

limited to telling LW, Ñyou have beautiful lipsÒ or

words to that effect and telling LW, ÑYou are

beautiful! You are glorious!Ò or words to that effect.

RespondentÔs comments made LW feel

uncomfortable and embarrassed.

10. During the 2018 - 19 school year, Dr. Pettway was an art teac her at

West Port. One of his students was L.W., a female who was then a 14 - year -

old high school freshman. At the time of the final hearing, she was a 17 - year -

old high school senior.

11. L.W. testified that during the second quarter of the 2018 - 19 school

y ear (between October and December 2018), and during art class,

Dr. Pettway:

[T]old me that my lips were beautiful in an erotic,

flirty tone, which made me uncomfortable because

it was weird for a teacher to comment on my lips in

any sort of fashion or form .

12. L.W. testified that Dr. Pettway made this comment in front of her

fellow classmates, which made her feel embarrassed. She also testified that

Dr. PettwayÔs Ñbody language, the way he leaned over the desk and was

staring at me[,]Ò made her uncomfort able.

13. L.W. told her mother about what Dr. Pettway said, but her mother,

according to L.W., Ñkind of brushed it off.Ò S.C., L.W.Ôs mother, confirmed that

she did not take Dr. PettwayÔs comment seriously at the time L.W. reported it

to her.

14. L.W. ad mitted that approximately one year before this comment, she

had been diagnosed with anxiety and depression. She testified that her

symptoms caused her to be Ñshaky,Ò Ñreally quiet,Ò and Ñoverly emotional.Ò

She also testified that she was not suffering from either anxiety or depression

when Dr. Pettway made the comments that are alleged in the Administrative

Complaint.

15. L.W. also admitted that Dr. Pettway made the comment about her lips

during a time that the entire class was drawing, and receiving instr uction on,

portraits. She testified that drawing lips was part of the process of drawing a

portrait.

16. L.W. also testified that in early January 2019, she arrived early to

Dr. PettwayÔs class, and asked for permission to get a drink of water. She

stated that Dr. Pettway said Ñyou can have anything you want in that same

erotic tone.Ò 2 Later in class that same day, L.W. testified:

I do believe it was the same day È during the time

the other students were in the class. We were

working on a project at one of the desks Ï science -

type desks in the corner of the classroom and he

came up to me and he was like, you are so

beautiful, you are so glorious in that same tone, but

more exaggerated for, like, my peers and I to hear.

17. L.W. thereafter told her mother and some of her peers about

Dr. PettwayÔs comments. She also spoke to Ms. Johnson about how Dr.

PettwayÔs comments made her feel, and Ms. Johnson asked her to prepare a

written statement , and to provide witnesses to Dr. PettwayÔs comments.

Those student wi tnesses were B.G. and L.G.

18. Soon after reporting these comments to Ms. Johnson, L.W. testified

that Dr. Pettway was removed from the art class. She also testified that

Dr. Pettway has never attempted to contact her outside of class.

19. Ms. Johnson te stified she spoke with L.W. about her concerns, and

also testified:

Throughout my interactions with her, she had

referenced specific comments. And the comments,

in and of themselves, you know, i f you just read it

on a sheet of paper it seems like a complim ent.

However, she emphasized that it was Dr. PettwayÔs

tone and the look on his face and the way he would

make the comments that made her feel most

uncomfortable. She described it as creepy, as

perverted and as sexual in nature.

20. B.G. testified that s he was a student with L.W. in Dr. PettwayÔs art

class during the 2018 - 19 school year. B.G. testified, consistent with her

2 Petitioner did not include in the Administrative Complaint an allegation that Dr. Pettway

m ade this comment, and, therefore, the undersigned did not consider this alleged comment

in making a legal conclusion in this matter. See Trevisani v. DepÔt of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005) (holding that the allegations set forth in an A dministrative

Complaint are those upon which a proceeding is predicated).

written statement provided to Ms. Johnson, that Dr. Pettway, with regard to

L.W.:

From what I remember, he would comment on how

she lo oked or her hair or her outfit or her lips and

when that would happen, she would get

uncomfortable, she would stop talking, distance

herself from, you know, the friend group that she

had in that class.

21. B.G. also testified that Dr. Pettway regularly u sed ÑfloweryÒ language,

such as ÑgloriousÒ and Ñluscious,Ò but that he never used such language when

he spoke to her.

22. L.G., who was also a fellow student with L.W. in Dr. PettwayÔs art

class during the 2018 - 19 school year, testified that Dr. Pettway

Ñ complimented [L.W.Ôs] lips and he would call her glorious.Ò She said that Ñ[i]t

felt like it was very lustful.Ò However, in the witness statement provided to

Ms. Johnson, L.G. made no reference to Dr. Pettway commenting about

L.W.Ôs lips. L.G. admitted tha t Dr. Pettway made the comment about L.W.Ôs

lips while he was instructing the class on drawing portraits.

23. During cross - examination of L.G., Dr. PettwayÔs counsel revealed

L.G.Ôs belief concerning L.W.Ôs interactions with Dr. Pettway:

Q. So, as I under stand it, the totality of your

position Ð statement here is, he used the word Ð

glorious once toward her and said something about

lips during the painting of a portrait and from that

you all concluded that he was sexually interested in

her?

A. Yes.

Dr. Pettw ayÔs Testimony and Evidence

24. Dr. Pettway has been an art teacher for nearly thirty years. He began

teaching art in the MCSD in 2004. Throughout his career, Dr. Pettway has

enjoyed great success as an art teacher, having won various awards.

Dr. Pettway is also a portrait artist; some of his portraits hang in the

Alabama Archives and History Building.

25. Dr. Pettway testified that he uses words like Ñbeautiful,Ò Ñhandsome,Ò

Ñgorgeous,Ò and ÑlovelyÒ to motivate and encourage his students, to make

them fe el good about themselves, and to get them to have a good time in art.

26. Dr. Pettway testified that he normally stands at his classroom door to

greet his students. Upon the studentsÔ return from winter break in January

2019, he testified that he did not initially recognize L.W. when she walked

through the door. Dr. Pettway believed she was a new student when,

according to Dr. Pettway, she had actually changed her appearance

significantly. He stated that he normally does something ÑspecialÒ for new

student s, and was prepared to do something special for L.W. until he

determined that it was a regular student.

27. Dr. Pettway testified that once he figured out the student he saw was

L.W., ÑI was just astounded. She looked completely different. And I Ï I think I

said, you Ï you look beautiful.Ò

28. With respect to his comments about L.W.Ôs lips, Dr. Pettway testified

that he made the comment when instructing on the drawing of portraits in

class. He said that he also commented on another studentÔs long neck, fo r

example, and that ÑI give descriptions of the things that IÔm trying to get

them to understand about the human head.Ò He further testified:

So, LW, with her different look she had on some

very high intensity lipstick. It was matte. It wasnÔt

shiny. It wa s very bright reddish, pinkish, orange -

ish looking. And when I Ï as I, you know, walked

around the class observing the work and things, I

noticed her again. And I, like, you got some

beautiful lips.

And the way that I was trying to express it that,

you kn ow, her whole total makeup, her whole

new Ð new look was Ð was out Ð was the fashion

statement of the day of the class. And it was only a

compliment, trying to make her smile and feel good

about herself when I gave her the compliment.

29. The undersigned notes that Dr. PettwayÔs testimony on his comments

about L.W.Ôs lips appears to contradict the testimony of L.W. concerning

when he made this comment; L.W. testified that it happened in the second

quarter of the 2018 - 19 class year, while Dr. Pettway testified t hat it

happened soon after the winter break in early 2019 (when he allegedly also

made the ÑbeautifulÒ comment). However, both L.W. and Dr. Pettway, as well

as B.G. and L.G., testified that Dr. Pettway made the comment about L.W.Ôs

lips on a day that he wa s instructing the class on drawing portraits.

30. Dr. Pettway also testified that, during the course of the school year in

his art class, he taught his class various elements of art, which often included

phrases in foreign languages. He recalled that one of his students, who was

from China, knew how to write the elements of art in Chinese. When this

happened, L.W. volunteered that she could read the elements of art in

Chin ese . He testified that he was Ñjust in aweÒ about her ability to do that.

L.W. did no t raise this issue with Ms. Johnson or anyone else with the MCSD

when she complained about Dr. PettwayÔs behavior when she volunteered

that she could read Chinese , despite Dr. Pettway drawing attention to L.W.

in front of the entire class on that occasion as well.

31. Dr. Pettway testified that he referred to L.W. as beautiful or glorious

when she was lined up at his classroom doo r , a day after winter break , when

he did not recognize her. He further testified:

I was so overwhelmed at the change I saw in my

student. I was excited. I was, like, wo w . I couldnÔt

believe that I didnÔt recognize her.

* * *

I gave her a compliment with no other point

intended, except for to make her smile and have a

good time in art.

32. Dr. Pettway testified that when he comm ented about L.W.Ôs lips, he

was not attempting to express a sexual interest in L.W. He further stated

that he did not have an erotic or lustful interest in L.W. He stated that he

was ÑproudÒ of her efforts to learn new languages and Ñwas completely caught

off guardÒ by her new appearance.

33. Dr. Pettway testified that when he learned that L.W. had issues with

his comments, he wanted to discuss these issues with L.W. and her mother,

but was not permitted to do so.

34. Dr. Pettway also testified that he ne ver had any contact with L.W.

outside of the classroom. Dr. Pettway has never called, texted, or messaged

L.W. on any social media platform, or otherwise approached L.W. outside of

the art class.

35. It is clear from the testimony and evidence presented t hat Dr. Pettway

made a comment to L.W., during an art class in which Dr. Pettway was

instructing his class on drawing portraits that L.W. had beautiful lips. It is

also clear from the testimony and evidence that on one occasion Dr. Pettway

also made a comm ent to L.W., during an art class, that she was beautiful.

36. However, the testimony and evidence was neither clear nor convincing

to establish that Dr. Pettway , through his comments or tone, failed to protect

L.W. from harmful conditions, or that his com ments or tone w as intended to

expose L.W. to unnecessary embarrassment or disparagement. As

Dr. Pettway testified, and as Ms. JohnsonÔs testimony supports, Dr. PettwayÔs

words were intended to be a Ñcompliment,Ò and were in part made in the

context of inst ructing his class on the drawing of human portraits. Dr.

Pettway, a career art teacher and artist, testified that he used words like

beautiful, glorious, and the like to compliment students and to assist in the

artistic process. Dr. Pettway credibly testif ied that his intention in making

these comments w as not to be ÑeroticÒ or ÑflirtyÒ towards L.W.

37. As J.R. failed to appear to testify concerning the facts and

circumstances surrounding the allegations of the Administrative Complaint

concerning J.R., the re is no clear and convincing evidence to base a finding of

a violation.

C ONCLUSIONS OF L AW

38. DOAH has jurisdiction over the subject matter of this proceeding and

of the parties hereto pursuant to sections 120.569 and 120.57(1) .

39. The Education Practic es Commission is the state agency charged with

the certification and regulation of Florida educators, pursuant to

chapter 1012.

40. This is a disciplinary proceeding in which Petitioner seeks to discipline

Dr. PettwayÔs educator certificate. Because disc iplinary proceedings are

considered to be penal in nature, Petitioner is required to prove the

allegations in the Administrative Complaint by clear and convincing

evidence. DepÔt of Banking & Fin. v. Osborne Stern & Co., Inc. , 60 So. 2d 932

(Fla. 1996); Fe rris v. Turlington , 510 So. 2d 292 (Fla. 1987).

41. Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 69 6 So. 2d 744, 753 (Fla. 1997 ).

The Florida Supreme Court further enunciated the standard:

This intermediate level of proof entails both a

qualitative and quantitative standard. The

evidence must be credible; the memories of the

witnesses must be clear and without confusion; and

the s um total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remem bered; the testimony must be precise and

lacking in confu sion 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 firm belief or

conviction, without hesitancy, as to the truth of the

allegatio ns 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)). ÑAlthough this standard of proof may be

met where the evidence is in conflict, it seems to preclude evidence t hat is

ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 989 (Fla.

1st DCA 1991).

42. Section 1012.795 and rule 6A - 10.081 are penal in nature and must be

strictly construed, with any ambiguity construed against Petitioner. Penal

statutes mus t be construed in terms of their literal meaning, and words used

by the Legislature may not be expanded to broaden the application of such

statutes. Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA

2008); Latham v. Fla. CommÔn on Ethics, 6 94 So. 2d 83 (Fla. 1st DCA 1997).

43. Whether particular conduct constitutes a violation of the applicable

statutes and rules is a factual question to be decided in the context of the

alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st D CA

1995). Whether specific conduct constitutes a deviation from the required

standard is an ultimate finding of fact within the realm of the administrative

law judgeÔs fact - finding discretion. Holmes v. Turlington , 480 So. 2d 150, 153

(Fla. 1st DCA 1985).

Allegations in Administrative Complaint

44. The allegations set forth in the Administrative Complaint are those

upon which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. DepÔt of Ins. , 68 5 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits Petitioner from taking

disciplinary action against a licensee based on matters not specifically alleged

in the charging instruments, unless those matters have been tried by

consent. See Shore V ill. Prop. OwnerÔs AssÔn v. DepÔt of Envtl. Prot. , 824 So. 2d

208, 210 (Fla. 4th DCA 2002); Delk v. DepÔt of ProfÔl Reg. , 595 So. 2d 966, 967

(Fla. 5th DCA 1992).

45. Count 1 of the Administrative Complaint seeks to discipline

Dr. Pettway on charges that he violated section 1012.795(1)(j), which states:

(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 as

provided in subsection (4); may revoke the educator

certificate of any pe rson, 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 school in any capacity requiring direct

contact with students; may suspend the e ducator

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.

Count 1 cannot constitute an independent violation, but rather is dependent

upon a corresponding violation of the rules constituting the Principles of

Professional Conduct.

46. Co unts 2 and 3 of the Administrative Complaint seek to discipline

Dr. Pettway on charges that he violated rule s 6A - 10.081(2)(a)1. and 6A -

10.081(2)(a)5., which state:

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension 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 ef fort to protect the

student from conditions harmful to learning and/or

to the studentÔs mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

47. Based on the Findin gs of Fact, Petitioner failed to establish, by clear

and convincing evidence , that Respondent violated rule s 6A - 10.081(2)(a)1.

and 6A - 10.081(2)(a)5., with respect to the allegations concerning J.R., as J.R.

failed to appear to testify , concerning those fac ts and circumstances

surrounding the allegations of the Administrative Complaint.

48. Based on the Findings of fact, Petitioner failed to establish, by clear

and convincing evidence, that Respondent violated rule s 6A - 10.081(2)(a)1.

and 6A - 10.081(2)(a)5., i n that the comments, including tone and manner,

made by Dr. Pettway to L.W. on the two occasions alleged in the

Administrative Complaint , did not result in Dr. Pettway failing to make

reasonable effort to protect L.W. from conditions harmful to learning an d/or

to L.W.Ôs mental health and/or physical health and/or safety, and did not

intentionally expose L.W. to unnecessary embarrassment or disparagement.

49. The undersigned concludes that Petitioner failed to prove, by clear and

convincing evidence, that D r. Pettway committed the violations alleged in

Counts 1, 2, and 3 of the Administrative Complaint.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that Petitioner enter a final order

dis missing the Administrative Complaint against Dr. Marshall Gerald

Pettway.

D ONE A ND E NTERED this 2nd day of September , 2022 , in Tallahassee,

Leon County, Florida.

S

R OBERT J. T ELFER III

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 2nd day of September , 2022 .

C OPIES F URNISHED :

Lisa M. Forbess, Executive Director Ron Weaver, Esquire

(eServed) (eServed)

Mark Herdman, Esquire Randy Kosec, Jr., Chief

(eServed) (eServed)

James Ric hmond, Acting General Counsel

(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.