STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0537

)

TERESA M. SORENSON, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 13, 1994, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killarney Way, Suite G Tallahassee, Florida 32308

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640-3625 STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should suspend or revoke the Respondent's teacher certificate for fraudulently concealing criminal convictions on teacher certificate applications.

PRELIMINARY STATEMENT

On September 20, 1993, then Commissioner of Education, Betty Castor, filed an Administrative Complaint in Education Practices Commission (EPC) Case No.

923286

fraudulently concealed criminal convictions on various teacher certificate applications. On October 7, 1993, the Respondent denied the charges and asked for an opportunity to negotiate a settlement or for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1993). On January 28, 1994, the matter was referred to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 94-0537. In accordance with the parties' responses to the Initial Order in the case, final hearing was scheduled for June 15, 1994, in Largo, Florida. Later, final hearing was changed to June 13, 1994.

At the final hearing, the Respondent stipulated to all of the facts alleged in the Administrative Complaint, and the Petitioner rested. The Respondent testified in her own behalf and called three witnesses.

At the conclusion of the hearing, the Petitioner ordered the preparation of a transcript of the hearing and asked for 20 days from the filing of the transcript in which to file proposed recommended orders. The Respondent did not object, and the request for additional time was granted. The transcript was filed on July 1, 1994, making proposed recommended orders due by July 21, 1994.

The Petitioner's proposed findings of fact consist of the factual allegations in the Administrative Complaint, and they are accepted and incorporated. The Respondent did not propose findings of fact.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter.

   
   

2. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District.

   
   

3. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months.

   
   

4. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979.

   
   

5. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979.

   
   

6. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979.

7. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated.

   
   

8. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a

   $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months.

   
   

9. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence.

   
   

10. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years.

    
    

11. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987.

    
    

12. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987.

    
    

13. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987.

14. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license.

    
    

15. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs.

    
    

16. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986.

    
    

17. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986.

    
    

18. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications.

    
    

19. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher.

    
    

20. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license.

    
    

21. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.

    
    

    CONCLUSIONS OF LAW

    
    

22. Section 231.28(1), Fla. Stat. (1993), authorizes the Education Practices Commission to suspend a teacher certificate for up to three years, revoke a teacher certificate for up to ten years, with reinstatement subject to subsection (4) of the statute, or revoke a teacher certificate permanently, or impose any other penalty provided by law, if a teacher:

    1. Has obtained a teaching certificate by fraudulent means;

       * * *

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

       * * *

       (e) Has been convicted of criminal charges;

       * * *

       (i) Has otherwise violated the provisions of law or rules of the State Board of Educa- tion, the penalty for which is the revocation of the teaching certificate.

       
       

       Section 231.28(2), Fla. Stat. (1993), provides that a guilty plea is prima facie proof of grounds for revocation.

       
       

23. F.A.C. Rule 6B-1.006 sets out the following Principles of Professional Conduct for the Education Profession in Florida, the violation of which would subject a teacher certificate to revocation or suspension:

    
    

    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.

    
    

24. It is difficult to fashion an appropriate disposition in this case. The Respondent's clear and repeated violations cannot be ignored. At the same time, the Respondent proved some mitigating circumstances and proved that she remains an effective middle school teacher. In addition, revoking or suspending the Respondent's teacher certificate upon entry of the final order in this case would disrupt and have an adverse impact on the educational experience of the Respondent's current pupils and would impose on the Respondent's school and school system the hardship of finding a replacement for the Respondent. Unfortunately, although Section 231.28(1), Fla. Stat. (1993), authorizes the EPC to "impose any other penalty provided by law," no "other penalties" are "provided by law." Suspension or revocation are the only available punishments.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year.

RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 17th day of August, 1994.

COPIES FURNISHED:

Robert J. Boyd, Esquire 2121 Killarney Way Suite G

Tallahassee, Florida 32308

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625 (Copies furnished, continued)

Karen B. Wilde Executive Director

The Florida Education Center, Room 301 Tallahassee, Florida 32399

Jerry Moore, Administrator Professional Practices Services

352 Fla. Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

Barbara J. Staros General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Education Practices Commission written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Education Practices Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-000537

Orders for Case No: 94-000537