STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIHANNE PEREZ-SWINNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2877

)

DOUG JAMERSON, as Commissioner ) of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 15, 1994, in Fort Myers, Florida. Petitioner and her counsel, the witnesses, and the court reporter attended the hearing in Fort Myers. The undersigned and counsel for Respondent participated by video conference from Tallahassee.

APPEARANCES

For Petitioner: Robert J. Coleman, Esquire

2300 McGregor Boulevard Post Office Box 2089

Ft. Myers, Florida 33902

For Respondent: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should deny Petitioner's application for a teaching certificate.

PRELIMINARY STATEMENT

Petitioner filed an application for a teaching certificate on May 23, 1993. Respondent denied Respondent's application on April 5, 1994. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of six witnesses and submitted five exhibits for admission in evidence. Respondent called one witness and submitted one exhibit for admission in evidence. The identity of witnesses and exhibits and the rulings concerning each are recorded in the transcript of the formal hearing filed on November 28, 1994.

Petitioner timely filed her proposed recommended order ("PRO") on January 5, 1995. Respondent timely filed his PRO on December 29, 1994. Proposed findings of fact in the PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner submitted her application for a teaching certificate on May 26, 1993. Respondent notified Petitioner of its proposed denial of the application on April 5, 1994. Respondent's proposed agency action is based on events that occurred while Petitioner was teaching in the Florida public school system in 1988 and 1989.

1. Background

   
   

2. From August, 1988, until February, 1989, Petitioner taught Spanish as a first-year teacher at Lake Wales Senior High School ("Lake Wales") in Polk County, Florida. In the fall of 1988, Petitioner met Brian Keith Swinney.

   
   

3. Mr. Swinney was a junior at Lake Wales but was not one of Petitioner's students. Mr. Swinney attended school in the morning and worked as a professional entertainer at Cypress Gardens in the afternoon.

   
   

4. Although Mr. Swinney was not one of Petitioner's students, Mr. Swinney and Petitioner knew each other at school. Mr. Swinney's Spanish teacher shared a classroom with Petitioner. Mr. Swinney was also a varsity cheerleader, and Petitioner was a chaperon for the cheerleaders when they traveled to various games.

   
   

5. Petitioner and Mr. Swinney dated and developed a relationship that included sexual relations. Sexual relations began on October 4, 1988.

   
   

6. In November or December, 1988, Mr. Swinney began residing with Petitioner. On or about February 1, 1989, Petitioner resigned her position with Lake Wales. On February 12, 1989, Petitioner and Mr. Swinney were married. At the time of their marriage, Petitioner was 22. Mr. Swinney was 17 years old on February 17, 1989.

   
   

7. Mr. Swinney's parents consented to the marriage. Mr. Swinney's mother drove Mr. Swinney and Petitioner to South Carolina where he and Petitioner were lawfully married.

   
   

8. Petitioner and Mr. Swinney moved to California. A child was born of the marriage, and Petitioner remained married to Mr. Swinney for approximately five years.

   
   

9. Following a period of separation, Petitioner and Mr. Swinney were divorced on February 28, 1994. After separating from Mr. Swinney, Petitioner relocated to Lee County, Florida.

   
   

10. Petitioner applied for a teaching position with the Lee County School District. The District issued a letter of eligibility, and Petitioner began teaching in May, 1993.

1. Current Qualifications And Good Moral Character

   
   

   1. Petitioner applied for a teaching certificate on May 26, 1993. Petitioner satisfies all of the academic and professional requirements for a teaching certificate. She is over the age of 18. She received her bachelor's degree from Florida Southern College, an accredited institution of higher learning. She executed the required loyalty oath for the state and federal constitutions. Her application was properly completed and executed.

      
      

   2. Petitioner is competent to perform the duties, functions, and responsibilities of a teacher. Petitioner taught school in several localities in California. Petitioner taught for the Lee County School District during the 1993-1994 school year. She taught as a full-time teacher at Paul Lawrence Dunbar Middle School ("Dunbar") during the day. At night, she taught in the District's night school program at Cape Coral High School ("Cape Coral") in Cape Coral, Florida.

      
      

   3. Petitioner was recommended for re-employment as a teacher with the Lee County School District for the 1994-1995 school year. Petitioner is a "very capable" and "creative" teacher. Both Renee Highbaugh, Assistant Principal at Dunbar and Petitioner's immediate supervisor, and Belle DeKoff, Administrator for the adult education program at Cape Coral, testified to Petitioner's competence and capability. Respondent stipulated that Petitioner is an "excellent" teacher.

      
      

   4. Petitioner is of good moral character. Ms. Highbaugh testified to Petitioner's good moral character. Her testimony was credible and persuasive. Petitioner's good moral character is further evidenced by her exemplary teaching record in California and Florida since 1989.

      
      

2. Alleged Violations In Notice Of Reasons

   
   

   1. In 1988 and 1989, Petitioner did not fail to make a reasonable effort to protect students from conditions harmful to their learning. Petitioner and Mr. Swinney did not engage in public displays of affection on campus. Nor did either of them create any condition that was otherwise harmful to students' learning.

      
      

   2. Petitioner did not fail to protect Mr. Swinney from conditions harmful to his learning. Mr. Swinney's grades did not decline during his relationship and subsequent marriage to Petitioner.

      
      

   3. Mr. Swinney voluntarily chose to marry Petitioner and obtain his

      G.E.D. He did so with his parents' permission.

      
      

   4. Mr. Swinney joined the United States Air Force and was honorably discharged. He is a licensed helicopter pilot. He attends helicopter flight school in California for certification as a commercial instrument instructor. He has a job waiting for him in his desired field when he graduates in February or March, 1995. Mr. Swinney is remarried and resides with his wife in California.

      
      

   5. Petitioner did not intentionally expose Mr. Swinney to unnecessary embarrassment or disparagement in 1988 and 1989. Petitioner passed notes to Mr. Swinney on occasions. Once, the two kissed in an empty classroom. The notes and kiss were not observed by students or faculty.

   6. In January, 1989, Mr. Swinney transferred to Winter Haven High School ("Winter Haven"). He transferred so that he and Petitioner could continue seeing each other without jeopardizing Petitioner's job. By January, rumors about Petitioner's relationship with Mr. Swinney had begun at Lake Wales, and Mr. Swinney wished to avoid further rumors.

      
      

   7. Mr. Swinney used a false address to enroll at Winter Haven. School officials discovered the false address but permitted Mr. Swinney to attend Winter Haven anyway.

      
      

   8. At Winter Haven, a male teacher told Mr. Swinney in front of the class, "I know what happened with you in Lake Wales, and that crap's not going to work over here." Mr. Swinney was embarrassed, but his embarrassment was intended by the teacher at Winter Haven and not by Petitioner.

      
      

   9. Petitioner did not exploit her relationship with Mr. Swinney for personal gain or advantage. Petitioner did not pressure him into their relationship. Mr. Swinney testified that he entered the relationship by his own volition.

      
      

   10. Petitioner did not commit an act of gross immorality or moral turpitude in 1988 and 1989. Mr. Swinney was a professional entertainer. He periodically lived outside his parents' home with their permission. He frequented adult nightclubs where alcohol was served. He was sexually active and engaged in sexual intercourse with approximately four other partners before meeting Petitioner. Mr. Swinney's parents consented to his marriage to Petitioner and assisted the couple in getting married.

       
       

   11. Assuming arguendo that, in 1988 or 1989, Petitioner either lacked good moral character, committed an act of gross immorality or moral turpitude, or otherwise violated the provisions of law or rules of the State Board of Education, the prior incidents, standing alone, do not support a conclusion that Petitioner currently lacks the good moral character required for a teaching certificate. Since 1989, Petitioner has demonstrated her good moral character through an exemplary teaching record in California and Florida.

       
       

   12. Petitioner is a valuable asset to the Lee County School District. The District observed Petitioner in the classroom, recommended Petitioner for re- employment, and is satisfied that Petitioner is of good moral character.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

       
       

   14. Petitioner has the burden of proving by a preponderance of evidence that she satisfies the statutory requirements for a teaching certificate. Osborne Stern and Company, Inc. v. Department of Banking and Finance, 19 Fla. L. Weekly D2428, D2429 (Fla. 1st DCA, November 18, 1994). Respondent has the burden of proving by clear and convincing evidence any statutory violations alleged in the Notice Of Reasons. Osborne, 19 Fla. L. Weekly at D2429 (citing Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)).

3. Applicant's Requirements: Preponderance Of The Evidence

   
   

   1. Petitioner satisfies the minimum age requirements and all academic and professional requirements for certification as a teacher. Her application was properly completed and executed.

      
      

   2. Section 231.17(1)(e), Florida Statutes, 1/ requires an applicant to be of good moral character. Good moral character is a vague test that can easily be abused to deny a person the right to pursue his or her chosen profession. In 1957, the Supreme Court stated that good moral character can be defined in an almost unlimited number of ways:

      
      

      . . . for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to [pursue one's chosen profession].

      
      

      Konigsberg v. State Bar Of California, 353 U.S.252, 262-263, 77 S. Ct. 722, 728

      (1957).

      
      

   3. Immorality is defined in Florida Administrative Code Rule 6B-4.009(2) 2/ 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.

      
      

   4. Marriage between a teacher and a student is not a basis for finding a lack of good moral character. Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994). However, evidence of premarital sex between a teacher and his or her future spouse may be considered in determining if a teacher satisfies the requirement for good moral character.

      
      

   5. In Tenbroeck, the court found there was no evidence that a teacher and student had a "personal relationship" prior to their marriage. The court did not go on to hold that a personal relationship prior to marriage, without more, is a sufficient basis to support a finding that a teacher lacks good moral character. Rather, the court treated premarital sex as one factor to be considered in determining if one has good moral character. The court stated:

      
      

      There was no competent, credible evidence that the two engaged in sexual activities prior to marriage or otherwise acted in a romantic or inappropriate fashion

      while on the campus or in the presence of other students or faculty.

      
      

      Tenbroeck, 640 So.2d at 167.

      An inference that evidence of premarital sex would have been sufficient, by itself, for a finding of immorality in Tenbroeck is supported only by negative implication. 3/

      
      

   6. In Sherburne v. School Board Of Suwanee County, 455 So.2d 1057 (Fla. 1st DCA 1984), a female teacher was accused of immorality for engaging in premarital sex. The court stated:

      
      

      . . . while we recognize that the immorality of pre-marital sex is not considered open to debate in some quarters, and this opinion should not be read as condoning such activity, we can find no substantial evidence satisfying the requirements of . . . rule [6B- 4.009(2)].

      . . . 4/

      
      

      Sherburne, 455 So.2d at 1061.

      
      

   7. There is no evidence in this proceeding that premarital sex is inconsistent with relevant standards of public conscience and good morals. Similarly, there is no evidence that Petitioner's premarital sex was so notorious that it publicly disgraced Petitioner or the education profession, brought either into disrespect, or impaired Petitioner's service in the community. A finding of immorality would subvert evidentiary standards to the attitudes, experiences, prejudices, personal views, and predilections of Petitioner's accusers. Konigsberg, 353 U.S. at 262-263, 77 S. Ct. at 728; Sherburne, 455 So.2d at 1061.

      
      

   8. Even if Petitioner lacked good moral character in 1988 and 1989, Petitioner's prior acts, standing alone, do not show that Petitioner currently lacks good moral character. Prior incidents standing alone are:

      
      

      . . . not sufficient justification for [the] conclusion that the petitioner currently lacks . . . good moral character.

      . . .

      
      

      In Re Application of VMF for Admission to the Florida Bar, 491 So.2d 1104, 1107 (Fla. 1986).

      
      

   9. Petitioner satisfies the requirement for good moral character in Section 231.17(1)(e) if Petitioner is currently of good moral character. Cf. Florida Board Of Bar Examiners re D.M.J., 586 So.2d 1049 (Fla. 1991). In D.M.J., the court stated:

      
      

      . . . the rules do not bar the admission of previously convicted persons if they demonstrate that they currently meet the standards of conduct and fitness. In re Petition of Diez-Arguelles, 401 So.2d 1347, 1349 (Fla. 1981).

      
      

      D.M.J., 586 So.2d at 1050.

      
      

   10. The issue of whether Petitioner currently meets the requirement for good moral character is determined by considering Petitioner's record since 1989. In 1991, the Florida Supreme Court considered the moral character of an applicant who, in 1979, had been found guilty of: knowingly participating in a

       criminal conspiracy to import cocaine; giving false testimony; failing to disclose such information on an employment application; falsifying his application for admission to law school; and failing to display financial responsibility. The court determined that the applicant currently satisfied the requirement for good moral character by weighing:

       
       

       The nature and seriousness of the offense

       . . . against the evidence of rehabilitation.

       
       

       D.M.J., 586 So.2d at 1050.

       
       

   11. When the nature and seriousness of Petitioner's premarital sex with her future husband is weighed against the evidence of her rehabilitation, a preponderance of evidence shows that Petitioner currently satisfies the requirement in Section 231.17(1)(e) for good moral character. There is no evidence of any transgression since 1989. Petitioner would be a valuable addition to the Lee County School District. The District observed Petitioner in the classroom, recommended Petitioner for re-employment, and is satisfied that Petitioner is of good moral character. As the court stated in VMF:

   
   

   After the . . . [prior] incident there is no evidence of further transgressions; it appears the petitioner has since led an exemplary life.

   
   

   VMF, 491 So.2d at 1107.

   
   

4. Alleged Violations In The Notice Of Reasons: Clear And Convincing Evidence

   
   

   1. Section 231.17(5)(a) authorizes denial of Petitioner's application for a teaching certificate if Petitioner has committed any act for which revocation of a teaching certificate is authorized. A teaching certificate may be revoked for violation of any provision in Rule 6B-1.006. Rule 6B-1.006(2). The Notice Of Reasons alleges that Petitioner violated Rules 6B- 1.006(3)(a), (e), and (h).

      
      

   2. Respondent did not show by clear and convincing evidence that Petitioner violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect students from conditions harmful to learning or to mental or physical health or safety. As a threshold matter, no evidence was presented that Petitioner failed to make a reasonable effort to protect students from conditions harmful to their mental or physical health or safety. The only matter at issue under Rule 6B-1.006(3)(a) is whether Petitioner failed to make a reasonable effort to protect students from conditions harmful to their learning.

      
      

   3. In 1988 and 1989, Petitioner made a reasonable effort to protect students from conditions harmful their learning. Neither Petitioner nor Mr. Swinney acted in a romantic or inappropriate manner while on campus or in the presence of students.

      
      

   4. In Tenbroeck, a male teacher and female student were frequently observed by students and faculty talking at the bus stop and in the teacher's office behind closed doors. The two were seen leaving campus together in the teacher's car at midmorning and during the lunch hour. They were seen several times arriving together early in the morning. The student telephoned the teacher at his office. They were seen riding together in the teacher's car in the evening, and they generally spent an unusual amount of time together. The

      court found that none of the acts observed by students and faculty constituted romantic or inappropriate behavior. Tenbroeck, 640 So.2d at 165.

      
      

   5. Like the teacher in Tenbroeck, any romantic or inappropriate behavior engaged in by Petitioner which was observed by others did not occur on campus. Any romantic or inappropriate behavior that did occur on campus was not observed by students or faculty.

      
      

   6. Petitioner did not fail to protect Mr. Swinney from conditions harmful to his learning within the meaning of Rule 6B- 1.006(3)(a). Mr. Swinney's grades did not decline during his relationship and subsequent marriage to Petitioner.

      
      

   7. Mr. Swinney voluntary chose to marry Petitioner and to obtain his

      G.E.D. He did so with his parents' consent.

      
      

   8. Mr. Swinney joined the United States Air Force and was honorably discharged. He is a licensed helicopter pilot. He attends helicopter instruments school, is pursuing his chosen career, is remarried, and resides with his wife in California.

      
      

   9. Petitioner did not violate Rule 6B-1.006(3)(e) by intentionally exposing Mr. Swinney to unnecessary embarrassment or disparagement in 1988 and 1989. Mr. Swinney transferred to Winter Haven to avoid jeopardizing Petitioner's job and to avoid further rumors at Lake Wales.

      
      

   10. At Winter Haven, a male teacher embarrassed and disparaged Mr. Swinney in front of the class. Any embarrassment or disparagement suffered by Mr. Swinney was intended by the male teacher and not by Petitioner.

       
       

   11. Petitioner did not violate Rule 6B-1.006(3)(h) by exploiting her relationship with Mr. Swinney for personal gain or advantage. Petitioner did not exploit Mr. Swinney. Petitioner did not pressure Mr. Swinney into their relationship. Mr. Swinney entered into the relationship by choice and married Petitioner with his parent's consent and assistance.

       
       

   12. Although Mr. Swinney was only 17 years old at the time, he was a professional entertainer. He periodically lived outside his parents' home with their permission. He frequented adult nightclubs where alcohol was served. He was sexually active and engaged in sexual intercourse with approximately four other partners before meeting Petitioner.

       
       

   13. No evidence was presented that Petitioner received any personal gain or advantage as a result of her relationship with Mr. Swinney. Rather, Petitioner resigned her position and relocated to California.

       
       

   14. Respondent failed to show by clear and convincing evidence that Petitioner otherwise violated the provisions of law or rules of the State Board of Education within the meaning of Section 231.28(1)(i). The only remaining allegations involve gross immorality and moral turpitude.

       
       

   15. Petitioner's relationship with Mr. Swinney in 1988 and 1989 did not constitute gross immorality or moral turpitude within the meaning of Section 231.28(1)(c). Gross immorality requires a more serious degree of misconduct than mere immorality. Smith v. School Board Of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981). No evidence showed that premarital sex is misconduct which is more serious than mere immorality. Cf. Sherburne, 455 So.2d at 1061.

   16. Rule 6B-4.009(6) defines moral turpitude as a crime evidenced by an act of baseness, vileness or depravity in one's private and social duties which, according to the accepted standards of the time, one owes to his or her fellow man or to society in general. No evidence showed that premarital sex is a crime or an act of baseness, vileness, or depravity within the meaning of Rule 6B- 4.009(6). Id.

       
       

   17. Florida courts require issues of gross immorality and moral turpitude to be proven by competent and substantial evidence. In Sherburne, the court stated:

       
       

       In proceedings . . . involving . . . the loss

       of a valuable professional position and dependent upon the application of such broad general terms as "immorality," this court has held that "the critical matters in issue must be shown by evidence which is indubitably as 'substantial'

       as the consequences. Bowling v. Department Of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

       
       

       Sherburne, 455 So.2d at 1061. Accord Ferris v. Austin, 487 So.2d 1163, 1165 (Fla. 5th DCA 1986).

       
       

   18. The only witness called by Respondent was Mr. Swinney. It was not until Mr. Swinney and Petitioner were separated and became involved in a contested divorce and custody battle that Mr. Swinney chose to disclose the events of 1988 and 1989 to licensing authorities in either California or Florida. When a proceeding affects the right of a person to pursue his or her chosen profession:

       
       

       It should be absolutely self-evident . . . the testimony of one interested witness does

       not even begin to approach the level of competent and substantial evidence. . . . Without impugning [his] motives, we find his testimony suspect.

       
       

       Robinson v. Florida Board of Dentistry, Department of Professional Regulation, Division of Professions, 447 So.2d 930, 932 (Fla. 3d DCA 1984).

       
       

       The requirement for competent and substantial evidence in proceedings involving the right to pursue one's chosen profession takes on vigorous implications that are not present in other proceedings under Chapter 120. Id.

       
       

   19. In order for evidence to be clear and convincing:

       
       

       . . . evidence must be found to be credible

       . . . . The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983).

       
       

   20. Respondent failed to prove by clear and convincing evidence that Petitioner is guilty of the allegations in the Notice Of Reasons. Mr. Swinney's

   testimony was less than clear and convincing. The testimony of Petitioner and her witnesses was credible and persuasive during direct and cross examination.

   
   

5. Rehabilitation

1. Assuming arguendo that Petitioner committed any act of gross immorality or moral turpitude in 1989, Petitioner has had sufficient time to be rehabilitated. In Diez-Arguelles, an applicant for admission to practice law in Florida had been convicted on drug charges and sentenced to prison. The Florida Supreme Court found that, under the circumstances, two years is adequate time for a convicted felon to be rehabilitated. Diez- Arguelles, 401 So.2d at 1349.

   
   

2. When the nature and seriousness of Petitioner's premarital sex is weighed against evidence of her rehabilitation, it is clear that Petitioner has been rehabilitated. D.M.J., 586 So.2d at 1050. Petitioner has committed no transgression since 1989, has established an exemplary teaching record, and will be a valuable asset to the Lee County School District.

RECOMMENDATION

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

finding Petitioner not guilty of the allegations in the Notice Of Reasons and

authorizing the issuance of Petitioner's teaching certificate, forthwith. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 13th day of January, 1995.

ENDNOTES

1/ All sections and chapters references are to Florida Statutes (1993) unless otherwise stated.

2/ All references to Rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

3/ The drawing of such an inference was reversed by the court in Tenbroeck for lack of competent and substantial evidence.

...the hearing officer...concluded that the parties spend an unusual amount of time together..."inferentially" showed that appellant was engaged in a personal relationship with Angela...[before]...their marriage.... In finding a

personal relationship based upon the evidence presented, the hearing officer erred.

The court qualified its decision in the following dicta: Nothing herein is intended to intimate that inappropriate teacher/student relationships may not form the basis for changes against a teacher.

Tenbroeck, 640, So2nd at 168.

The court did not enumerate all of the facts and circumstances that constitute "inappropriate teacher/student relationships." Nor did the court hold that premarital sex between a teacher and his or her future spouse is an inappropriate teacher/student relationship.

4/ The court was actually construing former Rule 6B-04.09(2). The language in former Rule 6B-4.09(2), however, is substantially the same as the current language in Rule 6B-4.009(2). The language in former Rule 6B-4.09(2) provided:

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 educational profession into public disgrace or disrespect and impair the individual's service to the community.

Sherburne, 455 So2nd at 1061.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2877

Petitioner's Proposed Findings Of Fact. 1.-9. Accepted in substance

10. Irrelevant and immaterial

11.-22. Accepted in substance

23. The reference to contempt of court is rejected as irrelevant and immaterial. The remainder is accepted in substance.

24.-29. Accepted in substance Respondents' Proposed Findings Of Fact.

1.-2. Rejected as irrelevant and immaterial 3.-6. Accepted in substance

7. Accepted in substance, but the details of the sexual relationship are irrelevant and immaterial

8.-14. Accepted in substance

15.-19. Rejected as irrelevant and immaterial

1. Accepted in part, but the finding that dates occurred on campus is rejected as not supported by credible and persuasive evidence

2. The details of the sexual relationship are rejected as irrelevant and immaterial

3. Accepted in substance

4. Accepted in part but the statements attributed to Petitioner are rejected as not supported by credible and persuasive evidence

5. Accepted in substance 25.-32. Accepted in substance

33.-34. Rejected as not supported by credible and persuasive evidence

1. Accepted in substance

2. Rejected as irrelevant and immaterial

COPIES FURNISHED:

Barbara J. Staros, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Karen Barr Wilde Executive Director

301 Florida Education Center

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

Kathleen M. Richards Administrator

Professional Practices Commission

352 Florida Education Center

325 Gaines Street

Tallahassee, Florida 32399-0400

Robert J. Boyd, Esquire 2121 Killearney Way Suite G

Tallahassee, Florida 32308

Robert J. Coleman, Esquire 2300 McGregor Blvd.

Post Office Box 2089

Ft. Myers, Florida 33902

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

DIHANNE PERIZ-SWINNEY,

Petitioner,

vs. DOAH CASE NO. 94-2877

CASE NO. 94-091-D

FRANK BROGAN, as EPC INDEX NO. 95-057-FOF

Commissioner of Education,

Respondent.

/

FINAL ORDER

Petitioner, DIHANNE PEREZ-SWINNEY, applied for a Florida educator's certificate and that application was denied. Respondent's predecessor in office 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 January 13, 1995, was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part of this Order.)

A panel of the Education Practices Commission (EPC) met on May 4, 1995 in Miami, Florida, to take final agency action. Petitioner was represented by Robert J. Coleman, Attorney at Law. Respondent was represented by J. David Holder, Attorney at Law. 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. Withdrawn at hearing.

   
   

2. Withdrawn at hearing.

   
   

3. Withdrawn at hearing.

   
   

4. Withdrawn at hearing.

   
   

5. Withdrawn at hearing.

   
   

6. The Commission agrees that Conclusion 34 of the recommended order is incorrect and sustains the exception.

7. The Commission finds that the citation of Sherburne in Conclusion 5 irrelevant and sustains the exception.

   
   

8. The Commission concludes that the admitted premarital sex between a teacher and a student is, as a matter of law, misconduct on the part of the teacher and therefore sustains the exception to the Hearing Officer's Conclusion 36.

   
   

9. Withdrawn at hearing.

   
   

10. Withdrawn at hearing.

    
    

11. Withdrawn at hearing.

    
    

12. Withdrawn at hearing.

    
    

13. In view of Finding of Fact 19, the Commission sustains the exception to Conclusion 43.

    
    

14. This exception is addressed to Conclusion 44 but, since the Commission finds that conclusion to be irrelevant to this case, the exception is rejected.

    
    

15. Withdrawn at hearing.

    
    

16. Withdrawn at hearing.

    
    

17. Withdrawn at hearing.

    
    

18. Withdrawn at hearing.

    
    

19. This exception addresses Conclusion 52 but, since the Commission finds that Conclusion 52 is actually a finding of fact, the exception is rejected.

    
    

20. Withdrawn at hearing.

    
    

21. Withdrawn at hearing.

    
    

22. The Commission concludes that premarital sex between a teacher and student is gross immorality and evidences moral turpitude and therefore this exception to Conclusion 55 is sustained.

    
    

23. Withdrawn at hearing.

    
    

24. Rejected because Conclusion 57 is a correct statement of law.

    
    

25. Rejected as to Conclusion 58. Sustained as to Conclusion 60 because Petitioner admitted having premarital sex with a student.

    
    

26. Withdrawn at hearing.

    
    

27. Withdrawn at hearing.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1 through 26 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 27 through 33, 37 through 42, 44 through

54, 56 through 58 and 61 through 62 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 conclusion, the Petitioner's admitted premarital sex with a student constitutes misconduct justifying a penalty greater than that recommended.

It is ORDERED AND ADJUDGED that Petitioner shall be permitted to pursue her application for a Florida teaching certificate. Prior to the issuance of such certificate, Petitioner shall provide written verification from a licensed psychologist, psychiatrist or mental health counselor that Petitioner poses no threat to children. Additionally, she shall have completed three hours of college level course work in the area of ethics.

It is further ORDERED that upon her employment in any position requiring a Florida educator's certificate she shall be on probation for five years of such employment, the terms of which probation are that she shall:

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

   
   

2. Arrange for her 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. Verify successful completion of the Florida Professional Orientation Program.

   
   

5. During the first three months of each probation year, pay to the EPC the sum of $150.00 to defray the costs of monitoring probation during that year.

All costs incurred in fulfilling the terms of probation will be borne by the Petitioner.

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 22nd day of May, 1995.

COPIES FURNISHED TO:

Brenda Wallace, Presiding Officer

Kathleen Richards, Program Director Professional Practices Services

Florida Admin. Law Reports I HEREBY CERTIFY that a copy of

the foregoing Order in the matter Mrs. Bobbie D'Alessandro of Dihanne Perez-Swinney vs.

Interim Superintendent Brogan, was mailed to Robert J. Lee County Schools Esquire, Coleman, 2300 McGregor Blvd , Ft 2055 Central Ave. Myers, Florida 33902, this 26th Ft. Myers, Florida 33901 day of May, 1995, by U.S. Mail.

Dr. Madeleine Doran Personnel Director

Lee County Schools KAREN B. WILDE, Clerk

Larry T. Richardson, Dir. Recovery Network Program

P.O. Box 61474

Jacksonville, Florida 32236

J. David Holder Attorney at Law

1408 N. Piedmont Way Tallahassee, Florida 32308

Docket for Case No: 94-002877

Orders for Case No: 94-002877