STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2993

)

IRIS LOCKLEAR ZAPATA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 13, 1988, at the Florida Correctional Institution at Lowell, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

For Petitioner: Rosemary E. Armstrong and

Catherine Peek McEwen

Moffitt Hart & Herron, P.A.

401 South Florida Avenue Post Office Box 3273 Tampa, Florida 33601-3273

For Respondent: Iris Locklear Zapata

Florida Correctional institution Post Office Box 147

Lowell, Florida 32663 ISSUES AND INTRODUCTION

The basic issue in this case is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in an Administrative Complaint dated May 26, 1988.

The Administrative Complaint alleges (a) that on numerous specific occasions the Respondent was arrested, charged, and convicted on several counts of issuing worthless checks in North Carolina, (b) that the Respondent was arrested and charged with forgery in North Carolina, (c) that the Respondent submitted applications containing false information to both the Hillsborough County (Florida) Public Schools and the Department of Education of the State of Florida, and (d) that while employed as a teacher at Middleton Junior High School in Hillsborough County, Florida, and after her dismissal therefrom, the Respondent was arrested and charged with various counts of grand theft and uttering a forged instrument, pled guilty to several of those counts, and was ultimately sentenced to three years in prison for violation of the terms of her probation.

The Respondent admitted some allegations of the Administrative Complaint, disputed others, and requested a formal hearing. At the formal hearing, the

Petitioner offered 36 exhibits, all of which were admitted in evidence. The Petitioner also presented the testimony of one witness. The Respondent called no witnesses and offered no exhibits.

Following the hearing, a transcript of the proceedings was prepared and the parties were afforded an opportunity to file proposed recommended orders. The Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent did not file any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the Respondent's admissions in the Election of Rights form and on the exhibits and testimony received at the hearing, I make the following findings of fact:

1. The Respondent holds Florida Teacher's Certificate No. 554716 covering the subject of Spanish, issued September 29, 1986, and valid through June 30, 1991.

   
   

2. At all times material hereto, the Respondent taught in the Hillsborough County, Florida, school district at Middleton Junior High School.

   
   

3. On or about March 23, 1981, the Respondent was arrested by the Lumberton, North Carolina, Police Department and charged with forgery.

   
   

4. On or about June 6, 1984, the Respondent submitted an Application for a Teaching Position to the Hillsborough County (Florida) Public Schools in which she certified that she had never been arrested for a criminal offense.

   
   

5. On or about June 28, 1984, June 27, 1985, and July 23, 1985, the Respondent submitted applications for teacher's certificates to the Department of Education of the State of Florida in which she certified that she neither had been convicted, nor had adjudication withheld, of a criminal offense.

   
   

6. On or about December 10, 1986, the Respondent was arrested by the Tampa (Florida) Police Department and charged with grand theft and uttering a forged instrument.

   
   

7. On or about May 28, 1987, the Respondent entered a plea of guilty before the Circuit Court of Hillsborough County, Florida, to one count of grand theft in violation of Section 812.014(2)(b), Florida Statutes, and 18 counts of uttering a forged instrument in violation of Section 831.02, Florida Statutes. Said court thereupon adjudicated the Respondent guilty of said felonies and sentenced her to six months community control and four and one-half years probation.

   
   

8. On or about February 23, 1988, the Respondent was arrested by the University of South Florida Police Department, Tampa, Florida, and charged with four counts of uttering a forged instrument.

   
   

9. In or about May, 1988, the Respondent was adjudicated guilty by the Circuit Court of having violated the terms of her probation in violation of Section 948.06, Florida Statutes, and she was sentenced to three years in prison.

   CONCLUSIONS OF LAW

   
   

10. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. See Section 120.57(1), Florida Statutes.

    
    

12. In a license discipline proceeding of this nature, the Petitioner has the burden of proving its allegations by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of that burden is described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In the more recent case of Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), the court quoted with approval the foregoing language from Slomowitz, and also noted:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

13. Section 231.28(1)(c), Florida Statutes, authorizes the Education Practices Commission to suspend or revoke the teaching certificate of an individual or to impose any other penalty provided by law if the individual has been guilty of gross immorality or an act involving moral turpitude. Gross immorality is not defined in the statute or rules, but immorality is defined in Rule 6B-4.009(2), Florida Administrative Code, 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.

    
    

    Similarly, an act of moral turpitude is not defined, but a crime of moral turpitude is defined in Rule 6B-4.009(6), Florida Administrative Code, as

    ...a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

14. The evidence is clear and convincing that the Respondent has been guilty of gross immorality and acts of moral turpitude by reason of her convictions for numerous counts of criminal misconduct involving dishonesty. The number of the Respondent's convictions indicates a flagrant disregard for standards of public conscience and good morals. In addition, the substance of the misconduct, amounting to criminal conduct, a fortiori is inconsistent with

    the standards of public conscience and good morals. See Winkleman v. Department of Banking and Finance, 13 F.L.W. 2308, 10 FALR 6001 (Fla. 3d DCA October 1, 1988)(wherein the court affirmed revocation of the Respondent's registration under the Florida Securities and Investor Act, citing his conviction upon his plea of guilty to willfully assisting in the preparation of a false income tax return as a crime which involves moral turpitude).

    
    

15. Section 231.28(1)(e), Florida Statutes, provides the authority for the Education Practices Commission to suspend or revoke the teaching certificate of an individual or to impose any other penalty provided by law if the individual has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The Petitioner has presented clear and convincing evidence of the Respondent's criminal convictions.

    
    

16. Section 231.28(1)(f), Florida Statutes, authorizes the Education Practices Commission to suspend or revoke the teaching certificate of an individual or to impose any other penalty provided by law if the individual, upon investigation, has been found guilty of personal conduct which seriously reduces the person's effectiveness as an employee of the School Board. The Petitioner has presented clear and convincing expert testimony that the Respondent's misconduct has seriously reduced her effectiveness as an employee of the School Board.

    
    

17. Section 231.28(1)(h), Florida Statutes, authorizes the Education Practices Commission to suspend or revoke the teaching certificate of an individual or to impose any other penalty provided by law if the individual has violated a rule of the State Board of Education, the penalty for which is the revocation of the teaching certificate. By filing an application for a teaching position in which she denied having been arrested for a criminal offense and omitted material information regarding her arrest history, the Respondent has violated the following rule provisions: Rule 6B-1.006(5)(a), (g), and (h), Florida Administrative Code.

RECOMMENDATION

Based on all the foregoing, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding the Respondent guilty of the violations described in the foregoing conclusions of law and permanently revoking the Respondent's Florida teaching certificate.

DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2993

The following are my specific rulings on all of the proposed findings submitted by all parties:

Findings proposed by Petitioner Paragraphs 1 and 2: Accepted

Paragraphs 3, 4, and 5: Rejected as not supported by clear and convincing evidence. (The evidence in support of these proposed findings does not even reach the level of competent substantial evidence.)

Paragraphs 6, 7, and 8: Accepted.

Paragraph 9: Rejected as not supported by clear and convincing evidence, and as contrary to the greater weight of the evidence.

Paragraph 10: Rejected as irrelevant in view of the lack of proof regarding paragraph 9.

Paragraphs 11 and 12: Accepted in substance, with some incorrect details modified.

Paragraphs 13 and 14: Accepted.

Paragraph 15: Accepted in substance with some unnecessary details omitted.

Findings proposed by Respondent (None.)

COPIES FURNISHED:

Rosemary E. Armstrong and Catherine Peek McEwen

401 South Florida Avenue Post Office Box 3273 Tampa, Florida 33601-3273

Iris Locklear Zapata

Florida Correctional Institution Post Office Box 147

Lowell, Florida 32663

Karen B. Wilde, Executive Director Education Practices Commission

418 Knott Building Tallahassee, Florida 32399

Martin B. Schapp, Administrator Professional Practices Commission

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 88-002993

Orders for Case No: 88-002993