STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1754

)

ROBERT CHARLES BEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on May 10, 1982. The Division of Administrative Hearings received the transcript of proceedings on June 17, 1982. At the hearing, the parties were represented by counsel:

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Harris Brown, Esquire

1500 American Heritage Life Building Jacksonville, Florida 32202

By amended administrative complaint, petitioner alleged that respondent, on or about November 12, 1979, obtained or used or tried to obtain or use merchandise worth less than $100 belonging to the K-Mart Corporation with the intent to appropriate the property to his own use; that, on a plea of nolo contendere, he was later convicted of "petit-theft in violation of s812.014, Florida Statutes" as a result; and that he was also convicted of "obtaining property with worthless checks in violation of s832.05, Florida Statutes"; that this conduct was "in violation of s231.28, Florida Statutes, and that Respondent is guilty of acts of gross immorality and moral turpitude, has been convicted of a misdemeanor, and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Duval County School Board"; and that respondent's conduct was "contrary to s231.09, Florida Statutes, in that he has failed to set a proper example for students."

At the outset of the hearing, the parties stipulated through counsel that, inter alia, all the allegations of the first five paragraphs of the amended administrative complaint were accurate. The parties' stipulation along with evidence adduced at the hearing forms the basis for the following

FINDINGS OF FACT

1. Respondent Robert C. Beers holds teacher's certificate No. 448007. Petitioner's Exhibit No. 1. He is qualified to teach in elementary education and specific learning disabilities programs. The teacher's certificate expires on June 30, 1982. Since 1979, respondent has taught specifically learning disabled students at John Gorrie Junior High School in Jacksonville. By all accounts, he is an enthusiastic and highly effective teacher.

   
   

2. On or about November 12, 1979, respondent went to a K-Mart store with a pair of boots. His fiancee (on whose account he had moved to Jacksonville) had given him the boots, before their affiance ended. Perhaps brooding over this turn of events, respondent entered the store, put his still-new boots down on a counter, and picked up a pair of track shoes. He told a clerk that the boots had been purchased at K-Mart, when, in fact, they had not been. He was arrested on the spot.

   
   

3. An information charging respondent with petit theft of the track shoes, in violation of Section 812.014, Florida Statutes (1979), was filed on November 21, 1979. Petitioner's Exhibit No. 2 (Case No. 78-48015MM). On a plea of nolo contendere to this second-degree misdemeanor, respondent was adjudicated guilty and a $50 fine was imposed on December 18, 1979. Petitioner's Exhibit No. 2.

   
   

4. After his arrest on charges of stealing the track shoes, two outstanding capiases were discovered. In each instance, the underlying charge against respondent was that he had obtained property with worthless checks. In both cases, respondent has made restitution and in both cases, the checks were for "small amounts." An information charging him criminally in connection with one of the checks was filed on August 28, 1979. Petitioner's Exhibit No. 3 (Case No. 79-35645MM). On a plea of nolo contendere, respondent was adjudicated guilty of violating Section 832.05, Florida Statutes (1979), a second-degree misdemeanor, and fined $25, on December 18, 1979. Petitioner's Exhibit No. 3.

   
   

5. There was no indication in the evidence that any student had knowledge of respondent's legal difficulties, or that the partial disclosures made by respondent himself to fellow teachers had in any way diminished his effectiveness as a teacher. Since his misdemeanor convictions, he has served as sponsor for the school annual, in the course of which he was responsible for several thousand dollars.

   
   

6. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioner's proposed recommended order, and the proposed findings of fact have been adopted in substance.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner is authorized to "suspend . . . to revoke or to revoke permanently the teaching certificate of any person," Section 231.28, Florida Statutes (1981), "guilty of gross immorality or an act involving moral turpitude," Section 231.28(1), Florida Statutes (1981), or who

   
   

   has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation; (or) has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; or has otherwise violated

   the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

   
   

   Section 231.28(1), Florida Statutes. Another "provision of law" pleaded in the amended administrative complaint in Section 231.09, Florida Statutes (1981), which requires, among other things, that teachers

   
   

   [l]abor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue.

   
   

   Section 112.011(1)(a), Florida Statutes (1981), does not apply in the present case.

   
   

8. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis", Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

   
   

9. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed acts alleged in the administrative complaint justifying disciplinary action. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966) See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). The evidence adduced established that respondent has been convicted of two misdemeanors, neither of which was a minor traffic violation, but failed to show that the underlying conduct amounted to "gross immorality" or acts "involving moral turpitude." Compare Rule 6B-4.09(6), Florida Administrative Code, ("act of baseness, vileness or depravity"). There was no proof that respondent's effectiveness as a teacher has been reduced by these convictions. See Boyette

v. State Professional Practices Council, 346 So.2d 598, 601 (Fla. 1st DCA 1977). As for setting a bad example for pupils, there was no proof that any student had learned of the convictions.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for thirty (30) days.

DONE AND ENTERED this 14th day of July, 1982, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1982.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Harris Brown, Esquire

1500 American Heritage Life Building

Jacksonville, Florida 32202

Donald L. Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON as

Commissioner of Education,

vs. DOAH Case No. 81-1754

ROBERT C. BEERS

/

FINAL ORDER

Respondent, Robert C. Beers, holds Florida teaching certificate #448007.

On June 30, 1981 an Administrative Complaint was filed seeking the suspension or revocation of his certificate. A formal hearing was held before the Division of Administrative Hearings, which forwarded a Recommended Order to this Commission; that Recommended Order is attached to and made a part of this Final Order.

A teacher panel of the Education Practices Commission met on January 27, 1983 to take final agency action.

FINDINGS OF FACT

The panel adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

The panel concludes that the Respondent has twice been convicted of a crime and is in violation of Section 231.28, F.S. The Respondent has been teaching successfully since the time of his conviction without further incident inside or outside the classroom. Although Respondent was guilty of theft, his culpability for an act of moral turpitude is lessened by the ill advised attempt to exchange his boots for the victim's shoes. In consideration of these circumstances, it is therefore, ORDERED that Respondent Robert C. Beers is hereby REPRIMANDED.

DONE AND ORDERED this 14th day of February, 1983.

Marjorie Hankins, Presiding Officer

Filed in the records of the Education Practices Commission this 14th day of February, 1982.

COPIES FURNISHED:

Arthur Wallberg, Esquire Donald L. Grieshemer, Clerk Attorney General's Office

Ms. Marlene Greenfield Professional Practices Services

Ms. Judith Brecher General Counsel Department of Education

Mr. Robert Beers 2525 College Street

Jacksonville, Florida 32204

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Harris Brown, Esquire

1500 American Heritage Life Bldg. Jacksonville, Florida 32202

Mr. Herb Sang, Superintendent Dade County Schools

1701 Prudential Drive

Jacksonville, Florida 32707

Robert T. Benton, Esquire DOAH

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 81-001754

Orders for Case No: 81-001754