STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRYAN S. FREDERICK, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4263

)

DOUG JAMERSON, As Commissioner ) of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard by telephone before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 10, 1994.

APPEARANCES

For Petitioner: Bryan S. Frederick, pro se

10960 Beach Boulevard, Number 10

Jacksonville, Florida 32246

For Respondent: Robert J. Boyd, Esquire

3121 Killearney Way, Suite G Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether petitioner's application for licensure as a professional teacher should be granted.

PRELIMINARY STATEMENT

This matter began on June 13, 1994, when respondent, Doug Jamerson, as Commissioner of Education, advised petitioner, Bryan S. Frederick, that his application for a teaching certificate was being denied on the ground he failed to disclose on two applications for licensure a prior arrest and conviction for possession of marijuana. Thereafter, petitioner requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on July 29, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated August 21, 1994, a final hearing was scheduled on September 13, 1994, in Jacksonville, Florida. Respondent's unopposed motion for continuance was granted, and the matter was rescheduled for a telephonic hearing on October 10, 1994.

At final hearing, petitioner testified on his own behalf and presented the testimony of Glenn Brinson. Respondent offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.

A transcript of hearing was filed on October 27, 1994. Respondent filed proposed findings of fact and conclusions of law on November 15, 1994. A ruling on each proposed finding is found in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this case, respondent, Doug Jamerson, as Commissioner of Education, has proposed to deny an application for a teaching certificate filed on behalf of petitioner, Bryan S. Frederick, a thirty year old graduate of Elon College in North Carolina. As a ground, respondent contends that on applications filed with the Department of Education in 1991 and 1993, petitioner failed to disclose the fact that in December 1990 he had been arrested for possession of marijuana, and in January 1991 he had pled guilty to that offense. Petitioner disputed this allegation and timely requested a hearing.

   
   

2. The critical facts giving rise to this dispute are as follows. Respondent has prepared an Application for Florida Educator's Certificate which must be completed and filed by those persons desiring a teaching certificate. On page 3 of the form is found the following question:

   
   

   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 (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against

   you? SEALED or EXPUNGED records must be reported pursuant to S. 943.058 F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required

   by Florida law.

   
   

   On applications dated August 29, 1991, and April 2, 1993, which were filed with respondent, petitioner answered the foregoing question by checking the "NO" box. He also certified that all information in the two applications was "true, correct, and complete."

   
   

3. With the assistance of the Florida Department of Law Enforcement, in late 1993 respondent conducted a law enforcement background check on petitioner. The search revealed that on December 22, 1990, petitioner was arrested by the Brunswick, Georgia police department for possession of marijuana. On January 8, 1991, the solicitor for the state court of Glynn County, Georgia, filed an affidavit and accusation pertaining to that charge. On January 31, 1991, petitioner pled guilty to possession of marijuana, a misdemeanor. For this, he was adjudicated guilty and was sentenced to 12 months in jail, with all time suspended except for the one day served in jail. When he was assessed a fine in the amount of $300 plus costs, and he could not pay the fine, petitioner was sentenced to a week in jail. According to petitioner, however, no fine was ever paid, and except for the day when he was arrested, no time was served. After

   learning this information, respondent issued a Notice of Reasons on June 13, 1994, proposing to deny petitioner's most recent application for a teaching certificate for failing to disclose the arrest and conviction.

   
   

4. Petitioner did not deny that the above events occurred. He explained, however, that on the day in question, he and a friend, Glenn Brinson, were driving to South Carolina for the Christmas holidays and stopped to eat at a fast food restaurant in Brunswick, Georgia (Glynn County) just off Interstate 95 (I-95). When returning onto I-95, Brinson was stopped by a law enforcement officer for making an illegal turn. After Brinson stepped out of the automobile, he was asked to show his driver's license and vehicle registration. Petitioner, who was a passenger, reached in the vehicle's glove compartment to retrieve the vehicle's registration and observed three marijuana joints. Having no prior knowledge that they were there, and being in what he describes as a state of panic, petitioner unwisely placed the three joints inside his hat.

   When the police officer noted that the license tag and registration had expired, he asked petitioner to step out of the car and submit to a search for weapons.

   Thereafter, the officer discovered the marijuana. Although petitioner denied that the contraband belonged to him, both he and Brinson were arrested for possession of marijuana. No traffic citations were issued. At hearing, Brinson acknowledged that the marijuana belonged to him, and not petitioner.

   
   

5. Petitioner admits that he intentionally failed to disclose the arrest and conviction on his applications because he knew it would "blow his career" as a teacher. He says he could not afford an attorney to fight the charge and believed that by entering a plea of guilty with an explanation to the judge, the charge might be dropped. As it turned out, however, the judge simply accepted the plea and adjudicated him guilty of the offense.

   
   

6. Petitioner does not work in the teaching profession at the present time but says he has a pending job opportunity should his application be approved.

   He desires a five-year professional teacher's license so that he can begin a full-time teaching career. Up to now, he has worked as a substitute teacher on a part-time basis. Except for this isolated incident on the part of petitioner, there is no evidence of any other misconduct.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. As the party seeking licensure, petitioner bears the burden of proving by a preponderance of the evidence his entitlement to a teaching certificate. At the same time, it is noted that the purpose of this proceeding is not to determine if petitioner was wrongly charged with a crime, but rather whether he failed to disclose certain adverse information on his applications.

   
   

9. There is no factual dispute that petitioner failed to accurately answer the question on the application pertaining to prior arrests and convictions. In its notice of reasons, respondent has cited numerous statutory provisions which form the basis for denying the application. Because respondent may deny an application for licensure when the applicant commits an act for which the Education Practices Commission would be authorized to revoke a teaching certificate, see Subsection 231.17(5), F. S., and possession of marijuana constitutes a ground for revoking a teacher's certificate, Adams v. State,

   Professional Practices Commission, 406 So.2d 1170, 1172 (Fla. 1st DCA 1981), that ground alone is sufficient to support the agency's proposed action.

   
   

10. In its proposed recommended order, respondent suggests that petitioner's application be denied, he be issued a license upon reemployment after that initial two-year period, and upon issuance of a license petitioner be placed on probation for three years. Citing Subsection 231.262(6), Florida Statutes, as authority, it also recommends that during the probationary period, petitioner be required to perform 100 hours of community service, he undergo substance abuse counseling, and he submit to random drug testing. Assuming these latter sanctions are proper conditions within the meaning of the law, and given the questionable circumstances regarding petitioner's arrest, the imposition of the latter conditions during the probationary period is not deemed to be necessary. Finally, given the lapse of time since the arrest and conviction occurred, a one-year denial is more appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application

for a period of one year. Thereafter, and upon reemployment, a license shall be issued but the first three years shall be on a probationary status.

DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 November, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4263

Respondent:

1-5. Partially accepted in finding of fact 3. 6-11. Partially accepted in finding of fact 2.

12. Partially accepted in finding of fact 5.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or cumulative.

COPIES FURNISHED:

Bryan S. Frederick

10960 Beach Boulevard, #10

Jacksonville, FL 32246

Robert J. Boyd, Esquire 3121 Killearney Way, Ste. G Tallahassee, FL 32308

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Kathleen M. Richards Administrator

Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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: 94-004263

Orders for Case No: 94-004263