STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL JOHN DAVIS, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1151

)

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 29, 1981, in Tallahassee, Florida.

The following appearances were entered: Ronald C. LaFace, Esquire, Tallahassee, Florida, for the Petitioner, Russell John Davis, Jr.; and Thomas F. Woods, Esquire, Tallahassee, Florida, for the Respondent, Department of Education, Education Practices Commission.

Petitioner's application for licensure as a teacher was denied, and Petitioner timely requested a formal hearing. Accordingly, the issue for determination is whether Petitioner's application for a Florida Teacher's Certificate should be approved.

Petitioner testified on his own behalf and presented the testimony of James

1. Parks. Additionally, Petitioner's Exhibits 1, 2, 3, 4, 5, and Composite 6 (which consists of thirty-seven letters of recommendation) were offered and received in evidence. Respondent offered no evidence.

   
   

   Each party has submitted a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects.

      
      

   2. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein.

   3. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs.

      
      

   4. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor.

      
      

   5. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods.

      
      

   6. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed.

      
      

   7. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school.

      
      

   8. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1979).

      
      

   10. Section 231.17(6)(a), Florida Statutes, authorizes the Department of Education to deny an application for a teaching certificate for an act for which the Education Practices Commission would be authorized to revoke a teaching certificate. Section 231.28, Florida Statutes, authorizes revocation for an act involving moral turpitude.

       
       

   11. It has been recently held that a conviction for mere possession of a controlled substance does not constitute conviction of a crime involving moral turpitude for purposes of disciplinary action against a licensed real estate salesman. Pearl v. Fla. Bd. of Real Estate, 394 So.2d 189 (3 DCA Fla. 1981), and cases cited therein. In the Pearl case, the Court distinguished between mere possession of a controlled substance, which does not evidence moral turpitude, and sale of a controlled substance, which does evidence moral turpitude. There is a distinction in language between the two statutes: A real estate salesman's license can be revoked for a crime involving moral turpitude,

       but a Teacher's Certificate can be revoked for an act involving moral turpitude. However it is the act itself which does or does not evidence moral turpitude.

       The logic of the Pearl Court in holding that the sale of controlled substances involves moral turpitude but possession alone does not has been approved by the Education Practices Commission. Turlington v. David Michael Knox, Case No. 80- 009-RT.

       
       

   12. In the case at bar, Petitioner admits he was arrested three times for possession of controlled substances and that until his last arrest in January of 1979, he was addicted to the use of drugs. Adjudication was withheld on each of his arrests, and Petitioner has not been convicted of any crime. None of the arrests involved a sale of drugs, and there is no showing of any circumstances surrounding Petitioner's arrests for possession evidencing moral turpitude.

       
       

   13. The letter denying petitioner's application also states that petitioner has failed to set a proper example for students within the meaning of Section 231.09, Florida Statutes (1979). That statute does not deal with licensure, or not, of teachers but rather sets forth duties of instructional personnel. Since Petitioner is not licensed, he is not regulated by that statute which sets forth the functions to be performed by members of the instructional staff of the public schools. Even if Petitioner were regulated by this statute, the statute itself imposes no penalty for noncompliance. Accordingly, that statute does not properly form the basis for either revocation of a teaching certificate or denial of a teaching certificate.

       
       

   14. It may well be that applicants for a teaching certificate should be held to a higher standard of demonstrating fitness to hold that license as opposed to fitness to practice other regulated professions in the State of Florida. However, even teachers must be allowed to experience the mistakes caused by human frailty. Petitioner has had no involvement with drugs in the past two-and-a-half years. His hard-learned lesson regarding the devastation caused by drugs is a lesson he has voluntarily shared with the students at Miami Shores Preparatory School, and his desire to assist his students in avoiding the mistakes made by him is evidenced by his establishing a drug counseling program at that school. Petitioner appears to be rehabilitated and further appears to be an effective and sincere teacher.

       
       

   15. Although Petitioner has demonstrated his entitlement to a Teacher's Certificate, the severity of the conduct for which Petitioner was arrested cannot be overlooked nor can the fact that his "drug problem" was extensive enough that he was arrested three times for it be overlooked. The repetition of the same mistake being inconsistent with rehabilitation, if Petitioner be again licensed and be again arrested for possession of controlled substances, his license should be automatically revoked regardless of whether such arrest results in a conviction, since the arrest would show that Petitioner neither is rehabilitated nor intends to be rehabilitated.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, therefore,

RECOMMENDED THAT:

A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further

providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period.

RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981.

COPIES FURNISHED:

Ronald C. LaFace, Esquire Roberts, Miller, Baggett,

LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302

Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112

Tallahassee, Florida 32301

Mr. Donald L. Griesheimer Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-001151

Orders for Case No: 81-001151