STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 9, 2008, in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i),

Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 17, 2006, Petitioner, John L. Winn, as Commissioner of Education, filed a four-count Administrative Complaint against Respondent, Michele O’Neill (Ms. O’Neill), alleging that she had violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a). The case was received by the Division of Administrative Hearings on March 31, 2008, for assignment to an Administrative Law Judge to conduct a final hearing.

By Notice of Hearing dated April 14, 2008, the final hearing was scheduled to commence at 9:00 a.m. on May 9, 2008, in Orlando, Florida. Ms. O’Neill was sent a copy of the Notice of Hearing by the Division of Administrative Hearings. On

May 9, 2008, counsel for Petitioner appeared at the noticed time and place. Neither Ms. O’Neill nor a representative for her appeared. The undersigned delayed the commencement of the final hearing for 20 minutes to give Ms. O’Neill time to appear, but she did not.

At the final hearing, Petitioner called Susan I. Stephens and Officer Lina Strube as witnesses. Petitioner’s Exhibit 1 was admitted in evidence.

The one-volume Transcript of the final hearing was filed on June 10, 2008. Petitioner filed a Proposed Recommended Order on

June 19, 2008. Ms. O’Neill did not file a proposed recommended order.

FINDINGS OF FACT

1. Ms. O’Neill holds Florida Educator’s Certificate No. 470617, covering the areas of early childhood development

   and elementary education, which is valid through June 30, 2007.

   
   

2. At all times material to this proceeding, Ms. O’Neill was employed as a third grade teacher at Lakemont Elementary School (Lakemont) in the Orange County School District (School District). Dr. Susan I. Stephens has been the principal at Lakemont for 12 years. Dr. Stephens was Ms. O’Neill’s supervisor at Lakemont.

3. On September 30, 2005, Dr. Stephens received a call late in the afternoon from a student’s parent complaining that she had smelled alcohol on Ms. O’Neill’s breath during a teacher-parent conference a few days before the call.

   Dr. Stephens went to Ms. O’Neill’s classroom to discuss the issue with Ms. O’Neill, but Ms. O’Neill had left for the day.

4. The following Monday morning, October 3, 2005,

   
   

   Dr. Stephens confronted Ms. O’Neill in her classroom before school started about the allegations made by the parent. At that time, Dr. Stephens smelled alcohol on Ms. O’Neill’s breath. When Dr. Stephens told Ms. O’Neill that the parent wanted the child removed from her class, Ms. O’Neill acted very nonchalant

   and began to talk about other things that were not responsive to the issue being discussed. Dr. Stephens has had training to detect the use of alcohol and was of the opinion that

   Ms. O’Neill was under the influence of alcohol.

   
   

5. After her discussion with Ms. O’Neill, Dr. Stephens sent her assistant principal, Randall Hart, to talk with

   Ms. O’Neill and to observe her. Mr. Hart returned and reported to Dr. Stephens that he also smelled alcohol on Ms. O’Neill’s breath and thought that Ms. O’Neill had been “acting differently.”

6. By the time Mr. Hart had returned from observing Ms. O’Neill, students were arriving in the classroom.

   Dr. Stephens sent Mr. Hart back to Ms. O’Neill’s classroom to remain in the classroom while the students were present.

   Dr. Stephens called the Employee Relations Office of the School District and was given the name of a principal in a nearby school, who was trained in the detection of the use of alcohol. Dr. Stephens contacted the principal, Suzanne Ackley, and asked her to come and observe Ms. O’Neill.

7. Ms. Ackley and Dr. Stephens went to Ms. O’Neill’s classroom. The students in Ms. O’Neill’s class had been sent to other classes for art, music or physical education. Ms. O’Neill was “giggly” and was slurring her words. She talked about things which were not related to the issues raised by the two

   administrators. Ms. Ackley agreed that Ms. O’Neill was under the influence of alcohol.

8. Dr. Stephens and Ms. Ackley went back to Dr. Stephens’ office and called the Employee Relations Office for guidance. They returned to Ms. O’Neill’s classroom, and Dr. Stephens asked Ms. O’Neill to accompany her to an alcoholic testing center. At first, Ms. O’Neill agreed to do so, but wanted to go home first and get her medications. Dr. Stephens refused to let her go home before going to the test center. Ms. O’Neill then refused to go for testing and left her classroom headed for her car.

9. Dr. Stephens did not feel that Ms. O’Neill should be driving in her condition and followed Ms. O’Neill to her car. Dr. Stephens had called for the police officer who was the school resource officer to meet them at Ms. O’Neill’s car. The police officer, Lina Strube, had over nine years of experience and had been trained to detect when a person was under the influence of alcohol.

10. By the time Officer Strube got to the parking lot, Ms. O’Neill was in her car driving toward Officer Strube. Before Ms. O’Neill could get to the gate of the parking lot, Officer Strube stopped her and asked her to roll down her window, which Ms. O’Neill did. Officer Strube could smell alcohol on Ms. O’Neill’s breath and told Ms. O’Neill that she

    wanted to talk to Ms. O’Neill. Ms. O’Neill became agitated, and

    Officer Strube had to call for assistance. Based on her experience and training, Officer Strube felt that Ms. O’Neill was under the influence of alcohol.

11. As a result of the incident on October 3, 2005,

    
    

    Ms. O’Neill employment with the School District was terminated.

    
    

12. Ms. O’Neill’s was under the influence of alcohol while in the classroom and such conduct seriously reduced her effectiveness as an employee of the School District and showed her failure to make a reasonable effort to protect her students from conditions that are harmful to learning and/or to the students’ mental health or physical safety.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

14. Petitioner has alleged that Ms. O’Neill violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a). Petitioner has the burden to establish the allegations by clear and convincing evidence. Department of

    Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

15. Subsection 1012.795(1), Florida Statutes (2005), provides in pertinent part:

    The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 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 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 a period of time not to exceed 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 a public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person.

    
    

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    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

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    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces the effectiveness as an employee of the district school board.

    
    

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    (i) Has violated the Principles of Professional Conduct for the Education

    Profession prescribed by State Board of Education rules.

    
    

16. Florida Administrative Code Rule 6B-1.006 constitutes the Principles of Professional Conduct for the Education Profession in Florida. Florida Administrative Code

    Rule 6B-1.006(3)(e) provides that the educator has an obligation to the student to “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.”

17. Petitioner has established by clear and convincing evidence that Respondent violated Subsection 1012.795(1)(c), Florida Statutes (2005). Neither the term "gross immorality" nor the term "moral turpitude" is defined in Subsection 1012.795(1)(c), Florida Statutes (2005). However, the terms "immorality" and "moral turpitude" are defined in Florida Administrative Code Rule 6B-4.009, which relates to the dismissal of teachers by school districts. Such definitions are instructive in ascertaining the meaning of those terms as they are used in Section 1012.795, Florida Statutes (2005). Florida Administrative Code Rules 6B-4.009(2) and 6B-4.009(6) provide:

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

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    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

    Being intoxicated in a classroom in which students are present is action which exhibits both gross immorality and moral turpitude.

18. Petitioner has established by clear and convincing evidence that being under the influence of alcohol while on duty at school with students present reduced Ms. O’Neill’s effectiveness as an employee of the school district, and, thus, has established that Ms. O’Neill violated Subsection 1012.795(1)(f), Florida Statutes (2005).

19. Petitioner has established by clear and convincing evidence that Ms. O’Neill, by being under the influence of alcohol at work, failed to make a reasonable effort to protect her students from conditions that would be harmful to learning and the students’ health and safety and was in violation of Subsection 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(e).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(e) and revoking her educator’s certificate for two years.

DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 30th day of June, 2008.

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Michele O'Neill

110 Wigwam Place Maitland, Florida 32751

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

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: 08-001597PL

Orders for Case No: 08-001597PL