STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on August 3, 2009, in Tampa, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Charles H. Lucas, pro se

1473 54th Avenue South

St. Petersburg, Florida 33705 STATEMENT OF THE ISSUE

Whether it is appropriate for Petitioner to discipline Respondent's Florida educator certificate for acts alleged in Petitioner's Administrative Complaint dated August 27, 2008.

PRELIMINARY STATEMENT

By letter dated August 27, 2008, Petitioner, Dr. Eric J. Smith, Commissioner of Education, advised Respondent, Charles H. Lucas, that he had found probable cause to justify sanctions against his Florida educator certificate and enclosed an Administrative Complaint that contained allegations alleging violation of Subsection 1012.795(1)(d), Florida Statutes (2008).

On February 23, 2009, Respondent requested an administrative hearing. On June 2, 2009, Petitioner forwarded the case to the Division of Administrative Hearings.

On June 3, 2009, an Initial Order was sent to both parties requesting, inter alia, mutually convenient dates for the final hearing. Based on the response of the parties on June 18, 2009, the case was scheduled for final hearing on August 3, 2009, in Tampa, Florida.

The hearing took place on August 3, 2009. Petitioner presented five witnesses: Tressa Grooms; Rebecca Walters;

Ann Minton; Nephtali Sepulveda, Jr.; and Robert Charles Wright. Petitioner submitted three exhibits that were received into evidence and marked Petitioner's Exhibits A, 1, and 2. At the hearing, Respondent testified in his own behalf. Respondent did not offer any exhibits.

The Transcript of Proceedings was filed on August 20, 2009.

Petitioner submitted a Proposed Recommended Order.

All statutory references are to Florida Statutes (2008), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Respondent holds Florida Professional Educator's Certificate No. 853153, covering the area of athletic coaching, which is valid through June 30, 2009.

2. During all times material to the allegations of misconduct, Respondent was employed as a physical education teacher at Jennings Middle School in the Hillsborough County School District.

3. Rebecca Walters and Ann Minton were employees of the Amscot Financial Store (Amscot) located in Tampa, Florida. Amscot is in the business of check-cashing and the provision of other financial services.

4. Shortly after 8:00 a.m., on March 2, 2005, Respondent entered Amscot and approached Rebecca Walters. Ms. Walters asked Respondent how she could help him. Respondent handed Ms. Walters his drivers license and two money orders, each for

   $950.00. Ms. Walters asked Respondent the purpose of the money orders. Respondent told her that he was a teacher with a landscaping business on the side and that the money orders were for payment for work done. Ms. Walters answered a customer

   telephone call and then asked Ann Minton to help Respondent with his transaction.

5. Respondent then went to Ms. Minton's window.

   
   

   Respondent told Ms. Minton that he had two money orders he wanted to cash. Ms. Minton asked Respondent to sign the money orders on the back and give her his drivers license.

6. Respondent also told Ms. Minton that the money orders were payment for work done in his landscaping business.

7. After receiving the signed money orders and drivers license from Respondent, Ms. Minton tried to scan the money orders. They would not scan. Pursuant to office procedure, Ms. Minton then sent a copy of Respondent's drivers license and the money orders to the corporate office to determine whether she could cash the money orders.

8. The corporate office advised Ms. Minton that the money orders were counterfeit, and she was directed to call the Hillsborough County Sheriff's Office.

9. While Ms. Minton was contacting the corporate office and the Sheriff's office, Respondent began to pace in the waiting area and appeared agitated. He came to Ms. Minton's window and asked her to return his drivers license and the money orders. Ms. Minton told Respondent that she could not give the documents back to him until she received clearance from the corporate office.

10. Hillsborough County Deputy Sheriff Tressa Grooms arrived on the scene at approximately 8:45 a.m. When Deputy Grooms began to question Respondent about the money orders, Respondent told her that they were payment for services rendered by his lawn care business. He also stated that he was there to cash the money orders.

11. A second deputy sheriff, Jason Oliver, also arrived.

    
    

    He searched Respondent's vehicle and discovered eight more counterfeit money orders in the amount of $950.00 each.

12. When Respondent was arrested and put in the patrol car, he changed his story. Respondent told Deputy Grooms he didn't know where the money orders came from, that they just arrived on his doorstep.

13. Hillsborough County Detective Nephtali Sepulveda, Jr., also arrived on the scene. Detective Sepulveda is a detective in the Criminal Investigations Division, assigned to the Economic Crimes Unit. When Detective Sepulveda questioned Respondent at the scene, Respondent told Detective Sepulveda that he received the money orders in a UPS package at his home.

14. Respondent was transported to the Sheriff's Office and interviewed by Detective Sepulveda and U.S. Postal Inspector Robert Charles Wright. During this interview Respondent admitted that he did not have a lawn care business and, in fact, had received the money orders by UPS at his home.

15. Respondent then advised that he had been solicited by someone through the internet to participate in an apparent "scam" that involved an $18 million dollar inheritance from a relative that died in an airplane crash in Africa. He later received the counterfeit money orders, reportedly unsolicited.

16. Postal Inspector Wright examined the money orders taken from Respondent and determined that they were, in fact, counterfeit.

17. Respondent was arrested and charged with several criminal charges: Uttering Forged Instruments; Grand Theft in the Third Degree; and Possession of Counterfeit Payment Instruments.

18. On or about March 29, 2005, the charges were reduced by the State Attorney's Office to: Count 1, Counterfeiting Payment Instruments; Count 2, Counterfeiting Payment Instruments; Count 3, Grand Theft in the Third Degree.

19. On or about July 26, 2005, the State Attorney's Office further reduced the charges to: Count 1, Worthless Checks; Count 2, Worthless Checks; Count 3, Petit Theft. The case was closed by the State Attorney's Office when Respondent entered into a Misdemeanor Invention Program.

20. On or about March 9, 2005, Respondent was suspended without pay from his teaching position by the Hillsborough County School Board and, subsequently, terminated.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57, Fla. Stat. (2009); Sublett v. District

    School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

22. Section 1012.795, Florida Statutes, reads, in pertinent part, as follows:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or

       (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or a public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to ten years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

       * * *

       
       

       (d) Has been guilty of gross immorality or an act involving moral turpitude as defined by the State Board of Education.

       
       

23. Because Respondent's Florida educator certificate is at risk of being sanctioned, Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The definition of clear and convincing evidence is found in the case of Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

24. Because the statute and rules providing grounds for disciplining Respondent's Florida educator certificate are penal in nature, they must be construed in favor of Respondent. Rosario v. Burke, 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of Professional Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

25. The Administrative Complaint in this case charged violations of Subsections 1012.795(1)(d), Florida Statutes, as follows:

    On or about March 30, 2002, Respondent was driving a motor vehicle without a valid operator's license. Respondent was charged with: Driving Without a License With Knowledge. On or about August 21, 2002, Respondent pled not guilty to the charge and was adjudicated guilty by the court.[1]

    On or about March 2, 2005, Respondent presented for payment, two counterfeit money orders in the amount of $950.00 each.

    Respondent was in possession of eight additional counterfeit money orders each in the amount of $950.00. Respondent was arrested and charged with: Count 1, Uttering a Forged Instrument; Count 2, Uttering a Forged Instrument; Count 3, Grand Theft in the Third Degree; Count 4, Grand Theft in the Third Degree; Counts 5-12, Possession of Counterfeit Payment Instrument. On or about March 29, 2005, the charges were reduced by the State Attorney's Office to: Count 1 Counterfeiting Payment Instrument; Count 2, Counterfeiting Payment Instrument; Count 3, Grand Theft Third Degree. On or about July 26, 2005 the State Attorney's Office further reduced the charges to: Count 1, Worthless Check,

    Count 2, Worthless Check; Count 2, Worthless Check; Count 3, Petit Theft. The case was closed by the State Attorney's Office when Respondent entered into a Misdemeanor Invention Program. On or about March 9, 2005, Respondent was suspended without pay from his teaching position by the local school board.

    
    

26. Based on the allegations above, the Administrative Complaint alleged that Respondent was guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.

27. "By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). As a teacher, it is not necessary that Respondent "be charged with or convicted of a crime in order to

    be subject to revocation of a certificate based on conduct reflecting gross immorality or moral turpitude. . . ." Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

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

    [C]onduct that is inconsistent with standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

29. "Moral turpitude" is defined at Florida Administrative Code Rule 6B-4.009(6)3 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 fellowman or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

30. When measured against these definitions, Respondent's conduct in participating in an unlawful counterfeit money order scam by receiving them, attempting to cash two of them, and lying to law enforcement officers reaches the level of gross immorality or an act involving moral turpitude. Respondent's personal conduct is inexcusable. Despite the fact the charges were reduced by the office of the State Attorney, Respondent engaged in the conduct for which he was originally charged.

31. None of the testimony offered by Respondent as mitigating his behavior is accepted as credible.

32. Petitioner has proven clearly and convincingly that Respondent violated Subsection 1012.795(1)(d), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that Respondent, Charles H. Lucas, be found guilty of violating Subsection 1012.795(1)(d), Florida Statutes, and that his Florida educator certificate be suspended for five years.

DONE AND ENTERED this 8th day of October, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2009.

ENDNOTES

1/ While evidence was presented regarding this allegation, Respondent's conviction was not considered by the undersigned.

2/ This definition is in the context of disciplinary action by a school district, but is instructive in defining the term as used in Section 1012.795, Florida Statutes.

3/ See Endnote 2.

COPIES FURNISHED:

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

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

Marian Lambeth, Bureau Chief

Bureau of Professional Practice Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Charles Lucas

1473 54th Avenue South

St. Petersburg, Florida 33705

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: 09-003007PL

Orders for Case No: 09-003007PL