vs. ) CASE NO. 95-2528
FRANK T. BROGAN, Commissioner ) of Education, )
Respondent. )
Final hearing was held on August 31, 1995. Respondent, his counsel, and the court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, and Petitioner's counsel participated by videoconference from Tallahassee.
The parties were represented at the hearing as follows: For Petitioner: Attorney Jerry L. Lovelace
For Respondent: Ronald G. Stowers
The issue in this case is whether the Education Practice Commission should grant Petitioner's application for a Florida teaching certificate.
By Application dated February 22, 1994, Petitioner requested an initial two-year nonrenewable Florida teaching certificate and a two-year part-time
coaching certificate. By Application dated March 11, 1994, Petitioner requested only the two-year coaching certificate.
By letter dated February 23, 1995, Respondent advised Petitioner that his application for a Florida teaching certificate was denied. By Notice of Reasons dated the same date, Respondent asserted that Petitioner failed to disclose on the application his entire criminal record. Respondent stated that Petitioner violated Section 231.17(1)(e), which requires good moral character; Section 231.17(5)(a), which authorizes the denial of a certificate if the applicant has
committed acts that would warrant revocation; Section 231.28(1)(c), which prohibits gross immorality or moral turpitude; Section 231.28(1)(e), which prohibits conviction for a crime other than a minor traffic violation; Section 231.28(1)(i), which prohibits violation of the Principles of Professional Conduct for the Education Profession, as set forth in the State Board of Education rules; Section 231.28(1)(j), which authorizes revocation of a teaching certificate for the violation of provisions of law for which the penalty is revocation (sic); Section 231.28(2), which authorizes revocation upon the plea of guilty in any court or a finding of guilt; Rule 6B-1.006(5)(a), which requires the maintaining of honesty in all professional dealings; Rule 6B- 1.006(5)(g), which prohibits the misrepresentation of professional qualifications; Rule 6B-1.006(5)(h), which prohibits the submission of fraudulent information on a document in connection with professional activities; and Rule 6B-1.006(5)(i), which prohibits a fraudulent statement or nondisclosure on an application.
At the beginning of the hearing, the Hearing Officer ruled that the hearing would cover both applications and that Respondent could amend the Notice of Reasons, which on its face applied only to the March application, to apply also to the February application. At the hearing, Petitioner called one witness and offered into evidence seventeen exhibits. Respondent called no witnesses and offered four exhibits into evidence. All exhibits were admitted.
The transcript was filed September 18, 1995. The appendix contains rulings on the findings in the proposed recommended order that complies with the hearing officer's order setting a deadline for filing proposed recommended orders and requiring that proposed findings be in numbered paragraphs with not more than four sentences per paragraph.
By Application for Florida Educator's Certificate filed February 22, 1995, Petitioner requested an initial two-year nonrenewal temporary teaching certificate and a two-year part-time coaching certificate. The application discloses that Petitioner was born July 24, 1960.
A question on the form asks:
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 accident (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. 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.
The additional information requested on the form, if the "yes" box is checked, provides spaces for the following information: "city where arrested," "State," "Charge(s)," and "Disposition(s)."
In response to this question, Petitioner checked the "yes" box and filled in the three spaces provided.
Petitioner disclosed that, in East Williston, New York, in 1978, he was charged with "DUI" and the disposition was "license revocation." (This would mean driver's license because Petitioner answered in the negative the next question on the form, which asks whether he had ever had a teaching certificate revoked or otherwise disciplined in another state.) Petitioner also disclosed that, in Roslyn, New York, in 1979, he was charged with "DUI" and the disposition was "license revocation." Last, Petitioner disclosed that, in Mineola, New York, in 1986, he was charged with "Disorderly-Conduct" and the disposition was "Plead Guilty/Paid Fine [and] Placed on Probation."
On a separate sheet of paper attached to the February 22 application and entitled "Arrest/Revocation Record," Petitioner disclosed:
In addition to the records I have provided you, I was arrested several other times around the year 1980, and I don't recall the exact dates and dispositions--they were misdemeanors for disorderly conduct, and the charges were either dismissed or reduced and a fine paid.
In signing the application, which is acknowledged by a notary, Petitioner attests that "all information pertaining to this application is true, correct, and complete."
By Application for Florida Educator's Certificate filed March 11, 1994, Petitioner requested only a two-year part-time coaching certificate. This application is identical to the first except in the disclosure of convictions.
In the March 11 application, Petitioner disclosed the East Williston and Roslyn offenses, although the years changed to 1979 and 1980, respectively. Instead of a Mineola offense in 1986, Petitioner listed an Old Westbury offense in 1986. The Old Westbury offense was also for disorderly conduct and the disposition was a guilty plea and payment of fine, although the probation was omitted. Petitioner did not disclose on a separate sheet or otherwise the additional material disclosed on the separate sheet attached to the February 22 application.
Petitioner has passed the relevant portions of the examination required of teachers and has met the conditions for issuance of a Florida teaching certificate except for issues in connection with his criminal history.
By letter dated February 23, 1995, Respondent informed Petitioner that his application for a Florida teaching certificate had been denied. The letter refers to an accompanying Notice of Reasons.
The Notice of Reasons recites that Petitioner filed an application for a Florida teaching certificate in March 1994. The Notice of Reasons notes that Petitioner disclosed only three of ten criminal convictions and concludes that the nondisclosures and convictions themselves constitute violations of the statutes and rules cited in the Preliminary Statement above.
On February 19, 1979, Petitioner was arrested and charged with resisting arrest, driving under the influence, and operating a vehicle without a license. This and all other arrests took place in Nassau County, New York. On
May 10, 1979, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charges of disorderly conduct and driving while ability impaired by alcohol. The court sentenced Petitioner to a $500 fine, alcohol rehabilitation, and restriction of his driver's license to business and school.
On September 27, 1979, Petitioner was arrested and charged with driving under the influence and two counts of criminal mischief. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, a reduced charge of two counts of disorderly conduct. The court sentenced Petitioner to a
$75 restitution payment or 10 days in jail and conditionally discharged him.
On November 25, 1979, Petitioner was arrested and charged with resisting arrest and driving under the influence. The former charge was dismissed. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, driving under the influence. The court sentenced him to a $200 fine and revocation of his driver's license.
On January 12, 1982, Petitioner was arrested and charged with assault. On April 12, 1982, Petitioner pleaded guilty to the reduced charge of harassment. The court deferred disposition and conditionally discharged Petitioner pending payment of $32 restitution.
On May 19, 1984, Petitioner was arrested and charged with criminal mischief. On April 1, 1985, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charge of attempted criminal mischief. The court unconditionally discharged him.
On May 26, 1985, Petitioner was arrested and charged with criminal mischief and resisting arrest. On June 12, 1986, Petitioner pleaded guilty to, and was adjudicated guilty of, the charges. The court sentenced Petitioner to three years' probation.
On November 5, 1986, Petitioner was arrested and charged with harassment and resisting arrest. On December 1, 1987, Petitioner pleaded guilty to, and was adjudicated guilty of, both charges. The court conditionally released Petitioner.
Petitioner is recovering from dependencies on alcohol and drugs. In 1987, he entered a rehabilitation clinic on Pine Island where he underwent a month's treatment. He then entered a halfway house in Ft. Myers for three months. He regularly attends Alcoholic Anonymous meetings and obtains counseling.
Prior to obtaining treatment, Petitioner attended St. Johns University and the Berklee College of Music, evidently without obtaining any degrees.
Since treatment, Petitioner obtained in 1989 an Associate Arts degree from Edison Community College in Ft. Myers and in 1992 a Bachelor of Fine Arts degree from Emerson College in Boston with a major in acting and a minor in literature.
While in Boston pursuing the BFA degree, Petitioner taught writing to gifted high school students and voluntarily performed for high school students plays that Petitioner had written and produced. He also tutored inner city students in reading.
In April 1994, Petitioner obtained a statement of eligibility from Respondent. This allowed him to teach for up to two years, during which time he had to apply for a temporary nonrenewable teaching certificate.
In August 1994, Petitioner was employed to teach seventh grade social studies and reading at Cypress Lake Middle School in Lee County. After a month, he was transferred to the special education department where he taught students in the middle-school drop-out prevention program. While at the school, Petitioner served as an assistant coach on the girls' basketball team and the boys' baseball team.
The principal of the school terminated Petitioner's contract February 21, 1995, evidently when he learned that Respondent would be denying him a Florida teaching certificate. Petitioner has since been employed as a teacher by a private school in Lee County.
Petitioner relied on advice from a well-meaning friend when he filed a second application a couple of weeks after filing the first application. The friend had told Petitioner that he could apply for a coaching certificate without applying on the same application for a two-year temporary teaching certificate.
The innocent filing of two separate applications generated confusion for both Petitioner and Respondent. When denying Petitioner's request for a teaching certificate, Respondent inadvertently omitted mention of the first application. Similarly, when filing the second application, Petitioner inadvertently failed to include the separate sheet that he included with the first application.
However, Respondent already had the separate sheet from the first application. It would be as disingenuous for Respondent to claim lack of knowledge, as to the second application, of the disclosures contained on the separate sheet attached to the first application as it would be for Petitioner to claim that the denial of the second application is not also intended to be a denial of the first application.
The adequacy of the disclosures on the separate sheet is a separate matter. The two applications refer to two of the three 1979 arrests and report sentences of revocation of driver's license. The three 1979 arrests actually resulted in convictions for disorderly conduct and driving while ability impaired by alcohol (February 1979 arrest), disorderly conduct (September 1979 arrest), and driving under the influence (November 1979 arrest). The actual sentences were, respectively: $500 fine, driving restrictions, and alcohol rehabilitation; $75 restitution; and license revocation and $200 fine.
The first two disclosures do a fair job of revealing Petitioner's first three convictions, especially given the fact that they took place 15 years ago when Petitioner was 18 and 19 years old. Obviously, one arrest/conviction is missing, but it appears that the court disposed of the second and third arrests at the same time and possibly in a consolidate proceeding. This may account for Petitioner's recollection that the second and third arrests were a single case. Also, the separate sheet addresses omissions. The dates are a little off, but the first arrest was early in 1979, and the consolidated disposition of the second and third arrests was in 1980. As reported by Petitioner, the charges are roughly correct, and the dispositions suggest the seriousness of the offenses.
It is hard to tell which conviction the third reported arrest signifies. After the three 1979 arrests, there were four more convictions for which Petitioner had to account. To his credit, Petitioner identified 1986 as
the year of the arrest, so as not to suggest that his criminal problems were further behind him than they really were. Although none of the actual arrests or convictions is for disorderly conduct, which is what Petitioner reported on the application forms, all four of the convictions could be fairly described as disorderly conduct. The reported and actual dispositions do not preclude the possibility that Petitioner was identifying any of the four arrests. Thus, Petitioner was probably disclosing the November 1986 arrest on the application forms, and he did a reasonably complete job of doing so.
The disclosure question is therefore whether the separate sheet adequately accounts for the convictions arising out of the 1982, 1984, and 1985 arrests. These arrests took place "around the year 1980," as Petitioner reported on the separate sheet. "Disorderly conduct," as stated on the separate sheet, roughly describes the nature of the offenses, although less so the nature of the arrests, which is what Petitioner claims on the separate sheet to be describing. In fact, Petitioner paid restitution of $32 once, was unconditionally discharged once, and was placed on probation once. The reported fine in each case serves as reasonable disclosure, at least where no jail time is involved.
On balance, Petitioner's disclosures did more than place Respondent on inquiry notice. The disclosures were reasonably accurate and detailed. They gave a fair picture of the kind of trouble that Petitioner got into at that point in his life.
Respondent's case is based on Petitioner's unfitness to teach based on his alleged dishonesty in the application process and his past criminal behavior. Once the question of dishonesty in the application process is resolved in favor of Petitioner, the remaining focus is on his behavior 9-15 years ago when he was 18-26 years old.
The number of arrests and convictions is troubling. But the dispositions do not suggest offenses of extreme gravity. Petitioner is now 35 years old. He has rehabilitated himself in terms of intoxicants, as well as educationally. For many years, he has demonstrated a clear commitment to teaching and evidently is skilled in the profession. He has served his communities well and seeks to continue to do so as a teacher in Florida.
Given the nature of the offenses, their age, and the age of Petitioner at the time he committed the offenses, there is no basis in the record to find that Petitioner is morally unfit to teach.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Petitioner has the burden or proving by a preponderance of the evidence that he is entitled to a Florida teaching certificate. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Respondent has the burden of proving affirmative grounds for the denial of the certificate. Osborne Stern and Company, Inc. v. Department of Banking and Finance, 647 So. 2d 245 (Fla. 4th DCA 1994) (per curiam) (majority holds that standard of proof is clear and convincing evidence; dissent argues that standard of proof is preponderance of the evidence).
Section 231.17(1)(c)6 requires that a person holding a Florida teaching certificate be of good moral character. Rule 6B-4.009(2) provides:
"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.
Section 231.17(5)(a) authorizes Respondent to deny an application for a teaching certificate if the applicant has committed an act or acts that would authorize revocation. Section 231.28(1)(c), (e), (i) and (j) authorizes Respondent to suspend or revoke a certificate for "gross immorality" or "moral turpitude"; conviction of a misdemeanor, felony, or other criminal charge besides a minor traffic violation; violation of the Principles of Professional Conduct for the Education Profession as prescribed by the rules of the State Board of Education; or other violations of the provisions of law for which the penalty is revocation.
Petitioner has proved his eligibility for a Florida teaching certificate. Respondent has not proved, even by a preponderance of the evidence, that Petitioner failed to disclose material facts on the application or, due to his past criminal behavior, is unfit for certification.
It is RECOMMENDED that Education Practice Commission enter a final order granting Petitioner's February 1994 application for a Florida teaching and coaching certificate.
ENTERED on October 6, 1995, in Tallahassee, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings on October 6, 1995.
1-13: adopted or adopted in substance.
14-15: rejected as unsupported by the appropriate weight of the evidence. 16: adopted or adopted in substance.
17-18: rejected as unsupported by the appropriate weight of the evidence. 19-22: adopted or adopted in substance.
23-27: rejected as unsupported by the appropriate weight of the evidence.
301 Fla. Education Center
325 W. Gaines St. Tallahassee, FL 32399-0400
Kathleen M. Richards, Administrator Professional Practices Services
352 Fla. Education Center
325 W. Gaines St. Tallahassee, FL 32399-0400
Barbara J. Staros, General Counsel Department of Education
Attorney Jerry L. Lovelace
Ronald G. Stowers
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.
