STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

v. ) CASE NO. 93-2946

)

ELIZABETH NIEBRUGGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 8, 1993, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Gregory A. Chaires

Attorney at Law Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: David A. Hertz, Attorney at Law

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

The issue is whether the teaching certificate of Respondent, Elizabeth Niebrugge, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The parties entered into a Prehearing Stipulation, which Respondent adopted at the hearing. The facts stipulated therein are incorporated in this Recommended Order.

The Petitioner, Betty Castor as Commissioner of Education, presented the testimony of Raymond Bailey. Petitioner's Exhibits 1-6 were admitted in evidence.

The Respondent presented no testimony and had one exhibit admitted in evidence.

The transcript of the proceedings was filed on July 23, 1993. The parties timely filed their proposed findings of fact and conclusions of law on or before August 23, 1993. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Respondent currently holds Florida teaching certificate No. 371889 for the areas of special learning disabled, emotionally handicapped, and emotionally disturbed students. That teaching certificate is valid through June 30, 1994.

   
   

2. On or about June 1, 1984, Respondent submitted an application for an extension of her teaching certificate. In that application, Respondent acknowledged a 1982 arrest and charge of disorderly intoxication that was nolle prossed; a 1983 arrest and charge for driving under the influence that was nolle prossed; and a 1983 arrest and charge for resisting arrest in which adjudication was withheld.

   
   

3. The Professional Practices Service (PPS) investigated that application and closed its investigation in October, 1984.

   
   

4. PPS opened a new investigation on December 11, 1984, and discovered that Respondent also had a 1982 arrest, charge and conviction for driving under the influence; a 1983 arrest and charge of harboring a felon that was nolle prossed; and a 1985 arrest, charge and conviction for having an unlawful blood/alcohol level.

   
   

5. On December 9, 1985, the Petitioner found no probable cause to take action on Respondent's teaching certificate and that investigation was closed.

   
   

6. On October 10, 1987, in Duval County, Florida, Respondent was arrested and charged with leaving the scene of an accident with damage and careless driving. The Respondent pled nolo contendere to leaving the scene of an accident with damage and adjudication was withheld.

   
   

7. On or about June 30, 1988, the Respondent submitted an application for extension of her Florida teaching certificate. Section IV of the application asked in part "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation . . . ?" Respondent answered "Yes" and stated that details were "on file." Respondent did not provide any details about the 1987 plea of nolo contendere and withholding of adjudication on the charge of leaving the scene of an accident with damage.

   
   

8. On or about July 10, 1990, Respondent again filed an application for renewal of her teaching certificate. Section V of that application asked in part "Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest) even if adjudication was withheld?" Respondent again answered "Yes" and stated that the details were "on file." Again Respondent provided no details about the 1987 charge and plea.

   
   

9. Respondent was arrested on October 10, 1990, in Duval County, Florida, for driving under the influence. On April 9, 1991, Respondent entered a plea of nolo contendere and was adjudicated guilty. She was placed on four month's probation and her driver's license was revoked for six months.

10. On April 16, 1992, in Duval County, Florida, was again arrested for driving while intoxicated. On June 10, 1992, Respondent entered a plea of nolo contendere to the charge of driving while intoxicated. She was adjudicated guilty, placed on probation and fined. Her driver's license was revoked for ten years.

    
    

11. Respondent filed another application to have her teaching certificate renewed on April 24, 1992. That application asked "have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation; or are there any criminal charges now pending against you?" Respondent again answered "Yes" and stated that details were "on file." Respondent did not disclose the 1987 charges, the October 10, 1990 charge and conviction for driving under the influence of alcohol, or the April 16, 1992 charges for driving while intoxicated which were still pending. Respondent attested under oath that "all information pertaining to this application is true, correct, and complete."

    
    

12. On July 12, 1992, in Duval County, Florida, Respondent was arrested for driving while her driver's license was revoked and careless driving. She entered a plea of nolo contendere on August 31, 1992, and was fined.

    
    

13. As a result of the Administrative Complaint filed in this case, on April 23, 1993, the Duval County School Board removed Respondent from her classroom and reassigned her to a non-teaching position. The reassignment occurred even though Respondent had been rated as a satisfactory teacher in February 1993. No evidence was offered to suggest that Respondent's legal difficulties had ever negatively impacted on her performance as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

15. Petitioner charged Respondent with violating Sections 231.28(1)(a), (c), (e), and (h), and Section 231.28(2), Florida Statutes, and Rules 6B- 1.006(5)(a) and (g), Florida Administrative Code. Section 231.28(1) authorizes revocation or other discipline of a teaching certificate when it is shown that the licensee:

    
    

    1. Obtained the teaching certificate by fraudulent means;

       * * *

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

       * * *

       (e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       * * *

       (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.

       Section 231.28(2) provides:

       (2) The plea of guilty in any court [or] the decision of guilty by any court . . . shall

       be prima facie proof of grounds for revocation of the certificate as listed in subsection

       (1) . . . .

       
       

       Rule 6B-1.006(5) provides:

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

          1. Shall maintain honesty in all professional dealings;

       * * *

       (g) Shall not submit fraudulent information on any document in connection with professional activities.

       
       

16. Petitioner has the burden of proof in this proceeding and that burden must be carried by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. To carry its burden of proof as to the alleged violation of Section 231.28(1)(a) and Rule 6B-1.006(5)(g), Petitioner must prove fraud, which in turn requires proof of specific intent. Specific intent can never be proven by inference or presumption, but must be affirmatively shown by competent evidence. In this case Petitioner offered not one scintilla of proof as to Respondent's fraudulent intent. The charges in Counts One and Seven must be dismissed.

    
    

18. Petitioner has not proven by clear and convincing evidence that Respondent is guilty of gross immorality or an act involving moral turpitude. While "gross immorality" is not defined in statute or rule, Rule 6B-4.009(2), Florida Administrative Code, defines "immorality" as:

    
    

    . . . conduct that is inconsistent with the standards of public conscience and good 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.

    
    

19. Rule 6B-4.009(6) defines "moral turpitude" 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 Florida Supreme Court defined "moral turpitude" as:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated."

    
    

    Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

    
    

20. Petitioner argues that "Respondent's pattern of criminal conduct over the past ten years" is proof of gross immorality. That argument is rejected. The offenses which occurred in 1982, 1983 and 1985 were known to Petitioner when it closed its investigation with a finding of no probable cause in December 1985. Those offenses cannot now be raised again as a basis for this action against Respondent's teaching certificate. See Department of Education, Education Practices Commission v. David M. Hernandez, EPC Case No. 89-077, DOAH Case No. 89-3662.

    
    

21. The offense of leaving the scene of an accident involving damage is a traffic offense, but not one which is minor or subject only to civil penalties. Sections 316.061 and 318.17, Florida Statutes. It is clearly not an offense involving gross immorality or an act of moral turpitude.

    
    

22. The 1990 and 1992 offenses for driving while intoxicated or under the influence of alcohol are the only two offenses which arguably involve moral turpitude or immorality. While the abuse of marijuana and other controlled substances have been held by the courts to constitute moral turpitude, the abuse of alcohol has not. This case however involves not only an obvious history of alcohol abuse, but two actual criminal convictions from driving under the influence of alcohol. Affliction by the disease of alcoholism is not a fortiori immorality or moral turpitude, but conviction on more than one occasion of driving while intoxicated constitutes "conduct that is inconsistent with the standards of public conscience" and thus immorality. Rule 6B-4.009(2).

    
    

23. Whether this immorality is "gross" is the next question. According to Webster's Ninth New Collegiate Dictionary, "gross" means "immediately obvious .

    . . glaringly noticeable usu. because of inexcusable badness or objectionableness . . . out-and-out, utter." That Respondent's DWI convictions are inconsistent with the standards of public conscience is "immediately obvious." Hence, Respondent is guilty of gross immorality for the two convictions for driving under the influence of alcohol.

    
    

24. Additionally, Respondent has been convicted of two misdemeanors for driving under the influence of alcohol and one other criminal charge for driving with a revoked driver's license. These offenses clearly fall under Section 231.28(1)(e) and Respondent is guilty of violating that section.

    
    

25. Finally, Petitioner has proven by clear and convincing evidence that Respondent has violated Rule 6B-1.006(5)(a) by failing to maintain honesty in all professional dealings. The application which she filed on April 24, 1992, was dishonest in that Respondent failed to disclose the details of her conviction for driving under the influence (the October 10, 1990 arrest) and her

arrest on April 16, 1992, for driving while intoxicated. Respondent knew or clearly should have known that the details of these two events could not be on file with the Department. Despite that knowledge, Respondent was not honest in her answer that the information was on file or in her attestation that all information in the application was "true, correct and complete." Hence Respondent is guilty of violating Section 231.28(1)(h) by violating Rule 6B- 1.006(5)(a).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order and

therein:

1. Suspend the teaching certificate of Elizabeth Niebrugge for a period of one year.

   
   

2. Following the suspension, place Respondent's teaching certificate on probation for three years, subject to the following conditions:

   
   

   1. evaluation and treatment as recommended by a licensed alcohol abuse counselor;

   2. random urinalysis for alcohol and drugs;

   3. quarterly reports to the EPC from Respondent's immediate supervisor regarding her performance and compliance with the other terms of the probation; and

   4. compliance with all laws and rules, including those of the school district andV the State Board of Education.

      
      

3. Dismiss Counts One and Seven for lack of proof.

DONE and ENTERED this 17th day of September, 1993, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2946

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

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Betty Castor

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3 & 4(2); 5-8(3-6); 10-12(8- 10); 13(12); and 14(11).

2. Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 15-19 are irrelevant.

4. Proposed finding of fact 9 is unsupported by the competent, substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Elizabeth Niebrugge

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 8(13).

2. Proposed findings of fact 2-4, 6, 7, 9, and 14 are subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 10-13 are irrelevant.

4. Proposed finding of fact 5 is unsupported by the competent, substantial evidence.

COPIES FURNISHED:

Gregory A. Chaires Attorney at Law

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

David A. Hertz Attorney at Law

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Karen Barr Wilde, Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

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.

================================================================= AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 93-023-RT

vs. DOAH CASE NO. 93-2946

EPC INDEX NO. 93-165-FOF

ELIZABETH NIEBRUGGE,

Respondent.

/

FINAL ORDER

Respondent, ELIZABETH NIEBRUGGE, hold Florida educator's certificate no.

371889. 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 issued by the Division Hearing Officer on September 17, 1993 was forwarded to the Commission pursuant to Section 120.57(i), F.S. (copy attached to and made a part of this Order.)

A panel of the Education practices Commission (EPC) met on October 29, 1993 in Panama City, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Attorney at Law, Esquire. Respondent was represented by David A. Hertz, Esquire. The panel reviewed the entire record in this case.

Respondent filed exceptions to the Recommended Order. Copies of those exceptions are attached to and incorporated by reference.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. Denied because the matters excepted are supported by competent substantial evidence.

   
   

2. Accepted because the hearing officer's Conclusion of Law number 22 is not supported by the facts.

   
   

3. Accepted because the hearing officer's Conclusion of Law number 23 is not supported by the facts.

   
   

4. Accepted because the hearing officer's Conclusion of Law number 25 is not supported by the facts.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1-13 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 14-21 and 24 in the hearing officer's Conclusions of Law as its Conclusions of Law.

The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S.

Based upon the foregoing findings of fact, Respondent is guilty of violating Section 231.28(1)(e), F.S., by having been convicted of a misdemeanor, a felony, or a criminal charge other than a minor traffic violation; Section 231.28(1)(h), F.S., by having violated Rule 6B-1.006(5)(a), F.A.C., in that Respondent failed to maintain honesty in all professional dealings; and 231.28(2), F.S., by having been found guilty of the aforestated violations which constitute prima facie grounds for revocation of a teaching certificate; for all of which the Commission may impose discipline pursuant to Sections 231.262(6) and 231.28, F.S.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Sections 231.28(1)(e) and (h) and 231.28(2), Florida Statutes.

It is further Ordered that Respondent be issued a letter of reprimand to become part of her personnel record and that she be placed on a two-year probation.

The terms of probation shall be that upon employment in a position requiring a Florida educator's certificate, Respondent shall:

1. Notify EPC immediately upon employment as an educator in any public or private school in the State of Florida.

   
   

2. Arrange for immediate supervisor to submit performance reports to the EPC at least every three months.

   
   

3. Submit true copies of all formal observation/evaluation forms within ten days of issuance.

4. Engage in counseling with a licensed psychologist, psychiatrist, or mental health counselor until discharged from treatment. A report of such discharge shall be filed with the EPC.

   
   

5. Submit to an evaluation by a licensed alcohol abuse counselor and undergo such treatment as may be recommended by the counselor.

   
   

6. Submit to random blood and urine testing, for the purpose of ascertaining compliance with conditions of probation, at the direction of the EPC or the employing school district and authorize direct reporting of results to both agencies.

All costs incurred in fulfilling terms of probation shall be borne by the Respondent. This order becomes effective 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 thirty days of the date of filing.

DONE AND ORDERED, this 17th day of November, 1993.

COPIES FURNISHED TO:

Jerry Moore, Program Director

Professional Practices Services Aaron Wallace Presiding Officer

Rivers Buford, Jr. Attorney General's Office

Barbara J. Staros General Counsel

Dr. Larry L. Zenke, Supt. Duval County Schools

1701 Prudential Dr.

Jacksonville, Florida 32207

Dr. Alvin White, Ast. Supt. Personnel Services

Duval County Schools Robert J. Boyd Attorney at Law

411 E. College Ave. Tallahassee, Florida 32301

Docket for Case No: 93-002946

Orders for Case No: 93-002946