STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On January 16 and 28, 2009, a duly-noticed hearing was held in Bunnell, Florida, before Lisa Shearer Nelson, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: Seneka Arrington, pro se

104 Carolina Lake Drive, Apartment 202 Daytona Beach, Florida 32114

STATEMENT OF THE ISSUES

The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 17, 2008, Eric Smith as Commissioner of Education filed an Administrative Complaint designated as Case Number 067- 1598-T against Respondent seeking revocation of her teaching certificate for violations of Chapter 1012, Florida Statutes, and the Rules of Professional conduct adopted in Florida Administrative Code Rule 6B-1.006. Specifically, the Administrative Complaint alleged that Respondent engaged in an inappropriate sexual relationship with M.H., a student at the school where she taught; that she was terminated from her teaching position; and that she entered into a deferred prosecution agreement with regard to a charge of retail theft.

Based upon these factual allegations, the Administrative Complaint alleged that Respondent was guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes (Count I); of personal conduct that seriously reduces her effectiveness as an employee of the school board, in violation of Section 1012.795(1)(f), Florida Statutes (Count II); of violating the Principles of Conduct for the Education Profession prescribed by the State Board of Education Rules, in violation of Section 1012.795(1)(i), Florida Statutes (Count III); of failing to make reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a) (Count IV); of

intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e) (Count V); of harassing or discriminating against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social or family background, in violation of Florida Administrative Code Rule 6B- 1.006(3)(g) (Count VI); and of exploiting a relationship with a student for personal gain or advantage, in violation of Florida Administrative Code Rule 6B-1.006(3)(h) (Count VIII).

Respondent initially filed an Election of Rights form on February 29, 2008, electing a hearing pursuant to Section 120.57(2), Florida Statutes (2007). However, when Respondent appeared before a Teacher Panel of the Education Practices Commission on June 13, 2008, a dispute of material fact arose and on July 16, 2008, the Commission entered an Order referring the case to the Division of Administrative Hearings for the assignment of an administrative law judge and the conduct of a Section 120.57(1) hearing.

The case was assigned to the undersigned and hearing was scheduled for September 18, 2008. On September 5, 2008, Petitioner moved for leave to amend the Administrative Complaint and to reschedule the hearing. By separate orders, the Motion to Amend the Administrative Complaint was granted and the hearing was rescheduled to October 23, 2008. Petitioner again moved for

continuance of the hearing on October 10, 2008, because of the need to take the out-of-state deposition of one of the students allegedly involved in the misconduct alleged in the Amended Administrative Complaint, and the hearing was rescheduled for January 16, 2009. Additional time required to complete the hearing was scheduled for January 28, 2009.

At hearing, Petitioner presented the testimony of seven witnesses and Petitioner's Exhibits 1-7 were admitted into evidence. Respondent presented the testimony of three witnesses. The proceedings were transcribed, and the final volume of the three-volume Transcript was filed with the Division February 18, 2009. Both parties timely filed Proposed Recommended Orders that have been carefully considered in the preparation of this Recommended Order.

Unless otherwise indicated, all references to the Florida Statutes are to the codification applicable to the time period alleged in the Administrative Complaint, i.e., 2006-2007.

FINDINGS OF FACT

Stipulated Facts

1. Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009.

2. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year.

3. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district.

4. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft.

   Findings of Fact Based Upon Evidence Presented at Hearing

   
   

5. Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach.

6. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes.

7. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes.

8. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone.

9. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description.

10. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation.

11. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause.

12. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her

    performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance.

13. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy.

14. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on

    this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister.

15. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive.

16. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below.

17. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and

    watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school.

18. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her.

19. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College

    and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day.

20. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment.

21. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends.

22. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible.

23. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys

    thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them.

    Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While

    M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/

24. C.J.'s testimony is also not very credible. Like M.H.,

    
    

    C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While

    M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to

    Orlando while she got her cheerleading certification is not credible.

25. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment.

26. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2008).

28. This is a penal proceeding in which Petitioner seeks to revoke Respondent's teaching certificate. Petitioner has the burden to prove the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); §120.57(1)(j), Fla. Stat. (2008). Clear and convincing evidence is defined as follows:

    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 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, Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

29. The Amended Administrative Complaint contains the following factual allegations:

    1. During the fall 2006 semester, Respondent engaged in inappropriate conduct with M.H., a fourteen-year-old, male student and C.J., a fifteen-year-old, male student. Respondent's conduct included but was not limited to the following:

       
       

       1. Respondent took M.H. to her apartment and while she was in her bed with M.H. Respondent placed her buttocks on M.H.'s crotch and placed M.H.'s hand on her vagina.

          
          

       2. Respondent took C.J. to her apartment and shared her bed with him.

          
          

       3. Respondent took M.H. and C.J. to her apartment without obtaining permission from their parents.

          
          

       4. Respondent allowed C.J. to drive her automobile without obtaining permission from his parents.

    2. During the fall 2006 semester, while Respondent's diver's license was suspended, Respondent transported students in her automobile.

       
       

    3. On or about October 9, 2006, Respondent was terminated from her teaching position with the district.

       
       

    4. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of Retail Theft. On or about May 29, 2007, Respondent entered a deferred prosecution agreement with the state attorney's office with regard to the charge.

       
       

30. Of these factual allegations, Petitioner has proven by clear and convincing evidence only the allegations in paragraphs

    5 and 6. The evidence was not clear and convincing that Respondent took M.H. or C.J. to her apartment, with or without permission; that she shared her bed or engaged in any sexual contact with either boy; or that she allowed C.J. to drive her car. While Respondent did in fact transport students in her automobile during the fall 2006 semester, no evidence was presented to demonstrate that her driver's license was suspended.

31. Respondent did not show particularly good judgment in taking students to the mall to go shopping, and it seems that in some respects her relationship with students mirrored that of a friend or fellow student as opposed to an instructor. Given her young age, it is understandable that students would relate to her, making her efforts to maintain a professional boundary all

    the more important. However, Respondent is not charged with taking the students to the mall, other than being charged with transporting students while her license was suspended, which was not established.

32. The evidence was far from clear and convincing that Respondent engaged in any sexual contact with either M.H. or C.J. Rather, it appears that M.H. had a crush on a young, inexperienced teacher; embroidered what he believed to be preferential treatment by that teacher; and encouraged his friends to believe that the relationship went far beyond what it really was. The school then "investigated" what even its officials classified as an unsubstantiated rumor and discharged a teacher for no cause. A hard look at the evidence presented to the school boils down to the hearsay statements of several boys, all of whom relied on what one boy told them. No phone records or other corroborating evidence was presented to support these statements, and M.H. has admitted to lying to a variety of people before and after this incident. His testimony simply is not credible. While there is evidence that both C.J.'s and M.H.'s behavior deteriorated after this incident, this deterioration is not evidence that the encounter actually occurred. It could just as likely be a result of the negative publicity the investigation generated in the community.

33. In Counts 1 through 3 of the Amended Administrative Complaint, the Commissioner has charged Respondent with

    violations of Subsections 1012.795(1)(c), (f), and (i), Florida Statutes, which provide:

    (1) 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 a 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 public school in any capacity requiring direct contact with students; may suspend the teacher 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:

    
    

    * * *

    
    

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

    
    

    * * *

    
    

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

    
    

    * * *

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules.

    
    

34. Counts 4 through 7 of the Amended Administrative Complaint charge violations of Florida Administrative Code Rule 6B-1.006(3)(a), (e), (g), and (h), which provide:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties provided by law.

       
       

    3. 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 student's mental and/or physical health and/or safety.

    
    

    * * *

    
    

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

    * * *

    
    

    1. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       
       

    2. Shall not exploit a relationship with a student for personal gain or advantage.

35. Immorality and moral turpitude are both defined in Florida Administrative Code Rule 6B-4.009:

    (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.

    
    

    * * *

    
    

    1. 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 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.

       
       

36. Moral turpitude has also been defined by the Supreme Court of Florida as "anything done contrary to justice, honesty, principle, or good morals, although it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated." State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

37. Petitioner has demonstrated by clear and convincing evidence that Respondent violated Section 1012.795(1)(c), Florida Statutes, as charged in Count 1, by virtue of the act of retail theft. Retail theft is a crime of moral turpitude because it is contrary to principle and to one's duty to society. It is the opposite of the example to be set by those entrusted with

    teaching in our public schools. There is, however, not clear and convincing evidence to find a violation of Section 1012.795(1)(c) by virtue of Respondent's alleged relationship with M.H. or C.J.

38. There is no clear and convincing evidence that Respondent violated Section 1012.795(1)(f), Florida Statutes, as charged in Count 2. At the time that she committed the act of retail theft, she was no longer an employee of the School District. In its Proposed Recommended Order, the Petitioner references the inability to properly control her classroom. However, there is no allegation in the Amended Administrative Complaint regarding her classroom management, and no punishment can be imposed for actions not alleged. Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

39. A violation of Section 1012.795(1)(i), Florida Statutes, as alleged in Count 3, requires a determination of whether Respondent has violated Florida Administrative Code Rule 6B-1.006, as alleged in Counts 4 through 7. Those provisions will be discussed in turn below.

40. Petitioner has not demonstrated by clear and convincing evidence that Respondent has violated Rule 6B-1.006(3)(a), as alleged in Count 4, by failing to make reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and safety.

    While Petitioner demonstrated that Respondent transported students in her personal vehicle without permission, that conduct is not alleged in the Amended Administrative Complaint and therefore cannot serve as a basis for discipline. Trevisani.

    The evidence was not clear and convincing that Respondent allowed the two boys to drive her car, or that she took either of them to her home. The only conduct proven is that related to the retail theft, which occurred after her employment was terminated. Thus, no conduct implicating conditions harmful to learning or the students' physical or mental health has been established.

41. Likewise, Petitioner has not established that conduct of the Respondent exposed any student to unnecessary embarrassment or disparagement, which would be a violation of Rule 6B-1.006(3)(e), alleged in Count 5 of the Amended Administrative Complaint. The rumor of an improper relationship caused embarrassment for both M.H. and C.J. It cost Respondent her job. However, Respondent neither started nor caused the rumor. She was given no opportunity to rebut the charges that resulted in a media circus, because the School Board chose to terminate her under circumstances that did not required a showing of cause.

42. No credible evidence was presented to demonstrate that Respondent violated Rule 6B-1.006(3)(g), by harassing or discriminating against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs,

    marital status, handicapping condition, sexual orientation or social and family background. Because no credible evidence of discrimination or harassment on these bases was demonstrated, Respondent likewise did not fail to make a reasonable effort to protect a student from such harassment or discrimination.

    Therefore, no violation of Rule 6B-1.006(3)(g) as alleged in Count 6 was proven.

43. Finally, no clear and convincing evidence was presented to demonstrate that Respondent exploited a relationship with a student for personal gain or advantage, as charged in Count 7 as a violation of Rule 6B-1.006(3)(h). Respondent did not use particularly good judgment in taking students to the mall, as stated above. However, those facts were not alleged in the Administrative Complaint. Moreover, even assuming such facts were alleged, there has been no explanation as to how taking students on a outing on her own time, however imprudent, served to exploit the students to her advantage.

44. Inasmuch as Petitioner did not demonstrate that Respondent violated any of the provisions of the Principles of Professional Conduct for the Education Profession alleged in the Amended Administrative Complaint, no violation of Count 3 of the Administrative Complaint has been established.

45. Section 1012.796(7), Florida Statutes, provides the range of lawful penalties for violations of Section 1012.795:

    1. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

       
       

       1. Denial of an application for a teaching certificate or for a administrative or supervisory endorsement on a teaching certificate. . . .

          
          

       2. Revocation or suspension of a certificate.

          
          

       3. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

          
          

       4. Placement of the teacher on

          probation and subject to such conditions as the commission may specify . . .

          
          

       5. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

          
          

       6. Reprimand of the teacher in

          writing, with a copy to be placed in the certification file of such person.

          
          

       7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

          
          

       8. Refer the teacher, . . . to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

    
    

46. Petitioner is seeking to revoke Respondent's teaching certificate permanently. This penalty recommendation, however, assumes that clear and convincing evidence was presented to

substantiate all seven counts in the Amended Administrative Complaint. The record at hearing, however, only substantiates a violation of Count 1 based upon the retail theft which occurred after Respondent was no longer employed by the Flagler County School District. While committing retail theft is a serious matter that should be minimized, it pales in comparison to the other, unproven, allegations in the Amended Administrative Complaint. Where only one of seven violations was proven, a lesser penalty should be imposed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting.

DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.

ENDNOTE

1/ The testimony indicated that M.H. was receiving but not answering phone calls from Respondent's phone, which K.M. admitted using at times. The phone calls came at a time the football team was traveling to a game out of state. K.M. was a cheerleader for the school, and Respondent a cheerleading coach. It is just as likely that the phone calls, if they occurred, may have been from K.M., M.H.'s girlfriend at the time. While M.H. claimed that his phone would show Respondent's picture each time she called, he could not recall when or where such pictures were taken. His testimony on this point is not credible.

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

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

Deborah K. Kearney, General Counsel Department of Education

325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

325 West Gaines Street, Suite 224-E 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: 08-003475PL

Orders for Case No: 08-003475PL