STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) Case No. 99-0607

)

KAREN K. GAINES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on April 14, 1999, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint; and

2. If so, what disciplinary action should be taken against

her?

PRELIMINARY STATEMENT

On July 14, 1998, Petitioner issued an Administrative Complaint alleging that Respondent had engaged in conduct warranting "the appropriate disciplinary sanction of the Respondent's educator's certificate pursuant to Sections 231.262 and 231.28, Florida Statutes, and pursuant to Rule 6B-1.006, Florida Administrative Code, Principles for Professional Conduct for the Education Profession in Florida." Respondent denied the allegations of wrongdoing made in the Administrative Complaint1 and requested a "formal hearing" on the matter if a negotiated settlement could not be reached. Settlement negotiations did not produce a settlement. Accordingly, on February 5, 1999, the case was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

The hearing was scheduled for April 14, 1999. Petitioner and Respondent were provided with written notice of the scheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes.2 Petitioner appeared at the hearing, which was held as scheduled on April 14, 1999, through his counsel of record, Ron Weaver, Esquire. Respondent did not make an appearance at the hearing, either in person or through counsel or an authorized representative.

At the hearing, Petitioner presented the testimony of three witnesses: B. N., a former student at McNabb Elementary School

in Broward County, Florida; Ashley Russom, a fifth-grade teacher at McNabb Elementary School; and Diane Lang, the Principal of McNabb Elementary School. No other evidence was presented.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, established a deadline (5 days from the date of the undersigned's receipt of the transcript of the hearing) for the filing of proposed recommended orders. The hearing Transcript was filed on May 11, 1999. On May 19, 1999, Petitioner filed a Proposed Recommended Order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent held Florida teacher's certificate number 581280, covering the area of art education. Her certificate was valid through

   June 30, 1998.

   
   

2. During the 1996-97 school year, Respondent was employed by the Broward County School Board (School Board) as an art teacher. This was her first year of teaching.

3. In February of 1997, Respondent was reassigned from another school in the district to McNabb Elementary School (McNabb).

4. Diane Lang is now, and has been for the past four years (including the 1996-97 school year), the Principal of McNabb.

5. From the outset, Respondent had difficulty controlling students in her classroom at McNabb.

6. Principal Lang attempted to help Respondent improve her classroom management skills. Her efforts, unfortunately, were to no avail.

7. Principal Lang also received complaints concerning Respondent's use of profanity in the classroom.

8. On February 25, 1999, Principal Lang reprimanded Respondent in writing for having engaged in such inappropriate conduct in front of her students.

9. Late in the school day on April 21, 1997, when Respondent was in the art room teaching Ashley Russom's fifth- grade class, a student from another fifth-grade class, R. M., who was misbehaving in music class (being held across the hall), was sent by the music teacher to the art room for a "time out."

10. When R. M. entered the art room, Respondent sarcastically announced to her students, "Look, it's my favorite student."

11. Respondent then approached R. M., took him by the arm, and pulled him across the room to a chair.

12. When he reached the chair, R. M. tripped and fell on the floor.

13. He then picked himself up and, pursuant to Respondent's directions, sat on the chair.

14. Respondent then returned to teaching the class. She was interrupted, however, when R. M. started making faces and distracting the students in the class.

15. Respondent responded to R. M.'s disruptive conduct by again approaching him, taking him by the arm, and pulling him. This time she dragged him to the supply closet, which has a glass window facing the classroom. She left R. M. inside the supply closet and, as she exited, slammed the door.

16. Upon slamming the door, Respondent yelled out, loudly enough for the 30 fifth-grade students in her class to hear, "Shit, I broke a nail."

17. After Respondent resumed the lesson she was teaching,

    
    

    R. M. began pressing his face against the supply closet's glass window and making faces. He then picked up a knife that was in the supply closet, stood up on a counter that was next to the window, and put the point of the knife to his neck.

18. A number of students in the class saw what R. M. was doing, and they shouted out to Respondent that R. M. was playing with a knife.

19. Respondent then looked at R. M. through the supply closet window and told the class, "Just leave him alone; he's just trying to get attention."

20. R. M. then began running on the counter in the supply closet with the knife still in his hand.

21. Respondent was attempting to teach the class, but the students were not paying attention to her. They were watching

    R. M.

    
    

22. As R. M. was running on the supply closet counter, he lost his balance and fell off the counter.

23. R. M.'s demeanor changed after his fall. He sat quietly in the supply closet (without making faces or engaging in any other disruptive conduct) until he was let out by Respondent at the end of the period.

24. As the students were leaving the art room, Respondent stated, loudly enough for some of the students to hear, "Why do I have to clean up after these damn kids?"

25. Upon returning to Ms. Russom's classroom, her students told her about what had happened in Respondent's class.

    Ms. Russom, in turn, informed Principal Lang of what the students in her class had related to her.

26. R. M. left school that day with a cut finger.

    
    

27. The next school day, Principal Lang spoke to approximately ten of Ms. Russom's students concerning Respondent's conduct during the lesson she taught them on April 21, 1997, and she (Principal Lang) requested that the School Board's Special Investigative Unit conduct an investigation of the matter.

28. At the conclusion of the 1996-97 school year, Respondent received an overall unsatisfactory performance evaluation and her annual contract was not renewed.

29. As a result of the above-described conduct in which she engaged on April 21, 1997, while she had Ms. Russom's fifth- grade class in her classroom, Respondent's effectiveness as an educator has been reduced.

    CONCLUSIONS OF LAW

    
    

30. The Education Practices Commission (Commission) is statutorily empowered to take punitive action against the holder of a valid or an expired Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such punitive action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed three years; imposition of an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6), and 231.28(1), Florida Statutes.

31. Punitive action may be taken against the holder of an expired teacher's certificate only "if the acts which are the

    basis for [such action] were . . . committed while that person possessed a [valid] teaching certificate." Section 231.262(1)(a), Florida Statutes.

32. Subsection (1)(f) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board."3

33. Subsection (1)(i) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who "[h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."

34. Rule 6B-1.006, Florida Administrative Code, contains the "Principles of Professional Conduct for the Education Profession in Florida." Certificate revocation is one of the penalties prescribed in the rule for violation of these principles. Rule 6B-1.006(2), Florida Administrative Code.

35. Subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."

36. Subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not intentionally expose a student to unnecessary embarrassment or disparagement."

37. The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

38. Punitive action may be taken against a teacher based upon the foregoing statutory and rule provisions only if the grounds for such action are established by clear and convincing evidence. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387,

    
    

    388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute."). Such proof must be submitted regardless of whether the teacher makes an appearance at the final hearing. See Scott v. Department of Professional Regulation, 603 So. 2d 519 (Fla. 1st DCA

    1992)(registered nurse's failure to appear at final hearing in licensure disciplinary proceeding "did not relieve [the prosecuting agency] of its obligation to substantiate the charges by presenting sufficient evidence").

39. "'[C]lear 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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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 allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

40. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

41. In the instant case, the Administrative Complaint issued against Respondent, alleges that, while employed as an art teacher at McNabb, she engaged in misconduct in violation of Section 231.28(1)(f), Florida Statutes, and in violation of Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code,

    and therefore also Section 231.28(1)(i), Florida Statutes, when, on April 21, 1997, she "used inappropriate disciplining methods with one of her students [R. M.] and made inappropriate comments in class."

42. The record evidence clearly and convincingly establishes that Respondent committed these statutory and rule violations, as alleged in the Administrative Complaint.

43. Accordingly, the Commission is authorized to take punitive action against Respondent pursuant to Section 231.28(1), Florida Statutes.

44. In determining what punitive action the Commission should take against Respondent for committing these violations, it is necessary to consult Rule 6B-11.007, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation,

    531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

45. Having carefully considered the facts of the instant case in light of the provisions of Rule 6B-11.007, Florida Administrative Code (including subsection (2)(j), which prescribes a penalty "range" of "reprimand-revocation" for "inappropriate methods of discipline," as well as subsection (3), which sets forth the "aggravating and mitigating factors" to be considered in determining whether a "deviat[ion] from the

penalties recommended in subsection (2)" is justified4), the undersigned concludes that the Commission should punish Respondent for having committed the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint by revoking her teaching certificate and denying her the right to teach for a period of six years,5 after which she may apply for a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes, which provides as follows:

A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and punishing her for committing these violations by revoking her license and denying her the right to teach for a period of six years, after which she may apply for a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes.

DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1999.

ENDNOTES

1/ Respondent did not dispute the following "jurisdiction[al]" allegations made in the first two numbered paragraphs of the Administrative Complaint:

1. The Respondent holds Florida Educator's Certificate 581280, covering the area of Art Education, which was valid through June 30, 1998.

   
   

2. At all times pertinent hereto, the Respondent was employed as an Art teacher at McNabb Elementary School, in the Broward County School District.

2/ Such notice was in the form of a Notice of Hearing by Video Teleconference (Notice) mailed on March 2, 1999, to Petitioner and to Respondent (at her last known address, as reflected in the Election of Rights form she executed on August 12, 1998).

3/ A teacher may be found guilty of violating subsection (1)(f) of Section 231.28, Florida Statutes, even in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where the "personal conduct" in which the teacher engaged is of such nature that it "must have

impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see

McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

4/ Subsection (3) of Rule 6B-11.007, Florida Administrative Code, provides as follows:

(3) Based upon consideration 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:

1. The severity of the offense;

   
   

2. The danger to the public;

   
   

3. The number of repetitions of offenses;

   
   

4. The length of time since the violation;

   
   

5. The number of times the educator has been previously disciplined by the Commission;

   
   

6. The length of time the educator has practiced and the contribution as an educator;

   
   

7. The actual damage, physical or otherwise, caused by the violation;

   
   

8. The deterrent effect of the penalty imposed;

   
   

9. The effect of the penalty upon the educator's livelihood;

   
   

10. Any effort of rehabilitation by the educator;

    
    

11. The actual knowledge of the educator pertaining to the violation;

    
    

12. Employment status;

    
    

13. Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation;

14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

    
    

15. Actual negligence of the educator pertaining to any violation;

    
    

16. Penalties imposed for related offenses under subsection (2) above;

    
    

17. Pecuniary benefit or self-gain enuring to the educator;

    
    

18. Degree of physical and mental harm to a student or a child;

    
    

19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

    
    

20. Any other relevant mitigating or aggravating factors under the circumstances.

5/ Although Petitioner engaged in serious misconduct, in which she displayed extremely poor judgment, when the totality of circumstances are considered, her misconduct was not sufficiently serious to warrant permanent revocation of her license, the punishment proposed by Petitioner in his Proposed Recommended Order.

COPIES FURNISHED:

Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

Karen K. Gaines

4630 Northwest 102nd Avenue, No. 108

Miami, Florida 33178

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-000607

Orders for Case No: 99-000607