STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2488

)

HENRY W. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on August 12, 1988.

On September 6, 1988, petitioner's proposed recommended order was filed, respondent's proposed recommended order having been filed some days earlier. The attached appendix addresses proposed findings of fact by number.

The Division of Administrative Hearings received the hearing transcript on August 24, 1988. Only after October 28, 1988, did the parties or one of them advise that Janice Austin's deposition, for which the record had remained open, would not be taken.

The parties are represented by counsel:

For petitioner: Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

1601 Atlantic Boulevard

Jacksonville, Florida 32207

By administrative complaint dated April 18, 1988, petitioner alleges that respondent "holds Florida Teacher's Certificate number 346776, . . . [and a]t all times material . . . was employed as a senior high teacher at Edward White Senior High in Jacksonville"; that on "October 28, 1980 the respondent entered a plea of guilty to driving while under the influence of alcoholic beverages in violation of Florida Statute 316.183, was adjudged guilty and ordered to pay fined and costs in the amount of $159.50 together with being placed on probation

. . . [and] loss of his license for ninety days"; that respondent nevertheless "[o]n or about October 3, 1983 . . . under oath signed his application for his teaching certificate and answered no to the . . . question . . . "Have you ever been convicted or had adjudication withheld in any criminal offense other than a minor traffic violation . . . ?"; and that "[o]n or about July 23, 1987 the Respondent . . . found guilty and adjudicated guilty of possession of cocaine . . . [and] marijuana in violation of Florida Statute 893.03 and . . .

1. ," all "in violation of Florida Statutes 231.28(1)(a), (c), (e), (f) and (h), in that the Respondent obtained his certificate by fraudulent means; has been guilty of gross immorality or an act involving moral turpitude, has been convicted of a misdemeanor, felony or any other criminal charge, other than a minor traffic violation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board and 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 .

   . . [and] in violation of Florida Statute 231.28(2) in that the plea of guilty in any court or the decision of guilt by any court shall be prima facie proof of grounds for revocation of a certificate."

   
   

   ISSUE

   
   

   Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

   
   

   FINDINGS OF FACT

   
   

   1. On January 3, 1984, the Florida Department of Education issued teacher's certificate no. 346776, Joint Exhibit No. 1, to respondent Henry Willie Williams, who still holds the certificate.

      
      

      Application Inaccurate

      
      

   2. The form application Mr. Williams completed to obtain his teacher's certificate reached the Department on October 7, 1983. Question V on the application form asked:

      
      

      Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Yes No

      Joint Exhibit No. 2

      
      

      Respondent checked the blank after "No," before signing and submitting the notarized form, "certify [ing] that all information pertaining to this application is true and correct." Joint Exhibit No. 2.

      
      

   3. Some three years earlier, on October 28, 1980, Judge John M. Marees had adjudicated respondent guilty of driving while intoxicated in violation of Section 316.193, Florida Statutes (1979), imposed a fine of $150.00, and assessed costs of $9.50. State of Florida vs. Henry Willie Williams, No. 80- 43114-MN (Duval County Court; Oct. 28, 1980). Joint Exhibit No. 3. A witness for the Department testified to his "belief that something of this magnitude, you would know whether you had or had not been arrested," (T. 62), but conceded it was possible for a person to "read that language that says 'other than minor traffic offense' and not consider a DUI [sic] to be other than minor." Id.

      
      

      Arrest and Conviction

      
      

   4. While employed by the Duval County School Board, respondent Williams received satisfactory evaluations. (T. 63) He was relieved of teaching duties, however, and reassigned to the Duval County School Board's media center, after

      his arrest on May 1, 1987, on charges of marijuana, cocaine and drug paraphernalia possession. (T. 56)

      
      

   5. Officers W. E. Copeland and Ben Moore effected the arrest while executing a search warrant, at an apartment in the 3200 block of Ricky Drive in Jacksonville. Present in the apartment with respondent Williams was Yvonne M. Buggs, who described Mr. Williams as a confidante. Ms. Buggs escaped arrest. Just whose apartment they were in at the time was not entirely clear.

      
      

   6. On July 23, 1987, Judge Parsons adjudicated respondent guilty of possession of cocaine in violation of Sections 893.03(2)(a) and 893.13(1)(e), Florida Statutes (1987), a felony of the third degree. No. 873999 CF (Fla. 4th Cir.; July 23, 1987) Joint Exhibit No. 4. At the same time, the court also adjudged respondent guilty of possessing less than 20 grams of cannabis, in violation of Sections 893.13(1)(e) and (f), Florida Statutes (1987), a misdemeanor of the first degree. No. 87-3999 CF (Fla. 4th Cir.; July 23, 1987).

      
      

   7. The court found respondent not guilty on the paraphernalia count, sentenced him to 90 days in the county jail on the marijuana count, and placed respondent on three years' probation on the cocaine possession count, with 90 days' jail time as a special condition of probation. Joint Exhibit No. 4.

      
      

   8. On appeal, the District Court of Appeal, First District, reversed respondent's conviction on marijuana charges, but affirmed the felony conviction for possession of cocaine. Henry Williams vs. State of Florida, No. 87-836 (Fla. 1st DCA Aug. 10, 1988) (reh. den. Sept. 19, 1988) pet. rev. pnd'g No. 73,180 (Fla; pet. filed Oct. 14, 1988)(pet.'s brief on juris. filed Oct. 26, 1988). The petition for review was filed only after the District Court had issued its mandate.

      
      

   9. A witness for the Department testified that he "believe[d] the conduct would seriously affect the effectiveness of Mr. Williams as a teacher . . . [because a]t this particular time in history where the drug issue is such a major one, and such a major one in the community, we feel our teachers should be above charges that have been made against them." (T. 59) By "conduct," he meant that respondent "certainly was present, he certainly was involved to some degree with narcotics as well as lying on the record to obtain a certificate." (T. 60)

      
      

      CONCLUSIONS OF LAW

      
      

   10. After respondent Williams executed the election of rights form attached to the administrative complaint, and requested a petition for formal administrative hearing, petitioner forwarded the matter, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), to the Division of Administrative Hearings, which now "has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

       
       

   11. The Education Practices Commission within the Department of Education has "authority to suspend the teaching certificate of any person . . . for a period of time not to exceed 3 years . . . ; to revoke the teaching certificate of any person . . . for a period of time not to exceed 10 years . . . ; to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law," provided it can be shown that such person:

       
       

       1. Obtained the teaching certificate by fraudulent means;

          . . .

          (c) Has been guilty of gross immorality or an act involving moral turpitude;

          . . .

          1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

          2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

          . . .

          
          

   12. Section 231.28(1), Florida Statutes (1987)

       Subsection two makes "the decision of guilty by any court . . . prima facie proof of grounds for revocation of the certificate as listed in subsection (1)." Section 231.28(2), Florida Statutes (1987).

       
       

   13. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973) Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

       391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

       See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986) Anheuser-Busch, Inc. vs. Department of Business Regulation,

       393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

       
       

   14. Whatever else petitioner may have shown in the present proceeding, the evidence demonstrated that court(s) have adjudicated the respondent guilty of at least one "criminal charge, other than a minor traffic violation." Section 231.28, Florida Statutes (1987). Nothing in the record suggests that respondent has been pardoned or that respondent's civil rights have been restored. Cf. Sandlin vs. Criminal Justice Standards and Training Commission, 13 FLW 619 (Fla; Oct. 13, 1988) rev'g 518 So.2d 1292 (Fla. 1st DCA 1987). While respondent's felony conviction might theoretically be reversed in the Supreme Court, the First District has affirmed, and the judgment is not stayed. The Education Practices Commission has authority to take disciplinary action against him. Cf. Walton vs Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984); Adams vs. State Professional Practices Council, 406 So.2d 1170 (1951)

It is, accordingly, RECOMMENDED:

That petitioner revoke respondent's teaching certificate and refuse to consider any application for reinstatement for a period of five years unless respondent's felony conviction is earlier reversed or he pardoned and his civil rights are earlier restored.

DONE AND ENTERED this 1st day of December, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 1st day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2488

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 11, 13, 16 and 22 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 5, 6, 7, 8, 9, 10, 12, 14, 15 and 17 are subordinate.

Petitioner's proposed findings of fact No. 18 is rejected insofar as it states that adjudication was withheld on the cocaine possession arrests.

Petitioner's proposed findings of fact Nos. 19 through 21 summarize testimony accurately.

Respondent's proposed findings of fact nos. 1, 2, 3, 4, 5, 7, 12, 13, 14,

23, 24, 25, and 26 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 6, the motion for rehearing has since been denied.

Respondent's proposed findings of fact Nos. 8, 9, 10, 11, 15, 16, 17, 18,

19, 20, 21 and 22 are subordinate.

COPIES FURNISHED:

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32202

David A. Hertz, Esquire 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 88-077-RT

vs. DOAH CASE NO. 88-2488

HENRY WILLIAMS,

Respondent.

/

FINAL ORDER

Respondent, HENRY WILLIAMS, holds Florida teaching certificate no. 346776.

Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to Section 120.5(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on January 26, 1989, in Tampa, Florida, to take final agency action The Petitioner was represented by Lane Burnett, Esquire. The Respondent was neither present nor represented. The panel reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order. With regard to the conclusions of law, the panel specifically finds that the Respondent violated Section 231.28 (1)(a), (c), (e), (f), F.S. and cites the Recommended Order and pages 58-62 of the transcript in support. With regard to the penalty, the panel accepts Respondent's voluntary surrender of certificate; in reliance upon the record and the specific violations noted therein and pursuant to its rules regarding surrender of certificates, it is ORDERED that the SURRENDER IS PERMANENT with no opportunity for reinstatement. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 11th day of February, 1989.

CAROLYN WILSON, Presiding Officer I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Henry Williams was mailed to David A. Hertz, Esquire, 1601 Atlantic Blvd. Jacksonville, FL.

32207 this 17th day of February, 1989, by U.S. Mail.

KAREN B. WILDE, CLERK

COPIES FURNISHED:

Martin Schaap, Administrator Professional Practices Service

Susan Tully Proctor, Esquire Attorney General's Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Herb A. Sang, Superintendent Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32202

Robert T. Benton, II, Hearing Officer Division of Admin. Hearings

The DeSoto Building

230 Apalachee Parkway Tallahassee, Florida 32399

Docket for Case No: 88-002488

Orders for Case No: 88-002488