STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. )

)

JOSEPH H. CARUTH, JR., )

)

Respondent. )

Case No. 03-0303PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 24, 2003, in Shalimar, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459

For Respondent: Tony Simpson, Esquire

5 Clifford Drive Shalimar, Florida 32579

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 231.2615(1)(c), Florida Statutes (2001), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On December 17, 2002, Petitioner, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint against Respondent, Joseph H. Caruth, Jr. (Caruth), alleging that Caruth violated Subsection 231.2615(1)(c), Florida Statutes (2001), in that he was guilty of gross immorality or an act involving moral turpitude. Caruth requested an administrative hearing.

On January 27, 2003, the case was transmitted to the Division of Administrative Hearings for assignment to an administrative law judge. The case was originally assigned to Administrative Law Judge Charles C. Adams, but was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

At the final hearing, Petitioner called the following witnesses: James G. Morrison, Jeffrey D. Floyd, Clayton D. Powell, Matthew J. Spratt, and Jerry Salter. Petitioner submitted Petitioner's Exhibits 1 through 9, which were admitted in evidence. Respondent testified in his own behalf and called the following witnesses: Rosario Caruth; Nathaniel Smith, Jr.; Jannie V. Smith; Norris J. Young; Houston O. Gilmore; and Thomas D. Dargan. Respondent submitted Respondent's Exhibit 1, which was admitted in evidence.

The Transcript was filed on May 2, 2003, and the parties timely filed their Proposed Recommended Orders on May 12, 2003.

FINDINGS OF FACT

1. Caruth holds Florida Educator's Certificate 755873 that is valid through June 30, 2007, and covers the area of athletic coaching.

2. Caruth currently teaches as an adjunct professor for various out-of-state post secondary schools and works for the University of West Florida-Okaloosa Fort Walton Community College joint campus in Fort Walton Beach as an academic advisor and military liaison. He has taught in various public schools in the Okaloosa County School District as a substitute teacher. He has also taught as an adjunct professor, on a term-by-term contract basis, at Okaloosa-Walton Community College (OWCC). On November 6, 2001, he was not employed by either a Florida public school or OWCC.

3. On November 6, 2001, Caruth planned to drive his wife, Rosario Caruth, to her workplace at Hurlbert Field and then to proceed to a Kiwanis Club meeting. Mrs. Caruth had failed to inform her husband that she needed to be at work earlier than her normal starting time and began to complain about being late prior to leaving their home that day. Her complaints continued as they began their drive despite Caruth's admonishments to drop the subject.

4. At approximately 6:30 a.m., Caruth became angry and upset with his wife and abruptly pulled the car over to the side of Highway 399 near the business premises of M & M Electric of Northwest Florida (M & M Electric). Caruth began to hit and choke his wife, knocking her head against the passenger window.

5. Three employees of M & M Electric were waiting in the parking lot of M & M Electric to get in the building to start work. They observed Caruth hit and choke Mrs. Caruth. Two of the employees started to run to the car, but Caruth pulled the car onto the highway and drove away.

6. A few minutes later, a Santa Rosa County Deputy Sheriff, Matthew Spratt, pulled Caruth over on Highway 399 for speeding. Caruth was going 65 miles per hour in a 45 miles per hour zone. The deputy approached Caruth's car, and Caruth, who was "extremely irate," told the deputy, "If this is about my wife, it is not true." One of the M & M Electric employees who had witnessed the incident between Caruth and his wife, arrived on the scene and told the deputy that Caruth had been beating his wife.

7. Deputy Spratt asked Mrs. Caruth what had happened. She replied that she and her husband had had an argument. The deputy observed a drop of blood dripping from her right ear. She was not cooperative with the deputy.

8. The deputy asked Caruth to get out of the car, which he did. Caruth was not cooperative with the deputy and just wanted the deputy to give him his ticket and let him go. About this time, Deputy Salter and Deputy Quig arrived on the scene. Deputy Salter also questioned Mrs. Caruth, but again she was uncooperative. Deputy Salter observed a cut on Mrs. Caruth's ear lobe, two scratches on her right temple, and a cut behind her ear. The cut on the ear lobe was bleeding.

9. Caruth was arrested for battery, domestic violence and taken to jail.

10. Mrs. Caruth contends that her husband did not hit her and that her scratches and cuts probably were caused by her sunglasses breaking when Caruth snatched them off her face. She also contends that her husband did not choke her, but grabbed the lapels of her jacket. Given the testimony of the three eye witnesses, Mrs. Caruth's testimony is not credible.

11. On December 4, 2001, Caruth entered a plea of nolo contendere to the charge. The Court withheld adjudication of guilt and placed Caruth on probation for one year. One of the conditions of probation was that Caruth attend a certified domestic violence intervention counseling program. Caruth finished the counseling program and was given an early release from his probation.

12. Caruth and his wife sought marriage counseling and have been working toward resolving their communication problems. He and his wife have engaged in a few shoving incidents during their 21 years of marriage, and Caruth has attended some anger management training classes in the past due to some allegations of verbal abuse of his daughter.

13. Although Caruth has had some problems with anger in family situations, he is highly regarded for his community service. He has been the past president of the local Kiwanis Club and has received community service awards. Caruth has never had his educator's license disciplined.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

15. Petitioner has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner has alleged that Caruth violated Subsection 231.2615(1)(c), Florida Statutes (2001), which provides that the Education Practices Commission could discipline a teaching certificate if it could be shown the person "[h]as been guilty of gross immorality or an act involving moral turpitude."

16. Section 231.2615, Florida Statutes (2001), does not contain a definition of gross immorality or moral turpitude. "Gross immorality" has been defined as follows:

    [t]he term "gross" in conjunction with "immorality" which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FAALR 1373-A (Department of Education 1981).

    
    

    Frank T. Brogan vs. Eston Mansfield, DOAH Case No. 96-0286 (EPC Sept. 27, 1996).

17. The court in State ex rel. Tullidge v. Hollingsworth,

    
    

    146 So. 660, 661 (1933), observed that 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, though, it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

18. Petitioner has established that Caruth committed an act of domestic violence by publicly hitting and choking his wife. Such an act involves moral turpitude, and is, therefore, in violation of Subsection 231.2615(1)(c), Florida Statutes (2001).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Joseph H. Caruth, Jr., violated Subsection 231.2615(1)(c), Florida Statutes (2001), issuing a reprimand, and requiring him to submit to an evaluation conducted by a qualified provider approved by the Florida Recovery Network Program within 60 days of the entry of the final order to address the conduct described herein and to follow any recommended course of treatment or counseling.

DONE AND ENTERED this 19th day of May, 2003, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2003.

COPIES FURNISHED:

J. David Holder, Esquire 24357 U.S. Highway 331, South

Santa Rosa Beach, Florida 32459

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

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

Tony Simpson, Esquire

5 Clifford Drive Shalimar, Florida 32579

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street Suite 224-E

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: 03-000303PL

Orders for Case No: 03-000303PL