STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EARL BURNO ALLEN, )
)
Petitioner, )
)
vs. ) CASE NO. 82-836
)
RALPH D. TURLINGTON, as )
Commissioner of Education, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for Administrative Hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on November 15, 1982, in Miami, Florida.
APPEARANCES
For Petitioner: Earl Burno Allen, pro se
6043 North West 20th Avenue Miami, Florida 33142
For Respondent: Craig R. Wilson, Esquire
315 Third Street, Suite 204 West Palm Beach, Florida 33401
The Petitioner, Earl Burno Allen, filed an application for a teacher's certificate requesting certification as a substitute teacher on November 24, 1981. On March 12, 1982, the Honorable Ralph D. Turlington, as Commissioner of Education, issued a letter of denial of that application to the Petitioner. The Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, in order to exercise his right to present evidence in support of his application for the subject certificate. Prior to final hearing, the Respondent, through its counsel, timely moved to amend its original pleading denying the application and received an Order from the undersigned Hearing Officer granting leave to amend. The amended denial of application was then executed and served by the Respondent on or about August 20, 1982. The cause then proceeded to final hearing upon the amended denial of application. At the final hearing the Respondent was represented by the above-named counsel and the Petitioner appeared pro se. The Petitioner called no witnesses nor presented any evidence, but did testify on his own behalf. The Respondent called two witnesses, Mr. Leonard Lee of the Department of Education and Dr. Desmond Patrick Gray of the School Board of Dade County. The Respondent presented Exhibits 1 through 6, all of which were admitted into evidence.
The issue presented concerns whether the Petitioner's application for a teacher's certificate, filed with the Teacher's Certification Division of the Department of Education on or about November 24, 1981, was properly denied by the Department of Education, pursuant to Section 231.17(6)(a), Florida Statutes.
FINDINGS OF FACT
The Petitioner, Earl Burno Allen, was born November 7, 1951. As of April, 1981, the Petitioner had attained an Associate Arts Degree from Dade County Community College. The Petitioner has had no teaching experience as of the date of the final hearing. The Petitioner presently is employed with the Veterans Administration at its hospital in Dade County, Florida, where he is employed as a "facilitator." The Petitioner testified, in a general way, that although he had a number of criminal offenses of record, that he was last released from prison on October 1, 1980, and has had his Civil Rights restored and therefore maintains that his past convictions should not be used against him to his prejudice in denying him certification as a substitute teacher. Subsequent to his last release from prison, the Petitioner obtained a federal civil service position at the Veterans Administration Medical Center in Dade County. The Petitioner acknowledged that his earliest altercation with legal authorities occurred in approximately May of 1970, when he was allowed by an unidentified court to enlist in the Army "to avoid termination of probation." The Petitioner was enlisted in the United States Army for approximately one year when he was given a general discharge "under honorable conditions." The Petitioner maintains that the discharge under those conditions occurred because of the offense of Absent Without Leave. The Petitioner argued that his denial of certification as a substitute teacher was motivated by reasons of racial discrimination, citing an instance where a white coach employed by the School Board of Dade County was rehired after committing a crime. The Petitioner presented no proof establishing that to be the motivation for the Respondent's denial of his certification in this instance however.
The Respondent, through Exhibits 1 through 6, established that on or about October 3, 1969, the State Attorney's Office for the Eleventh Judicial Circuit filed a two count information in Case No. 69-8540, charging the Petitioner with larceny of an automobile, which was the property of one Carl E. Stoeber on or about September 10, 1969, in violation of Section 811.20, Florida Statutes. In count two of that information, the Petitioner was charged with unlawful use of the vehicle without the owner's consent in violation of Section 811.21, Florida Statutes. The Petitioner entered a plea of guilty to count two of that information on March 23, 1970, and adjudication was withheld with the Petitioner being placed on probation for a period of six months.
On or about December 10, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a one count information in Case No. 71-10209-B. In that information, the Petitioner was charged with breaking and entering a dwelling on or about December 2, 1971, in violation of Section 810.01, Florida Statutes. The Petitioner was charged with feloniously breaking and entering the property of George Investment Company, Inc., a corporation doing business as Turf Motel. That entry was charged to be with the intent to steal or carry away money, goods or chattels of value of more than $100, in violation of Section 810.01, Florida Statutes. On January 17, 1972, the Petitioner entered a plea of guilty to that charge and was adjudged guilty and sentenced to one year in the Dade County Jail with credit for time already served.
On or about November 17, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a one count information in Case No. 71-9595, in which it was charged that the Petitioner was guilty of larceny of an automobile belonging to one Dwight Carey on or about November 9, 1971, in violation of Section 814.03, Florida Statutes. As a result
of that charge, a plea of guilty was entered by the Petitioner on January 17, 1972, and the court adjudged him to be guilty of that charge, sentencing him to confinement in the Dade County Jail for two days followed by probation for a period of two years.
On or about December 28, 1972, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a five count information in Case No. 72-8959 against the Petitioner. The first count of that information charged him with an offense, on December 9, 1972, of carrying a concealed firearm, to wit: a shotgun, in violation of 790.01, Florida Statutes. The second count of that information charged the Petitioner with unlawful possession of a sawed-off shotgun, in violation of Section 790.221, Florida Statutes. Count three of that information charged the Petitioner with robbery, on or about December 9, 1972, in that he allegedly unlawfully and feloniously assaulted one Willie Smith and did by force and violence or placing that person in fear, rob or carry away certain personal property of his, in violation of Section 813.011, Florida Statutes. Count four of that information charged the Petitioner with possession of a stolen motor vehicle on December 9, 1972, to wit: a 1965 Dodge automobile which was the lawful property of Robert Vawdergri, in violation of Section 814.03, Florida Statutes. Lastly, count five of that information charged the Petitioner with unlawfully, knowingly and feloniously buying, receiving or aiding in the concealment of stolen property, to wit: that same 1965 Dodge automobile, in violation of Section 811.16, Florida Statutes. The plea of guilty was entered by the Petitioner to count two of that information involving the unlawful possession of the sawed-off shotgun. Petitioner was adjudged guilty and a nunc pro tunc order amending his sentence, dated November 20, 1979, directed that the Petitioner be confined in the State Penitentiary for two and one-half years, with credit given for time already served in the Dade County Jail.
On or about February 13, 1978, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a two count information in Case No. 78-1225. The first count of that information charged the Petitioner with unlawfully entering a structure, to wit: the property of H & S Stores, Inc., a building, on or about January 24, 1978. He was charged with entering that building with intent to commit a theft, in violation of Section 810.02, Florida Statutes. The second count charged the Petitioner with grand theft of the second degree by his removing from that property three television sets valued at more than $100, which were the property of H & S Stores, Inc., contrary to Section 812.014, Florida Statutes.
The Petitioner was convicted of count one of that information, which charged him with burglary, and the court, on or about December 18, 1978, entered a order adjudging him guilty of the offense of burglary and sentencing him to two and one-half years imprisonment, which sentence was to run concurrently with the two and one-half year sentence pertaining to Case No. 72-8959-A.
The Petitioner was released from prison on or after October 1, 1980, and subsequently completed two years of higher education at the Miami-Dade Community College and has obtained employment in the Federal Civil Service System as a "facilitator" at the Veterans Administration medical facility in Dade County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Pursuant to Section 231.17(6)(a), Florida Statutes, the Department of Education may deny the issuance of a teaching certificate to an applicant:
If it possesses evidence satisfactory to it that the applicant has committed an act or acts
or that a situation exists for which the Education Practices Commission would be authorized to re- voke the teaching certificate.
Pursuant to Section 231.28, Florida Statutes (1981), the Education Practices Commission shall have authority to suspend, revoke or seek imposition of other sanctions against a person holding a teaching certificate if one of the following acts or courses of conduct can be established:
It can be shown that such person obtained the teaching certificate by fraudulent means; has proved to be incompetent to teach or perform
his duties as an employee of the public school system or to teach in or to operate a private school; has been guilty of gross immorality or an act involving moral turpitude; has had his certificate revoked in another State; has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic vio- lation; upon investigation 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 teach- ing certificate.
There is absolutely no question, given the uncontradicted evidence in the record of this proceeding, upon which the above Findings of Fact are based, that the Petitioner has, over a substantial period of time, to wit: approximately ten years, been guilty of repetitive acts involving moral turpitude and gross immorality. The unrefuted evidence in the record and the above Findings of Fact clearly establish that the Petitioner has repeatedly committed intentional acts posing a danger to the physical safety of others and in derogation of the property rights of others. The repeated nature of his offenses over a period of approximately ten year's duration, as well as the fact that the last, and one of the more serious of those offenses, occurred less than three years from the date of his filing of the subject application demonstrates conclusively that the Petitioner is not rehabilitated to a sufficient standard of moral character so that he can be considered to be an effective leader and instructor of students in the public school system. He has been repetitively guilty of acts involving moral turpitude and gross immorality and, thus, it is impossible to conclude that he could possibly serve as an effective instructional employee of the school board or the public school system nor as an appropriate exemplar of leadership to students. See, Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981)
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED:
That the Petitioner's application for the issuance of a substitute teacher's certificate be DENIED and that the petition be DISMISSED with prejudice.
DONE and ENTERED this 31st day of March, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 31st day of March, 1983.
COPIES FURNISHED:
Mr. Earl Burno Allen
6043 North West 20th Avenue Miami, Florida 33142
Craig R. Wilson, Esquire
315 Third Street Suite 204
West Palm Beach, Florida 33401
The Honorable Ralph D. Turlington Commissioner of Education Department of Education
The Capitol
Tallahassee, Florida 3230
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EARL BURNO ALLEN, )
)
Petitioner, )
)
vs. ) CASE NO. 82-836
)
RALPH D. TURLINGTON, as )
Commissioner of Education, )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, this cause came on for Administrative Hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on November 15, 1982, in Miami, Florida.
APPEARANCES
For Petitioner: Earl Burno Allen, pro se
6043 North West 20th Avenue Miami, Florida 33142
For Respondent: Craig R. Wilson, Esquire
315 Third Street, Suite 204 West Palm Beach, Florida 33401
The Petitioner, Earl Burno Allen, filed an application for a teacher's certificate requesting certification as a substitute teacher on November 24, 1981. On March 12, 1982, the Honorable Ralph D. Turlington, as Commissioner of Education, issued a letter of denial of that application to the Petitioner. The Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, in order to exercise his right to present evidence in support of his application for the subject certificate. Prior to final hearing, the Respondent, through its counsel, timely moved to amend its original pleading denying the application and received an Order from the undersigned Hearing Officer granting leave to amend. The amended denial of application was then executed and served by the Respondent on or about August 20, 1982. The cause then proceeded to final hearing upon the amended denial of application. At the final hearing the Respondent was represented by the above-named counsel and the Petitioner appeared pro se. The Petitioner called no witnesses nor presented any evidence, but did testify on his own behalf. The Respondent called two witnesses, Mr. Leonard Lee of the Department of Education and Dr. Desmond Patrick Gray of the School Board of Dade County. The Respondent presented Exhibits 1 through 6, all of which were admitted into evidence.
The issue presented concerns whether the Petitioner's application for a teacher's certificate, filed with the Teacher's Certification Division of the Department of Education on or about November 24, 1981, was properly denied by the Department of Education, pursuant to Section 231.17(6)(a), Florida Statutes.
FINDINGS OF FACT
The Petitioner, Earl Burno Allen, was born November 7, 1951. As of April, 1981, the Petitioner had attained an Associate Arts Degree from Dade County Community College. The Petitioner has had no teaching experience as of the date of the final hearing. The Petitioner presently is employed with the Veterans Administration at its hospital in Dade County, Florida, where he is employed as a "facilitator." The Petitioner testified, in a general way, that although he had a number of criminal offenses of record, that he was last released from prison on October 1, 1980, and has had his Civil Rights restored and therefore maintains that his past convictions should not be used against him to his prejudice in denying him certification as a substitute teacher. Subsequent to his last release from prison, the Petitioner obtained a federal civil service position at the Veterans Administration Medical Center in Dade County. The Petitioner acknowledged that his earliest altercation with legal authorities occurred in approximately May of 1970, when he was allowed by an unidentified court to enlist in the Army "to avoid termination of probation." The Petitioner was enlisted in the United States Army for approximately one year when he was given a general discharge "under honorable conditions." The Petitioner maintains that the discharge under those conditions occurred because of the offense of Absent Without Leave. The Petitioner argued that his denial of certification as a substitute teacher was motivated by reasons of racial discrimination, citing an instance where a white coach employed by the School Board of Dade County was rehired after committing a crime. The Petitioner presented no proof establishing that to be the motivation for the Respondent's denial of his certification in this instance however.
The Respondent, through Exhibits 1 through 6, established that on or about October 3, 1969, the State Attorney's Office for the Eleventh Judicial Circuit filed a two count information in Case No. 69-8540, charging the Petitioner with larceny of an automobile, which was the property of one Carl E. Stoeber on or about September 10, 1969, in violation of Section 811.20, Florida Statutes. In count two of that information, the Petitioner was charged with unlawful use of the vehicle without the owner's consent in violation of Section 811.21, Florida Statutes. The Petitioner entered a plea of guilty to count two of that information on March 23, 1970, and adjudication was withheld with the Petitioner being placed on probation for a period of six months.
On or about December 10, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a one count information in Case No. 71-10209-B. In that information, the Petitioner was charged with breaking and entering a dwelling on or about December 2, 1971, in violation of Section 810.01, Florida Statutes. The Petitioner was charged with feloniously breaking and entering the property of George Investment Company, Inc., a corporation doing business as Turf Motel. That entry was charged to be with the intent to steal or carry away money, goods or chattels of value of more than $100, in violation of Section 810.01, Florida Statutes. On January 17, 1972, the Petitioner entered a plea of guilty to that charge and was adjudged guilty and sentenced to one year in the Dade County Jail with credit for time already served.
On or about November 17, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a one count information in Case No. 71-9595, in which it was charged that the Petitioner was guilty of larceny of an automobile belonging to one Dwight Carey on or about November 9, 1971, in violation of Section 814.03, Florida Statutes. As a result of that charge, a plea of guilty was entered by the Petitioner on January 17,
1972, and the court adjudged him to be guilty of that charge, sentencing him to confinement in the Dade County Jail for two days followed by probation for a period of two years.
On or about December 28, 1972, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a five count information in Case No. 72-8959 against the Petitioner. The first count of that information charged him with an offense, on December 9, 1972, of carrying a concealed firearm, to wit: a shotgun, in violation of 790.01, Florida Statutes. The second count of that information charged the Petitioner with unlawful possession of a sawed-off shotgun, in violation of Section 790.221, Florida Statutes. Count three of that information charged the Petitioner with robbery, on or about December 9, 1972, in that he allegedly unlawfully and feloniously assaulted one Willie Smith and did by force and violence or placing that person in fear, rob or carry away certain personal property of his, in violation of Section 813.011, Florida Statutes. Count four of that information charged the Petitioner with possession of a stolen motor vehicle on December 9, 1972, to wit: a 1965 Dodge automobile which was the lawful property of Robert Vawdergri, in violation of Section 814.03, Florida Statutes. Lastly, count five of that information charged the Petitioner with unlawfully, knowingly and feloniously buying, receiving or aiding in the concealment of stolen property, to wit: that same 1965 Dodge automobile, in violation of Section 811.16, Florida Statutes. The plea of guilty was entered by the Petitioner to count two of that information involving the unlawful possession of the sawed-off shotgun. Petitioner was adjudged guilty and a nunc pro tunc order amending his sentence, dated November 20, 1979, directed that the Petitioner be confined in the State Penitentiary for two and one-half years, with credit given for time already served in the Dade County Jail.
On or about February 13, 1978, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a two count information in Case No. 78-1225. The first count of that information charged the Petitioner with unlawfully entering a structure, to wit: the property of H & S Stores, Inc., a building, on or about January 24, 1978. He was charged with entering that building with intent to commit a theft, in violation of Section 810.02, Florida Statutes. The second count charged the Petitioner with grand theft of the second degree by his removing from that property three television sets valued at more than $100, which were the property of H & S Stores, Inc., contrary to Section 812.014, Florida Statutes.
The Petitioner was convicted of count one of that information, which charged him with burglary, and the court, on or about December 18, 1978, entered a order adjudging him guilty of the offense of burglary and sentencing him to two and one-half years imprisonment, which sentence was to run concurrently with the two and one-half year sentence pertaining to Case No. 72-8959-A.
The Petitioner was released from prison on or after October 1, 1980, and subsequently completed two years of higher education at the Miami-Dade Community College and has obtained employment in the Federal Civil Service System as a "facilitator" at the Veterans Administration medical facility in Dade County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Pursuant to Section 231.17(6)(a), Florida Statutes, the Department of Education may deny the issuance of a teaching certificate to an applicant:
If it possesses evidence satisfactory to it that the applicant has committed an act or acts
or that a situation exists for which the Education Practices Commission would be authorized to re- voke the teaching certificate.
Pursuant to Section 231.28, Florida Statutes (1981), the Education Practices Commission shall have authority to suspend, revoke or seek imposition of other sanctions against a person holding a teaching certificate if one of the following acts or courses of conduct can be established:
It can be shown that such person obtained the teaching certificate by fraudulent means; has proved to be incompetent to teach or perform
his duties as an employee of the public school system or to teach in or to operate a private school; has been guilty of gross immorality or an act involving moral turpitude; has had his certificate revoked in another State; has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic vio- lation; upon investigation 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 teach- ing certificate.
There is absolutely no question, given the uncontradicted evidence in the record of this proceeding, upon which the above Findings of Fact are based, that the Petitioner has, over a substantial period of time, to wit: approximately ten years, been guilty of repetitive acts involving moral turpitude and gross immorality. The unrefuted evidence in the record and the above Findings of Fact clearly establish that the Petitioner has repeatedly committed intentional acts posing a danger to the physical safety of others and in derogation of the property rights of others. The repeated nature of his offenses over a period of approximately ten year's duration, as well as the fact that the last, and one of the more serious of those offenses, occurred less than three years from the date of his filing of the subject application demonstrates conclusively that the Petitioner is not rehabilitated to a sufficient standard of moral character so that he can be considered to be an effective leader and instructor of students in the public school system. He has been repetitively guilty of acts involving moral turpitude and gross immorality and, thus, it is impossible to conclude that he could possibly serve as an effective instructional employee of the school board or the public school system nor as an appropriate exemplar of leadership to students. See, Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981)
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED:
That the Petitioner's application for the issuance of a substitute teacher's certificate be DENIED and that the petition be DISMISSED with prejudice.
DONE and ENTERED this 6th day of April, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 6th day of April, 1983.
COPIES FURNISHED:
Mr. Earl Burno Allen
6043 North West 20th Avenue Miami, Florida 33142
Craig R. Wilson, Esquire
315 Third Street Suite 204
West Palm Beach, Florida 33401
The Honorable Ralph D. Turlington Commissioner of Education Department of Education
The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 30, 1983 | Final Order filed. |
| Mar. 31, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 1983 | Agency Final Order | |
| Mar. 31, 1983 | Recommended Order | Deny and dismiss with prejudice Petitioner's application to be a substitute teacher. His criminal activities evidence poor character. |
SCHOOL BOARD OF DADE COUNTY vs. IVAN DANGER, 82-000836 (1982)
SCHOOL BOARD OF DADE COUNTY vs. FRED L. CROSS, 82-000836 (1982)
SCHOOL BOARD OF DADE COUNTY vs. DARRELL T. COX, 82-000836 (1982)
EDUCATION PRACTICES COMMISSION vs. GLENSA JOHN POOLE, 82-000836 (1982)
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. HENRY YOUNG, 82-000836 (1982)
