STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3966

)

JAMES HENRY WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 12, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

1201 U.S Highway One Suite 315

West Palm Beach, Florida 33408-3585

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William Du Fresne, Esquire

2929 S.W. Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in Counts II and V of the Amended Administrative Complaint?

   
   

2. If so, what administrative sanction should be imposed?

   
   

   PRELIMINARY STATEMENT

   
   

   On June 7, 1989, Petitioner filed an Administrative Complaint seeking the imposition of "the appropriate disciplinary sanction of the Respondent's teaching certificate" for acts of "gross immorality" in which Respondent allegedly engaged. Pursuant to Respondent's request, the matter was referred to the Division of Administrative Hearings for a formal hearing on July 25, 1989.

   On November 25, 1989, after the mater was referred to the Division, Petitioner issued an Amended Administrative Complaint against Respondent.

   On October 19, 1990, Petitioner filed a motion requesting that official recognition be taken of the following documents contained in the court file in State v. Wright, Dade County Circuit Court Case No. 87-36763, the criminal case referenced in Counts II and V of the Amended Administrative Complaint (Complaint): information; plea agreement; order granting probation; violation of probation affidavit; order of revocation of probation; and judgment and sentence. By order issued by the previously assigned Hearing Officer, the request was granted.

   
   

   At the outset of the formal hearing, Petitioner, through counsel, announced that she would be pursuing only Counts II and V of the Complaint. These counts of the Complaint provide as follows:

   
   

   COUNT II

   
   

   1. Respondent is guilty of conduct involving gross immorality as proscribed by Section 231.28(1)(c), Florida Statutes, and, which has seriously reduced the Respondent's effectiveness as an employee of the School Board of Dade County,

      Florida, under Section 231.28(1)(f), Florida Statutes. More particularly the Petitioner would show:

      
      

      1. That during September of 1986, the Respondent engaged in sexual intercourse with a female over the age of eleven (11) years without her consent who was then mentally defective or retarded in violation of 794.011(4)(f), Florida Statutes.

         
         

      2. As a result of said conduct, the Respondent was arrested and formally charged in the Eleventh Judicial Circuit in and for Dade County, Florida, in Case No. 87-36763, with Sexual Battery in violation of Section 794.011(4)(f), Florida Statutes.

         
         

      3. That on or about June 23, 1988, the Respondent appeared before the Honorable S. Peter Capua, Circuit Judge, and plead no contest to the offense of Sexual Battery. The court withheld adjudication and placed the Respondent on probation for ten (10) years. As a part of the PLEA AGREEMENT, the Respondent was to surrender his teaching certificate to the Department of Education and during the term of probation would not teach in public or private schools, or otherwise come in contact with minor children.

COUNT V

The Respondent is guilty of a course of conduct involving gross immorality as proscribed by Section 231.28(1)(c), Florida Statutes. In support hereof, the Petitioner would show:

1. That while the Respondent was serving a ten year term of probation as a part of the sentence handed down in that cause styled State of Florida vs. James

   Henry Wright in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Case No. 87-36763, he did during June of 1989, in Dade County, Florida, ingest a controlled substance, to wit: cocaine.

   
   

2. That as a result of the Respondent's possession and use of cocaine, as well as failing to comply with additional special terms and conditions of probation as outlined in an AFFIDAVIT VIOLATION OF PROBATION

filed in Case No. 87-36763, the Respondent was adjudged guilty of the offense of sexual battery as proscribed by Section 794.011(4)(f), Florida Statutes, on August 28, 1989. That based on said adjudication and the court otherwise considering the Respondent's violation of probation he had previously been sentenced to in this cause, the Defendant was ordered to serve a period of five (5) years in the Department of Corrections.

The issues to be litigated at hearing were further narrowed by certain stipulations entered into by the parties.

During the evidentiary portion of the formal hearing, Petitioner offered two exhibits into evidence. Both of these exhibits were admitted by the Hearing Officer. She presented no other evidence. Respondent testified on his own behalf. He also presented the testimony of his wife, Marcia Carter-Wright, and his mother, Margaret H. Wilson, both of whom are teachers employed by the Dade County School Board. He offered no exhibits into evidence.

Petitioner and Respondent timely filed proposed recommended orders on December 6, 1991, and December 2, 1991, respectively. The proposed findings of fact contained in the parties' proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, as well as matters officially recognized and the factual stipulations entered into by the parties, the following Findings of Fact are made:

1. Respondent was employed as a teacher by the Dade County School Board from approximately 1980 to November 6, 1987, when he resigned his position.

   
   

2. Since his resignation, Respondent has not been employed as teacher.

   
   

3. At all times during his employment with the Dade County School Board, Respondent held Florida teaching certificate 467693, which covered the areas of elementary education, early childhood education and motor disability.

   
   

4. Respondent's teaching certificate expired on June 30, 1989, without Respondent having made any effort to renew it.

   
   

5. Respondent is 34 years of age. He has been married to Marcia Carter- Wright since December 13, 1985. They no longer live in the same household, however.

6. Marcia has a sister, M.R., who suffers from cerebral palsy and is developmentally disabled. At all times material hereto, M.R. has lived with Marcia.

   
   

7. In September 1986, while he was still living with his wife and her sister, Respondent had sexual intercourse with M.R. Although she was 40 years of age at the time, M.R. was incapable of engaging in consensual sexual activity because of her developmental disability.

   
   

8. Respondent's liaison with M.R. produced a child, J.W., who was born on July 7, 1987.

   
   

9. Respondent was subsequently arrested and charged by information filed in Dade County Circuit Court Case No. 87-36763 with sexual battery upon a mentally defective person in violation of Section 794.011(4)(f), Florida Statutes. The matter was reported in the newspaper.

   
   

10. Pursuant to a plea bargain agreement, Respondent pled no contest to the charge and, in turn, adjudication of guilt was withheld and he was placed on ten years probation. Among the terms and conditions of probation to which he agreed was that he surrender his teaching certificate and refrain from teaching.

    
    

11. Respondent did not formally surrender his teaching certificate. He believed that, inasmuch as he had already resigned from his teaching position, letting his certificate expire would suffice.

    
    

12. Respondent had difficulty finding a well-paying job while on probation. He became despondent and depressed.

    
    

13. In June 1989, approximately one year after he had been placed on probation, Respondent admitted to his probation officer, Hazel Cooper Shepp, that he was using cocaine. Respondent hoped that Shepp would be able to provide him with assistance in dealing with his drug problem.

    
    

14. Shepp subsequently filed an affidavit in Dade County Circuit Court alleging that Respondent had violated the conditions of his probation.

    
    

15. On August 28, 1989, Respondent's probation was revoked and he was adjudicated guilty of sexual battery as charged in the information filed in Dade County Circuit Court Case No. 87-36763 and sentenced to five years of imprisonment, with credit for 250 days for time served.

    
    

16. Respondent was released from prison on May 31, 1991. He currently lives with his mother, but visits his wife, M.R., J.W. and his other two children on a regular basis.

    
    

    CONCLUSIONS OF LAW

    
    

17. Counts II and V of the Amended Administrative Complaint issued in the instant case allege that Respondent "engaged in a course of conduct proscribed by Section 231.28(1)(c), Florida Statutes, and, which [in the case of Count II] has seriously reduced [his] effectiveness as an employee of the School Board of Dade County, Florida, under Section 231.28(1)(f), Florida Statutes," and that therefore he should be subjected to a "disciplinary sanction."

18. Section 231.28(1)(c) and (f), Florida Statutes, provide as follows:

    
    

    1. The Education Practices Commission shall have the authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after

       which the holder may return to teaching as provided

       in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of

       subsection (4); 1/ 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:

       
       

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

       
       

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

       
       

19. The proof establishing such guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. In the instant case, the evidence clearly and convincingly establishes that Respondent engaged in conduct in violation of Section 231.28(1)(c) and (f), Florida Statutes, as alleged in Counts II and V of the Amended Administrative Complaint.

    
    

21. Respondent engaged in such conduct while he was still certified to teach in this state. Accordingly, notwithstanding that his teaching certificate has since expired, he nonetheless may be subjected to an "administrative sanction" in accordance with Section 231.262(6)(g), Florida Statutes, which authorizes:

    
    

    [i]mposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

    
    

22. Respondent does not dispute that he committed the violations alleged in Counts II and V of the Amended Administrative Complaint and that he should be punished for having committed these violations. Rather, it is his position that his punishment should be limited to a "suspen[sion] for a three year period retroactive to November 7, 1[9]87," the day after he resigned his teaching position with the Dade County School Board. Petitioner, on the other hand, in her proposed recommended order, argues that Respondent should be permanently barred from applying for a new teaching certificate.

23. While the violations committed by Respondent are serious ones that are deserving of harsh punishment, denying him forever the opportunity to show that he has rehabilitated himself and that he otherwise meets the requirements to teach in this state is too harsh a sanction to impose upon Respondent. The most appropriate sanction, given the circumstances of the instant case, would be to bar Respondent from applying for a new certificate, not permanently, but rather for a period of 10 years.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Education Practices Commission enter a final order (1) finding Respondent guilty of the violations alleged in Counts II and V of the Amended Administrative Complaint, and (2) barring him from applying for a new teaching certificate for a period of 10 years pursuant to Section 231.262(6)(g), Florida Statutes.

DONE and ORDERED in Tallahassee, Leon County, Florida, this 31st day of December, 1991.

STUART M. LERNER

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 31st day of December, 1991.

ENDNOTES

1/ Subsection (4) of Section 231.28, Florida Statutes, provides as follows:

1. A teaching certificate which has been suspended under this section is automatically reinstated at the end of the suspension period, provided such certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

   
   

2. A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education

Practices Commission by making application and by meeting the certification requirements of the

state board current at the time of the application for the new certificate.

2/ Petitioner subsequently changed her position on the matter. While she suggested at hearing that barring Respondent from applying for a new teaching certificate for a 10-year period would be a sufficient sanction, she now takes a contrary position and argues that he should be permanently barred from making such an application.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3966

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1-11. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

Respondent's Proposed Findings of Fact

1-5. Accepted and incorporated in substance.

6. Rejected because it constitutes argument concerning a matter that should have no bearing on the outcome of the instant case.

7-9. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not a finding of fact, but rather is a statement of Respondent's position concerning what sanction should be imposed in the instant case.

2. Rejected because it is not a finding of fact, but rather is a statement of Petitioner's position, at the time of the formal hearing, concerning what sanction should be imposed in the instant case. 2/

Copies furnished:

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Craig R. Wilson, Esquire 1201 U.S. Highway One Suite 315

North Palm Beach, Florida 33408-3585

William Du Fresne, Esquire 2929 S.W. 3rd Avenue

Suite One

Miami, Florida 33129

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 89-003966

Orders for Case No: 89-003966