22-001198PL Manny Diaz, Jr., As Commissioner Of Education vs. Maria Lyn Turner Status: Closed Recommended Order on Thursday, September 15, 2022.

Summary: Petitioner failed to prove 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 ,

Case No. 22 - 1198PL

vs.

M ARIA L YN T URNER ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on July 22 , 2022, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative Hearings

(DOAH).

A PPEARANC ES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U S Highway 19 N orth, Suite 110

Clearwater, Florida 33761 - 1538

S TATEMENT OF T HE I SSUE S

Whether 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. as

alleged in the Administrative Complaint; and, if so, what disciplinary penalt y

should be imposed. 1

P RELIMINARY S TATEMENT

On March 29, 2021, Petitioner, Richard Corcoran, as Commissioner of

Education (Petitioner/Commissioner), 2 filed an Administrative Complaint

(Complaint) against Maria Lyn Turner (Respondent), alleging violations of

section 1012.795(1)(j), and rules 6A - 10.081(2)(a)1. and 6A - 10.081(2)(a)5.

Respondent timely filed an Election of Rights form wherein she disputed the

allegations and requested a hearing. On April 19, 2022, Petitioner referred

the instant matter to DOAH for assignment of an administrative law judge.

At the final hearing, Petitioner presented the testimony of Lisa M.

Cropley, Matthew Goldrick, Cari Lynn OÔRourke, Lauren Rogers Carlo, and

students RL, BR, LH, and KL. Respondent testified on her own behalf and

did not call any additional witnesses. PetitionerÔs Exhibits 1 through 17 were

admitted into evidence. RespondentÔs Exhibits 1 and 2 were also admitted

into evidence.

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

August 16, 2022, pursuant to motion by Respondent, an Order Granting

Extension of Time was entered wherein the parties were authorized to file

proposed recommended orders on or before August 26, 2022. Each party

1 Except where oth erwise indicated, all references to the Florida Statutes in this

Recommended Order are to the 2018 edition, as the Administrative Complaint contains

allegations from the 2018 - 20 19 academic year. See McCloskey v. DepÔt of Fin. Servs ., 115 So.

3d 441, 444 (F la. 5th DCA 2013) (holding that statutes and rules in effect at the time of the

allegations apply, unless otherwise specified).

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

Administrative Complaint. Mr. Corcoran subsequen tly stepped down from his position as

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

the style of this case was amended accordingly.

timely filed a P roposed R ecommended O rder, and the same have been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

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

Education (Department). The Commissioner is responsible for investigating

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 administrative complaint pursuant to

chapter 1 20 , Florida Statutes .

2. At the time of the allegations contained in the Complaint, Respondent

held Florida EducatorÔs Certificate 1313234 (license), which covered the area

of Ñworld language - Spanish.Ò RespondentÔs license expired on June 30, 2021.

Respond ent has been an educator for more than 30 years and has never been

subject to disciplinary action by the Department .

3. During the 2018 - 2019 academic year, Respondent was employed as a

Spanish teacher at Challenger K - 8 School in the Hernando County School

District (school district). The 2018 - 2019 academic year was the first year

Respondent taught at Challenger K - 8.

4. The Complaint alleges the following:

During the 2018 - 2019 school year, Respondent

made inappropriate comments to her class of eighth

grade s tudents, which include but may not be

limited to:

a. Telling students she took a Human Sexuality

and Intimacy Course and/or the professor would

give extra credit to students who turned in naughty

and/or sex comics;

b. Telling students she was a bartend er in college

and customers would bring her naughty and/or sex

cartoons;

c. Discussing personal stories with students;

d. Telling students how she showered naked with

her gay best friend; and

e. Telling students not to say "pizza" in Spain

because it m eant male semen. Or words to that

effect.

As a result, students felt uncomfortable.

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

During the 2018 - 2019 school year, Respondent told

her students she took a human sexuality and

intimacy c ourse, and the professor g[a]ve extra

credit to students who turned in naughty comics.

6. On or about April 26, 2019, a Ñconcerned parentÒ brought to the

attention of the administration at Challenger K - 8 that Respondent, during

her second period Spanish c lass, made comments of a sexual nature that

caused some of her eighth - grade students to feel uncomfortable.

7. Within hours of being contacted by the concerned parent, the

administration had students from RespondentÔs second period Spanish class

to prepare written statements and also interviewed Respondent about the

matter. At the conclusion of its investigation, the school district disciplined

Respondent by issuing her a letter of reprimand.

8. As part of the investigation, Respondent met with school distr ict

administrators on April 26 and May 3, 2019. Statements made by

Respondent during these two meetings were summarized and reduced to

writing as reflected in PetitionerÔs Exhibits 2 and 5. During these meetings,

Respondent answered questions about what tr anspired during her second

period Spanish class. Also, on or about May 1, 2019, Respondent provided a

written statement to the investigating officials where she once again

addressed matters related to what transpired during the second period

Spanish class.

9. The summaries from the two meetings, as well as RespondentÔs written

statement, are materially consistent with the testimony that Respondent

offered during the final hearing, which is set forth in the following

paragraphs .

10. Respondent required her s tudents keep and maintain binders, which

contained their written classwork. Respondent r egularly stressed to her

students the importance of maintaining their binders, and routinely

explained that one reason for doing so was so that they could easily refere nce

learned material for class assignments and tests. Respondent Ôs expectations

for maintaining binders were set forth in the class syllabus.

11. During her first period class on the day in question, Respondent

noticed that many students were not maintaini ng their binders Ð a few

students claimed their binders were stolen and one student said he only

pretends to write in his binder. Respondent decided to have a pep talk with

her first period class about the importance of maintaining and keeping

binders; howev er, the discussion did not go well. Respondent testified she

could tell the students Ñwere not clued in.Ò

12. During her second period class on the day in question, Respondent

gave the same pep talk and saw the same sea of blank faces. In an effort to

impr ess upon her students the importance of properly maintain ing their

binders, Respondent shared a story about how keeping her school binder had

assisted her throughout the years. Respondent explained to her students that

while in college, she took a class ca lled Human Sexuality and Intimacy where

the professor offered extra credit if students brought in naughty cartoons,

and that years later, when she was an administrator, she used some of the

cartoons from her binder to begin meetings.

13. Respondent offered credible testimony that she never used the terms

Ñsex cartoons/comicsÒ or ÑpornographyÒ when speaking with her students.

Respondent also offered credible testimony that she never described the

specific details of the comics when mentioning the comics to h er class.

14. Respondent credibly testified that the Spanish curriculum includes

teaching not only reading, writing, listening, and speaking in the language,

but it also includes educating students about the various cultures and non -

verbal communications s hared between Spanish speaking countries.

15. Respondent testified that she lived in Spain for two - and - a - half years

and spent several extended stays in Costa Rica. She explained to her

students some of the cultural differences between Spanish speaking coun tries

and the United States. She explained how pillowcases, toilets, showers,

faucets, holidays, and certain words are different between countries.

16. Respondent testified that while teaching her students about some of

the cultural differences that she ex perienced while living in a boarding house

in Spain, she explained to them that the showers had floor to ceiling stalls

that allowed her and a male friend to shower simultaneously , though

separated by a wall. Respondent also explained to her students that while

living in Costa Rica, she would not have hot water while taking a shower.

Respondent credibly testified that these items related to the portion of the

Spanish curriculum that dealt with housing considerations.

17. RespondentÔs instruction to her Spa nish class regularly included

discussions about language, words, and their meanings. While teaching the

food unit, Respondent explained to her students that very simple words can

have double meanings, and they had to be careful about how they express

these things because, with the double meaning, they could end up saying

something that is not what they are trying to say. The words ÑpizzaÒ and

ÑmilkÒ came up during the discussion as words with double meanings. Some

of her eighth - grade students want ed to know the Spanish meaning of these

words, but Respondent credibly testified that she did not provide the Spanish

meaning of these words to her students.

18. Petitioner offered into evidence several Ñwitness statementsÒ prepared

by students who were enrolled in RespondentÔs second period Spanish class

during the 2018 - 2019 academic year. A number of the students testified

during the final hearing, but their testimony consisted of ÑadoptingÒ their

written statements with no illuminating details regarding what happe ned in

RespondentÔs second period Spanish class.

19. Fourteen students prepared written statements on or near April 26,

2019. In reviewing these statements, there were two instances where it was

mentioned that RespondentÔs statements Ñmade students feel un comfortable.Ò

It is not clear from the record how these two students were able to determine

that other students in the classroom felt uncomfortable. Then, on or about

September 30, 2020, supplemental written statements were prepared by

some of the students , and of those, four students mentioned for the first time

that RespondentÔs statements made them feel uncomfortable, with one

student indicating that he felt no discomfort whatsoever as a result of

RespondentÔs statements. These evidentiary dynamics weigh against finding

that this evidence rises to the level of being clear and convincing.

20. Having considered RespondentÔs testimony, as well as having reviewed

and synthesized the written statements prepared by the students, it is clear

that Respondent: 1) told her students that she took a Human Sexuality and

Intimacy Course while in college, and that Respondent earned extra credit in

the course by submitting naughty comics; 2) told her students that she was a

bartender in college and that customers would br ing her naught y comics;

3) discussed personal stories with her students; 4) told students that when

she lived in Spain, the showers had floor to ceiling stalls that allowed her

and a male friend to shower simultaneously , though separated by a wall;

5) told students that the word ÑpizzaÒ does not mean the same in the Spanish

language as it does in the English language; and 6) some students felt

ÑuncomfortableÒ when Respondent mentioned these matters to her second

period Spanish class.

21. However, the eviden ce was neither clear nor convincing to establish

that Respondent, through her comments, failed to protect students from

harmful conditions, or that her comments were intended to expose students

to unnecessary embarrassment or disparagement. As the credible evidence

demonstrated, RespondentÔs statements were intended to illustrate to her

students the importance of staying organized and were, in part, made in the

context of helping her students to understand some of the cultural aspects of

Spanish speaking co untries. Succinctly stated, there is insufficient evidence

that Respondent intentionally exposed her students to unnecessary

embarrassment or disparagement, or failed to protect them from harmful

conditions.

C ONCLUSIONS OF L AW

22. DOAH has jurisdiction ov er the subject matter of this proceeding and

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

23. The Education Practices Commission has the authority to impose

discipline against Florida educators pursuant to chapter 1012.

24. This is a d isciplinary proceeding in which Petitioner seeks to discipline

Respondent Ôs educator certificate. Because disciplinary proceedings are

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

allegations in the Complaint by clear and convincin g evidence. DepÔt of

Banking & Fin. v. Osborne Stern & Co., Inc. , 60 So. 2d 932 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987).

25. Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyo nd and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 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 sum 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

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 th e trier of fact a firm 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)). ÑAlthough this standard of proof may be

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

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

1st DCA 1991).

26. 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 must 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 , 694 So. 2d 83 (Fla. 1st DCA 1997).

27. Whether particular conduct constitutes a violation of the applicable

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

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

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).

28. The allegations set forth in the 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 ., 685 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 matter s have been tried by consent. See Shore Vill.

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).

29. Count 1 of the Complaint seeks to discipline Res pondent on charges

that she 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 educa tor

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 school in any capacity requiring direct

contact with st udents; 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 Principle s 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

Pro fessional Conduct.

30. Counts 2 and 3 of the Complaint seek to discipline Respondent on

charges that she violated rules 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. Vio lation 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 re asonable effort 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.

31. Based on the Findings of F act, Petitioner failed to prove, by clear and

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

6A - 10.081(2)(a)5., in that her remarks, when considering the context in which

they were presented, did not result in R espondent failing to make reasonable

effort to protect her students from conditions harmful to learning and/or to

her studentsÔ mental health and/or physical health and/or safety, and did not

intentionally expose her students to unnecessary embarrassment o r

disparagement.

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

convincing evidence, that Respondent committed the violations alleged in

Counts 1, 2, and 3 of the Complaint.

R ECOMMENDATION

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

undersigned hereby R ECOMMENDS that the Education Practices Commission

enter a final order dismissing the Administrative Complaint against

Maria Lyn Turner.

D ONE A ND E NTERED this 1 5 th day of September , 2022 , in Tallahassee ,

Leon County, Florida.

S

L INZIE F. B OGAN

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 5 th day of September , 20 22 .

C OPIES F URNISHED :

Lisa M. Forbess, Executive Director Branden M. Vicari, Esquire

(eServed) (eServed)

Ron Weaver, Esquire James Richmond, Acting Gen eral Counsel

(eServed) (eServed)

Randy Kosec, Jr., Chief

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCE PTIONS

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.