STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH MADELINE FELDMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-2909

)

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 11, 1998, at Vero Beach, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance.

For Respondent: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131 STATEMENT OF THE ISSUES

Whether Petitioner's application for a Florida Educator's Certificate should be granted.

PRELIMINARY STATEMENT

On September 22, 1997, the Department of Education (Department) issued a Notice of Reasons, stating why it was denying the application of Petitioner, Judith Madeline Feldman, for a Florida Educator's Certificate. The Notice of Reasons

stated that Petitioner was in violation of Sections 231.17(1)(c)6, (5)(a) and 231.28(1), Florida Statutes, and Rules 6B-1.006(5)(a) and (h), Florida Administrative Code.

Petitioner executed an Election of Rights dated October 14, 1997, requesting an administrative hearing. The case was forwarded to the Division of Administrative Hearings on June 25, 1998.

A Notice of Hearing was sent to all parties on July 20, 1998, and an Amended Notice of Hearing was sent to all parties on August 7, 1998. The Amended Notice advised the parties that the hearing would be by teleconference at the same time and place as scheduled in the original notice of hearing. Petitioner did not appear at the final hearing.

At the final hearing, Respondent called Margaret Dawson- Brown and Jean Barnes as its witnesses. Respondent's Exhibits 1-

8 were admitted in evidence.

The parties were to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on August 19, 1998. Petitioner did not file a proposed recommended order. Respondent's Proposed Recommended Order has been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. On July 5, 1990, Petitioner, Judith Madeline Feldman (Feldman), purchased a $10 rock of cocaine from an undercover police detective during a police operation to combat street level cocaine dealing. The police found a pipe used to smoke cocaine

   in the console of Feldman's car. The pipe field tested positive for cocaine.

2. As a result of the purchase of the cocaine and the possession of the cocaine pipe, Feldman was arrested and charged with purchasing cocaine, possessing cocaine, and possessing drug paraphernalia. In December 1990, Feldman pled nolo contendere to one count of purchasing cocaine and one count of possession of drug paraphernalia. Adjudication was withheld, and Feldman was placed on probation for two years.

3. By court order dated February 24, 1992, the records concerning the arrest on July 5, 1990, were sealed.

4. In March 1996, Feldman filed an application with the Florida Department of Education for a Florida Educator's Certificate. The application form contains the following inquiry concerning the applicant's arrest record:

   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? 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.

   
   

   Any record that has NOT been SEALED or EXPUNGED must be reported in this section.

   
   

5. Feldman checked the No box on the arrest record section of the application.

6. The application contained a section inquiring about sealed or expunged records. The application contained the following:

   Have you been convicted or found guilty of a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation) and such record(s) was sealed or expunged? 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.

   SEALED or EXPUNGED records MUST BE REPORTED

   pursuant ss. 943.0585 and 943.059, FS. However, the existence of such records WILL NOT BE DISCLOSED nor made part of your certification file which is public record.

   
   

7. Feldman checked the No box on the sealed/expunged record section of the application.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

9. The Department of Education has denied Feldman's application for a Florida Educator's Certificate on the basis that Feldman violated Sections 231.17(1)(c)6 and (5)(a), Florida Statutes (1996 Supp.), Section 231.28(1), Florida Statutes, and Rules 6B-1.006(5)(a) and (h), Florida Administrative Code. The Department has the burden to establish by clear and convincing evidence that the grounds listed in the Notice of Reasons for

   denial exist. See Osborne Stern & Co., Inc. v Department of Banking and Finance, 647 So. 2d 245 (Fla. 1st DCA 1994).

10. Sections 231.17(1)(c)6 and (5)(a), Florida Statutes (1996 Supp.), provide:

    (1)(c) To be deemed qualified for a professional certificate, the applicant for certification shall:

    
    

    * * *

    
    

    6. Be of good moral character;

    
    

    * * *

    
    

    (5)(a) The Department of Education is authorized to deny an applicant a certificate if it possesses evidence satisfactory to it that the applicant has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

    
    

11. Section 231.28(1), Florida Statutes, provides:

    
    

    1. The Education Practices Commission shall have the authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that such person:

       1. obtained a teaching certificate by

          fraudulent means;

       2. Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

       3. Has been guilty of an act of gross immorality or an act involving moral turpitude;

       4. Has had a teaching certificate revoked in another state;

       5. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       6. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       7. Has breached a contract, as provided in s. 231.36(2);

       8. Has been the subject of a court order directing the Education Practices Commission to suspend the certificate as a result of a delinquent child support obligation;

       9. Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules; or

       10. Has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate.

12. Rules 6B-1.006(5)(a) and (h), Florida Administrative Code, provide:

    1. Obligation to the profession of education requires that the individual:

       
       

       1. Shall maintain honesty in all professional dealings.

    
    

    * * *

    
    

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

13. Respondent alleged in the Notice of Reasons for denial that Feldman submitted a fraudulent application in that she did not report a plea of nolo contendere which she entered in the Broward County Court on or about December 19, 1990. Feldman did not, however, submit a fraudulent application. The sealed records section of the application asked for the applicant to report criminal offenses for which she had been convicted or found guilty. A plea of nolo contendere is not a conviction or a finding of guilt. Holland v. Florida Real Estate Commission, 352 So. 2d 914 (Fla. 1st DCA 1977). Adjudication withheld is neither a conviction nor a finding of guilt. Rifkin v. Florida Real

    Estate Commission, 345 So. 2d 349 (Fla. 1st DCA 1977). Feldman correctly answered the section of the application inquiring whether she had been convicted or found guilty of a criminal offense when she replied, "No." The question posed in the sealed records section did not concern records in which the applicant had pled nolo contendere and adjudication had been withheld. If Respondent had wanted such information in the sealed record section, it could have easily asked for that information as it did in the arrest section.

14. In the arrest section of the application, the applicant was told that records which had not been sealed or expunged were to be reported in that section. Feldman correctly answered the question in the arrest section because the records of her plea of nolo contendere and the withholding of adjudication had been sealed.

15. Respondent has alleged in the Notice of Reasons that Feldman has failed to maintain honesty in all professional dealings. The evidence does not establish that Feldman failed to maintain honesty in all professional dealings.

16. Based on the unrebutted deposition testimony of a police officer participating in the undercover drug operation, Feldman did purchase a $10 rock of cocaine and there was a pipe used for smoking cocaine in her car. There was no evidence presented to establish that Feldman's conduct received great notoriety or that it impaired her service in the community.

17. Rule 6B-4.009(2), Florida Administrative Code defines "immorality" as:

    [C]onduct 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.

    
    

18. Rule 6B-4.009(6), Florida Administrative Code defines "moral turpitude" as:

    [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 statute fixes the moral turpitude.

19. The evidence did establish that Feldman's purchase of cocaine and the possession of a cocaine pipe constituted an act of moral turpitude. See Adams v. State, Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981).

20. In its Proposed Recommended Order, counsel for the Respondent makes the following statement concerning the penalty which should be imposed on Petitioner:

    It should be noted that the nature of the charge itself is far less significant than Petitioner's dishonesty. Had Petitioner simply disclosed the criminal charge, based on the amount of drug and the time elapsed since the case, only the most minimal sanctions would be appropriate, such as a brief period of probation with conditions related to drug screening and counseling.

21. The evidence does not establish that Feldman lacks good

moral character. "An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character." Zemour v. State, Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application should be granted with a one-year probation and appropriate conditions relating to drug screening and counseling during the probation period.

DONE AND ENTERED this 16th day of September, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1998.

COPIES FURNISHED:

Kathleen Richards, Executive Director Education Practices Commission Florida Education Center

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

Jerry W. Whitmore, Program Director Professional Practices Services Florida Education Center

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

Judith M. Feldman 5030 26th Street

Vero Beach, Florida 32966

Judith M. Feldman

1126 West Oglethorpe Highway Hinesville, Georgia 31313-5415

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 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.

Docket for Case No: 98-002909

Orders for Case No: 98-002909