STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION )
)
Petitioner, )
)
vs. ) CASE NO. 86-4148
)
HENRY YOUNG, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on April 28, 1987 in Miami, Florida. The following appearances were entered.
APPEARANCES
For Petitioner: J. David Holder, Esquire
Post Office Box 1694 Tallahassee, Florida 32302
FOR RESPONDENT: William DuFrense, Esquire
2950 Southwest 27th Avenue, Suite 310
Miami, Florida 33132 PROCEDURAL BACKGROUND
The Petitioner, in the Amended Administrative Complaint, charges that Respondent, an elementary school teacher licensed by the Department of Education, violated certain provisions of Chapter 231, Florida Statutes, subjecting him to appropriate disciplinary action. In particular, Petitioner alleges that Respondent obtained his teaching certificate by fraudulent means, has been guilty of gross immorality or an act involving moral turpitude, has been convicted of a misdemeanor other than a minor traffic violation, and is guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, in violation of Sections 231.28(1)(a), (c), (e) and (f), Florida Statutes, respectively. The Respondent disputed the allegations of fact contained in the complaint and requested a formal administrative hearing pursuant to Chapter 120, Florida Statutes.
At the final hearing, Petitioner presented the testimony of Armando Garcia and Gary Jackson, police officers with the City of Miami Police Department; Michael Amabile, a police officer with the Metro-Dade County Police Department; Steven Snipes, a criminologist (analyzes narcotics and other controlled substances) with the Metro-Dade County Police Department; Rodney Ballentine, Floyd Reeves, Otis Davis, and Frank Matrone, police officers with the City of Opa-Locka Police Department; and Desmond Patrick Gray, an employee of the Dade
County School Board. Petitioner's Exhibits 1, 2, 3, 4(a) and (b), 6, 7(a) and (b), 8 and 10 were duly offered and admitted into evidence. Ruling was reserved on Petitioner's Exhibits 5, 9(a) and (b), but after due consideration they, too, will be admitted into evidence. The post-hearing deposition of Matthew Taylor, an undercover detective with the Metro-Dade County Police Department, is admitted into evidence along with the attachments thereto. Respondent testified in his own behalf and presented the testimony of Steven Fogelman, supervisor of the Structured Treatment Program, a residential unit within the Metro-Dade County's Drug and Alcohol Program; and Willie Shannon young, an assistant principal at Miami Jackson Senior High School and the Respondent's wife. Both parties submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact:
The Respondent, Henry Young, is employed as a teacher by the Dade County School Board at Nathan B. Young Elementary School in Miami, Florida. Respondent holds teaching certificate #177938 issued by the State of Florida, Department of Education, in Elementary Education, Guidance and Early Childhood Education.
On January 19, 1984, Metro-Dade Police Officer Michael Amabile was on routine patrol in the Liberty City section of Miami when he received a call for assistance from another unit on an arrest for a weapons violation. When Officer Amabile arrived at the scene, he observed that Police Officer Strohs had detained a female who was seated in her automobile. While Officer Strohs ran a routine check on the weapon, Officer Amabile observed the Respondent standing in the street near the female's automobile. After the check determined that the weapon was stolen, Officer Amabile asked Respondent to leave the immediate area.
The Respondent refused to leave the area, began to talk with the female, and told Officer Amabile that he was a member of the City Crime Watch and that he did not have to leave. Officer Amabile and two other police officers at the scene repeatedly asked the Respondent to leave the area so that the female could be transferred from her vehicle into a police cruiser and the matter further investigated.
The Respondent refused to leave the area and began arguing loudly back and forth with the police officers. A crowd began to gather and Respondent was informed that if he did not leave the area, he would be arrested. The Respondent moved slightly away from the area towards the middle of the street but continued arguing with the police officers. The Respondent was subsequently arrested and charged with resisting an officer without violence,
On February 29, 1984, the charge was disposed of in the County Court of Dade County. The Respondent was given credit for two (2) days time served in jail (after his arrest) and the case was closed. The record did not indicate what plea was entered to the offense by Respondent and failed to show whether the Court adjudicated the Respondent guilty of the offense.
On April 16, 1984, Officer Smith of the City of Opa-Locka Police Department received a call for back-up from Officer McQueen in reference to an altercation at a bar located on Ali-Baba Avenue in Opa-Locka, Florida. When
Officer Smith arrived at the bar, the Respondent was "yelling and screaming" at a small crowd of people and the person in charge of the bar indicated that he wanted the Respondent to leave. When the officers approached Respondent to find out what the problem was, Respondent directed his loud and abusive language toward them. The Respondent refused to calm down and was arrested for disorderly conduct. A search incident to Respondent's arrest revealed a small amount of suspected cocaine concealed in his clothing. A subsequent laboratory analysis determined that the suspected substance was, in fact, cocaine.
The Respondent was taken to the Opa-Locka Police Station for processing. While in custody at the police station, Respondent was removed from his jail cell for photographing. At that time, the Respondent became extremely violent and hostile toward the police personnel. The Respondent punched one officer in the head and spat on two officers.
Based on the incident of April 16, 1984, the Respondent was charged with disorderly conduct, possession of cocaine, possession of drug paraphernalia, battery on a police officer, and resisting an officer without violence. On or about November 15, 1984, all of the charges were dismissed. There was no evidence as to why the charges were dismissed.
On January 1, 1985, the Respondent was arrested outside of the Orange Bowl in Dade County, Florida, for the offense of scalping tickets to the Orange Bowl football game between the University of Oklahoma and the University of Washington. The Respondent attempted to sell four game tickets for $30.00 each. The face value of the individual tickets was $25.00.
On September 24, 1985, Metro-Dade Police Officers Garvin and Jackson observed the Respondent enter a Mercedes Benz automobile carrying a machine gun- type weapon with a strap. The Respondent opened the right rear door of the vehicle and placed the weapon in the back seat. While approaching the automobile, the officers observed the Respondent turn and place something in the back seat. At this time, the officers converged on the automobile and ordered the Respondent and a female passenger to get out. During a search of the vehicle incident to arrest, the officers found a white paper bag in the back seat containing a small quantity of suspected marijuana and a glass pipe which contained suspected cocaine residue. The officers placed Respondent and the female under arrest.
The weapon was later determined to be an Intratec 9MM Luger, Model TEC-9, a semi-automatic weapon which has the appearance of a machine gun. The weapon contained a clip with twenty-five (25) live rounds of ammunition. Possession of such a weapon is not illegal in Dade County, Florida, and the weapon in question was found to be registered.
The Respondent was charged with the offense of carrying a concealed firearm and carrying a firearm without a license. There were no charges brought concerning the suspected illegal drugs. The case was subsequently nolle prossed by the State Attorney's Office.
On March 4, 1986, John Riley, the then Mayor of the City of Opa-Locka, observed what he believed to be a drug buy by the Respondent in the "triangle" area of Opa-Locka. The triangle area has a reputation for heavy narcotics activity. Mayor Riley summoned Opa-Locka Police Chief Reeves and Officer Davis to the scene. As the officers and Mayor Riley approached the Respondent, he was observed standing outside a Mercedes Benz automobile talking to several young people on the street. When Respondent observed the police officers and Mayor
Riley approaching, he acted in a "suspicious manner" and appeared to Chief Reeves to be attempting to conceal something. The Respondent entered the automobile and started the engine. Reeves identified himself as a police officer. Chief Reeves asked Respondent to turn off the engine and get out of the car. The Respondent refused to do either. Chief Reeves then reached inside the vehicle and attempted to switch off the ignition. The Respondent knocked Chief Reeves' hand loose and sped away. Chief Reeves' arm was brushed by the car but he was not injured. The Respondent was apprehended several days later.
The Respondent was charged in Dade County Circuit Court with battery on a law enforcement officer and resisting an officer without violence. On January 7, 1987, Respondent entered a plea of no contest to a reduced charge of simple battery. The Court withheld adjudication of guilt and placed Respondent on probation for a period of two years with the special conditions that Respondent serve six months in the Alcohol and Drug Abuse Program (ADAP) at the Dade County Stockade, followed by six months in the Structured Treatment Program (STP).
On September 26, 1986, Metro-Dade Police Detective Taylor was working in an undercover capacity. At approximately 9:20 p.m. on that date, Respondent approached Officer Taylor on the roadside at 17th Avenue and Northwest 83rd Street in Miami. Respondent asked: "What do you want," and Officer Taylor responded: "Two ten cent pieces," street language for two ten dollar portions of crack cocaine. The Respondent then produced two pieces of crack cocaine which he sold to Officer Taylor for $20.00.
The Respondent was subsequently arrested and charged by information with the offense of possession of cocaine. On January 7, 1987, Respondent entered a plea of no contest to the charge. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of two years with the special conditions that he serve six months in the Alcohol and Drug Abuse Program in the Dade County Stockade, followed by six months in the Structured Treatment Program concurrent with the sentence imposed for the battery offense of March 4, 1986.
Many of the activities of Respondent resulting in his arrests previously described herein received media attention and press coverage in the Miami Herald, a daily newspaper distributed throughout Dade County.
On June 28, 1985, the Respondent submitted a sworn application for extension of teaching certificate to the Florida Department of Education. In Section V of the application, Respondent answered "no" to the question: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a miner traffic violation or are there any criminal charges now pending against you other than minor traffic violations." The Department of Education extended the Respondent's teaching certificate through June 30, 1990.
Respondent is currently on authorized leave without pay for medical reasons from his duties as a teacher with the Dade County School Board. The Respondent is voluntarily enrolled in the Dade County School Board's Employee Assistance Program which is designed to provide treatment, care and follow-up to teachers with substance abuse problems.
The Respondent, Henry Young, is 42 years old, married and has two sons. Respondent attended undergraduate school at Bethune Cookman College in Daytona Beach and received a graduate degree at Florida A&M University in Tallahassee. Respondent has taught in the Dade County school system continuously since 1966.
Respondent started drinking heavily during his senior year in college and started using hard drugs when he became friends with several of the Miami Dolphin professional football players. Respondent developed an addiction to and dependence upon, both drugs and alcohol.
Respondent first entered Dade County's Alcohol and Drug Abuse Program in May 1986. Respondent was assigned to the Structured Treatment Program (STP), a residential program where the participant is required to live in a structured, drug and alcohol-free environment from three months to one year. Respondent initially remained in the program from May to October of 1986. In October of 1986 the Respondent left the program, only to encounter additional problems with his drug and alcohol addiction. Respondent re-entered the program in January of 1987 where he remained up to the date of the final hearing. Respondent plans to remain in the STP residential setting until July or August of 1987.
Drug and/or alcohol addiction is a physiological or psychological dependency upon a narcotic or other psychoactive or mood altering substance to the extent that such dependency impairs a person's health and substantially interferes with the person's social and/or occupational functioning. Respondent's addiction interfered with his social functioning, his decision making, and his judgment.
During Respondent's total of ten (10) months in the STP program, he has received intensive individual and group counseling focusing primarily on his long history of alcohol and drug abuse. Since the Respondent's return to the program in January of 1987, he has exhibited a marked change in his behavior and his attitude towards both his treatment and himself. Respondent has accepted the fact that he has an addiction problem and that he will need to be involved in some type of treatment program for the rest of his life. Breaking through the participant's denial of addiction is one of the primary goals of the STP program and is considered to be a real and positive step toward recovery.
Steven Fogelman, supervisor of Metro-Dade County's Alcohol and Drug Abuse Program believes that after the Respondent leaves the STP program, he will need to continue in STP's two-year aftercare program, receive additional outpatient counseling and continue to attend Narcotics Anonymous and Alcoholics Anonymous meetings. Fogelman feels that if Respondent stays in treatment that he will have a very good chance of leading a substance-free life.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
The Petitioner, Education Practices Commission, is authorized to take disciplinary action against teachers within the state system of public education and may suspend a teacher for a period not to exceed three years, revoke a teaching certificate up to ten years or permanently, and may impose any other penalty provided by law if the teacher is found guilty of any of the acts enumerated in Sections 231.28(1)(a)-(f), Florida Statutes.
License revocation proceedings are "penal" in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. App. 1st Dist. 1979). Strict procedural protections apply and the prosecuting agency has the burden of proof. Associated Home Health Agency, Inc. v. Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. App. 1st Dist. 1984). Although Turlington v. Ferris, 496 So.2d 177 (Fla. App. 1st Dist. 1986) seems to indicate that a preponderance of the evidence standard of proof is applicable to the instant case, Bowling v. Department of insurance, 394 So.2d 165 (Fla. App. 1st Dist. 1981) mandates that the evidence supporting suspension or revocation of a professional license be subjected to rigorous scrutiny "not so clearly present on other occasions for agency action under Chapter 120" and that the critical matters in issue "be shown by evidence which is indubitably as `substantial' as the consequences."
In the Amended Administrative Complaint herein, Petitioner charges that Respondent obtained his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes; has been guilty of gross immorality or an act involving moral turpitude in violation of Section 231.28(1)(a), Florida Statutes; has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, in violation of Section 231.28(1)(c), Florida Statutes; and is guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes.
The Petitioner established that Respondent is guilty of obtaining his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes. Respondent signed his application for extension of certificate before a Notary Public on March 5, 1985. Respondent indicated on the application that he had never had adjudication withheld in a criminal offense other than a minor traffic violation, and that there were no criminal charges pending against him. However, on January 1, 1985, Respondent was arrested for "ticket scalping," appeared in court on February 4, 1985, for an arraignment and was found guilty of the offense on March 12, 1985, although the Court withheld adjudication. Thus, on March 5, 1985, when the Respondent signed his application, he knew that a criminal charge other than a minor traffic violation was pending against him.
The evidence failed to establish that Respondent had been convicted of a misdemeanor, felony, or any other criminal charge other than a minor traffic violation. Therefore, the Respondent is not guilty of a violation of Section 231.28(1)(c), Florida Statutes.
The Petitioner established, and the Respondent conceded, that his involvement with alcohol and drugs, including personal use, possession and sale of drugs, was conduct evidencing gross immorality. See Walton v. Turlington,
444 So.2d 1082 (Fla. App. 1st Dist.).
The Petitioner established that the Respondent is guilty of conduct which seriously reduces his effectiveness as an employee of the School Board. Respondent argues that the testimony of Dr. Patrick Gray indicating that Respondent's effectiveness in the School Board has been seriously reduced should be rejected because Dr. Gray based his opinion largely on the community awareness of Respondent's conduct gained by various articles in the Miami Herald newspaper. Certainly, newspaper articles which are erroneous and have no basis in fact may not properly form the basis for an opinion that a teacher's
effectiveness has been reduced due to the notoriety caused thereby. However, where a teacher's personal conduct has been so open and notorious as to attract legitimate media attention, and where the reported articles have a substantial factual basis, such teacher may not complain when the publicity caused by the articles diminishes his effectiveness as an employee of the School Board. The Respondent is guilty of a violation of Section 231.28(1)(f), Florida Statutes.
Based on the findings of fact and conclusions of law, the Education Practices Commission has the authority to discipline Respondent. In view of Respondent's long career in education (approximately 20 years), his positive steps toward rehabilitation and recovery, his acceptance of his addiction problem and his continued employment with the Dade County School Board, Respondent should be given the opportunity to continue in his chosen profession of education. While Respondent was engaged in the misconduct which forms the basis of these charges, he was suffering an addiction to alcohol and drugs which altered his judgment and interfered with his decision making capacity in certain areas. However, the penalty which Respondent receives should be sufficiently firm such as to impress upon Respondent the seriousness of his misconduct and to provide adequate safeguards against Respondent returning to his previous vices.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
Respondent's teaching certificate be suspended for a period of three years from the date of the Final Order.
Respondent be placed on probation for a period of five years with the following conditions:
Respondent shall be required to enroll in the Metro-Dade County's Drug and Alcohol Program's two-year aftercare program and submit to the Department of Education, Education Practices Commission, signed and notarized statements from appropriate managerial personnel of the ADAP establishing that he has, in fact, satisfactorily completed the two-year aftercare program.
Respondent shall be required to continue his present participation in the Dade County School Board's Employee Assistance Program for substance abuse during the full five-year period of probation and cooperate fully with the terms of any treatment plan implemented in his behalf, including, but not limited to, enrollment in a private substance abuse counseling program at Respondent's own expense.
Respondent be assessed an administrative fine of $2,000.00, specifically for the offense of providing false information on his application for teaching certificate. Said administrative fine shall be due no later than
45 days after the date of the Final Order.
DONE AND ORDERED this 17th day of July 1987, in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of July 1987.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4148
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
1. Adopted | in | Finding | of | Fact | 1. |
2. Adopted | in | Finding | of | Fact | 1. |
3. Adopted | in | Finding | of | Fact | 2. |
4. Adopted | in | Finding | of | Fact | 2. |
5. Adopted | in | Finding | of | Fact | 3. |
6. Adopted | in | Finding | of | Fact | 4. |
7. Adopted | in | Finding | of | Fact | 5. |
8. Adopted | in | Finding | of | Fact | 6. |
9. Adopted | in | Finding | of | Fact | 7. |
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 9.
Adopted in substance in Finding of Fact 10.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 10.
Partially adopted in Finding of Fact 11, matters not contained therein are rejected as subordinate and/or not established by the weight of the evidence.
Adopted in substance in Finding of Fact 12.
Adopted in substance in Finding of Fact 13.
Adopted in substance in Finding of Fact 13.
Rejected as subordinate and/or unnecessary.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 15.
Adopted in Finding of Fact 16.
Rejected as a recitation of testimony.
Partially adopted in Findings of Fact 9 and 15, matters not contained therein are rejected as contrary to the weight of the evidence.
Partially adopted in Finding of Fact 18, matters not included therein are addressed in the Conclusions of Law section.
Adopted in Finding of Fact 12.
Adopted in Findings of Fact 13, 14 and 22.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Findings of Fact 1, 19 and 20.
Adopted in substance in Finding of Fact 14.
Partially adopted in Findings of Fact 2, 3 and 4, matters not contained therein are rejected as misleading and/or subordinate.
Partially adopted in Findings of Fact 6, 7 and 8, matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 9.
Adopted in substance in Findings of Fact 10, 11 and 12.
Adopted in substance in Findings of Fact 13 and 14.
Partially adopted in Findings of Fact 15 and 16, matters not contained therein are rejected as contrary to the weight of the evidence.
Adopted in substance in Finding of Fact 17.
Adopted in substance in Findings of Fact 22 and 23.
Adopted in substance in Finding of Fact 24.
Adopted in substance in Finding of Fact 24.
Rejected as subordinate. 14. Rejected as subordinate and/or misleading. Although the Respondent is on the road to recovery, the evidence did not establish that Respondent has in fact made a complete recovery.
15. Rejected as contrary to the weight of the evidence.
COPIES FURNISHED:
J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302
William DuFrense, Esquire 2950 Southwest 27th Avenue Suite 310
Miami, Florida 33132
Karen Barr Wilde Executive Director
Education Practices Commission
418 Knott Building Tallahassee, Florida 32399
Marlene T. Greenfield Administrator Professional Practices Services Section
319 West Madison Street Room 3
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 17, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 01, 1987 | Agency Final Order | |
| Jul. 17, 1987 | Recommended Order | Respondent's teaching certificate suspended and he is placed on probation due to his involvement with alcohol and drugs, which includes his selling of drugs. |
