STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1976

)

LESTER K. RANDOLPH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, on March 10, 1977, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II. Petitioner and respondent appeared through their respective counsel, as follows:

APPEARANCES

For Petitioner: Mr. Ronald C. LaFace, Esquire

Post Office Box 1572 Tallahassee, Florida

For Respondent: Mr. L. Haldane Taylor, Esquire

605 Florida Theatre Building

128 East Forsythe Street Jacksonville, Florida 32202

RECOMMENDED ORDER

By petition for the revocation of teacher's certificate, petitioner alleged that respondent, on January 31, 1972, "indicated on his application for a Florida teacher's certificate that he had never been involved in a criminal offense other than a minor traffic violation," although he had in fact been convicted of seven counts "of fraudulent checks;" and that respondent pleaded nolo contendere on January 26, 1976, to a charge of attempted grand larceny. Respondent's motion to dismiss the petition

for revocation of teacher's certificate was denied, after argument on the motion. Petitioner put on its case by means of three documentary exhibits, and rested. After respondent's motions for judgment of acquittal and for directed verdict were denied, respondent called three witnesses and took the stand himself. Respondent offered eight exhibits into evidence.

FINDINGS OF FACT

1. On or before July 29, 1969, respondent applied for a type four teacher's certificate, which was issued to him on October 29, 1969. Thereafter, while he was employed as a teacher by the Duval County School Board, he did course work nights at the Continuing Education Center, affiliated with Florida Agricultural and Mechanical University (FAMU), which eventuated in the award of a master's degree on August 30, 1971. On January 31, 1972, respondent applied for a type two teacher's certificate, in order to be eligible for an assistant principal's job, and because his master's degree satisfied the educational prerequisite for upgrading his teacher's certificate. In applying for type two teacher's certificate, respondent filled out an application form. On the form was the question, "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation?" Respondent answered this question in the negative by checking a blank after the word "No." On July 7, 1972, a type two teacher's certificate was issued to respondent.

   
   

2. On May 6, 1969, respondent was convicted of an offense under Section 832.05, Florida Statutes (1975), because of a check he drew to the order of FAMU in the amount of thirty dollars ($30.00). According to court records, respondent pleaded guilty to this charge by mail, although at the hearing he had no recollection of the offense or of the disposition of the charges. Respondent did remember the six bad check charges of which he was found guilty in the spring of 1971. These cases, too, arose because he drew checks to the order of FAMU, two in the amount of forty-eight dollars ($48.00) and four in the amount of fifty-seven dollars ($57.00). These checks were all written the same quarter and delivered to individual professors at FAMU. At the time respondent wrote the 1971 checks, he knew he had insufficient funds on deposit to cover them, but he reasonably believed he would be able to cover the checks before they cleared. They all bounced and

   they all resulted in convictions and fines under Section 832.05, Florida Statutes (1975), half on pleas of nolo contendere and half on pleas of guilty. Respondent eventually made good on all the checks written to FAMU's order. Respondent testified that he believed the 1971 bad check proceedings had been civil, rather than criminal, at the time he filled out the application form for a type two teacher's certificate. The evidence as a whole established, however, that respondent deliberately concealed the fact of the bad check convictions.

   
   

3. On January 22, 1976, respondent filled out an application form for employment by the City of Jacksonville On this form appears the question, "Have you ever been arrested, taken into custody, held for investigation or questioning, charged with driving while intoxicated, or charged with an offense with any law enforcing agency? (Excepting minor traffic violations)." Respondent placed and "X" in a box beside the word "YES," and amplified his answer, in pertinent part, as follows: "I wrote Fla. A&M University a check and had to make restitution." (emphasis supplied)

   
   

4. In 1975, respondent took a leave of absence from teaching, in order to do work at the University of Florida towards a Ph.D. degree. Before he left Jacksonville for Gainesville, he rented a typewriter from McDavid Typewriter Service, paying two weeks' rent in advance. On two occasions, he called Mr. McDavid from Gainesville to assure him that he would return the typewriter, once he had retrieved it from the typist working on his dissertation. After a warrant for his arrest issued, respondent returned the typewriter on October 31, 1975, slightly more than five months after he had rented it. Respondent paid Mr. McDavid two hundred twenty-seven dollars ($227.00) for back rent and to cover the cost of fixing the carriage on the typewriter. Criminal proceedings resulted in an order, entered January 26, 1976, withholding adjudication of guilt and placing defendant on probation, upon respondent's plea of nolo contendere to an amended information charging attempted grand larceny of the typewriter.

   
   

5. For the latter part of respondent's probationary period, he was supervised by Joe M. Kiser, a probation officer. Mr. Kiser expressed confidence in respondent, and predicted no future skirmishes with the law. Because of respondent's exemplary behavior while on probation, Judge

   Black terminated his probation almost four months before the date on which probation was originally scheduled to end.

   
   

6. During the school year 1975-76, respondent worked under Mr. Nathaniel Davis, then principal at Ribault Junior High School. Respondent supervised another teacher and an aide and did a marvelous job. The students were respectful and felt respondent would listen to them. He set an excellent example for the students, while he was in their presence. He was able to improve the behavior of truants and other students who posed disciplinary problems. In the course of the school year, in Mr. Davis' opinion, respondent changed for the better because he had learned a lesson. Mr. Davis would want respondent teaching under him.

   
   

7. Mr. Ted Montgomery, currently principal of Ribault Junior High School, met respondent on August 23, 1976, and is respondent's supervisor. Respondent counsels students who have dropped out of school or on the verge of doing so. He tries to establish links between the school and the students' homes. He is hard working and does a good job. He gives to students of his own time. Mr. Montgomery wants respondent to continue teaching under him.

   
   

   CONCLUSIONS OF LAW

   
   

8. Pursuant to Section 231.28, Florida Statutes (1975) the department of education has authority to suspend or revoke a person's teaching certificate when it is:

   
   

   "shown that such person obtained the teaching certificate by fraudulent means. . . or has been guilty of gross immorality or an act in volving moral turpitude, . . . or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or . . . of personal conduct which seriously reduces his effective- ness as an employee "

   
   

   The language of Section 231.28(1), Florida Statutes (1975), with reference to conviction for crime, has been superseded by Section 112.011, Florida Statutes (1975), which provides that "a person whose civil rights have been restored shall not be disqualified to . . . engage in any occupation . . .

   vocation, [or] profession . . . for which a . . . certificate is required to be issued by the state . . . solely because of a prior conviction for a crime."

   
   

9. Only persons adjudicated felons lose their civil rights on account of conviction for crime. Art. VI, Section 4, Florida Constitution; see in re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975). Presumably, therefore, persons convicted of misdemeanors are not thereby disqualified from holding teachers certificates.

   
   

10. Respondent's teacher's certificate should not be revoked simply on account of his criminal convictions, inasmuch as petitioner did not prove that respondent was ever convicted of a felony.

    
    

11. Whether the acts underlying respondent's bad check convictions afford grounds for revocation is a separate matter. Although petitioner did not prove the acts underlying the 1969 conviction, proof of the conviction raises the irrebuttable presumption that respondent committed the offense.

    
    

12. Pursuant to Section 832.05(6), Florida Statutes (1975), however, "the drawing . . of a check . . . payment of which is refused by the drawee, shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee," so that an offense under Section 832.05, Florida Statutes (1975), is made out whenever a check is dishonored for insufficient funds. See Dirk v. State, 305 So.2d 187 (Fla. 1974). It is therefore impossible to conclude from respondent's conviction that he has been guilty of gross immorality, or conduct involving moral turpitude or which seriously reduces his effectiveness as an employee.

    
    

13. Because respondent reasonably believed that he would have sufficient money on deposit to cover the 1971 checks by the time they were presented to the drawee, writing the 1971 checks did not make him guilty of gross immorality, or of conduct involving moral turpitude or which seriously reduces his effectiveness as an employee.

    
    

14. The evidence with respect to the typewriter also falls short of showing gross immorality, or conduct involving moral turpitude or which seriously reduces

    respondent's effectiveness as an employee. Respondent's telephone calls to Mr. McDavid negative any intent permanently to deprive Mr. McDavid of the typewriter.

    
    

15. Respondent put down false information on his application form for a type two teacher's certificate, by failing to disclose the bad check convictions. For the reasons set forth above, the fact of those convictions would not have precluded issuance of the teacher's certificate. Although the type two teacher's certificate did issue, therefore, petitioner did not establish that respondent obtained the certificate by fraudulent means.

    
    

16. Even though respondent's false answer on his application form was immaterial, in the sense that a truthful answer would not have precluded issuance of a certificate, respondent's deliberate misstatement constitutes conduct involving moral turpitude.

RECOMMENDATION

Upon consideration of the foregoing, it is recommended that respondent be reprimanded.

DONE and ENTERED this 7th day of April, 1977, in Tallahassee, Florida.

Hearings

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative

Room 530 Carlton Building 2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Ronald C. LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32304

Mr. Haldane Taylor, Esq.

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Mr. Tom Benton

Professional Practices Council

319 West Jefferson Street Tallahassee, Florida 32304

===========================================================

AGENCY FINAL ORDER

=========================================================== BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: LESTER K. RANDOLPH DOAH CASE NO. 76-1789

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the petition of Rita E. Jones, as Chairman of the Professional Practices Council, for the reprimand of the Respondent, LESTER K. RANDOLPH, DOE Certificate Number 258706.

This Board having reviewed the record of the proceedings, the Findings of Fact, Conclusions, and Recommendations of the Professional Council hearing panel and the Exception to the Report, Findings of Fact, and Recommendation;

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

1. The Respondent presently holds Florida Teacher's Certificate #258706, valid until the 30th day of June, 1981.

   
   

2. The Respondent, on January 31, 1972, indicated on his application for a Florida teacher's certificate that he had never been involved in a criminal offense other than a minor traffic violation, although he had in fact been convicted of seven counts of fraudulent checks.

   
   

3. On January 26, 1976, Respondent pleaded nolo contendere to a charge of attempted grand larceny.

   
   

4. On May 6, 1969, Respondent entered a plea of guilty to a charge of fraudulent check and was fined $50.

   
   

5. On May 27, 1971, Respondent entered a plea of nolo contendere to charges of fraudulent checks (six checks written to FAMU) and was fined $30.

ORDERED AND ADJUDGED that LESTER K. RANDOLPH,

Respondent, DOE #258706, be duly reprimanded and warned that personal conduct of this nature engaged in again shall be grounds for revocation of teaching certificate.

DONE AND ORDERED at the State Board of Education meeting in open session at Tallahassee, Florida, as of the 21st day of June, 1977.

Reubin O'D. Askew, Governor; Chairman

Bruce A. Smathers, Secretary

of

State

Robert L. Shevin, Attorney

General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Commissioner Executive

Ralph D. Turlington,

of Education; Secretary - Officer

Doyle Conner, Commissioner of Agriculture

Board

herein.

As and constituting the State

of Education of Florida, as assembled for the purposes

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that the foregoing Order in the matter of Lester K. Randolph was finalized and copies were mailed to Ken Oertel, L. Haldane Taylor, and Lester K. Randolph this 13th day of July, 1977, by U.S. Mail.

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 76-001976

Orders for Case No: 76-001976