Judges: D. R. ALEXANDER
Agency: Department of Education
Latest Update: Dec. 30, 1982
Summary: Private use of drugs justified only a reprimand.
82-2065STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2065
)
THOMAS MILLER COLLINS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 16, 1982, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Craig R. Wilson, Esquire
The Law Building, Suite 204
315 Third Street
West Palm Beach, Florida 33401
For Respondent: Thomas Miller Collins, pro se
220 N.E. 57th Court
Fort Lauderdale, Florida 33334 BACKGROUND
In an Administrative Complaint filed on July 2, 1982, Petitioner, Department of Education, Education Practices Commission, seeks to take disciplinary action against the teaching certificate of Respondent, Thomas Miller Collins. The complaint contains three counts and alleges that (1) after Respondent pled guilty to possession of a controlled substance in excess of five grams on or about March 3, 1975, the Court withheld adjudication and placed Respondent on probation for 18 months; (2) Respondent pled guilty to the offense of delivery of cocaine on February 13, 1976 for which he received a prison term of two years; and (3) Respondent pled guilty to the offense of driving while under the influence on or about June 22, 1982 and received a six month probationary sentence, a fine and suspension of his driver's license.
Petitioner further charged that as a result of the aforementioned conduct Respondent was guilty of committing acts of gross immorality, acts involving moral turpitude and acts demonstrative of conduct which seriously reduced his effectiveness as a teacher within the purview of Section 231.28, Florida Statutes.
Respondent disputed these a1legations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by Petitioner to the Division of Administrative Hearings on July 26, 1982 with a
request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated September 7, 1982 the final hearing was scheduled for November 16, 1982 in Fort Lauderdale, Florida.
At the final hearing Petitioner presented the testimony of Paul Murray, Thomas J. Geismar, Bruce E. Ayala, Thomas F. Patterson, Leonard G. Lee, Dr. Roger J. Beaumont and Mark R. Buffenton and offered Petitioner's Exhibits 1-13; all were received in evidence. Respondent offered Respondent's Exhibits 1 and 2; both were received in evidence.
The transcript of hearing was filed on December 6, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner on December 20, 1982 and have been considered by the undersigned in the preparation of this order.
Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
During the course of the hearing Respondent stipulated that the facts alleged in paragraphs 1-13 of the Administrative Complaint were correct. The issue to be determined is whether Respondent's admitted conduct constituted "acts of immorality, acts involving moral turpitude and acts demonstrative of conduct which seriously reduce(d) his effectiveness as a teacher" within the meaning of Subsection 231.28, Florida Statutes.
Based upon all the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, Respondent, Thomas Miller Collins, held teaching certificate number 489045 covering the area of substitute teaching. The certificate is valid through June 30, 1985.
On July 2, 1982 Petitioner, Department of Education, Education Practices Commission, filed an Administrative Complaint alleging generally that on three occasions between November 1974 and November 1981 Respondent had pled guilty to various criminal charges which constituted conduct sufficient to warrant disciplinary action against his teacher's certificate. Respondent's request for an administrative hearing precipitated the instant proceeding.
On or about November 20, 1974, Respondent was arrested for possessing in excess of five grams of cannabis. After pleading guilty to this offense on March 3, 1975, the Circuit Court in and for Broward County withheld adjudication and placed Respondent on probation for a period of eighteen months.
On or about October 4, 1975, Respondent was arrested in Broward County for (a) possession of cocaine and (b) delivery of cocaine. As a result of a plea of guilty to delivery of cocaine on January 19, 1976, he was adjudged guilty and sentenced to state prison for a term of two years. The remaining charge was dropped. Respondent's civil rights were later restored on April 28, 1978 by the Office of Executive Clemency.
On or about November 22, 1981, Respondent was arrested for (a) possession of a controlled substance, (b) possession of a drug without a prescription, and (c) for driving while intoxicated. He later pled nolo contendere to driving while under the influence and received six months reporting probation, a suspension of his driver's license for 90 days, a $236
fine, and a requirement that he attend and complete a DWI course. The other two charges were dismissed.
On September 22, 1980 Respondent filed an application for employment as a part-time (substitute) teacher with the School Board of Broward County. Question ten of the application asks the following: Have you ever been convicted of a felony or a first degree misdemeanor? If a yes answer was given the applicant was then requested to state the charge, where convicted, and date of conviction. Respondent answered the question in the affirmative and then stated "will explain upon request." A copy of his fingerprints was also submitted with the application.
After receiving the application, the School Board of Broward County conducted an investigation of Respondent. It required that Collins fill out an "arrest record information sheet" explaining the details of his arrest. Collins did so and stated only that he had been arrested by the Fort Lauderdale Police Department in 1974 for possession of cocaine and was found guilty. Since his arrest in 1974 was for possession of cannabis vis a vis cocaine, it is unclear whether he was referring to his 1975 arrest when he was arrested and convicted of delivery of a controlled substance (cocaine). However, based upon this explanation, and an interview with the Board's Division of Internal Affairs, he was authorized to be employed as a substitute teacher.
After receiving a complaint from an undisclosed parent, the principal of Crystal Lake Middle School in Broward County, where Respondent occasionally taught, contacted the Division of Internal Affairs regarding Collins. It then ran a fingerprint check on Respondent with the Federal Bureau of Investigation which confirmed the arrests and convictions in 1974 and 1975. Thereafter, on November 5, 1981 the Board's associate superintendent wrote Respondent to advise him that his name was being removed from the substitute teacher list, and that he could not accept any further assignments within the County. Despite this letter, Collins was again employed as a substitute teacher. On January 14, 1982 the Board's director of personnel wrote Collins and stated that he was no longer authorized to substitute in the Broward County school system.
On December 8, 1980 Respondent filed an application with the Teacher Certificate Section of the Department of Education in Tallahassee, Florida. In response to question 5, which asks whether the applicant has .... ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation...", and if applicable to state where the arrest occurred, the date, the nature of charges, and disposition, Collins answered "yes" and indicated he had been arrested in Fort Lauderdale in 1974 and 1975 for possession of marijuana and cocaine and was found guilty of both charges. He also noted that his civil rights had been restored.
On March 26, 1981, the Department's Professional Practices Services consultant wrote Collins requesting "more details regarding (his) arrest in order to complete the processing of (the) application." It asked that he be more specific concerning the date of arrest, date of adjudication, the court address where final disposition was rendered, and the nature of the charges.
Before Respondent replied to this request a certificate was issued by the State at a later date. Petitioner contends it had no choice except to issue a certificate since the ninety-day statutory time period for issuing or denying a certificate had expired. It conceded it erred in not processing the application in a more timely manner so that a reasoned decision could be made within the statutory time constraints.
There was no testimony to demonstrate whether Respondent's conduct "seriously reduced his effectiveness as a teacher." His principal at Crystal Lake Middle School characterized his work as "satisfactory", and stated that no complaints had been made regarding his school work performance from any other teacher or member of the administrative staff.
Respondent did not testify in this proceeding. However, he did introduce letters from his pastor and a former employer which were treated as hearsay.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Because the proceeding is penal in nature, and revocation or suspension of Respondent's certificate is sought, an "elevated standard of competent substantial evidence" is required to substantiate the charges. Smith
v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981); Bowling
v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, this standard shall be used in reviewing the evidence.
Subsection 231.28(1), Florida Statutes, authorizes the Education Practices Commission to discipline a licentiate if:
It can be shown that such person ... has been guilty of gross immorality or an act involving moral turpitude;... upon investi- gation has been found guilty of personal conduct which seriously reduces his effec- tiveness as an employee of the school
board; ...
It is charged that by reason of his three convictions in 1974, 1975 and 1981 respectively, Respondent "... committed acts of gross immorality, acts involving moral turpitude and acts demonstrative of conduct which seriously reduces his effectiveness as a teacher".
Although Petitioner contends that other arrests (but no convictions) that occurred between 1968 and 1975 may be used to buttress its position, such a contention has no merit. 1/ To begin with, these allegations were not included in the Administrative Complaint, nor was Respondent advised of their intended use until the day of the final hearing. Fair play and fundamental due process require that they not be used. See Rule 65-11.01, Florida Administrative Code, which requires that the factual allegations which form the basis of the charge be set forth in the Administrative Complaint. Moreover, the applications in question do not require disclosure of "arrests", but instead require an applicant to list all "convictions" or instances where adjudication was withheld". Therefore, information not required to be furnished by an applicant on the application form is not germane to this proceeding. Finally, Respondent has not been charged with obtaining a teaching certificate by "fraudulent means" within the meaning of Subsection 231.28(1), supra, and even if this information had been purposely withheld, this particular charge has been omitted.
At the outset, it is noted that no competent, substantial evidence was shown to affirmatively demonstrate that Respondent's conduct seriously reduced his effectiveness as a teacher. To the contrary, the only evidence on the subject reveals that Collins performed his job in a "satisfactory manner" and that no complaints from teachers or staff personnel regarding his performance had been made. 2/ Therefore, this portion of the Administrative Complaint should be dismissed. Smith; Bowling, supra.
The remaining charges are more difficult to resolve. Under present decisional law, possession of cannabis by a teacher constitutes both a crime involving moral turpitude and gross immorality, Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), and delivery of cocaine would clearly fall within the same category. Had the acts in question occurred when Respondent held a teaching certificate, the matter could be easily resolved. But the two felony convictions occurred at least seven years ago, or long before he obtained the certificate, and the question arises whether acts that occurred prior to registration by a licensee can now be used as a basis for revoking one's license. Further, the question arises as to whether approval of the certificate effectively forecloses the Board's right to discipline the licensee except for fraud in obtaining the license, or for conduct that occurs on a prospective basis. For the reasons stated hereinafter, the undersigned concludes that both questions must be answered in Respondent's favor.
Subsection 120.60(2), Florida Statutes, places strict time constraints upon an agency when an application for licensure is made. It provides that "[w]ithin 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require." It also provides that .... every application shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions..." Petitioner acknowledges that it erred when processing the application, and failed not only to timely request additional information, but also to grant or deny the certificate within 90 days after receipt of the application. By Collins' admission that he had been convicted and had his civil rights restored, Petitioner was clearly on notice that the offenses were felonies and that further checking would be required. Despite this admission by Collins, no timely inquiry was made, and even though it had the authority to deny licensure until March 8, 1981, the Department opted to issue the certificate because of its tardiness in reviewing the application. Therefore, when it issued Collins a certificate, the Department implicitly determined that he satisfied all statutory criteria. That decision cannot now be altered unless an appropriate statutory ground for disciplinary action exists.
A related question, and one which goes hand in hand with the above discussion, is whether an agency can discipline a licensee for conduct that occurred prior to registration. Clearly, it has authority to initially deny an application where the prescribed requirements are not met, including the one that an applicant be of good moral character. Section 231.17, Florida Statutes. The basis for denial may rest upon prior conviction that render an applicant incapable of meeting the requisite qualifications for teaching. Here Petitioner had sufficient information in the application to trigger an inquiry or to deny the license itself. But even if Collins had failed to disclose his background, and by reason of this omission a license had been improperly issued, the Department has yet another statutory remedy to revoke the license. Subsection 231.28(1), supra, specifically authorizes the Department to revoke a teaching certificate where the same was obtained by "fraudulent means". For some reason,
the Department did not elect to use this remedy, but chose instead to seek revocation based upon two pre-certification offenses, and one occurring after the certificate had been issued. The Department has cited no judicial or administrative precedent which supports its contention that it has authority to discipline a licensee for actions occurring prior to his obtaining a license.
Moreover, license revocation statutes must be strictly construed in favor of the licensee. Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st DCA 1977). Reasonable doubt exists as to the Department's power to take such disciplinary action, Edgerton v. International Paper Company,
89 So.2d 488 (Fla. 1956), and such doubt must be accordingly resolved against it. Cf. Laney v. Holbrook, 8 So.2d 465 (Fla. 1942)(holding that a cause for discharge of a teacher must occur after he attains the status of a teacher).
The sole remaining relevant allegation which forms the basis for the charge is contained in paragraphs 10-13 of the Administrative Complaint. As admitted by Respondent, he was arrested in November, 1981 for (a) possession of a controlled substance, (b) possession of a drug without a prescription and (c) driving while intoxicated. Of the three charges, the first two charges were dismissed and Respondent pled nolo contendere to the misdemeanor offense of driving while under the influence (DWI) vis a vis driving while intoxicated. The Department contends that such conduct constitutes gross immorality and a crime involving moral turpitude. As to the DWI offense this contention is hereby rejected. Immorality is defined as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." Rule 65-4.09(2), Florida Administrative Code. While the offense of driving under the influence should not be condoned, it is clearly not the type
of offense that was contemplated by the above rule. The same conclusion must be reached with respect to "moral turpitude". Cf. Adams, supra. In its proposed order, Petitioner appears to suggest that the other two offenses that were later dismissed can also serve as a basis for disciplinary action. These are (a) possession of a single diazepam tablet without a prescription, and (b) possession of two marijuana cigarettes. Although these charges were dismissed by the state attorney, that in itself is no bar to reasserting the charges in an administrative proceeding. State ex rel De Gaetani v. Driskell, 139 Fla. 49,
190 So 461 (1939). The evidence is undisputed that the contraband was in Respondent's possession when he was arrested on November 22, 1981. Presumably, the State accepted Respondent's statement that the drugs were not his own but actually belonged to another person when it dropped the charges. Nonetheless the possession of the drugs, without explanation or contradiction by despondent in this proceeding, constitutes illicit conduct within the meaning of Subsection 231.28(1), Florida Statutes. However, the significance of the conduct pales in comparison with that found in Adams where the licensees were convicted of possessing 52 marijuana plants. It is also de minimus in nature when compared to prior administrative orders of Petitioner which have been received as Petitioner's Exhibit 13. In those cases, the facts were not similar, but instead involved teachers who had been convicted of drug felonies, and who had in many cases been engaged in the sale or delivery of drugs to others, the possession of large quantities, or with using such drugs in the presence of students. In the case at bar, Respondent was not convicted, the quantity was unusually small, and no member of the public, including a student, was involved. Therefore, in view of the precedential actions of Petitioner, a public reprimand is sufficient.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be given a public reprimand for violating
Subsection 238.28(1) for having in his possession two marijuana cigarettes and one diazepam tablet; all other charges against Respondent should be DISMISSED.
DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 30th day of December, 1982.
ENDNOTES
1/ The matters which Petitioner seeks to use are various arrests that occurred many years ago and which surfaced when the FBI reviewed Collins' fingerprints. In each instance, however, the charges were dismissed, dropped or reflect no disposition.
2/ A statement by his former principal that he had received a complaint concerning Collins from a parent has been disregarded since the nature of the complaint is hearsay and has no probative value. Similarly, testimony by Dr. Beaumont was merely that because Respondent had an arrest record, his certificate should be revoked. He did not comment on "teacher effectiveness" as a result of such a record.
COPIES FURNISHED:
Craig R. Wilson, Esquire The Law Building, Suite 204
315 Third Street
West Palm Beach, Florida 33401
Mr. Thomas Miller Collins
220 N.E. 57th Court
Fort Lauderdale, Florida 33334
Mr. Donald L. Griesheimer, Director Education Practices Commission Knott Building
Tallahassee, Florida 32301
Docket for Case No: 82-002065
Orders for Case No: 82-002065
| Issue Date |
Document |
Summary |
|
Dec. 30, 1982 |
Recommended Order
|
Private use of drugs justified only a reprimand.
|
