STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as )
Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 92-4906
)
JANICE ANDERSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on December 8, 1992, in Lakeland, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Margaret E. O'Sullivan, Esquire
Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
For Respondent: No appearance
STATE OF THE ISSUES
Whether the Education Practices Commission should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Administrative Complaint filed by the Petitioner.
PRELIMINARY STATEMENT
On June 9, 1992, Betty Castor, as Commissioner of Education, on behalf of the Education Practices Commission (EPC), filed the Administrative Complaint against the Respondent, Janice Anderson, alleging that the Respondent had violated a provision of Section 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.
The Petitioner's complaint alleged that the Respondent had failed to follow the provisions of the probation imposed by the Education Practices Commission by failing to make restitution to the Broward Schools Credit Union, constituting a violation of law, and the rules of the State Board of Education. The penalty for such violation includes the revocation of the teaching certificate.
The Respondent filed an Election of Rights form which denied the allegations of the Administrative Complaint, and requested a formal hearing in connection with the charges. On August 27, 1992, the Respondent's attorney, Thomas Brooks, filed a Notice of Withdrawal of Counsel indicating that the Respondent should be served at the address of 1031 Carlton Arms Drive, Lakeland, Florida, 33811. All notices and motions have been sent to that address. To this date, the Respondent has not indicated any change in that address. Because it is the responsibility of the parties to advise the Division of any address changes, the notice of hearing and all other correspondence were properly mailed to the Respondent at that address. By not appearing at the formal hearing the Respondent has waived her right to present evidence.
At hearing the Petitioner presented sixteen exhibits which were admitted into evidence and the deposition testimony of two witnesses, Dr. Karen Wilde and Rebecca Parks. Both witnesses reside and work more than 100 miles from the hearing site. The record reflects that the Petitioner gave the Respondent reasonable notice of the taking of each deposition. Each deposition is therefore admissible as testimony under the provisions of Rule 1.330, Fla.
iv.P. The deposition testimony of Karen Wilde, with twelve exhibits attached, was filed with the Clerk of the Division of Administrative Hearings on December 15, 1992, and the deposition of Rebecca Parks was filed on February 8, 1993. A transcript of the formal hearing was not provided. Petitioner filed proposed findings of facts and conclusions of law on February 18, 1993.
Respondent did not file proposals. Specific rulings on the proposals are contained in the Appendix attached hereto.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:
The Respondent holds Florida teaching certificate number 339068, covering the area of elementary education which is valid through June 30, 1993.
The Respondent was employed as a teacher by the Broward County School Board through January 1983.
In June 1981, the Respondent misrepresented her credit and bankruptcy history, and submitted an erroneous Social Security number and birth date to the Broward Schools Credit Union.
After obtaining an account under false pretenses, the Respondent made application and received loans from the Credit Union. The Respondent also applied for and received a Master Card credit card from the Credit Union. The Respondent failed to make adequate payments on these obligations.
On February 1, 1983, a default final judgement was entered against the Respondent in the amount of $12,274.22 in the Broward County Circuit Court. The judgment resulted from her failure to honor the obligations of two promissory notes and a Master Card Agreement between the Respondent and the Credit Union.
On June 27, 1983, a final judgment as to unliquidated damages was entered against the Respondent in Broward County Circuit Court. The Court found that the Respondent intentionally misrepresented her credit status and other information to the Credit Union for the purposes of obtaining credit. The Court held:
The facts and circumstances reflect consistency in a scheme or artifice on the part of the defendant to prepare and publish to Plaintiff materially false written statements as to her creditworthiness with wrongful intent and for purposes of misleading Plaintiff Credit Union in the extension of monies and credit. Such actions were willful, wanton, and do outrage this Court by the clear reflection of an obvious disregard for any intent to repay the indebtedness reflected under the various credit transactions herein with Plaintiff Credit Union.
A punitive judgment award of $100,000 was entered against the Respondent.
On September 30, 1987, the Petitioner filed an Administrative Complaint against the Respondent. The complaint charged that the Respondent fraudulently obtained membership with the Broward Schools Credit Union and submitted false statements in order to obtain credit. The complaint further alleged that the Respondent issued a worthless check to a merchant. The September 1987 Administrative Complaint further alleged that the Respondent's conduct violated Section 231.28, Florida Statutes, and Rule 6B-1.006, F.A.C., in that she had been guilty of an act of moral turpitude; had been involved in conduct which seriously reduced her effectiveness as an employee of the school board; had failed to achieve the highest degree of ethical conduct; and had failed to maintain honesty in all professional dealings.
The Respondent received the complaint, but failed to file an Election of Rights form. The EPC declared the Respondent to be in default and heard the case on August 25, 1988. The EPC's Final Order of September 4, 1988, adopted the findings of fact and conclusions of law set forth in the complaint. The EPC revoked the Respondent's teaching certificate for one year and further ordered that the Respondent be placed on two years probation. The terms of probation required that the Respondent submit quarterly reports of her teaching performance, and that she make restitution to the Broward Schools Credit Union.
The Respondent subsequently filed a Motion to Vacate and set aside the Final Order, claiming that she did not receive the Administrative Complaint.
The EPC denied the Respondent's Motion to Set Aside. In its February 11, 1988 order, the EPC found that the Respondent had received the complaint as evidenced by her signature on the certified mail receipt.
The Education Practices Commission is authorized by law to take disciplinary action against a teaching certificate. The EPC is further authorized to impose probation upon a certificate holder and may report an individual for a violation of the Florida Administrative Code for failure to comply with probation.
Karen Wilde is the Executive Director of the Education Practices Commission. As part of her duties she administers the probationary terms imposed upon educators by the EPC.
In her position as administrator of the EPC, Dr. Wilde stated that the EPC's order required full restitution of the debt owed to the credit union within the period of probation.
Following the period of revocation, the Respondent became employed at Rochelle Elementary School in the Polk County School District in September 1989.
By letters dated November 1, 1989 and February 28, 1990, Dr. Wilde advised the Respondent that her probationary period would begin upon her employment date of September 12, 1989 and continue through September 12, 1991.
The letters further informed the Respondent that her conditions of probation required her to submit reports of her teaching performance, and make full restitution to the Broward Schools Credit Union.
The Respondent initially failed to submit her performance reports as required. The EPC reported the Respondent to Professional Practices Services for investigation of her noncompliance.
The Respondent subsequently complied with EPC's request and submitted her performance reports.
On April 17, 1991, Respondent was notified that she must submit written verification of restitution to the Broward Schools Credit Union. The letter informed the Respondent that her probation could not be terminated until all of the requirement of the probation had been satisfied.
On September 20, 1991, the Respondent was again notified that her probation requirements would not be completed until the Respondent submitted written verification of her full restitution to the Credit Union, and that failure to submit proof of restitution by October 12, 1991, would result in a report of her noncompliance being submitted to the Professional Practices Services.
The Respondent failed to submit any proof of restitution to the EPC by October 12, 1991. As of this date, Respondent has not submitted any evidence of her complete or partial payment of the obligation.
Between 1985 and 1991, the Respondent had no contact with the Credit Union nor did she attempt to make payments on the final judgment.
The Credit Union refused to accept Respondent's offer of payments which was made in 1991, because of the amount of the judgment.
The Respondent and the Credit Union eventually agreed to a payment plan. The Respondent made a down payment of $200.00 on December 10, 1991, and agreed to make monthly payments of $125.00. Since then, the Respondent has made payments of $125.00 in January, March, April, July, August, November, and December of 1992.
As of January 12, 1993, the Respondent has paid approximately $1,000 toward the $12,000 compensatory damage portion of the judgment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties pursuant to Section 120.57(1), Florida Statutes.
The Education Practices Commission is the final agency authority with regard to the imposition of discipline and penalties against a teacher's certificate, Sections 231.261, 231.262 and 231.28, Florida Statutes. Specifically, "[t]he panels of the (Education Practices) Commission shall have final agency authority in all cases involving the revocation and suspension of certificates of teachers and school administrators." Section 231.261(8)(b), Florida Statutes. See also, Section 120.52(1)(c), Florida Statutes.
The Petitioner has the burden of proof in this proceeding. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 231.28, Florida Statutes, provides in pertinent part:
The Education Practices Commission shall have 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); 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:
(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.
Rule 6B-1.006, F.A.C., provides in pertinent part:
(5) Obligation to the profession of education requires that the individual:
(o) Shall comply with the conditions of a Order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice.
The probationary terms imposed upon the Respondent by the Education Practices Commission are within the Commission's statutory authority under Section 231.262(6)(d).
The Petitioner has proven by clear and convincing evidence that the Respondent, Janice Anderson, has violated the rules of the State Board of Education in violation of Section 231.29(1)(h), Florida Statutes. More specifically, the Respondent failed to comply with the term of probation which required her to make full restitution to the Credit Union. This failure constitutes a violation of Rule 6B-1.006(5)(o), F.A.C. 1/
This proceeding resulted from the Respondent's serious failure to make restitution of the final judgment entered against her. Throughout the entire
period of probation, which began in 1989, the Respondent was reminded of her obligation to make full restitution to the Credit Union. From the record, it is clear that the Respondent made only a cursory effort to make restitution. The Respondent did not attempt to make a payment on this large judgment until after her two year period of probation had expired and she was told to submit proof of full restitution. Furthermore, her record of payment during 1992 was sporadic, with several months missed.
The Respondent was sanctioned by the EPC for her acts of fraud against her lending institution. The EPC's imposed penalty was both punitive and rehabilitative in its scope. The Respondent's certificate was revoked for a period of one year, but she was allowed to reenter the profession. That reentry was conditioned upon her good performance in the classroom and her repayment of the debt which resulted from her misconduct. The EPC required her to do no more than honor her original obligation which was set forth in the court-ordered judgment.
The restitution provision of the Respondent's probation was completely appropriate. In fact, restitution is a significant aspect of penalty imposed against the Respondent. It directly remediates her misconduct and emphasizes the importance of paying for her misdeeds.
The Respondent's reentry back into the classroom and her continued certification depended upon her compliance with the spirit of the EPC's penalty.
The evidence shows that the Respondent made no attempt to contact the Credit Union until the expiration of her probationary period. The Respondent has clearly not recognized that the EPC conditioned her return to teaching upon her proper restitution. This entire matter arose from a judgment issued in 1983. By 1991, the Respondent had eight years to pay her obligation. Her continued failure to do so demonstrates a complete disregard for the spirit of the EPC's order, which mandated restitution in order to retain her teaching certificate.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Janice Anderson, be found guilty of
violating Section 231.28(1)(h), Florida Statutes, and Rules 6B-1.006(5)(o),
F.A.C. It is further,
RECOMMENDED that the Education Practices Commission revoke the Respondent's teaching certificate for two (2) years. If at the end of the two year period the Respondent has made complete restitution of the compensatory damages portion of the final judgment to the Credit Union, she shall be eligible to reapply for certification. If the Respondent has not made complete restitution to the Credit Union, the period of revocation shall remain in effect until the restitution is complete. It is further,
RECOMMENDED that if and when recertified, the Respondent shall be placed on ten (10) years probation with the EPC under such terms as the Education Practices Commission deems appropriate.
DONE and ENTERED this 25th day of February, 1993, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
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 25th day of February, 1993.
ENDNOTE
1/ The Administrative Complaint charged the Respondent with a violation of Rule 6B-1.006(5)(n). However, a recent revision of the Florida Administrative Code has resulted in renumbering that rule. The new Rule 6B-1.006(5)(o) is identical to the original (5)(n).
APPENDIX
The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's proposed findings of fact.
Accepted in substance: paragraphs 1-22,24(in part),26 (in part),29,30 Rejected as hearsay: paragraphs 23,24(in part)26(in part),27,28 Respondent's proposed findings of fact.
Respondent did not submit proposed findings of fact.
COPIES FURNISHED
Staci A. Bienvenu, Esquire MEYER & BROOKS
P.O. Box 1547 Tallahassee, Florida 32303
Karen B. Wilde Executive Director
Education Practices Commission
The Florida Education Center Room 301 Tallahassee, Florida 32399
Margaret O'Sullivan, Esquire Department of Education
352 Florida Education Center
325 W. Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Ms. Janice Anderson 1031 Carlton Arms Drive Lakeland, Florida 33811
Ms. Janice Anderson 2302 Maki Road, W. Apartment #65
Plant City, Florida 33567
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.
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AGENCY FINAL ORDER
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BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education, Petitioner,
vs. EPC CASE NO.92-109-RT
DOAH CASE NO.92-4906
JANICE ANDERSON, EPC INDEX NO.93-055-FOF
Respondent.
/
Respondent, JANICE ANDERSON, holds Florida educator's certificate no. 339068. 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 May 6, 1993, in Tampa Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Attorney at Law. Respondent was neither present nor represented by counsel. The panel reviewed the entire record in the case.
The panel further determined that the penalty recommended by the Hearing Officer should be amended by reduction of the period to probation from ten to five years for reason that as recommended by the Hearing Officer (Recommended Order, page 11), Respondent will not be recertified until after her debt is paid and that is a sufficient penalty to cover her problem with a shorter term of probation to protect the public.
The panel adopts the Hearing Officer's Findings of Fact and Conclusions of Law in the Recommended Order. Wherefore, Respondent's Florida educator's certificate is hereby Revoked for two years with revocation to continue thereafter until the Respondent has made complete restitution of the compensatory damages portion of the final judgement to the credit union which was the subject of this case. Thereafter, Respondent may reapply for recertification as a Florida educator, but, upon recertification shall complete a term of five years probation during her employment as a Florida educator directly following her recertification. The terms of probation shall be that: upon employment in a position requiring a Florida educator's certificate, Respondent shall notify EPC immediately upon employment as an educator in any public or private school in the State of Florida; arrange for her immediate supervisor to submit performance reports to the EPC at least every three months; submit true copies of all formal observation/evaluation forms within ten days of issuance; engage in counseling on money management with a licensed psychologist, psychiatrist, or mental health counselor until discharged from treatment; all costs incurred in fulfilling terms of probation will be borne by the Respondent.
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 12th day of May, 1993.
LORETTA VACANTI, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of
BC vs. Janice Anderson was mailed to Janice Anderson, 2390 Bob Phillips Rd.,
Bartow Florida 33830, this 17th day of May 1993, by U.S. Mail.
KAREN B. WILDE, Clerk
COPIES FURNISHED TO:
Jerry Moore, Program Director Professional Practices Services
Daniel Bosanko, Esquire Attorney General's Office
Sydney McKenzie, III General Counsel
Florida Admin. Law Reports
Dr. John A. Stewart, Supt. Polk County Schools
1915 South Floral Avenue Bartow Florida 33830
Donald R. Cox, Asst. Supt. Personnel Services
Polk County Schools
Daniel M. Kilbride, 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
Randy M. Bennis, Esquire 800 Southeast 3rd Avenue Suite 300
Ft. Lauderdale, Florida 33316
Janice Anderson, Inmate #935505 Polk County Jail
455 N. Broadway Avenue
Bartow, FL 33830 - reg. and cert.
| Issue Date | Proceedings |
|---|---|
| May 21, 1993 | Final Order filed. |
| Feb. 25, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 12/8/92. |
| Feb. 18, 1993 | Petitioner`s Proposed Recommended Order filed. |
| Feb. 08, 1993 | Deposition of Rebecca Parks filed. |
| Jan. 11, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 07, 1993 | Letter to DMK from M. O`Sullivan (re: request for extension for deposition) filed. |
| Dec. 15, 1992 | Deposition of Dr. Karen Wilde filed. |
| Dec. 11, 1992 | CASE STATUS: Hearing Held. |
| Dec. 07, 1992 | (Petitioner) Motion to Submit Deposition as Testimony and for Extension of Time to Submit Depositions filed. |
| Dec. 03, 1992 | (Petitioner) Motion to Submit Deposition as Testimony and for Extension of Time to Submit Depositions filed. |
| Nov. 17, 1992 | Notice of Taking Deposition filed. (From Margaret E. O`Sullivan) |
| Sep. 24, 1992 | (Petitioner) Notice of Service of Interrogatories; Petitioner`s First Interrogatories to Respondent; Request for Production; Petitioner`s First Request for Admissions by Respondent filed. |
| Sep. 01, 1992 | Notice of Hearing sent out. (hearing set for 12-8-92; 1:00pm; Lakeland) |
| Aug. 28, 1992 | Notice of Withdrawal as Counsel filed. (From Thomas W. Brooks) |
| Aug. 24, 1992 | (Petitioner) Response to Initial Order filed. |
| Aug. 14, 1992 | Initial Order issued. |
| Aug. 11, 1992 | Agency referral letter; Respondent`s Answer to Petitioner`s Complaint; Administrative Complaint; Agency Action letter; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 12, 1993 | Agency Final Order | |
| Feb. 25, 1993 | Recommended Order | Respondent violated terms of probation; failure to make restitution; suspension. |
LOANWELL FINANCIAL CORPORATION vs DEPARTMENT OF FINANCIAL SERVICES, 92-004906 (1992)
EDUCATION PRACTICES COMMISSION vs. JAMES L. PARKER, 92-004906 (1992)
DEPARTMENT OF HEALTH, BOARD OF NURSING vs LINDA KAY KING-BLAKE, R.N., 92-004906 (1992)
FLORIDA ATLANTIC UNIVERSITY vs. JUNE JAMES, III, 92-004906 (1992)
