STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 01-4585PL

)

JAMES F. DAVIS, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice a hearing was held on February 8, 2002.

Authority for conducting the hearing is set forth in Sections

120.569 and 120.57(1), Florida Statutes. The hearing location was the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was held before by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 US Highway 331, South Santa Rosa Beach, Florida 33459

For Respondent: No appearance

STATEMENT OF THE ISSUE

Should the State of Florida, Education Practices Commission impose discipline against Respondent for alleged

violations of the statutes and rules regulating Respondent's Florida Teaching Certificate No. 284544?

PRELIMINARY STATEMENT

Before the State of Florida, Education Practices Commission, Charlie Crist, as Commissioner of Education, Petitioner, vs. James F. Davis, Respondent, Case No. 989-2087- C, Respondent was charged by five-count Administrative Complaint with alleged violations pertaining to his Florida teaching certificate. The Administrative Complaint was executed on March 28, 2001. On May 1, 2001, Respondent elected to attempt settlement of the case. That attempt was not successful. On November 29, 2001, the case was forwarded to Sharyn Smith, Chief Judge, Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing to resolve disputed issues of material fact. The case was assigned and the hearing conducted.

At hearing Petitioner presented the testimony of Rita Heley. Petitioner also presented the deposition testimony of Lisa Moore and Deputy J. T. Carey as Petitioner's Exhibits 1 and 2 admitted in evidence. Petitioner's Exhibits 3 through 8 were received in evidence.

A hearing transcript was filed with the Division of Administrative Hearings on February 13, 2002. Petitioner

timely filed a proposed recommended order which has been considered.

FINDINGS OF FACT

1. Respondent holds Florida Teaching Certificate No.

   
   

   284544 in the subject areas of economics and drivers' education valid through June 30, 2005.

2. In a case before the State of Florida, Education Practices Commission, Frank T. Brogan as Commissioner of Education, Petitioner, vs. James F. Davis, Respondent, Case No. 9450786-C, among the allegations was the reference to Respondent's arrest on March 6, 1994, for driving under the influence and adjudication on October 4, 1994, related to that offense. In Case No. 94-012585 MM A, County Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent pled guilty and was adjudicated guilty on

   October 4, 1994, to the driving under the influence offense and was fined $1270.00 as part of the disposition of the case.

3. Pertaining to Case No. 945-0786-C, in an action before the State of Florida, Education Practices Commission, Frank Brogan, as Commissioner of Education, Petitioner, vs. James F. Davis, Respondent, Case No. 96-022-RT, final order, entered June 19, 1996, the Education Practices Commission accepted a settlement agreement between the parties. As a consequence, Respondent received a letter of reprimand. In

   the case disposition, Respondent agreed to be placed on probation for a period of two years commencing with the issuance of the final order, assuming Respondent's current employment as an educator in Florida at the time the final order was entered. Respondent was so employed.

4. Among the conditions of his probation were that Respondent "violate no law and shall fully comply with all district school board regulations, school rules and state board of education Rule 6B-1.006."

5. Through the settlement agreement, accepted in the final order, Respondent agreed that should he fail to comply with each of the conditions of probation set forth in the settlement agreement; then the Petitioner, the Commissioner of Education, would be authorized to bring an administrative complaint for sanctions up to an including the possible revocation of the teaching certificate based upon a violation of the terms of the probation. The present Administrative Complaint is premised upon this agreement authorizing a further administrative complaint for alleged violations of the conditions of probation.

6. Contrary to the expectations of his probation, Respondent was arrested on March 22, 1998, in Jacksonville, Duval County, Florida, while driving under the influence of alcoholic beverages, to the extent that Respondent's normal

   faculties were impaired. Section 316.193, Florida Statutes. This arrest led to the filing of a criminal information in the case of State of Florida vs. James Felder Davis, the Respondent herein, in a case before the County Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 98-19559-MM, charging a violation of Section 316.193, Florida Statutes.

7. Although no proof was presented that the DUI case No. 98-19559-MM has been resolved, facts are known concerning Respondent's driving on March 22, 1998. On that date Officer

   J. T. Carey of the Jacksonville Sheriff's Office observed Respondent in an automobile passed out in the drive-thru at the Taco Bell Restaurant at 9300 Atlantic Boulevard. Other cars were going around Respondent's car to avoid it. Respondent was in the driver's seat with the keys in the ignition and the car running. No other person was in the car with Respondent. The officer tried several times to wake Respondent. When the officer succeeded, he asked Respondent to step out of the vehicle. Respondent had to use the door to brace himself when getting out of the car. Respondent's appearance revealed bloodshot watery eyes. Respondent's speech was slurred. Respondent had soiled his shorts and had a strong odor of alcoholic beverage on his breath. Respondent was very disoriented. Respondent's car was removed from the

   lane of traffic at the drive-thru, and the officer then drove Respondent to an adjacent location to perform a field sobriety exercise. This involved an eye test, a walk and turn in which the Respondent was required to walk nine steps on a line and turn around and come back. The Respondent was required to stand on one leg a period of 30 seconds to test balance; another test performed was the finger to nose exercise.

   Respondent performed poorly on the exercises. Officer Carey believed that Respondent was too impaired to drive and arrested Respondent for DUI. Respondent refused to take a breathalyzer test to measure impairment.

8. In the school year 1992-93 Respondent was hired as a driver's education teacher at First Coast High School, part of the Duval County School District. Respondent worked in that capacity through January 18, 2002. It was anticipated, though not established in the hearing record, that Respondent would retire from his position with the Duval County School Board on January 31, 2002.

9. The Duval County School District took action against Respondent for misconduct. This action was taken on

   February 16, 1999, and accepted by Respondent on February 24, 1999. The nature and specifications of the misconduct related to the March 22, 1998 arrest and charge for driving under the influence. The nature and specifications were also related to

   the grounds for discipline in the Education Practices Commission Case No. 945-0786-C, leading to the final order that has been discussed. The Duval County School Board perceived that the arrest and charge on March 22, 1998, violated the terms of the settlement agreement as contained in the final order from the Education Practices Commission related to Case No. 945-0786-C, thus violating Section 231.262(7), Florida Statutes. The School District also found a violation of the State Board of Education Rule 6B-1.006, Florida Administrative Code, concerning the Principles of Professional Conduct of the Education Profession and Rule 6B- 1.001(3), Florida Administrative Code, pertaining to the Code of Ethics of the Education Profession on the subject of the need to be of good moral character, the need to avoid engaging in acts of gross immorality or acts involving moral turpitude and the conviction of misdemeanors other than minor traffic violations. The disciplinary terms imposed by the Duval County School District included a written reprimand and suspension without pay for ten working days before the 1998-99 school year entered.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in

    accordance with Sections 120.569, 120.57(1), and 231.262(5), Florida Statutes.

11. Petitioner bears the burden to prove the allegations in the present Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is defined in Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

12. Count 1 charges Respondent with a violation of Section 231.2615(1)(c), Florida Statutes, by being guilty of gross immorality or an act involving moral turpitude. The facts incident to Respondent's arrest on March 22, 1998, for driving while under the influence demonstrate that Respondent was guilty of gross immorality.

13. Count 2 charges Respondent with a violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, a felony, or other criminal charge, other than a minor traffic violation. This violation has not been shown. The material allegations in the Administrative Complaint relate to the March 22, 1998, operation of a motor vehicle while under the influence. It was not proven that Respondent was convicted of a misdemeanor, under Section 316.193, Florida Statutes. The material allegations concerning the March 6, 1994, arrest and

    subsequent plea of guilty and adjudication of guilty for driving under the influence effective October 4, 1994, are not legally significant to finding a violation in this case. That incident, among other incidents, was considered in Education Practices Commission Case No. 945-0786-C, leading to a settlement agreement as approved by final order in which probation was granted for the offense. In turn, the 1994 driving under the influence case in court may not serve as grounds for imposing discipline in the present case.

14. Count 3 charges Respondent with a violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the education profession prescribed by the State Board of Education rules. This count is related to Count 5, which charges Respondent with a violation of Rule 6B-1.006(5)(p), Florida Administrative Code, in that Respondent has failed to comply with the conditions of an order of the Education Practices Commission imposing probation. That refers to the final order arising from Education Practices Commission Case No. 945-0786-C. Again, the March 6, 1994, driving under the influence criminal case as disposed of on October 10, 1994, formed a basis for imposing the probation. It may not serve as grounds to violate the probation. The March 22, 1998, arrest for operating a motor vehicle while under the influence

    has not resulted in a finding of violation of Section 316.193, Florida Statutes. As the record stands in this hearing, to the extent that the action by the Duval County School Board on February 16, 1999, imposing discipline on Respondent's employment condition with the School Board, is intended to form the basis for discipline as a violation of the order of probation admonishing Respondent to not violate School Board regulations or school rules within the period of probation which commenced on June 19, 1996, the attempt to discipline on this occasion fails. First, the material allegations in the present Administrative Complaint make no reference to the action by the Duval County School Board against Respondent for violating school board regulations or rules. More importantly, the February 16, 1999, discipline was imposed by the Duval County School Board beyond the probationary period contemplated by the final order, EPC Case No. 96-022-RT. Petitioner has failed to prove Counts 3 and 5 to the Administrative Complaint, other than in relation to Count 1.

15. Count 4 charges Respondent with a violation of

Section 231.2615(1)(k), Florida Statutes, in that Respondent has failed to comply with the June 1996 final order in EPC Case No. 96-022-RT imposing probation. For reasons already discussed, Petitioner has failed to prove Count 4, other than in relation to Count 1.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Count 1; dismissing Counts 2 through 5, other than in relation to Count 1; and suspending Respondent's Florida Teaching Certificate No. 284544 for two years.

DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2002.

COPIES FURNISHED:

J. David Holder, Esquire 24357 US Highway 331, South

Santa Rosa Beach, Florida 33459

James F. Davis

Post Office Box 11990 Jacksonville, Florida 32239

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

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: 01-004585PL

Orders for Case No: 01-004585PL