STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1395

)

MARILYN JOAN PELAEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 27, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Steven G. Burton, Esquire

Post Office Box 3273 Tampa, Florida 33601-3273

For Respondent: Marilyn Joan Pelaez, pro se

13809 Fletcher's Mill Drive Tampa, Florida 33613

STATEMENT OF THE ISSUES

Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 19, 1989, Betty Castor, as Commissioner of Education, Petitioner, seeks to revoke, suspend, or otherwise discipline the certificate of Marilyn Joan Pelaez, Respondent, as a teacher in Florida. As grounds therefor, it is alleged that Respondent was arrested and charged with possession of cocaine and drug paraphernalia, that she was subsequently brought to trial, pleaded nolo contendere, adjudication of guilt was withheld, and she was placed on probation for one year. This is alleged to constitute gross immorality or an act involving moral turpitude and to have seriously reduced Respondent's effectiveness as an employee of the school board.

At the hearing, Petitioner called Respondent and the deputy sheriff who arrested Respondent on February 20, 1989, Respondent testified in her own behalf, and four exhibits were admitted into evidence. Proposed findings submitted by Petitioner are accepted, except as noted in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English.

   
   

2. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep.

   
   

3. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side.

   
   

4. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it.

   
   

5. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1).

   
   

6. Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2).

   
   

7. Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend.

   
   

8. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence.

   
   

9. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe.

   
   

10. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges.

11. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Section 231.28(1), Florida Statutes, provides the Education Practices Commission shall have the power to revoke, suspend or impose any other authorized penalty on the teaching certificate of a certificate holder provided it can be shown that person:

    
    

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

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

    
    

14. Since the court withheld adjudication of guilt, it cannot be found that Respondent is guilty of those charges. While the plea of nolo contendere is construed for all practical purposes as a plea of guilty and in essence places the Respondent at the mercy of the court, it is proper for the court to hear testimony, determine the degree of guilt and assess punishment. Vinson v. State, 345 So.2d 711 (Fla. 1977).

    
    

15. Here Respondent explained the circumstances surrounding her arrest for possession of cocaine and drug paraphernalia. According to this explanation which was credible and unrebutted, Respondent did not own nor was she responsible for the "pipe" being placed in her car. Once there, the pipe was in her possession, at least in her constructive possession.

    
    

16. Under these circumstances, the possession of drugs and drug paraphernalia does not constitute moral turpitude.

    
    

17. Since no evidence was submitted that Respondent's effectiveness in the Hillsborough County school system was impaired, that charge must fall.

    
    

18. This is a license revocation proceeding. Accordingly, Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). This burden Petitioner has failed to meet.

    
    

19. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent is guilty of gross immorality or of a crime involving moral turpitude or that her effectiveness in the Hillsborough County school system has been seriously reduced.

RECOMMENDATION

It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed.

ENTERED this 31st day of May, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.

APPENDIX

Proposed findings submitted by Petitioner are accepted, except for the following.

1. Respondent became lost when she was fifteen minutes driving time from her home.

2. Inconsistent with H. O. Finding #2.

9. Rejected as unsupported by the evidence.

18. Accepted as modified by H. O. #11.

21-24. Rejected as beyond the allegations contained in the Administrative Complaint.

25. Accepted insofar as included in H. O. #8.

COPIES FURNISHED:

Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273

Marilyn Joan Pelaez

13809 Fletcher's Mill Drive Tampa, FL 33613

Karen B. Wilde Executive Director

Education Practices Commission

301 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399

Martin Schaap Administrator

Professional Practices Services

325 W. Gaines Street, Room 352 Tallahassee, FL 32399

Mark Herron, Esquire

216 S. Monroe Street Suite 300 Tallahassee, FL 32301

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs. DOAH CASE NO. 90-1395

EPC CASE NO. 89-119-RT

JOAN PELAEZ,

Respondent.

/

FINAL ORDER

Respondent, MARILYN JOAN PELAEZ, holds Florida educator's certificate No.

463945. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate. 1/

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order was entered by the Hearing Officer and forwarded to the Commission pursuant to Section 120.57(1), F.S. The Recommended Order is attached to and made a part of this Order.

With due notice to the parties, a panel of the Education Practices Commission met on June 19, 1990 in Naples, Florida to take final agency action in this case. Petitioner was represented by Steven Burton, Esquire. Respondent was neither present nor represented by counsel. The panel reviewed the entire record in the case.

The panel considered each of Petitioner's Exceptions to Findings of Fact in the Recommended Order and mad, the following rulings on each corresponding paragraph of Petitioner's Exceptions:

1. The panel accepts Petitioner's Exception to Finding of Fact that she fell asleep on the side of the road after 3:00 A.M. and was thereafter discovered there at 3:40 A.M. on February 20, 1989 in that the record contains uncontradicted competent substantial evidence that such took place (see transcript of administrative hearing, pages 17 and 33).

   
   

2. The panel rejected the exception as stated in paragraph two of Petitioner's Exceptions to Findings of Fact that Petitioner was aware that the pipe was in her car or who left it there at the time it was discovered, for reason that there is competent substantial evidence in the record to the contrary and because it is irrelevant whether such facts were so established without contradiction.

   
   

3. The Petitioner withdrew her exception relating to paragraph number nine of the Recommended Order.

   
   

4. The panel accepted Petitioner's exception to paragraph number 11 of the Findings of Fact of the Recommended Order finding a lack of wide publicity of the incident in question, in that there is no competent substantial evidence supporting said finding. The record did contain contrary competent substantial evidence that such publicity did exist (see transcript of formal hearing, page 29).

   
   

5. The panel rejected Petitioner's Exception to Findings of Fact number 5 because the panel ruled that the Respondent had not been charged with the acts alleged therein and that the facts relating to such had not been properly litigated and established with due notice to the Respondent.

   
   

6. The Petitioner withdrew Exception noted in paragraph 6 of his Exception to Findings of Fact because the panel had ruled that Respondent had not been charged with the acts alleged therein and that the facts relating to such had not been fully litigated and established with due notice to the Respondent.

FINDINGS OF FACT

The panel adopted the Findings of Fact of the Recommended Order as the Findings of Fact of this Final Order with the following amendments made necessary to conform said Findings to the panel's rulings on the exceptions presented in this case. That is, the finding that Respondent fell asleep in her car on the side of the road after 3:00 A.M. and was thereafter discovered there at 3:40 A.M. on February 20, 1989 is added to said Findings of Fact. That portion of paragraph number 11 of the Hearing Officer's Findings of Fact relating to a lack of publicity of the incident in issue in the Hillsborough County School region is stricken.

CONCLUSIONS OF LAW

The Conclusions of Law of the Recommended Order are adopted to the extent that Section 231.28(1), F.S., provides the EPC shall have the power to revoke, suspend or impose any other authorized penalty on the teaching certificate of a certificate holder provided it can be shown that person: (c) Has been guilty of gross immorality or an act involving moral turpitude; or, (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.

The panel considered petitioner's Exceptions to the Conclusions of Law noting that the Hearing Officer's Recommended Order of May 31, 1990, was in error regarding the handling of criminal convictions in an administrative forum. That is, contrary to the Hearing Officer's Recommended Order, as a matter of law that the Respondent's plea of nolo contendre is equivalent to a conviction.

Dept. of Professional Regulation Construction Industry Licensing Board v. William W. Carlson, 7 FALR 1547 (1984). That court held that the plea of nolo contendre and the sentence of five years' probation constituted being found guilty of a crime. Id. at 1557. In addition, the plea of nolo contendre is the same as pleading guilty, as stated in the Hearing Officer's own Recommended Order at page 5, wherein he states that "... the plea of nolo contendre is construed for all practical purposes as a plea of guilty..." The Hearing Officer in this administrative proceeding retried the criminal case despite the plea of nolo contendre, and, in essence, found Respondent not guilty and dismissed the case. The case law is clear that an administrative proceeding is not the place to allow a respondent to relitigate those matters already decided in a criminal court. McGraw v. Dept. of State, Div. of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986); Scott William Katz v. Dept. of Insurance and Treasurer, 10 FALR 5673 (1988).

Furthermore, as stated in Petitioner's Exceptions to the Hearing Officer's Conclusions of Law, it is quite clear that Respondent did not contest the fact that she was convicted, nor did she dispute any of those facts in Petitioner's administrative complaint regarding the incident, but for the nature of the paraphernalia found. See Respondent's Election of Rights, which was Petitioner's Exhibit Number 3 admitted into evidence in the formal hearing.

Considering these arguments, the panel determined that the Finding of Fact in the Recommended Order that the Respondent was not aware of the presence of drug paraphernalia in her car on February 20, 1989, and his recommendation that the case be dismissed is not dispositive of this case. It is therefore concluded that teachers are held to rigorous moral standards because of their critical roll in educating our children:

A school teacher holds a position of great trust.

We entrust the custody of our children in the teacher. We look to the teacher to educate and prepare our children for adult lives.

To fill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

See Tomerlin v. Dade County School Board, 318 So.2d 159, 160 (Fla. 1st DCA 1975.)

Acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher.

See Adams v. State Professional Practices Council, 406 So.2d 1170.

Section 231.28(1)(e), F.S., provides that authority for the EPC 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. A plea of guilty in any court, or the decision of guilty by any court of a misdemeanor or felony is prima facie proof of grounds for revocation of the Respondent's certificate in the absence of proof by her that

the plea or any admission was caused by threats, coercion, or other fraudulent means. Section 231.28(2), F.S. (1987). Petitioner has proved its prima facie case, and the Respondent offered no proof of threats, coercion, or other fraudulent means resulting in her plea of nolo contendre.

Specifically, Respondent has violated the following statutory provisions:

1. Section 231.28(1)(c), F.S., provides the authority for the EPC 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), F.A.C., as

   
   

   ... conduct that is inconsistent with the standards of public conscience and gold 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), F.A.C., 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.

   
   

   The evidence is clear and convincing that the Respondent has been guilty of gross immorality and acts of moral turpitude through her possession of cocaine and drug paraphernalia. The moral standards to be upheld by teachers are different from that of professionals, being that teachers are charged with providing leadership and maintaining effectiveness as teachers. Also, as referenced above, by virtue of the leadership capacity, teachers are traditionally held to a higher moral standard in a community. In view of this higher moral standard, the possession of a controlled substance establishes moral turpitude, when shown that the charge received publicity in the area in which the offense occurred. Adams v. State of Florida, Professional Practices Council, 406 So.2d 1170. The possession of the controlled substance, combined with the publicity, seriously impairs the teacher's ability to remain an effective teacher, Id., 1172.

   
   

   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. The Department of Banking and Finance, 13 F.L.W. 2308, 10 FALR 6001 (Fla. 3rd 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 as a crime which involves moral turpitude).

   Therefore, as a matter of law, Respondent, in her plea of guilty for possession of cocaine and drug paraphernalia, the publicity surrounding the conviction, and thereafter her admitted intentional violation of probation, establishes that she is guilty of conduct involving moral turpitude.

   
   

2. Section 231.28(1)(f), F.S., in that Respondent upon investigation has been guilty of personal conduct which seriously reduces her effectiveness as an employee of the School Board. The evidence in this case proves that Respondent's conduct has seriously reduced her effectiveness as a teacher in violation of the provisions of the above-referenced statute. Respondent's conduct in possessing cocaine and drug paraphernalia, and having been arrested and placed on probation for such acts, seriously reduces her effectiveness.

   See, Adams v. State of Florida, supra. In addition, the loss of effectiveness as a teacher was heightened in view of the fact that her arrest was covered in the print media. See, Adams v. State of Florida, supra.

   
   

   Respondent's reduced effectiveness was also shown in her other use of poor judgment. She admitted having associated with individuals, whom she had seen using cocaine a number of times, while she was a teacher. Even if Respondent is, in fact, being truthful in stating that she did not use cocaine, the fact that she, a teacher, has associated with and was in the room with individuals using cocaine, evidences a severe lack of good judgment. Respondent even admitted to have a weakness in succumbing to peer pressure.

   
   

   In addition, being out at 3:40 A.M. and asleep on the side of the road because "the light was red" also evidences a severe lack of good judgment on the part of Respondent. She also asserted, at one point in the hearing, that she had never used cocaine but, in other portions of the hearing, admitted to having used it.

   
   

3. The court records offered by tee Petitioner and received into evidence may stand alone as bases for findings of fact because they would be admissible over objection in civil actions pursuant to Section 90.803(8), F.S. Section 120.58(1)(a), F.S. (1987). This is not a criminal case by which Section 90.03(8), F.S. would exclude written reports of matters observed by police officers or other law enforcement personnel. Accordingly, the court records received in evidence, without objection as to authenticity, support the findings of fact made herein as to the fact and timing of Respondent's arrest and plea.

   
   

4. It is concluded from the evidence presented and the facts found herein that Respondent's conduct is in violation of the cited statutes and rules. Accordingly, disciplinary action is authorized.

PENALTY

Wherefore, based on the evidence in the record (see transcript of formal administrative hearing pages 5, 18, 22, 25, 28, and 29 and paragraphs 5 and 6 of the Findings of Fact in the Recommended Order) that the Respondent pled nolo contendre to possession of a controlled substance and that reports of said incident were widely published, the recommendation of the Hearing Officer is rejected. It is therefore ORDERED that: Respondent's Florida Educator certificate be suspended for a period of one year, and that thereafter she serve a period of two years probation, the conditions of which shall be that after said suspension she notify the EPC of her employment as an educator in Florida, that she arrange for her supervisor to forward copies of evaluations of performance to the EPC at least quarterly, that she not consume or use

controlled substances, and that she submit random blood and urine samples as ordered by the EPC, with the cost of compliance with these terms to be borne by the Respondent. 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 22nd day of July, 1990.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices Services GEORGE BOWEN,

Presiding Officer

Daniel Bosanko, Esquire I HEREBY CERTIFY that a copy of Attorney General's Office the foregoing Order in the

matter of BC vs. Marilyn Joan

Sydny McKenzie, III Pelaez, was malied to Marilny

General Counsel Joan Pelaez, 13809 Fletcher's Mill Drive, Tampa, FL 33613,

Florida Admin. Law Reports this 25th day of July, 1990, by

U.S. Mail.

Dr. Walter L. Sickles, Supt. Hillsborough County Schools 901 D. Kennedy Blvd.

Post Office Box 3408 Tampa, Florida 33601-3408 KAREN B. WILDE, Clerk

Dr. David Binnie Assistant Supt. Personnel

Hillsborough County Schools

K. N. Ayers

Division of Admin. Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Steven G. Burton, Esquire

P.O. Box 3273

Tampa, Florida 33601-3273

Docket for Case No: 90-001395

Orders for Case No: 90-001395