STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

CLAUDINE ETIENNE,

Respondent.

/

Case No. 16-7187PL

RECOMMENDED ORDER

On January 20, 2017, a duly-noticed hearing was held by video teleconference at sites in Miami and Tallahassee, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent,

Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as

alleged in the Administrative Complaint; and, if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On December 4, 2014, Pam Stewart, as Commissioner of the Department of Education (Petitioner or Commissioner), filed an Administrative Complaint against Ms. Claudine Etienne (Respondent or Ms. Etienne), alleging violations of section 1012.795(1)(j) and administrative rules. Respondent filed an Election of Rights form, disputing allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On February 1, 2016, the case was referred to the Division of Administrative Hearings (DOAH), where case number 16-0591PL was assigned. Pursuant to motion, that DOAH file was administratively closed and later re- opened under this case number, 16-7187PL, on December 6, 2016.

The case was noticed for video hearing on January 20, 2017. At hearing, the parties stipulated to several facts, which were accepted and are included among the findings of fact below.

Petitioner offered two exhibits. Petitioner's Exhibit P-1 was admitted with the caveat that it was hearsay and could only be used to supplement or explain other competent evidence and was insufficient in itself to support a finding of fact.

Petitioner's Exhibit P-2 was a deposition of Ms. Etienne,

admitted under the party admission exception to the hearsay rule.

The Transcript of the proceeding was filed with DOAH on January 25, 2017. At hearing, both parties declined the opportunity to submit proposed recommended orders.

FINDINGS OF FACT

1. The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates.

2. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018.

3. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District.

4. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom.

5. Ms. Etienne was unsure what the device was or how it was ignited.

6. Smoke was generated from the device, and it filtered into the classroom.

7. One or more students requested to leave the room because of the smoke.

   
   

8. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it.

   Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day.

9. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom.

10. Ms. Etienne instructed the students to stay in the room until an administrator arrived.

11. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement,

    C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/

12. Ms. Etienne later received a verbal reprimand from the

    
    

    school district.

    
    

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties and subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).

    
    

14. Petitioner is responsible for filing complaints and prosecuting allegations of misconduct against instructional personnel. § 1012.796(6), Fla. Stat.

15. Petitioner seeks to take action against Respondent's educator's certificate as provided in section 1012.795. A proceeding to impose discipline against a professional license is penal in nature, and Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

    Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.

    
    

    2d 292 (Fla. 1987).

    
    

16. The Florida Supreme Court has stated that the clear and convincing standard requires that:

    [T]he 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 Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

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

    
    

17. Respondent is substantially affected by Petitioner's intended decision to discipline her Florida educator's certificate and has standing to maintain this proceeding.

    
    

    Count 1

    
    

18. Count 1 alleges that Respondent is in violation of section 1012.795(1)(j), in that she has violated the Principles of Professional Conduct for the Education Profession. Counts 2 and 3 go on to allege the specific violations of these principles. Count 1 does not constitute a distinct disciplinary violation.

    Count 2

    
    

19. Count 2 alleges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a),3/ which at the time of the alleged offense provided that an educator:

    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.

    
    

20. Respondent failed to make reasonable effort to protect her students from conditions harmful to their physical health and safety. Respondent did not take her students out of the classroom or otherwise protect them from exposure to smoke dense enough to require a student to receive medical attention for smoke inhalation. While Respondent did not realize the smoke was as serious as it was, and did not intentionally expose her students to the danger, this is not a defense to the charged offense, but only a mitigating factor.

    
    

21. Petitioner proved by clear and convincing evidence that Respondent violated rule 6B-1.006(3)(a).

    Count 3

    
    

22. Count 3 alleges that Respondent violated rule 6B- 1.006(3)(e),4/ providing that an educator shall not intentionally expose a student to unnecessary embarrassment or disparagement.

23. No exposure to embarrassment or disparagement of any student, intentional or otherwise, was shown by the evidence presented.

24. Petitioner failed to prove by clear and convincing evidence that Respondent's conduct violated rule 6B-1.006(3)(e).

    Penalty

    
    

25. The Education Practices Commission adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.795 in Florida Administrative Code Rule 6B-11.007.

26. Rule 6B-11.007(2)(i)16. provided that probation to revocation was the appropriate range of penalty for "[f]ailure to protect or supervise students in violation of paragraph 6B- 1.006(3)(a), F.A.C."

27. Rule 6B-11.007(2) provided that in addition to the other disciplinary guidelines set forth in the rule, each should be interpreted to include "probation," "Recovery Network Program," "letter of reprimand," "restrict scope of practice,"

    
    

    "fine," and "administrative fees and/or costs" as additional penalty provisions.

28. Rule 6B-11.007(3) provided:

    
    

    (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 educator 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 inuring 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.

    
    

29. A student suffered actual physical injury caused by the violation. On the other hand, Respondent did not believe that the smoke was as serious as it was, and there was no evidence she anticipated or intended injury to any student.

30. No aggravating or mitigating circumstances are present here to the extent necessary to warrant deviation from the wide range of penalties already permitted within the guidelines.

31. This incident took place over four years ago, and, at that time, the Miami-Dade County School District thought it sufficient that Respondent be verbally reprimanded. There is no

indication of other discipline, either before or after the events of January 20, 2012. It was a relatively minor incident, and there is no evidence of a pattern of behavior that would justify the revocation of Respondent's teaching certificate or the imposition of other sanctions uniquely available to the

Commissioner.

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500.

DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD 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 7th day of February, 2017.

ENDNOTES

1/ All references to Florida Statutes or administrative rules are to the versions in effect in January 2012, on the date of the alleged violations, except as otherwise indicated.

2/ The statement of C.E. is hearsay, but this portion explains and supplements the stipulated fact that one student required medical attention for smoke inhalation.

3/ The Administrative Complaint erroneously charged a violation of Florida Administrative Code Rule 6A-10.081, which was not effective until January 11, 2013. The prior rule containing the same offense, in effect at the time of the incident, was rule

6B-1.006, cited here. However, the Administrative Complaint set forth the language of the rule in full, and Respondent suffered no prejudice from this incorrect citation.

4/ Again, the wrong rule number was cited; the correct one has been substituted.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 (eServed)

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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 (eServed)

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: 16-007187PL

Orders for Case No: 16-007187PL