STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON SETH WORTMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-775

) DEPARTMENT OF EDUCATION, and )

Ralph D. Turlington, )

Commissioner of Education, )

)

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 June 21, 1983, in Fort Lauderdale, Florida.

Petitioner Jon Seth Wortman was represented by Eric R. Schwartz, Esquire, Lauderdale Lakes, Florida, and Respondent Department of Education was represented by J. David Holder, Esquire, Tallahassee, Florida.

Respondent denied Petitioner's application for a Florida Teacher's Certificate and Petitioner timely requested a formal hearing on the allegations contained in Respondent's Notice of Reasons. Accordingly, the issue for determination is whether Petitioner is entitled to issuance of a Florida Teacher's Certificate.

The Petitioner testified on his own behalf and presented the testimony of Roland Baxt and, by way of deposition, that of Dr. Benjamin F. Stephenson.

Respondent's Exhibits numbered 1-6 were admitted in evidence.

Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings 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 July 4, 1982, while driving a borrowed automobile, Petitioner was involved in an automobile accident. At the scene of the accident, a quantity of marijuana was found in the vehicle, and on July 9, 1982, in the Criminal Court of the City of New York, Petitioner was charged with criminal possession of marijuana in the second degree and operating a motor vehicle while impaired by use of drugs. The first charge was reduced to criminal possession of marijuana in the fourth degree.

2. Petitioner had no knowledge that marijuana was located inside the automobile he had borrowed and was not operating the motor vehicle while impaired by drugs.

   
   

3. Subsequent to his being discharged from the hospital where he was receiving treatment for injuries sustained in the accident, Petitioner received two anonymous telephone threats. Petitioner was advised that if he were to involve the owners of the borrowed automobile in the drug charges he would have reason to fear for his physical safety. Petitioner communicated these threats only to the attorney who was representing him on the criminal charges.

   
   

4. On September 7, 1982, Petitioner entered a plea of guilty to an even lesser charge of criminal possession of marijuana in the fifth degree, a class B misdemeanor, for which he paid a $210 fine and a $40 assessment. Petitioner would not have entered a plea of guilty to that misdemeanor if he had not received the threats against him.

   
   

5. On November 16, 1982, Petitioner filed a written application with the Department of Education requesting issuance of a Florida Teacher's Certificate. In Section V of the application, Petitioner indicated that he had been arrested in Queens County, New York, on July 21, 1982, for possession of 25 grams of marijuana and fined $210.

   
   

6. On November 29, 1982, Marlene T. Greenfield, Administrator of Professional Practices Services of the Department of Education, wrote Petitioner to request additional information concerning his answer to the questions in Section V of his application. Petitioner replied to Mrs. Greenfield's request by letter dated December 13, 1982. In his reply, Petitioner explained as follows:

   
   

   I pleaded guilty to the possession of a small amount of marijuana for purposes of expediency since I was driving a friend's car at the time of arrest and rather than involving other people, I pleaded guilty and paid the monetary fine.

   
   

7. Based upon the additional information furnished to the Department of Education by Petitioner, his application for a Florida Teacher's Certificate was denied. Petitioner was notified of the denial by a document entitled Notice of Reasons, signed by the Commissioner of Education and dated February 14, 1983. The parties stipulated, prior to the formal hearing in this cause, that Petitioner has met all requirements for issuance of a Florida Teacher's Certificate except those set forth in the Notice of Reasons.

   
   

8. Petitioner's conviction for the fifth degree misdemeanor of possession of marijuana was entered upon his plea of guilty which was the result of threats and coercion.

   
   

9. Petitioner has been licensed as a teacher in the State of New York for four years, where he served primarily as a substitute teacher but also as a term teacher by appointment. He has also received two satisfactory teacher evaluation ratings while serving as a substitute teacher in Broward County, Florida. On June 2, 1983, he was approved by the School Board of Broward County as a substitute teacher for the 1983-1984 school year, which approval may have been suspended pending his receipt of a Florida Teacher's Certificate.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

11. Section 231.17(6)(a), Florida Statutes (1982), provides that:

    
    

    The Department of Education is authorized to deny an applicant a certificate 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 revoke a teaching certificate.

    
    

12. Section 231.28(1), Florida Statutes (1982), provides that the Education Practices Commission has the authority to revoke the teaching certificate of any person if it can be shown that such person has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Subsection (2) further provides that: "The plea of guilty in any court [or] the decision of guilty by any court . . . shall be prima facie proof of grounds for revocation . . . in the absence of proof . . . that his plea of guilty . . . was caused by threats [or] coercion "

    
    

13. Petitioner has carried his burden of proving that he was not guilty of the offenses charged and later reduced prior to his plea of guilty to even a lesser charge than the reduced one, but rather that his guilty plea to the class B misdemeanor in the fifth degree was caused by threats to his physical health, which threats constituted coercion. Since the parties stipulated that Petitioner meets all other qualifications for licensure, and since Petitioner has proven he did not commit the act for which revocation would be appropriate, then issuance of the requested certificate is required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing to Petitioner Jon Seth

Wortman a Florida Teacher's Certificate.

DONE and RECOMMENDED this day of September, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1983.

COPIES FURNISHED:

Eric R. Schwartz, Esquire 3500 North State Road 7,

Suite 290

Lauderdale Lakes, Florida 33319

J. David Holder, Esquire

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

The Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Donald L. Griesheimer Executive Director

Education Practices Commission The Knott Building Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

JON SETH WORTMAN,

Petitioner,

vs. CASE NO. 83-775

RALPH D. TURLINGTON, as

Commissioner of Education,

Respondent.

/

FINAL ORDER

Petitioner, JON SETH WORTMAN, applied for a Florida teaching certificate. Respondent was denied this application by Notice of Reasons dated February 14, 1983. Petitioner elected to dispute this denial at a formal hearing before the Division of Administrative Hearings. The hearing was held and a Recommended Order was forwarded to the Education Practices Commission for final agency action.

A teacher panel of the Commission met on October 28, 1983 in Tallahassee, Florida. The Petitioner was not represented; the Respondent was represented by

1. David Holder, Esquire.

   
   

   FINDINGS OF FACT

   
   

   1. The Commission adopts the Findings of Fact of the Recommended Order, paragraphs one through nine.

      
      

   2. The Commission adopts as an additional finding of fact, the following testimony of the Petitioner:

      
      

      Q. when you entered your plea; did the court not inquire as to whether or not your plea was free and voluntary?

      A. Yes.

      Q. Did the court not inquire as to whether or not you had been coerced or promised anything to enter the plea?

      A. I believe so.

      Q. And, you -- didn't you tell the court that you were not coerced nor were you promised anything to enter the plea.

      A. Yes.

      
      

      CONCLUSIONS OF LAW

      
      

   3. The Hearing Officer found, on the basis of competent, substantial evidence, that Petitioner was convicted of the Class B misdemeanor of possession of marijuana. The evidence to support this finding consists of court documents which were verified and not disputed by the Petitioner. The evidence to support this finding does not include the plea of guilty by the Petitioner, although the court documents do memorialize this plea.

      
      

   4. A conviction of a criminal offense is a ground enumerated in Section 231.23(1), Florida Statutes, for the revocation (or denial) of a certificate.

      
      

   5. Petitioner may not collaterally attack this conviction, nor seek to invalidate or deny the existence of this conviction in this forum.

      
      

   6. Section 231.23, Florida Statutes, does allow a plea of guilty to be used as prima facie proof of grounds for revocation (or denial). In this case the plea of guilty would tend to prove that Petitioner did, in fact, possess marijuana. With that fact proven, the legal conclusion might then be drawn that the subject was guilty of an act of moral turpitude, gross immorality, or conduct which seriously reduces effectiveness as a school board employee, which are grounds to deny under Section 231.28(1), Florida Statutes.

      
      

   7. Section 231.28(2), Florida Statutes, further permits the person making the plea of guilty to prevent its use as prima facie evidence by proving that the plea was caused by threats, coercion, or fraud. We must accept the Hearing Officer's factual findings that this Petitioner was coerced.

      
      

   8. We conclude that the denial of Petitioner's application is appropriate, after a review of the entire record.

Therefore, it is ORDERED that the application of JON SETH WORTMAN for a Florida teaching certificate is DENIED.

DONE AND ORDERED this 9th day of November, 1983, in Tallahassee, Florida.

Marjorie Hankins, Presiding Officer

COPIES FURNISHED:

Marlene Greenfield

Professional Practices Services

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner General Counsel

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Eric Schwartz, Esquire 3500 North State Road 7

Suite 290

Lauderdale Lakes, Florida 33319

Linda M. Rigot Hearing Officer

Division of Administrative Hearings

CERTIFICATE OF SERVICE

I HERBY CERTIFY that a copy of the foregoing Order in the matter of Jon Seth Wortman vs. RDT was mailed to Eric Schwartz, Esquire, by U.S. Mail, this 15th day of November, 1983.

Donald L. Griesheimer, Clerk

Docket for Case No: 83-000775

Orders for Case No: 83-000775