STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT WILLIAM KATZ, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1769

)

BETTY CASTOR, as Commissioner ) of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 13, 1991, in West Palm Beach, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Mr. Scott William Katz, pro se

3923 Lake Worth Road, #105 Lake Worth, Florida 33461

For Respondent: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Petitioner's application for a Florida teaching certificate should be granted or should be denied on the grounds itemized in the Notice of Reasons dated February 25, 1991.

PRELIMINARY STATEMENT

The genesis of this case is a February 25, 1991, Notice of Reasons in which the Respondent states the reasons for the proposed denial of the Petitioner's application for a Florida teaching certificate. The Petitioner timely filed a request for formal hearing. At the hearing the Petitioner testified on his own behalf, but did not call any other witnesses. The Petitioner also offered two exhibits, both of which were received in evidence. The Respondent offered six exhibits, all of which were received in evidence. The Respondent did not call any witnesses. Official recognition was taken of the Final Order issued on August 26, 1987, in DOAH Case No. 87-0470, Scott William Katz v. Betty Castor, as Commissioner of Education, and of the matters attached to and incorporated into that Final Order.

Subsequent to the hearing, a transcript was filed with the Division of Administrative Hearings on May 24, 1991, and the parties were allowed ten days from that date within which to file their proposed recommended orders. On June 3, 1991, the Respondent timely filed a proposed recommended order containing proposed findings of fact and conclusions of law. On June 12, 1991, the Petitioner late-filed a two-page document which consists primarily of argument in support of the Petitioner's position. My specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Scott William Katz, has applied for a Florida educator's certificate. His application is dated December 14, 1989, but it was not filed until July 25, 1990.

   
   

2. The Petitioner filed an earlier application for a Florida educator's certificate during 1986. The Petitioner's 1986 application was denied by Final Order issued on September 3, 1987. That Final Order also provided:

   
   

   1. dditionally, the panel ORDERS that Petitioner may not apply for a teaching certificate for a period of three (3) years from entry of this order. As basis for the enhancement, the panel cites the conduct described in paragraphs three through twenty- one of the Notice of Reasons.

      
      

3. The factual basis for the September 3, 1987, denial of the Petitioner's prior application is set forth in a Notice of Reasons document, which was served on the Petitioner on January 27, 1987. The relevant paragraphs of the January 27, 1987, Notice of Reasons read as follows: 1/

1. In 1980 the applicant was admitted to the Florida Bar as an attorney licensed to practice law in the State of Florida.

2. On or before September 1984, the applicant threatened an opposing party in a civil law suit with criminal prosecution in order to gain an advantage in the civil matter.

3. In September 1984, the Florida Supreme Court issued a private reprimand to the applicant for threatening criminal prosecution in order to gain an advantage in a civil matter.

4. On or about February 1981, the applicant was retained to represent a wife in a dissolution of marriage action. He obtained a Final Judgment on her behalf which required the husband to pay child support and provided other relief. After obtaining the Final Judgment, the applicant continued to represent the wife, filing a motion to modify the Final Judgment and a Motion for Contempt against her ex-husband to obtain payment of past due child support on her behalf. Approximately two years later, however, applicant commenced

   proceedings against his former client on behalf of her ex-husband, seeking a reduction in child support payments.

5. On or about October 1983, the applicant misrepresented material facts in a sworn pleading which the applicant filed in the United States District Court for the Southern District of Florida.

6. On or about December 1983, the applicant coerced an agreement from a former client to pay him money for a claim which had no legal basis.

7. Based upon the misconduct set forth in paragraphs 4, 5 and 6, the Florida Bar initiated disciplinary proceedings against the applicant. On June 26, 1986, the Florida Supreme Court found the applicant committed the misconduct alleged and found the applicant guilty of numerous violations of the Florida Bar Integration Rule and Disciplinary Rules. The Supreme Court issued an order on said date in which it disbarred the applicant and assessed costs against him in the amount of

   $4,086.45.

8. On or about May 20, 1986, the applicant submitted a false and fraudulent affidavit in support of his request to the Palm Beach County Court for an award of attorney's fees.

9. On or about May 27, 1986, the Palm Beach County Court held the applicant in direct criminal contempt of court for filing said false and fraudulent affidavit. The Court sentenced the applicant to pay a fine in the amount of $500.00

10. On or about July 22, 1986, the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, entered an order disbarring the applicant based upon his submission of the false and fraudulent affidavit to the Palm Beach County Court on May 20, 1986. Said disbarment was ordered to run consecutive to the Supreme Court's disbarment order entered on June 26, 1986.

11. Between July 26, 1986, and August 1, 1986, the applicant did, while having been disbarred, engage in the practice of law or hold himself out as an attorney at law or qualified to practice law to John Robert Harr.

12. Between July 26, 1986, and August 1, 1986, the applicant did knowingly obtain or endeavor to obtain a sum of money in the amount of $300.00 or more from John Robert Harr with the intent to deprive John Robert Harr of said funds.

13. On or about October 30, 1986, the applicant was charged in Circuit Court of the Fifteenth Judicial Circuit in and for Palm

    Beach County, Florida, with the criminal offenses of practice of law while disbarred or suspended and grand theft, based upon the conduct described in paragraph 12.

14. Between July 26, 1986, and August 26, 1986, the applicant did, while having been disbarred, engage in the practice of law or hold himself out as an attorney at law or qualified to practice law to Michael D. Jones and/or Judith Jones and/or Tanya Jones.

15. On or about October 30, 1986, the applicant was charged in the County Court in and for Palm Beach County, Florida, with the criminal offense of practice of law while disbarred or suspended based upon the conduct described in paragraph 14.

16. On or about August 25, 1986, the applicant did, while having been disbarred, engage in the practice of law or hold himself out as an attorney at law or qualified to practice law to Zell Altman and the Clerk of the Palm Beach County Court.

17. On or about October 30, 1986, the applicant was charged in the County Court in and for Palm Beach County, Florida, with the criminal offense of practice of law while disbarred or suspended based upon the conduct described in paragraph 16.

18. Between July 26, 1986, and August 1, 1986, the applicant did, while having been disbarred, engage in the practice of law or hold himself out as an attorney at law or qualified to practice law to Barbara Curtis.

19. On or about October 30, 1986, the applicant was charged in the County Court in and for Palm Beach County, Florida, with the criminal offense of practice of law while disbarred or suspended based upon the conduct described in paragraph 18.

20. Between July 16, 1986, and August 1, 1986, the applicant did, while having been disbarred, engage in the practice of law or hold himself out as an attorney at law or qualified to practice law to Olive Labbadia.

21. On or about October 30, 1986, the applicant was charged in the County Court in and for Palm Beach County, Florida, with the criminal offense of practice of law while disbarred or suspended based upon the conduct described in paragraph 20.

1. In addition to the conduct described above in the January 27, 1987, Notice of Reasons, on May 12, 1987, the Petitioner entered a plea of nolo contendere to the charge of practice of law while disbarred and the court withheld adjudication of the charge. The Petitioner was placed on probation for twelve months and ordered to pay $25.00 each month toward the cost of supervision.

2. On March 15, 1988, the Petitioner entered a plea of nolo contendere to the charge of resisting arrest without violence and the court withheld adjudication of the charge. The Petitioner was placed on one year probation and ordered to pay $25.00 each month for the cost of supervision.

   
   

3. The Petitioner remains disbarred from the state bar in the State of Florida. He has also been disbarred in the State of Oklahoma and in several federal courts as a result of his Florida disbarment.

   
   

4. Since the September 3, 1987, denial of the Petitioner's prior application for a Florida teaching certificate, the Petitioner has invested a great deal of time and effort in the pursuit of higher education. His studies have been in the fields of Law and Education. By pursuing further studies in the field of Education, the Petitioner hopes to be better prepared to be a teacher. The Petitioner has done well in his studies since 1987.

   
   

5. The facts which form the basis for the September 3, 1987, denial of the Petitioner's prior application demonstrate that at that time the Petitioner lacked good moral character. The additional facts set forth in Paragraphs 4 and 5, above, demonstrate that as of the early part of 1988, the Petitioner lacked good moral character. The record in this case does not reveal any specific examples of conduct by the Petitioner since March of 1988 that are indicative of a lack of good moral character, but neither is there any persuasive evidence of the Petitioner's rehabilitation since March of 1988. Accordingly, the evidence is insufficient to support a finding that the Petitioner is presently of good moral character.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. As noted in Clifford J. Evert, Sr., v. Betty Castor, as Commission of Education, 13 FALR 82 (Recommended Order issued October 4, 1990): "Since this is a case in which the Petitioner is seeking to obtain a Florida educator's certification, he had the burden of establishing that he meets all requirements for such certification. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)." See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

8. Section 231.17(1)(e), Florida Statutes (1990 Supp.), provides that each applicant for a teaching certificate shall: "Be of good moral character."

   
   

9. Section 231.17(5), Florida Statutes (1990 Supp.) reads as follows:

   
   

   1. The Department of Education is authorized to deny an applicant a certificate if it possesses evidence satisfactory to it that the applicant has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

      
      

   2. The decision of the Department of Education is subject to review by the

      Education Practices Commission upon the filing of a written request from the applicant within

      20 days from receipt of the notice of denial.

      
      

10. Section 231.28(1), Florida Statutes (1989), authorizes the Education Practices Commission to revoke teaching certificates for several specified grounds, which include a showing that a 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.

    
    

11. The meaning of the term "good moral character" was described as follows in Zemour, Inc., v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), at 1105:

    
    

    Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But, as shown by the evidence here, repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature, as Judge Rawls said in Beary, supra, "in its infinite wisdom," has determined should not be entrusted with a liquor license. The applicant here is shown to be one which, in our judgment, falls within that category.

    
    

12. And in Florida Board of Bar Examiners, Re: G.W.L., 364 So.2d 454 (Fla. 1978), a majority of the court found it to be "morally reprehensible" for a recent law graduate to file personal bankruptcy proceedings in order to avoid paying his student loans. The court also cited with approval Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). And at page 458 the court held:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct

    which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and the nation. See Konigsberg, supra.

    
    

    To similar effect, see The Florida Bar v. Jahn, 559 So.2d 1089 (Fla. 1990); Florida Bd. of Bar Examiners, In Re: H.H.S., 373 So.2d 890 (Fla. 1979).

    
    

13. As noted in Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, So.2d , 13 FALR 826 (Fla. 3d DCA 1991), "In the context of professional and occupational licensing, the question of what constitutes 'good moral character' has been held to be ordinarily a question of fact for the trier of fact." See Bachynsky v. State Dept. of Professional Regulation, 471 So.2d 1305 (Fla. 1st DCA 1985); Village Zoo, Inc. v. Div. of Alcoholic Beverages and Tobacco, 450 So.2d 920 (Fla. 4th DCA 1984); Aquino v. Dept. of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983); Wash & Dry Vending Co. v. State Dept. of Business Regulation, 429 So.2d 790 (Fla. 3d DCA 1983).

    
    

14. Applying the foregoing authorities to the facts in this case, it is clear (and I have so found in the findings of fact) that the Petitioner lacked good moral at the time of the denial of his prior application and as recently as March of 1988. A prior lack of good moral character is not a permanent bar to licensure in a profession that requires good moral character and an applicant who has in the past demonstrated a lack of good moral character is entitled to an opportunity to prove his rehabilitation. See Aquino v. Dept. of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983); Karl v. Florida Real Estate Commission, 229 So.2d 610 (Fla. 3d DCA 1969). Proof of rehabilitation and present good moral character is usually presented in the form of testimony from people who know the applicant and are familiar with his actions and reputation in the community. See, generally Konigsberg v. State Bar of California, 353

    U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Wash & Dry Vending Co. v. State Dept. of Business Regulation, 429 So.2d 790 (Fla. 3d DCA 1983). The mere passage of time is not evidence of rehabilitation. The Florida Bar v. Jahn, 559 So.2d 1089 (Fla. 1990).

    
    

15. The evidence in this case is insufficient to demonstrate that the Petitioner has become rehabilitated and is now a person of good moral character. While the evidence shows that during the past three years the Petitioner has applied himself with industry to supporting his family and increasing his education, there is a dearth of evidence about the Petitioner's character during that period. The Petitioner did not call any witnesses to testify about his present character, and even his own testimony contains very little information about the present state of his moral character.

    
    

16. Because the Petitioner bears the burden of proving his present good moral character and because the proof is insufficient, his application must be denied. Respondent argues that the denial should be permanent, citing Section 231.262(6)(a), Florida Statutes. Although the statute authorizes a permanent denial, it appears from Karl v. Florida Real Estate Commission, 229 So.2d 610 (Fla. 3d DCA 1969), and from the cases cited therein, that a denial of an application for professional licensure should seldom, if ever, be a permanent denial.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case denying the Petitioner's application for a Florida teaching certificate because of the failure of the Petitioner to establish his rehabilitation and present good moral character, such denial to be without prejudice to the refiling of a future application at such time as the Petitioner believes he can prove his rehabilitation and good moral character.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1991.

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 31st day of July 1991.

ENDNOTE

1/ The facts set forth in the January 27, 1987, Notice of Reasons are essentially undisputed. Although initially contested, the Petitioner unltimately voluntarily dismissed his request for hearing on the denial of his earlier application. At the hearing in the instant case, by agreement of the parties official recognition was taken of the September 3, 1987, Final Order and the attachments thereto. The attachments include the January 27, 1987, Notice of Reasons, which reasons are incorporated into the September 3, 1987, Final Order.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1769

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

The Petitioner's post-hearing submission consists primarily of argument, and it does not contain any separately stated proposed findings of fact or conclusions of law. The few factual assertions incorporated in the Petitioner's post-hearing arguments primarily concern irrelevant, procedural, or subordinate details. For the foregoing reasons, as well as because of the late filing of the document, I have not attempted to specifically rule on each statement in the Petitioner's post-hearing submission that might arguably be characterized as a proposed finding of fact, although some of the findings of fact herein may be consistent with some of the factual assertions in the Petitioner's post-hearing submission.

Proposed findings submitted by Respondent:

The substance of all proposed findings of fact submitted by the Respondent has been accepted, but much of the editorial material has been omitted as unnecessary.

COPIES FURNISHED:

Mr. Scott William Katz 3923 Lake Worth Road, #105 Lake Worth, Florida 33461

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Mr. George A. Bowen Acting Executive Director

Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Service

352 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: 91-001769

Orders for Case No: 91-001769