STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7879

)

KENNETH K. LONG, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for hearing on July 13, 1992 in Bradenton, Florida before William R. Cave, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Margaret O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

For Respondent: Kenneth K. Long, pro se

5301 85th Avenue #202 New Carrolton, MD 20784

STATEMENT OF THE ISSUE

Whether Respondent's teaching certificate should be revoked, suspended or otherwise disciplined for the violation alleged in the Administrative Complaint filed by the Petitioner.

PRELIMINARY STATEMENT

This cause came began on July 24, 1991, when the Petitioner, Betty Castor, or Commissioner of Education, on behalf of the Education Practices Commission, filed an eleven-count Administrative Complaint against the Respondent, Kenneth

K. Long, attempting to revoke, suspend, or otherwise discipline the Respondent's teaching certificate. As grounds therefor, the Petitioner alleges that Respondent: (a) has been guilty of gross immorality or an act involving moral turpitude in violation of Section 231.28(1)(d), Florida Statutes; (b) has been convicted of criminal charges in violation of Section 231.28(1)(e), Florida Statutes; (c) has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board in violation of Section 231.28(1)(f), Florida Statutes; (d) by his conduct has violated the provision of law or rules of the State Board of Education in violation of Section 231.28(1)(h), Florida Statutes; (e) failed to make reasonable efforts to protect

students from conditions harmful to learning, health, or safety in violation of Rule 1.006(3)(a), Florida Administrative Code; (f) intentionally exposed students to unnecessary, embarrassment or disparagement in violation of Rule 1.006(3)(e), Florida Administrative Code; (g) exploited his professional relationship with students for personal gain or advantage in violation of Rule 1.006(3)(h), Florida Administrative Code; (h) failed to maintain honesty in his professional dealings in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; (i) submitted fraudulent documents in connection with his professional activities in violation of Rule 1.006(5)(g), Florida Administrative Code; and (j) made fraudulent statements and failed to disclose a material fact in his application for a professional position in violation of Rule 6B- 1.006(5)(h), Florida Administrative Code.

At the hearing, Petitioner presented the testimony of Patricia Lucas and Beverly O'Brien. Petitioner's exhibits 1 through 6 were received as evidence in this case. Respondent testified in his own behalf but did not present any other testimony or any documentary evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on July 27, 1992. A Proposed Recommended Order was timely filed by the Petitioner. Respondent has failed to file any posthearing Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by Petitioner has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent held a Florida teaching certificate, number 652475, covering the area of substitute teaching, which is valid through June 30, 1993.

   
   

2. At all times material to this proceeding, the Respondent was an authorized substitute teacher for the Pinellas and Manatee County School Districts. During the spring of 1990 Respondent was employed as a substitute teacher with the Manatee County School District and assigned as a teacher at Southeast High School.

   
   

3. Respondent was an authorized substitute teacher for the Pinellas County School District, but after certain allegations arose concerning improper conduct by Respondent toward a student Respondent was not called to substitute.

   
   

4. On May 3, 1989, the Respondent was arrested in Pinellas County and charged with soliciting a 14 year old child for sexual activity while in the position of custodial authority to the child. The child was a student in Respondent's class at Baypoint Middle School where Respondent was employed as a teacher by the Pinellas County School District.

   
   

5. On May 3, 1989, Respondent was also arrested and charged with unlawfully obtaining a Florida Driver's license.

   
   

6. In July 1989, the state attorney filed a two-count Information charging Respondent with procuring a person less than sixteen years for prostitution, and for soliciting for prostitution. Also, in July 1989, the state attorney filed an Information charging Respondent with knowingly making false statements, knowingly concealing a material fact, or otherwise committing fraud in an application for a Florida driver's license.

7. On April 8, 1990, the Respondent was arrested in Pinellas County and charged with driving with a suspended driver's license.

   
   

8. On April 27, 1990, the Respondent entered a plea of guilty to the charge of driving with a suspended license and was found guilty. The court withheld adjudication of guilt, and Respondent was ordered to pay $30.00 in costs.

   
   

9. On May 4, 1990, Respondent was arrested and charged with petit theft. On June 21, 1990, the state attorney filed an Information charging Respondent with knowingly and unlawfully obtaining or using or endeavoring to obtain to use the property of another, to wit: petit theft, a second degree misdemeanor.

   
   

10. On June 30, 1990, the Respondent entered a plea of guilty to the charge of petit theft. The court adjudged the Respondent's guilty and ordered him to pay a fine of $150.00 plus costs.

    
    

11. On May 14, 1991, the Respondent entered a plea of nolo contendere to the charges of procuring a person less than sixteen years for prostitution, soliciting for prostitution, and making a false application for driver's license. The Respondent was represented by the Public Defender's office. The court withheld adjudication of guilt and imposition of sentence. The Respondent was placed on three years probation which included one year in the Community Control Program. The Respondent did not attempt to refute the above charges at the hearing.

    
    

12. The Manatee County School Board became aware of Respondent's arrest in Pinellas County for solicitation of a minor and of certain alleged misconduct toward students at Southeast High School in Manatee County by the Respondent at the end of the 1989-90 school year. However, the Petitioner did not present

    any competent, substantial evidence of this alleged misconduct. The only evidence presented by the Petitioner was hearsay.

    
    

13. There was insufficient evidence to show that Respondent's effectiveness as an employee of the School Board of Manatee County had been seriously reduced as a result of his personal conduct, notwithstanding that the Manatee County School Board would not rehire Respondent as a result of his personal conduct coming to their attention or the fact that his arrest and criminal history was reported in the Bradenton Herald, a daily newspaper circulated generally in Manatee County and the City of Bradenton.

    
    

14. On September 4, 1990, in an attempt to secure employment with the District of Columbia Public Schools, Respondent signed a Disclosure Statement under penalty of perjury which included the following statement:

    
    

    I declare or affirm under penalty of perjury that I have not been convicted of, and or/am not the subject of pending charges for, the commission or attempt to commit any of the

    following offense(s), except as described below: murder; child abuse; rape; a sexual offense involving a minor or non-consenting adult;

    child pornography; kidnapping or abduction of a child; assault where the victim was a child under the age of sixteen years; illegal use, sale or distribution of controlled substances;

    illegal possession or use of weapons; or a crime

    of moral turpitude (i.e., one characterized by behavior or acts that violate moral sentiments accepted moral standards of the community and are of a morally culpable quality). I further certify that I am the applicant whose signature is affixed below.

    
    

15. Although the Disclosure Statement provides a place for the description of convictions or pending charges, the Respondent did not list the conviction for petit theft or the pending charges of procuring a person less than sixteen years for prostitution, solicitation for prostitution and making false application for a driver's license that were pending in Pinellas County or the charges pending at the time in Manatee County for solicitation of a child for sexual acts by a person in custodial authority and solicitation of sex.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 231.28(1), Florida Statutes, empowers the Education Practices Commission to revoke, suspend or otherwise discipline the teaching certificate of a teacher if the teacher is found guilty of any one of the enumerated acts listed in Section 231.28(1)(a) through (h), Florida Statutes.

    
    

18. The Respondent has been charged with violating Section 231.28(1)(c)(e)(f) and (h), Florida Statutes which provides as follows:

(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;

* * *

(h) 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.

1. Additionally, Respondent has been charged with violating Rule 6B- 1.006(3)(a)(e) and (h), and (5)(a)(g) and (h), Florida Administrative Code which provide as follows:

   
   

   1. Obligation to the student requires that the individual:

      1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

         * * *

         (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

         * * *

         (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

         * * *

         1. Obligation to the profession of education requires that the individual:

            1. Shall maintain honesty in all professional dealings.

         * * *

         1. Shall not submit fraudulent information on any document in connection with professional activities.

         2. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.

         
         

2. Section 231.28(2), Florida Statutes, provides as follows:

   
   

   (2) The plea of guilty in any court, the decision of guilty by any court . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificate holder that the plea of guilty, forfeiture of bond or admission of guilt was caused by threats, coercion, or fraudulent means.

   
   

3. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987). Petitioner has proven that Respondent violated Section 231.28(1)(c)(e) and (h), Florida Statutes, and Rule 6B-1.006(5)(a)(g) and (h), Florida Administrative Code, and has sustained its burden of proof as to Counts I, II, IV, V, IX, X and XI of the Administrative Complaint. Petitioner has failed to prove a violation of Section 231.28(1)(f), Florida Statutes and Rule 6B-1.006(3)(a)(e) and (h), Florida Administrative Code, and thereby failed to sustain its burden of proof as to Counts III, VI, VII and VIII of the Administrative Complaint.

RECOMMENDATION

Having considered the foregoing Findings of Facts and Conclusions of Law, it is, accordingly,

RECOMMENDED:

That a Final Order be entered finding Respondent, Kenneth K. Long guilty of violating Section 231.28(1)(c)(e) and (h), Florida Statutes and Rule 6B- 1.006(5)(a)(g) and (h), Florida Administrative Code, and for such violation permanently revoke Respondent's Florida teaching certificate No. 652475. It is

further recommended that Counts III, VI, VII and VIII of the Administrative Complaint be dismissed.

DONE and ENTERED this 27th day of August, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

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 27th day of August, 1992.

APPENDIX TO RECOMMENDED ORDER

In Case No. 92-7879

The following constitutes my specific ruling pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number is parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(5); 6(11); 7(7); 8(8); 9(9); 10(10); 11(12); 13(12); 14(13); 16(13); and 17-18(14).

   
   

2. Proposed findings of fact 12 and 15 are rejected as not being supported by competent, substantial evidence in the record.

   
   

3. Proposed finding of fact is more of an argument to support proposed finding of fact 18 than a proposed finding of fact.

Respondent did not file any proposed findings of fact with the Division of Administrative Hearings.

COPIES FURNISHED:

Margaret O'Sullivan, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Kenneth K. Long

5301 85th Avenue #202 New Carrolton, MD 20784

Karen Barr Wilde, Exec. Dir.

301 Fla. Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08 Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Fla. Education Center

325 W. Gaines Street Tallahassee, FL 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. 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.

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

AGENCY FINAL ORDER

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

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs. EPC CASE NO. 91-140-RT

DOAH CASE NO. 91-7879

KENNETH K. LONG, EPC INDEX NO. 92-055-FOF

Respondent.

/

Final Order

Respondent, KENNETH K. LONG, holds Florida educator's certificate no. 652475. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

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

A panel of the Education Practices Commission (EPC) met on October 2, 1992, in Tampa Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Esquire. Respondent was neither present nor represented by counsel. The panel reviewed the entire record in the case.

The panel accepted the exception filed by the Petitioner in that the finding of inefficient evidence of loss of effectiveness in paragraph 13 of the Recommended Findings of Fact is a conclusion of law and that the same conclusion in paragraph 5 of the Recommended Conclusions of Law is not supported by the Findings of Fact.

The panel adopts the Hearing Officer's Findings of Fact in the Recommended Order with the exception that paragraph 13 of the Findings of Fact is amended to read "The Manatee County School Board would not rehire Respondent as a result of his personal conduct coming to their attention or the fact that his arrest and criminal history was reported in the Bradenton Herald, a daily newspaper circulated generally in Manatee County and the City of Bradenton". The panel adopts the Conclusions of Law of the Recommended Order with the exception that paragraph 5 of the Conclusions of Law are amended to read: In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987).

Petitioner has proven that Respondent violated Section 231.28(1)(c)(e)(f) and (h), Florida Statutes, and Rule 6B-1.006(5)(a)(g) and (h), Florida Administrative Code, and has sustained its burden of proof as to Counts I, II, IV, V, IX, X and XI of the Administrative Complaint. Petitioner has failed to prove a violation of Rule 6B-1.006(3)(a)(e) and (h), Florida Administrative Code, and thereby failed to sustain its burden of proof as to Counts III, VI, VII AND VIII of the Administrative Complaint. Wherefore, the Respondent's Florida educator's certificate is hereby permanently revoked.

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 30th day of October, 1992.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services GREG DICK, Presiding Officer

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

BC vs. Kenneth K. Long was mailed to Sydney McKenzie, III Kenneth K. Long, 5301 85th Avenue, General Counsel #202, New Carrolton ,Maryland, 20784

this 6th of November 1992, Florida Admin. Law Reports by U. S. Mail

Gene Witt, Superintendent Manatee County Schools

215 Manatee Avenue Bradenton, Florida 34205 KAREN B. WILDE, Clerk

Walter Domalske

Director, Personnel Services Manatee County Schools

William C. Cave, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Margaret O'Sullivan, Esquire Department of Education 1701, The Capitol

Tallahassee, Florida 32399

Docket for Case No: 91-007879

Orders for Case No: 91-007879