NORMAN H. ARNOLD, JR., )
vs. ) Case No. 98-1619
FRANK T. BROGAN, Commissioner ) of Education, )
Respondent. )
A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, by televideo with the parties and witnesses in Ft. Myers, and the undersigned in Tallahassee, Florida, on September 11, 1998. The following appearances were entered:
For Respondent: Charles T. Whitelock, Esquire
Whitelock and Williams, P.A.
300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316
Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character.
Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997).
Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
On September 9, 1997, Petitioner applied for a Florida Educator's Certificate. The Commissioner refused to issue a Florida Professional Educator's License to the Petitioner on or about February 17, 1998, as set forth in the Notice of Reasons. Acting upon a written request for a formal hearing made by the Petitioner, this matter was referred to the Division of Administrative Hearing, and a hearing was held following discovery and a change in venue.
At the hearing, Petitioner presented the testimony of five witnesses and testified in his own behalf. In addition, ten exhibits were admitted in evidence. Respondent offered four exhibits in evidence. The transcript of the hearing was filed on September 30, 1998. Petitioner filed his Proposed Recommended Order on October 12, 1998. Respondent filed his proposals on October 13, 1998. Petitioner's Motion to Strike Respondent's Proposed Recommended Order as untimely is denied. Both proposals have been given careful consideration in the preparation of this
order.
On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate.
Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year.
After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the
1997-98 school year. Petitioner returned to that position for the 1998-99 school year.
Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year.
Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio.
He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner.
After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest
that had occurred in Key West, Florida, in 1994.
Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan.
Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him.
Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States.
On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her.
Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack.
One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly
tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so.
Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her.
When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day.
Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996.
Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her.
When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation,
community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail.
Petitioner's testimony relating to the incident on December 13, 1994, is credible.
No witness testified contrary to the version of the events provided by the Petitioner.
The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him.
Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997.
In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida.
Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina.
Petitioner is dedicated to teaching. He wants to make
it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher.
His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school.
Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program.
David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach.
Rose Marie Bobbs is a parent of a student that was on
Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams.
Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students.
Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida.
Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate.
Petitioner is competent and morally fit to teach students in the State of Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Pursuant to Section 231.17(10)(a), Florida Statutes
(1997), the Department of Education has statutory authority, in conjunction with the Education Practices Commission (EPC), to issue or deny teaching credentials to applicants under Florida law. In addition, Florida law gives the Commissioner and the EPC the authority to discipline license holders for misconduct once they have received a license to teach. See Section 231.28, Florida Statutes (1997).
Petitioner, as an applicant for a Florida Educator's Certificate, has the burden of proving his entitlement to the
certificate. Florida Department of Transportation v. J.W.C. Corp. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 231.17(10)(a), Florida Statutes, authorizes the Department of Education and the Education Practices Commission to deny an applicant a teaching certificate provided:
. . . the department possesses evidence satisfactory to it that the applicant has committed an act or acts, or that the situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate.
In the Notice of Reasons filed against Petitioner, it has been alleged that he has committed the acts prohibited by the provisions of Section 231.28(1)(c), Florida Statutes.
Rule 6B-4.009, Florida Administrative Code, provides:
(2) "Immorality" is defined as conduct that is inconsistent with the standard 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.
The term "moral turpitude" is defined in Rule 6B- 4.009(6), Florida Administrative Code, as follows:
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statutes fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, thought is often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).
In a formal administrative hearing, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Section 120.57(1)(c), Florida Statutes (1997) (formerly Section 120.58(1)(a)(1.)). Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 808 (Fla. 1st DCA 1986).
The description of the events contained in the Police Report was inadmissible hearsay. It was not admissible to form the basis of a finding of misconduct against Petitioner because it was not supported by any admissible evidence presented by the Respondent at the hearing on this matter. Wark v. Home Shopping Club, Inc., 715 So. 2d 323 (Fla. 2d DCA, 1998).
In the instant case, the principal evidence relied upon by Respondent is the police report. Clearly, the police report, standing alone, is hearsay. Respondent's reliance on Section 90.803(2), Florida Statutes, the "excited utterance" exception to the hearsay rule, is misplaced. No witness testified on behalf
of Respondent who had direct knowledge of the incident which occurred on the night of December 13, 1994. There was no testimony of any kind which would show wrongdoing by Petitioner. Harris, supra. Because these documents were the only evidence presented to show Petitioner's misconduct, they do not supplement or explain other evidence. Furthurmore, because no testimony was presented at the hearing which could establish the predicate necessary to admit the police report as an "excited utterance," or other exception to the hearsay rule, the documents would not be admissible in a civil trial. Wark, supra at p. 324.
There is no evidence to support the denial of a Professional Teacher's Certificate by the Respondent to the Petitioner, in this case. The only evidence offered to refute the testimony of Petitioner was through cross-examination and I find Petitioner's testimony to be credible.
There is no competent evidence sufficient to support a finding of fact to refute Petitioner's story that he acted in self-defense on December 13, 1994, when he kept Dory Catahan from attacking him in a fit of jealous rage at their apartment in Key West, Florida. The fact that Petitioner was arrested on the charge of domestic battery cannot be used to prove that Petitioner committed an immoral act, or is guilty of an act involving moral turpitude.
Petitioner had the burden to prove he was fit and competent to receive a teaching certificate. Through the
testimony of two assistant principals at the school as well as the athletic director, a parent, and a police officer, the Petitioner has met his burden of proof in this matter. His witnesses testified that he is good with children, both as a teacher and in school suspension officer, and they also testified that he was a good coach of high school students. At least three of the witnesses, Mr. Clover, Ms. Bobbs, and Sgt. Cooper, all testified that they would have no qualms about their own children being coached and/or taught by Petitioner.
Mr. Clover and Ms. Perkins, both administrators with the Lee County School District, testified that they would, and in Mr. Clover's case did, recommend Petitioner for hire at Cypress Lake High School. All the witnesses knew about the situation in Key West, and it had no impact on their assessment of the qualities Petitioner showed them that convinced them he was both moral and competent to teach.
The Petitioner is entitled to and should be issued a Florida Teacher's Certificate.
RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate.
Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998.
Charles T. Whitelock, Esquire Whitelock and Williams, P.A.
300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316
Kathleen Richards, Executive Director Professional Practices Services Department of Education
Jerry W. Whitmore, Program Director Professional Practices Services Department of Education
Michael H. Olenick, General Counsel Department of Education
days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
