STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL QUIROGA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6529

)

BETTY CASTOR, as Commissioner of ) Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 30, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

For Respondent: Robert J. Boyd, Esquire

Bond & Boyd, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for a Florida Teacher's Certificate should be granted.

PRELIMINARY STATEMENT

On September 20, 1993, Respondent denied Petitioner's application for a teacher's certificate and issued a Notice of Reasons therefor. Petitioner timely requested a formal hearing regarding that denial, and this cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is 45 years of age and is employed by the Dade County Public Schools as a fourth-grade teacher, in the position of substitute teacher.

   
   

2. On March 28, 1983, Petitioner was arrested for solicitation of prostitution, a misdemeanor. The following morning Petitioner pled nolo contendere to that misdemeanor and paid a fine. Adjudication was withheld.

   
   

3. In 1990 Petitioner's attorney filed a Motion to Seal and Expunge Records in that case. On February 19, 1990, the County Judge entered an Order Expunging and Sealing Criminal Records, granting that Motion. That Order contains specific findings that Petitioner was never adjudicated guilty of the charge for which he was arrested, that Petitioner had not secured a prior records expunction or sealing, and that Petitioner had never previously been adjudicated guilty of a criminal offense or comparable violation. That Order provided for the expungement of Petitioner's criminal history records and restored him to the status occupied before his arrest. Lastly, that Order specifically provided that Petitioner could thereafter

   
   

   . . . lawfully deny or fail to acknowledge the events covered by the expunged or sealed records, except in the following circumstances:

   1. When the Defendant is a candidate for employment with a criminal justice agency;

   2. When the Defendant is a Defendant in a criminal prosecution;

   3. When the Defendant subsequently petitions for release under Florida Statute 943.058; or

   4. When the Defendant is a candidate for admission to the Florida Bar.

      
      

4. After that Order was entered, Petitioner's attorney told him the contents of that Order, told him to write down the four situations in which Petitioner would have to admit that he had been arrested, and advised Petitioner that other than those four situations, Petitioner was to proceed as though the arrest had never happened.

   
   

5. Effective July 1, 1992, the Legislature amended the statute regulating the sealing and expunging of criminal history records by specifying two additional situations in which a criminal history must be disclosed even though the record remained expunged. One of the two additional situations requires disclosure when the person whose criminal record has been expunged.

   
   

6. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local governmental entity which licenses child care facilities.

1. No one told Petitioner that the statute had been expanded to cover situations involving employment by a School Board and licensure by the Department of Education. In February of 1993 Petitioner was still unaware that the statute had been so amended.

   
   

2. In February of 1993 Petitioner completed and filed with the Department of Education his Application for Florida Educator's Certificate. That application form contained the following question:

   
   

   Have you ever been convicted, found guilty, or entered a plea of nolo contendere (no contest) to a crime other than a traffic violation? A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space.

   
   

   Petitioner answered "No" to that question.

   
   

3. In February of 1993 Petitioner completed and filed with the Dade County Public Schools his Application for Teaching Position. That application form contained the following question:

   
   

   4. Have you ever been convicted, fined, imprisoned, or placed on probation in a criminal proceeding? Include any and all offenses for which you have been convicted, not limited to those outlined in School Board Rule 6Gx13-4C-1.021 and including offenses for any type of drugs, including marijuana, and court-martial while in

   military service. (Include those convictions where the court records are sealed or expunged.)

   
   

   Petitioner answered "No" to that question.

   
   

4. At the time that Petitioner completed, swore to, and submitted both of those applications, Petitioner believed that he was legally entitled to deny his 1983 misdemeanor arrest except in the four situations enumerated in the Order Expunging and Sealing Criminal Records. Moreover, Petitioner believed that he, like all other persons and agencies, was actually under a court order not to disclose his arrest other than in those four situations.

   
   

5. At the time that Petitioner completed, swore to, and submitted those applications, he believed that he was providing legally correct information. Petitioner did not intend to provide incorrect, false, or fraudulent information when he answered the questions pertaining to his criminal record in the negative.

   
   

6. Other than the 1983 misdemeanor arrest, Petitioner has never been arrested for any criminal activity.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

8. Section 231.17(5)(a), Florida Statutes, authorizes the Department of Education to deny an application for a teacher's certificate if the Department has evidence that the applicant has committed an act or that a situation exists for which the Education Practices Commission is authorized to revoke a teaching certificate. Sections 231.262 and 231.28, Florida Statutes, authorize the Education Practices Commission to revoke a teaching certificate for violations of Section 231.28, including violations of Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida.

   
   

9. The Notice of Reasons alleges, specifically, that Petitioner has violated Section 231.17(1)(e), 231.28(1)(c), and 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), (h), and (i), Florida Administrative Code, in that Petitioner is guilty of gross immorality or an act involving moral turpitude, failed to maintain honesty in his professional dealings, submitted fraudulent information on documents in connection with professional activities, failed to disclose material facts in his application for a professional position, and has thereby violated the provisions of law or rules of the State Board of Education, the penalty for which is revocation of a teaching certificate. Respondent argues that Petitioner committed fraud by falsely answering the questions regarding his criminal history on the application for a teaching certificate and on the application for employment in that he failed to disclose his expunged criminal history record.

   
   

10. The evidence is uncontroverted that until a few months prior to Petitioner filing those applications, he was lawfully entitled to deny that he had been arrested. The evidence is uncontroverted that Petitioner was not advised that Section 943.058, Florida Statutes, was amended effective July 1, 1992, to require the disclosure of an expunged record when applying for a Florida teaching certificate or for employment with a School Board. There is no suggestion in this record that Petitioner in fact knew that the law changed, as there is no suggestion in this record that Petitioner knowingly withheld information he was required to disclose. Further, there is no evidence in this record that Petitioner was guilty of the misdemeanor to which he pled nolo contendere, and there is no evidence in this record that Petitioner's applications would have been denied if he had disclosed his arrest.

    
    

11. The question on the Dade County Public Schools application form which seeks to elicit information regarding an applicant's criminal history is not artfully drafted. As drafted, Petitioner's answer was correct, both before and after the amendment of the expunged records statute. That question asks if the applicant has been convicted, fined, imprisoned, or placed on probation in a criminal proceeding but then tells the applicant to disclose convictions including those convictions where court records have been sealed or expunged. Petitioner has no conviction in his criminal history; rather, he has an arrest in his criminal history. Although the School Board would have been entitled to ask Petitioner to disclose his arrest, it only asked Petitioner to disclose any convictions. Since Petitioner's answer to that question was not even in error, it cannot be seriously contended that his answer was false or fraudulent.

12. The question as phrased on the Department's application is more understandable. That question does ask for disclosure of a plea of nolo contendere. The question then advises that the applicant is required to answer that question by Florida law. That question does not advise, however, that the applicant is required to answer that question affirmatively even if the applicant's criminal record has been sealed or expunged (information which Dade County Public Schools did attempt to give to applicants). The question, as phrased, would not necessarily lead a reasonable person with a record which had been sealed, expunged, and prohibited by court order from being disclosed to know that such record must be disclosed to the Department simply because the Department's application form tells the applicant that the law requires a "Yes or No" answer. Respondent argues that Petitioner could have easily contacted Respondent to ask if sealed records also had to be disclosed. It is apparent that Respondent could have as easily advised applicants that even records which had been sealed or expunged needed to be disclosed due to a change in Florida Law.

    
    

13. As to the specific statutory and rule violations alleged in the Notice of Reasons, Petitioner has violated none. The Notice of Reasons relies on Section 231.17(1)(e), Florida Statutes, which requires that an applicant be of good moral character. No authority has been cited, and none has been found, for the proposition that ignorance of a law prevents one from having good moral character. Section 231.28(1)(h), Florida Statutes, concerns delinquent child support obligations, and it is assumed that Respondent intended to allege a violation of Section 231.28(1)(i), Florida Statutes, which prohibits violating provisions of law or rules of the State Board of Education.

    
    

14. The only other law alleged is Section 231.28(1)(c), Florida Statutes, which prohibits gross immorality or an act involving moral turpitude. Those terms are defined in Rule 6B-4.009, Florida Administrative Code, as follows:

    
    

    (2) Immorality is defined 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.

    * * *

    (6) Moral turpitude is 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.

    
    

15. It cannot be concluded that Petitioner's reliance on the court order specifying situations requiring disclosure, coupled with his lack of knowledge that the statute had just been amended to require disclosure in additional situations, constitutes conduct offensive to the public conscience which was sufficiently notorious to bring Petitioner and the education profession into public disgrace. Similarly, since there is no evidence that Petitioner actually committed the misdemeanor for which he was arrested, it cannot be concluded that

    he committed a crime of vileness or depravity. Accordingly, Section 231.28(1)(c), Florida Statutes, offers no barrier to granting Petitioner a teaching certificate.

    
    

16. Rule 6B-1.006(5)(a), Florida Administrative Code, requires that a teacher maintain honesty in all professional dealings. Petitioner answered the questions on the applications honestly in accordance with his understanding of the law. Rule 6B-1.006(5)(h) forbids submitting fraudulent information on any document in connection with professional activities. It has been found that Petitioner did not intend to submit erroneous information, and no evidence was offered that Petitioner intended to submit either false or fraudulent information. Likewise, Rule 6B-1.006(5)(i) prohibits making a fraudulent statement or failing to disclose a material fact in an application for a professional position. No evidence was offered that an arrest for a misdemeanor ten years earlier would have been a material fact in either the application filed with Dade County Public Schools or the application filed with the Department. Accordingly, Petitioner has not violated the provisions of any rule of the State Board of Education, the penalty for which is revocation of a teaching certificate, as set forth by Section 231.28(1)(i), Florida Statutes.

    
    

17. None of the statutes and rules cited in the Notice of Reasons applies to a situation where someone makes a mistake in answering a question on an application for employment or on an application for a teacher's certificate.

    The facts of this case clearly show that Petitioner made a mistake in not disclosing his arrest for the reason that he was unaware that he was required to do so, being aware instead that disclosure was required in only the four situations set forth in the order expunging his record, none of which applied to an application for a teaching position or for a teacher's certificate.

    
    

18. It has been well settled that the burden of proof is on the applicant to prove entitlement to licensure by a preponderance of the evidence. Under that burden of proof, Petitioner has shown that he is of good moral character and has not violated any of the statutes and rules set forth in the Notice of Reasons. However, in Osborne Stern & Co., Inc. v. Dept. of Banking and Finance,

19 FLW D 882 (Fla. 1st DCA 1994), the Court ruled that when an application for licensure is denied for acts which would have constituted grounds for revocation of licensure, the burden is on the agency to prove by clear and convincing evidence that those grounds for revocation exist. In the case at bar, Respondent's Notice of Reasons alleges that Petitioner is not entitled to licensure because he is guilty of acts or that a situation exists for which the Education Practices Commission is authorized to revoke a teaching certificate. Utilizing the new burden of proof, Respondent has failed to prove that Petitioner has violated any of the statutes or rules alleged in the Notice of Reasons.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application

for issuance of a Florida Teacher's Certificate.

DONE and ENTERED this 3rd day of June, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

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 3rd day of June, 1994.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6529

1. Petitioner's proposed findings of fact numbered 1-3 and 5-11 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 4 has been rejected as not constituting a finding of fact.

3. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One

2929 Southwest Third Avenue Miami, Florida 33129

Robert J. Boyd, Esquire Bond & Boyd, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

Karen B. Wilde, Executive Director Education Practices Commission

The Florida Education Center

325 West Gaines Street, Room 301 Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Barbara J. Staros Department of Education General Counsel

The Capitol, PL-08

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.

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AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

MANUEL QUIROGA,

Petitioner,

vs. DOAH NO. 93-6529

CASE NO. 93-199-D

DOUG JAMERSON, as EPC INDEX NO. 94-146-FOF

Commissioner of Education,

Respondent.

/

FINAL ORDER

Petitioner, MANUEL QUIROGA, applied for a Florida teacher's certificate and that application was denied. Respondent has filed a Notice of Reasons stating the reasons for denial of the certificate.

Petitioner 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 June 3, 1994 was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on August 9, 1994 in Tampa, Florida, to take final agency action. Petitioner was represented by William Du Fresne, Attorney at Law. Respondent was represented by Robert J. Boyd, Attorney at Law. The panel reviewed the entire record in this case.

Neither Petitioner nor Respondent filed exceptions to the Recommended Order.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 11 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 12-23 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.

DISPOSITION

The Commission accepts the recommendation of the hearing officer and it is ORDERED that Petitioner's application for a teaching certificate be

granted.

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 29th day of August, 1994.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services Diane Porter, Presiding

Officer

Rivers Buford, Jr. I HEREBY CERTIFY that a copy Attorney General's Office of the foregoing Order in

the matter of Manuel Quiroga vs. Jamerson, was mailed to

Barbara J. Staros Wm. DuFresne, Esquire,

General Counsel 2929 SW Third Ave., Suite One, Miami, Florida 33129, this 31st day of August, 1994, by U.S. Mail.

Florida Admin. Law Reports

Ida Whipple, Exec. Dir.

Professional Standards KAREN B. WILDE, Clerk Dade County Schools

1444 Biscayne Blvd., Suite 215

Miami, Florida 33132

Dr. Patrick Gray, Asst. Supt. Office of Professional

Standards

Dade County Schools

Robert J. Boyd Attorney at Law

2121 Killearney Way Suite G Tallahassee, Florida 32308

Docket for Case No: 93-006529

Orders for Case No: 93-006529