STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7082

)

ROBERT HURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing by split mode telephonic conference call on August 17, 1994. Petitioner's attorney was in Tallahassee, Florida. The hearing officer, court reporter, Respondent, Respondent's counsel and Respondent's witnesses were in Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Albert S.C. Millar, Jr., Esquire

918 Lucerne Terrace

Orlando, Florida 32802 STATEMENT OF THE ISSUE

Whether or not Respondent is guilty of violating Section 231.28(1)(c) F.S. (gross immorality or an act involving moral turpitude) and Section 231.28(1)(e)

F.S. (conviction of a misdemeanor, felony or any other criminal charge, other than a minor traffic violation) and is therefore subject to Section 231. 28(2)

F.S. relating to prima facie proof of grounds for revocation of his teaching certificate.

PRELIMINARY STATEMENT

Petitioner presented no oral testimony and had 5 exhibits admitted in evidence. Petitioner was granted 10 days from date of formal hearing in which to file a new Petitioner's Exhibit 7, which filing was not accomplished timely. Petitioner's original Exhibits 3 and 7 were withdrawn. 1/

Respondent presented the oral testimony of Mark S. Kager, Albert G. Day, William D. Tackett, Angela Hornbeck, and Honey Tibbett and testified on his own behalf. He had one composite exhibit admitted in evidence.

A transcript was filed on September 2, 1994 and proposed recommended orders were filed by each party on October 3, 1994. All proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The Respondent, Robert Hurner, currently holds Florida teaching certificate 447579, covering the area of Mental Retardation, from the Florida Department of Education (DOE).

   
   

2. At all times material, the Respondent was licensed by DOE and employed as an ESE teacher at Paxson Junior High School, in the Duval County School District.

   
   

3. On October 31, 1988, the Respondent was cleared to be issued a teaching certificate by Professional Practices Services after he acknowledged a 1984 conviction for driving under the influence of alcohol.

   
   

4. On January 7, 1990, the Respondent was arrested and charged with driving while under the influence of alcohol.

   
   

5. On March 19, 1990, the Respondent pled nolo contendere to the charge of driving while under the influence of alcohol and was adjudicated guilty by the court.

   
   

6. On March 19, 1990, the court sentenced the Respondent to three months' probation and ordered him to pay $926.50 in court costs and fines. In addition, the Respondent's driver's license was revoked for five years, and he was referred to the North Florida Safety Council.

   
   

7. On June 15, 1993, the Respondent applied for a renewal of his teaching certificate. On his application, the Respondent acknowledged his 1990 conviction for driving while under the influence of alcohol.

   
   

8. Respondent has been a respected teacher with good evaluations from the Duval County School Board for seventeen years, despite his alcohol-related convictions.

   
   

9. Neither of the arrests nor the underlying behaviors associated therewith occurred during school hours or in relation to any school sponsored events. No bodily harm or property damage was shown to be incident thereto. Respondent made no effort to hide his convictions from Petitioner agency and unrefuted testimony shows that his job performance and teaching reputation have not been affected thereby.

   
   

10. The second event in 1990 occurred when Respondent was at a very low emotional ebb in his personal life. His mother was terminally ill.

    
    

11. The North Florida Safety Council, in conjunction with the court and the Department of Highway Safety and Motor Vehicles, referred the Respondent to the Chemical Dependency Counselling Clinic. He successfully completed the requirements of all referring agencies.

12. Although not required to do so, Respondent voluntarily increased his rehabilitation program with the Clinic to a full twelve weeks: five weeks awareness education and seven weeks of group and individual therapy. He did not use his personal problems as an excuse to fail, but was enthusiastic and made up any sessions he missed due to reasonable excused absences.

    
    

13. On August 17, 1993, Respondent was discharged with such a good prognosis that no treatment recommendations were made by any of his three counsellors. Currently, he is diagnosed as "an alcoholic in recovery working on a lifestyle change."

    
    

14. One of his former counsellors with the Chemical Dependency Counselling Clinic, Ms. Tibbett, testified on Respondent's behalf. She was trained by the

    U.S. Navy in the identification, treatment, prevention, and rehabilitation of drug and alcohol addiction. She has worked 16 years in the field and was certified by the Department of Highway Safety and Motor Vehicles in 1985 and as a Certified Addiction Associate Professional (CAAP) by the Department of Professional Regulation in 1989. She currently is completing the successor agency's requirements for the higher ranking Certified Addiction Professional (CAP) certification. She now teaches other addictionologists and drug/alcohol treatment personnel in both the public and private sectors in addition to her own clinical work. She volunteers to the Duval County School Board on occasion. As evidence of Respondent's dedication to his recovery as well as of his recovery itself, Ms. Tibbett pointed to Respondent's record of never failing a random alcohol test while he was in the Chemical Dependency Counselling Clinic program, even on a holiday Saturday morning at 6:00 a.m. and even after his mother died after a long illness in May, 1993. Ms. Tibbett believes Respondent's sobriety record on those occasions is good reason to believe he will never relapse into alcoholism. She opined that he is no risk to the public in general nor specifically to any school children in his care. She further testified that she gladly would have her own seventeen year old son taught by him. Although she explained that no alcoholic is ever "cured," in her opinion Respondent is rehabilitated. Her well-reasoned professional opinion is accepted.

    
    

15. Upon the unrefuted testimony of Respondent; of Mark S. Kager, a colleague and professional teacher for fifteen years; of Albert George Day, Respondent's housemate; of William Dale Tackett, a colleague and another professional teacher for seventeen years; and of Angela Hornbeck, Respondent's steady girlfriend for four years; it is found that Respondent voluntarily has imbibed no alcoholic beverages since April 2, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. The duty to go forward herein is upon Petitioner and Petitioner bears the burden of proof to establish the elements of the charged offenses by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Respondent is charged under Section 231.28 F.S. as follows:

    
    

    1. 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:

       (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.

       
       

    2. The plea of guilty in any court, the decision of guilty by any court, the forfeiture by the teaching certificate holder of a bond in any court

       of law, or the written acknowledgment, duly witnessed, of offenses listed in subsection (1) to the superintendent or a duly appointed representative

       or to the school board 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. (Emphasis supplied).

       
       

19. Due to the seriousness of a conviction for driving under the influence of alcohol and the potential for harm when one drives intoxicated, Respondent's two convictions are clearly very serious and not "minor" in the purely ethical sense, but at least the 1990 conviction also constitutes conviction of a "criminal charge other than a minor traffic violation." That is, Respondent was convicted in 1990 pursuant to Section 316.193(1) F.S. That section falls under the "State Uniform Traffic Control" statutes. That section does not specify whether a first or second conviction without personal property damage and without child endangerment or death constitutes either a "felony" or "misdemeanor;" only fourth convictions are specifically designated "felonies" under Subsection 316.193(4) F.S. However, one should not be misled that Respondent's second conviction is therefore merely "a minor traffic violation." For a second conviction, the court may incarcerate the violator for up to nine months. See, Section 316.193(2)(a) 2.b. F.S. "Misdemeanors" also carry less than one year incarceration penalties. See, Section 775.08(2) F.S. What constitutes a "criminal charge" may be divined by resort to the Section 775.08(3) F.S. definition of "noncriminal violation" as "an offense punishable .

    . . by no other penalty than a fine, forfeiture, or other civil penalty." Accordingly, since Respondent could have been legally incarcerated for up to nine months for his 1990 conviction, it is concluded that Respondent was convicted in 1990 of a "criminal charge, other than a minor traffic violation," and he is therefore guilty as charged in the administrative compliant sub judice of a violation of Section 231.28(1)(e) F.S.

20. However, such convictions do not constitute acts of gross immorality or acts involving moral turpitude, under Subsection 231.28(1)(c) F.S., especially since the Respondent's plea in 1990 was one of nolo contendere. See, Williams v. Castor 613 So.2d 97 (Fla. 1st DCA 1993).

    
    

21. Assuming a conclusion of guilt as to both subsections, Petitioner seeks a penalty, citing Rules 6B-1.006(3)(a) and (e) F.A.C., whereby Respondent's teaching certificate would be suspended for 18 months, followed by

3 years of probation upon reemployment, and alcohol abuse counseling and random alcohol testing as directed by the Educational Practice Commission to be part of the requirements of probation. The rules cited by Petitioner do not provide for the requested sentencing guidelines and have no clear connection to this case. Likewise, only one offense has been proven.

21. The penalty requested would punish, but it would do nothing to rehabilitate; rehabilitation has already occurred, and punishment appears counterproductive under the circumstances. There is no evidence Respondent poses any threat to his students or anyone else. The penalty requested would not protect school children or increase Respondent's effectiveness as a teacher. It would have exactly the opposite effect by rendering more public than ever a period in Respondent's life which he overcame on his own, and it would financially cripple Respondent while depriving students of a qualified and effective professional teacher.

23. The single proven violation of Section 231.28(1)(e) F.S. renders Respondent subject to license revocation, but also to the disciplinary guidelines set forth in Rules 6B-11.007(2)(g) and (k), subject to consideration for mitigation as envisioned in Rule 6B-11.007(3) F.A.C. Upon consideration thereof, and recognizing that Petitioner agency has high stakes in ensuring the safety of Florida students, a one year probation with random drug and alcohol testing is a reasonable and sufficient penalty. Continued testing through Chemical Dependency Counselling Clinic at Respondent's expense should be considered so as to minimize publicity, maintain Respondent's obvious effectiveness as a teacher, not inconvenience his school district, and otherwise minimize costs to the Educational Practices Commission.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency enter a final order finding Respondent guilty

of violating Section 231.28(1)(e) F.S.; not guilty of violating Section 231.28(1)(c) F.S.; and ordering him to fulfill a one year probationary period including random drug and alcohol testing as prescribed by the Educational Practices Commission.

RECOMMENDED this 29th day of November, 1994, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 29th day of November, 1994.

ENDNOTE

1/ Petitioner initially had P-3 (a misdemeanor report) and P-7 (a driving record) marked for identification but withdrew them at TR pp. 21-22. Petitioner was permitted to refer to the Requests (and answers) to Admissions as P-7 throughout formal hearing (TR p. 13-14, 22). Complete copies of these items were to be filed within 10 days of formal hearing. Petitioner attached copies to its posthearing proposals, filed far later. They are cumulative to the facts as found, anyway.

APPENDIX TO RECOMMENDED ORDER 93-7082

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-7 Accepted, except for the erroneous footnote. Respondent's PFOF:

1 Accepted

2-3 Covered with minor changes upon the record evidence as a whole, not isolated single witness testimony

4-6 Accepted except for unnecessary, subordinate, and/or cumulative evidence

7-8 Accepted

9-10 Rejected as subordinate and unnecessary

COPIES FURNISHED:

Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, FL 32301

Albert S. C. Millar, Jr., Esquire 4206 Herschel Street

Jacksonville, FL 32210

Karen Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Kathleen M. Richards

Education Practices Commission

301 Florida Education Center

325 West 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. 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: 93-007082

Orders for Case No: 93-007082