STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LUTHER CAMPBELL,
Petitioner,
vs.
DR. ERIC J. SMITH, as
Commissioner of Education,
Respondent.
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) Case No. 11-4533
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RECOMMENDED ORDER
On February 15 and 16, 2012, Robert E. Meale, Administrative Law Judge, conducted the final hearing by videoconference in Tallahassee and Miami, Florida.
APPEARANCES
Petitioner: Michael J. Carney, Esquire Kubicki Draper
Wachovia Bank Building, Suite 1600 One East Broward Boulevard
Fort Lauderdale, Florida 33301
Respondent: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316
STATEMENT OF THE ISSUE
The issue is whether Respondent is entitled to an athletic coaching certificate, as described in section 1012.55(2), Florida Statutes, and Florida Administrative Code Rule
6A-4.004(4).
PRELIMINARY STATEMENT
On April 27, 2010, the Florida Department of Education (DOE), Bureau of Educator Certification, received an application from Petitioner for an athletic coaching certificate (Application).
By letter dated October 27, 2010, to Petitioner, DOE denied the Application on the grounds set forth in an attached Notice of Reasons. By Motion to File Amended Notice of Reasons filed on January 27, 2012, Respondent requested leave to amend the Notice of Reasons. By Order entered February 9, 2012, the Administrative Law Judge granted leave to file the Amended Notice of Reasons.
The Amended Notice of Reasons states that Petitioner has an "extensive criminal history" since 1979, including:
1979--Reckless display of firearm/possession of marijuana;
1985--Carrying concealed weapon, loitering and prowling;
1985--Incite rioting;
1986--Grand Larceny with firearm; 1987--Aggravated Assault with weapon; 1993--Disorderly conduct;
1994--Aggravated Assault with weapon; 1997--Battery;
1999--Aggravated Battery;
2003--Promote/Disseminate Obscenity/Exposure of Private Part in Lewd Manner; and
2009--Writ . . . of Bodily Attachment.
The Amended Notice of Reasons states that, on February 15, 1985, in Miami-Dade County, Florida, Petitioner, while a
passenger in a vehicle, was in possession of a loaded semi- automatic firearm that was concealed in a ski mask. Petitioner was allegedly charged with Loitering and Carrying a Concealed Weapon. The court allegedly took no action on the charge of Loitering and withheld adjudication on the charge of Carrying a Concealed Weapon.
The Amended Notice of Reasons states that, on October 4, 1986, in Hillsborough County, Florida, Petitioner was charged with Grand Larceny with a Firearm. On March 16, 1987, the court allegedly found Petitioner guilty of the reduced charge of Improper Exhibition of a Firearm.
The Amended Notice of Reasons states that, on March 12, 2003, in Charleston, South Carolina, Petitioner presented the performance of two women, who removed their clothing and performed lewd acts in public. Petitioner was allegedly charged with Aiding or Procuring a Person to Expose Private Parts in a Lewd and Lascivious Manner. The court allegedly suspended a
six-month sentence in return for Petitioner's promise to make no revenue-producing appearances in South Carolina.
The Amended Notice of Reasons states that the Application fails to answer completely the following questions: "Have you ever been convicted of a criminal offense?" and "Have you ever had adjudication withheld on a criminal offense?" Although Petitioner stated that he had had the 1985 Loitering charge
dismissed, he allegedly failed to disclose the 1985 charge and disposition of Carrying a Concealed Weapon in Miami-Dade County and the 1986 finding of guilt on the charge of Improper Use of a Firearm in Hillsborough County.
The Amended Notice of Reasons states that a plea of guilty or an adjudication of guilt by a court is a prima facie ground for revocation, pursuant to section 1012.795(2), Florida Statutes.
The Amended Notice of Reasons states that Petitioner has "produced and published pornographic materials, promoting, among other things, the exploitation and denigration of women."
The Amended Notice of Reasons concludes that Petitioner has therefore violated section 1012.56(2)(e), Florida Statutes, by failing to maintain good moral character; section 1012.56(12)(a), by committing acts for which revocation would be authorized; section 1012.795(1)(d), by being guilty of gross immorality or an act involving moral turpitude; section 1012.795(1)(f), by being convicted or found guilty of, or, regardless of adjudication, entering a plea of guilty to, a misdemeanor, felony, or any other criminal charge, except a minor traffic violation; and 1012.795(1)(j), by violating the Principles of Professional Conduct--specifically, Florida Administrative Code Rule 6B-1.006(5)(a), which requires honesty in all professional dealings, and 6B-1.006(5)(h), which
prohibits the submission of fraudulent information on a document in connection with professional activities.
The Amended Notice of Reasons requests a recommendation that the final order bar Petitioner from reapplying for up to ten years or permanently.
At the hearing, Petitioner called three witnesses, and Respondent called one witness. Petitioner offered into evidence two exhibits: Petitioner Exhibits 1-2. Respondent offered into evidence 19 exhibits: Respondent Exhibits 1-19. All exhibits were admitted except Petitioner Exhibit 1 and Respondent Exhibits 2 and 19, which were proffered.
Respondent Exhibit 19 is a late-filed exhibit. The Administrative Law Judge granted leave for the late filing, but never saw what was to be filed, so he did not rule at the hearing on the exhibit's admissibility. As an uncertified page from a "Public Index," Respondent Exhibit 19 represents yet one more attempt by the State of South Carolina and Respondent to establish the disposition of the charge in Dorchester County--a matter that is discussed at length below. This exhibit is excluded on the grounds of hearsay and authenticity.
The court reporter filed the Transcript on March 28, 2012. The parties filed their Proposed Recommended Orders on April 23, 2012.
FINDINGS OF FACT
Early Life: 1960-1978
Petitioner was born on December 22, 1960. Petitioner is the youngest of five sons born to a Bahamian mother, who worked as a beautician, and a Jamaican father, who worked as a custodian.
Petitioner's four older brothers have all earned college degrees. Petitioner's oldest brother served as an Army psychiatrist. Two other brothers also served in the military: one as a comptroller and the other as a Navy pilot. Petitioner's youngest brother is the executive director of a well-known hotel on Miami Beach.
Petitioner grew up in the Liberty City section of Miami and graduated from Miami Beach Senior High School in 1978. Liberty City was a dangerous area in which to live with gunfire a familiar sound to residents. Two years after Petitioner graduated, Liberty City and other parts of Miami were torn by race riots.
Unlike all of his siblings, Petitioner has never attended college. After high school, Petitioner worked as a washer and cook at a local hospital, but continued to pursue his real interest, which was performing as a disc jockey (DJ). Interning nights at a local radio station, Petitioner acquired
enough experience to start a mobile DJ business in Liberty City and Miami Beach, where he worked on weekends.
Criminal History: Essentially 1979-1986
Respondent's characterizations of Petitioner's criminal history as "extensive," in the Amended Notice of Reasons, or, worse, "storied," in his proposed recommended order at page 7, are unsupported by the record. As explained in the Conclusions of Law, only two criminal incidents are relevant, and they are misdemeanors that occurred over 25 years ago. The rest of Petitioner's criminal history consists entirely of arrests for which the charges were later dropped, except for a 1986 case in which the court withheld adjudication on a felony weapon charge to which Petitioner's plea is not in the record and a 2009 arrest for unpaid child support for which the purge amount was about $10,000.
On August 28, 1979, Petitioner, then 18 years old, was arrested in Dade County for reckless display of a firearm and possession of over five grams of marijuana, both felonies. The marijuana charge--Petitioner's only arrest for drugs or
alcohol--was dismissed, but Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and fined $25. This incident will be referred to as the "1979 Misdemeanor."
In a letter dated May 7, 2009, to the Miami-Dade School Board Executive Director of Fingerprinting, Petitioner stated
that he was in the backyard of his parents' home with one of his brothers and in possession of a bb gun. The small fine corroborates Petitioner's explanation. It is therefore found that a "bb gun" was the weapon in question, although Petitioner's letter misstated that all charges were dropped.
On February 12, 1985, Petitioner was arrested in Dade County for loitering and prowling and carrying a concealed weapon, the former a misdemeanor and the latter a felony. By operation of a deemed admission to Respondent's Requests for Admission, Petitioner, while a passenger in a vehicle, was found in possession of a semi-automatic weapon concealed in a ski mask. The misdemeanor charge was dismissed, but the court withheld adjudication of guilt on the felony charge and imposed a fine of an unspecified amount. The record does not disclose Petitioner's plea to this charge.
In his May 7, 2009, letter, Petitioner explained that, while he was DJing in a park without a permit, he had a concealed weapon without a permit, but misstated that both charges were dropped.
On November 18, 1985, Petitioner was arrested in Dade County for inciting rioting, a felony. This charge was dismissed. In his May 7, 2009, letter, Petitioner explained that he was DJing in a park and was arrested because the music was too loud.
On October 4, 1986, Petitioner was arrested in Hillsborough County and charged with grand larceny with a firearm, a felony. Based on a guilty plea, Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and sentenced to time served. This incident will be referred to as the "1986 Misdemeanor."
In his May 7, 2009, letter, Petitioner stated that he was DJing a party in Tampa when a group of men started to beat a young woman in the parking lot. When security refused to intervene, Petitioner displayed a firearm to break up the crowd. Petitioner's letter misstates that the charge was dismissed. His explanation fails to account for the portion of the charge involving grand larceny, but makes sense when applied to the charge of which Petitioner was convicted.
On December 13, 1987, Petitioner was arrested in Dade County for two or three counts of aggravated assault with a weapon and possession of a weapon to commit a felony, all felonies. These charges were dismissed. In his May 7, 2009, letter, Petitioner explained that a large fight broke out at a skating rink, but surveillance video revealed that he had not been involved in the fight, nor had he possessed a weapon.
On or about June 15, 1993, Petitioner was arrested in Cook County, Illinois, and charged with disorderly conduct. This charge was dismissed. In his May 7, 2009, letter,
Petitioner stated that he was staying at the Ritz in Chicago. While shopping along the riverfront, a law enforcement officer asked him if he could afford to shop there. A confrontation ensued, and the officer arrested Petitioner, but the charge was later dropped.
On May 17, 1994, Petitioner was arrested in Dade County and charged with aggravated assault with a weapon, a felony. The charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight had broken out at a house party, and the police arrested everyone in attendance.
There is no record of a 1997 arrest for battery.
There is an arrest in July or October 1996 for battery in Louisiana, but Petitioner pleaded not guilty, and the charge was dismissed. In his May 7, 2009, letter, Petitioner mentioned a 1997 case involving a nightclub fight with which he had not been involved. A week later, a complainant claimed that Petitioner had hit him, but the charge was dismissed.
On July 5, 1999, Petitioner was arrested in Dade County and charged with battery, a misdemeanor, which may have been raised to aggravated battery, a felony, by the prosecutor. Either way, the charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight broke out at a nightclub, but witnesses verified that Petitioner had not hit
the complainant, who originally said that another person had hit him.
On October 6, 2002, Petitioner was arrested in Dorchester County, South Carolina, and charged with aiding or procuring a person to expose private parts in a lewd and lascivious manner--namely, the insertion of a soda bottle by two strippers into the vagina of a member of the audience who climbed onstage during a performance, as well as several acts of unspecified obscenities by two male members of the audience with the aforesaid strippers. The charge was that these unlawful acts were in the presence of and with the encouragement of Petitioner.
The South Carolina documentation is contradictory as to disposition. The most plausible rendering of the disposition comes from the general sessions docket, which reports that, on October 13, 2003, this charge was dismissed with leave to restore, if Petitioner violated an agreement not to appear in South Carolina for five years at a revenue-producing event. Another document completed by the court clerk states that Petitioner was sentenced to six months in the state Department of Corrections, based on a plea not otherwise described, but the sentence was suspended for five years, pursuant to the agreement identified above. A partial transcript of the October 13, 2003, court proceeding quotes the judge as saying that the state was
nolle prossing two charges, and the court was sentencing Petitioner to six months on apparently a third offense, even though nothing in the other documents describes three charges, but the judge suspended the sentence for five years, subject to the above-identified agreement.
As noted in the Conclusions of Law, the burden of establishing what took place in South Carolina falls on Respondent. Nothing in the record supports the judge's reference to three charges, which renders the judge's description of events unreliable. The most that can be said of the South Carolina incident is that a lone charge was dropped, subject to reinstatement, if Petitioner made a revenue-producing appearance in South Carolina for five years. The evidence fails to establish any finding of guilt by the court, plea of guilty by Petitioner, or subsequent reinstatement of the charge.
In his May 7, 2009, letter, Petitioner stated that the club owner had performers on stage, but Petitioner had nothing to do with their performance. Petitioner testified that he had been paid merely to appear at the club and sign autographs.
On February 17, 2009, Petitioner was arrested on a writ of bodily attachment in connection with a finding of contempt of court for failing to pay child support. The purge amount was $10,223.36. The disposition of this matter is unclear, although it is obvious that Petitioner was arrested for
an unpaid child-support obligation and was released, presumably after paying the purge amount or such lower amount as the court deemed fit.
Luke Records and 2 Live Crew: 1987-1992
After graduating from high school, Petitioner grew his DJ business to the point that, by 1987 or 1988, he had started Luke Records, Inc., a record company devoted to the production and sale of hip-hop music. Using funds provided by his brothers, Petitioner eventually employed over 40 persons in Miami and elsewhere around the United States.
The growth of Luke Records was largely the result of its association with 2 Live Crew (2LC), a hip-hop group known for its sexually explicit songs. Not yet under contract with a record company, 2LC visited Petitioner in Miami, where the parties agreed to a recording contract. Petitioner appears to have quickly assumed substantial business and performance roles with 2LC and wrote some of the songs that the group performed.
Serving as the frontman for 2LC, Petitioner was prominent in the group's performances, which, according to Petitioner, featured dance music informed by the twin themes of sex and comedy. Clearly, 2LC's songs were dance music that featured sex.
Regardless of the role of comedy in 2LC's music, Petitioner himself acknowledges that its sexual themes rendered
the music inappropriate for minors. The evidentiary record does not include the lyrics to 2LC's songs, but the more offensive titles include vulgar references to male and female genitalia and a reference to women as "hoes," meaning "whores, as well as at least one album cover featuring Petitioner surrounded by scantily clad women. Given the explicit sexual content of the titles and lyrics, Petitioner helped promote the use of parental advisory stickers to be applied to albums, tapes, and CDs, including those of 2LC, that contained lyrics inappropriate for minors and thus constituted a form of adult entertainment.
On the other hand, two unimpeachable sources--the United States Supreme Court and the Eleventh Circuit Court of Appeals--found serious elements in at least certain of the 2LC songs of this era. In a copyright infringement case that arose after Luke Records had sold over 250,000 copies of 2LC's adaptation of Roy Orbison's, "Oh, Pretty Woman," the Supreme Court held, in a case of first impression, that commercial parody could be protected under the fair-use exception to copyright law.
Describing the song itself, the Supreme Court opinion
states:
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live
Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.
Campbell v. Acuff-Rose Music, 510 U.S. 569, 583 (1994).
In Luke Records v. Navarro, 960 F.2d 134 (11th Cir.) (per curiam), cert. denied, 506 U.S. 1022 (1992), Petitioner and others won a reversal of a district court declaratory judgment that the 2LC musical recording, "As Nasty As They Wanna Be," was obscene under state and federal law. In another case of first impression--this time applying the obscenity test in Miller v.
California, 413 U.S. 15 (1973), to a musical composition containing instrumental music and lyrics--the appellate court relied on the testimony of two newspaper music critics that the subject music possessed serious musical or artistic value.
More interestingly, the court relied on the testimony of a Rhodes scholar who was soon to undertake employment as an assistant professor of political science at Columbia University. This testimony, which focused on the lyrics, traced "As Nasty As They Wanna Be" to three oral traditions of African-American
music: the "call and response," "doing the dozens," and "boasting." Noting that the lyrics of "As Nasty As They Wanna Be" reflected many aspects of poor, inner-city blacks, this witness added that some of the lyrics contained statements of political significance or used literary devices, such as alliteration, allusion, metaphor, rhyme, and personification.
Assuming without deciding that the trial judge had correctly determined that "As Nasty As They Wanna Be" met the first two prongs of the Miller test--i.e., the work as a whole appeals to prurient interest based on contemporary community standards and the work depicts in a patently offensive way sexual conduct specifically defined by state law--the appellate court rejected the trial court's determination that "As Nasty As They Wanna Be" fails the third prong of the Miller test--i.e., that it "lacks serious artistic, scientific, literary or political value." 960 F.2d at 138 (citing Miller, 413 U.S. at 24).
After 2LC: 1992-2008
Petitioner and 2LC parted ways in 1992. Three years later, Petitioner and Luke Records, Inc. filed for bankruptcy, which resulted in the assignment of all masters and copyrights owned by Petitioner or Luke Records, Inc., to a company formed by a former in-house counsel of Luke Records. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1299-1301, and 1314n.22 (11th
Cir. 2007). To some extent, perhaps due to the bankruptcy, Petitioner lost exclusive use of names associated with him, such as "Uncle Luke." As an asset of Petitioner, the Luther Campbell brand suffered a loss in value.
The evidentiary record provides an incomplete picture of what Petitioner did during the ten years following his departure from 2LC. The arrests and Petitioner's explanations suggest that he DJed at house parties, made paid appearances at autograph-signing events, and attended nightclubs, although whether as a performer, audience member, or promoter is not clear. Petitioner released four hip-hop albums from 1992-2006.
As always, Petitioner remained in Miami. In 1991 or 1992, Petitioner was among the persons who started the Liberty City Optimist youth football program. Competing with the local John Doe gang, Petitioner and other founders of the Optimist youth football program got kids off the dangerous streets and onto the football field.
During the early years of his involvement with the youth football program, Petitioner invested considerable time and money, contributing at least $80,000. Petitioner helped lobby the Miami-Dade County Commission for what was eventually an expenditure of an estimated $14 million in facilities to serve organized football at local parks. Now, the Liberty City Optimist youth programs serve 6000 boys and girls, from 4-16
years of age, through a variety of sports and academic programs. Petitioner's wife, a local attorney and former FSU cheerleader, chairs the Liberty City Optimist youth cheerleading program.
Although there have been some football-famous graduates of the program, such as Chad Johnson, the program's larger success is that 90 percent of the first group of youth to complete the program started college.
Until 2005, Petitioner was not directly involved with the children in the Optimist youth programs. In 2005, realizing that his entertaining career had "taken a turn," Petitioner began coaching an Optimist youth football team.
As he dialed up his involvement with youth, Petitioner tapered off his performances and appearances. Petitioner's two most recent albums are Somethin' Nasty, which was released in 2001, and My Life and Freaky Times, which was released in 2006. In contrast to the earlier cover art of 2LC, the cover art for the last album depicted Petitioner surrounded by fully clothed women. But some of Petitioner's titles would fit easily among the oeuvre of 2LC in its heyday. Somethin' Nasty includes "Suck This Dick," "We Want Big Dick," and "Hoes," and My Life and
Freaky Times includes "Pop That Pussy" and "South Beach Bitches." In 2008, Petitioner made his last appearance, to date, with 2LC, at what was limited to an autograph-signing event.
At the beginning of this period of Petitioner's life, in 1993, he became acquainted with James Harbor, Jr. Mr. Harbor was working for a state representative and met Petitioner through Congressman Alcee Hastings. Mr. Harbor later did an internship with Petitioner. Still later, Mr. Harbor was elected as a state representative from Palm Beach County and enlisted Petitioner in get-out-the-vote campaigns throughout Florida.
Interestingly, Mr. Harbor testified that, as part of a voter-recruitment campaign, Petitioner appeared "in character." Mr. Harbor stressed repeatedly the distinction between the public persona of Petitioner and his private personality. Not a party person, during the time that Mr. Harbor has known him, Petitioner has always been "structured," hard-working and responsible, respectful toward women, and a firm disciplinarian when it came to his children.
Mr. Harbor's testimony about the distinction between Petitioner's public persona and private personality finds support throughout the record, including a careful examination of the timelines. The 1979 Misdemeanor and 1986 Misdemeanor both involved weapons, not sex, and 2LC's main theme appears to have been sex, not violence or weapons. Whatever image of garish defiance that Petitioner may have cultivated during his 2LC-era, by the start of that era, he was never arrested again on charges that resulted in an admission of guilt, a no-contest
plea, or a finding of guilt, except for the child-support arrest. Although the certification of Petitioner must take into consideration his public persona, to the extent that it still derives from his short-lived career with 2LC, there is no indication over the past 20 years that, outside of his performances and appearances, Petitioner has resembled the sex- song impresario, whom he portrayed with 2LC and in his later albums.
High School Football: 2009-Present
Starting in the 2009-10 school year, Petitioner turned from coaching Optimist youth football to coaching local high school football. During the 2009-10 and 2010-11 school years, Petitioner served as an assistant football coach at Miami Central Senior High School, where his wife teaches a law class. For the 2011-12 school year, Petitioner served as an assistant football coach at Miami Northwestern Senior High School. Although he would be willing to work as an unpaid volunteer, Petitioner has been required, due to insurance requirements in the school district, to accept the pay of a part-time contract football coach, which is $1000-$1200 per year.
No longer living in Liberty City, Petitioner lives closer to another Miami-Dade County high school whose students are less exposed to violence and less at-risk than the students attending Miami Central or Miami Northwestern. Nearby Broward
County public high schools do not require an athletic coaching certificate because school district policy allows a volunteer to coach. But Petitioner has decided to help the most vulnerable, most at-risk students from the inner-city neighborhood where he grew up.
Petitioner has served these students in ways that other persons would find difficult, if not impossible, to replicate. Trying to combat the sense of hopelessness that sometimes afflicts at-risk youth, Petitioner has worked at both schools to install a sense of school pride in football and academics. When he arrived at Miami Central, the school was an F school, but Petitioner joined a school-wide effort to improve learning conditions, and, when he left two years later, the school was a B school. Similarly, when Petitioner arrived at Miami Northwestern, it was a D school, but it earned a B during the most recent school year.
Miami Northwestern is located directly across the street from housing projects, and its students are regularly the targets of violence, often involving weapons. About one-quarter of its students are required to attend gun programs. The football team includes many homeless children and children with children. In the month preceding the hearing, two Miami Northwestern students had been killed.
On a positive note, about 70 percent of the 95 students on the Miami Northwestern football team are graduates of the Optimist youth football program. Also, as many as 90 percent of the students who played on the high school football teams that Petitioner has coached are attending college.
The students with whom Petitioner works appreciate his dedication and hard work. They know that Petitioner has spent his entire life in Miami and has known some hard times. Generally, they know that, before they were born, Petitioner had been a celebrity as a member and promoter of a hip-hop group, itself known for its frank defiance of convention, at least in terms of graphic sexual language.
As Petitioner testified, his students' mothers know Petitioner from when he was a DJ on a streetcorner, through his association with 2LC and discovery of new talent, such as the hip-hop artist Pitbull, and now from his work with youth. This familiarity presents unique mentoring opportunities to Petitioner. For instance, Petitioner knew one student's father, who later went to prison where he was murdered. One day, the student's mother approached Petitioner and asked him to tell her child about the good things that his father had done before he went to prison and died.
Reflecting Petitioner's dedication to at-risk youth, for at least the past four years, Petitioner has rented one or
two 15-passenger vans and, at his expense, transported interested players to schools in the southeast where they might be able to attend college. Petitioner does not reserve his attention to potential stars; instead, he tries to find colleges and junior colleges at every level that might be interested in admitting an individual student.
Steven Field, the head coach of the Miami Northwestern football team, testified on Petitioner's behalf. Coach Field, who has most recently coached at University of Miami and Hampton University in Virginia, also coached at Miami Central from 2000- 2004.
Coach Field testified that Petitioner is an "essential" member of his coaching staff, not for his name or past career, but for his way with the students. Petitioner leads by example and always fulfills any promises that he makes to the students--things that may otherwise be lacking in the lives of some of these inner-city youth.
According to Coach Field, Petitioner's "no-nonsense, professional" style of dealing with the students commands their attention and respect. For example, as the coach in charge of the weight room, Petitioner does not allow swearing. When one student became disrespectful to another coach, Petitioner ordered the student to leave the premises. Neither Petitioner
nor Coach Field would allow 2LC music to be played in the weight room due to its inappropriate adult content.
Petitioner testified that, in trying to save students, he will "talk 'till I'm blue in the face," revealing not only the necessary dedication, but, more importantly, the insight that that there are no shortcuts or quick fixes in trying to communicate with at-risk children. Reinforcing the realism evident in Petitioner's testimony, Coach Stevens described his and Petitioner's efforts with the students as not much more than reinforcing the notions of living right at home and "getting your books at school."
Coach Stevens stressed that he and Petitioner do not concentrate exclusively on the students who are talented enough to play football in college. At least a half dozen students are in felony programs. With these students, Coach Stevens testified that he and Petitioner do not speak about "getting into Georgia Tech"; they speak about finishing high school and getting a job.
Coach Stevens has never heard Petitioner speak to the students about mistakes that he has made, nor does he wish Petitioner to do so. Coach Stevens, Petitioner, and the other coaches try to set a positive tone, so they talk to the students about what they need to do, not about mistakes that the students--or coaches--may have made in the past.
However, if the school resource officer tells Petitioner about problems that an individual student is having, Petitioner will talk to the student one-on-one. In such conversations, Petitioner does not shy away from relating personally to what the student is going through.
The Application
Received on April 27, 2010, the Application answers "yes" to the following questions:
Have you ever been found guilty of a criminal offense?
Have you ever had adjudication withheld on a criminal offense?
Have you ever pled guilty to a criminal offense?
The Application answers "no" to the following questions:
Have you ever been convicted of a criminal offense?
Have you ever pled nolo contendere to a criminal offense?
The Application lists the following arrests and states that the disposition of all charges was dismissal, except for the South Carolina charge, which is reported as "guilty/adjudication withheld":
Miami--8/79--reckless display of firearm Miami--2/85--loitering/prowling
Miami--11/85--inciting riot Miami--12/87--aggravated assault
Hillsborough--12/87--aggravated assault Miami--5/94--aggravated assault
Miami--7/99--battery
Dorchester County--10/22--"dissem promote"
The Application is flawed in its disclosure of Petitioner's criminal history. As alleged in the Amended Notice of Reasons, the disclosure of the "loitering/prowling" arrest fails to mention the felony weapons charge, which was part of the same incident, and thus fails to note that the court withheld adjudication on this charge. Also, as alleged in the Amended Notice of Hearing, the Application fails to disclose the 1986 Misdemeanor, which occurred in Hillsborough County. Although the Application discloses a Hillsborough County arrest, it seems to confuse the incident with a later arrest in Dade County, but, more importantly, omits mention of the finding of guilt on this misdemeanor weapon charge.
However, these flaws do not prove that Petitioner intentionally concealed information or was less than honest in completing the Application. Obviously, he has had many arrests, so the potential for confusion or even omission exists, and there are comparatively few inaccuracies. On these facts, it is found only that Petitioner filed an inaccurate application, but not that he filed an application with fraudulent or dishonest intent.
Petitioner: At Present
Petitioner does not pose a risk to the safety of the students entrusted to him. For the past seven years, Petitioner has had significant direct contact with vulnerable youth without any reported problems. In light of this critical fact, the 1979 Misdemeanor, 1986 Misdemeanor, and Petitioner's former involvement with 2LC and the adult entertainment industry lose whatever contrary predictive value that they might otherwise have. Simply put, Petitioner does not resemble the youth who committed the 1979 Misdemeanor or 1986 Misdemeanor or the man who performed with and promoted 2LC 20 years ago. Petitioner resembles the middle-aged man who released sexually explicit songs in 2001 and 2006, but this is addressed below.
As noted in the Conclusions of Law, good moral character requires consideration of a person's honesty, fairness, and respect for the rights of others and the law, so consideration of student safety, although important, is not sufficient. But the 1979 Misdemeanor and 1986 Misdemeanor, as old misdemeanors, provide insufficient support for a finding that, today, Petitioner lacks honesty, fairness, or respect for the rights of others and the law. Nor do these criminal offenses support findings that Petitioner has been guilty of gross immorality or moral turpitude, as those terms are defined in the Conclusions of Law.
Likewise, Petitioner's 2LC career 20 years ago and even his more recent releases of 2LC-like albums in 2001 and 2006 do not support a finding that he lacks honesty, fairness, or respect for the rights of others and the law or that he is guilty of gross immorality or moral turpitude. For the reasons noted above, the redeeming value to be found in the releases means that they do not violate the law, provided they also conform to any laws restricting their dissemination, such as not to minors or not on television during certain hours of family viewing. Absent an attempt to market the offensive material in some broadly accessible fashion, such as on billboards or the sides of public buses, such non-obscene works similarly do not violate the rights of others.
As noted above, the flaws of the Application do not support a finding of dishonesty or fraud. But, in his proposed recommended order, Respondent fairly questions Petitioner's initial refusal to identify his Application at the hearing.
This failing of Petitioner, as well as the two others discussed in the succeeding paragraphs, cannot serve as standalone grounds for denial because: 1) they arose at the hearing and thus were not available as grounds in the Amended Notice of Reasons and
even if alleged, they do not rise to the level of a lack of good moral character, as in a lack of honesty or fairness. But
they do provide part of the justification for adding conditions to any certificate issued to Petitioner.
Petitioner's failure at the hearing initially to identify his Application was not due to any confusion. There were not multiple versions of applications from which to choose. There was one Application on the table, and Petitioner initially testified, more than once, that he could not identify it. The temptation appeared palpable for Petitioner to off-load the responsibility for an obviously flawed application onto someone else who may have completed it for Petitioner, who nonetheless signed it.
Cannily, Respondent's counsel moved for a summary order. The Administrative Law Judge warned Petitioner that the Division of Administrative Hearings lacked jurisdiction in the absence of an application. Petitioner and his attorney made good use of a short recess to confer. After the recess, Petitioner identified Respondent Exhibit 1 as the Application that he had filed for an athletic coaching certificate.
Petitioner's second failing of this type, also noted in Respondent's proposed recommended order, consists of his unwillingness to own up to his role or roles in any of the salacious songs that he has performed or produced. While it is possible that Petitioner might not have been responsible for the more salacious songs performed by 2LC, he clearly was
responsible for the five sexually graphic titles on the two most recent, post-2LC albums, which, as discussed above, were released in 2001 and 2006.
Petitioner's third failing of this type occurred when he testified about his bad period from 1979 to 1986. Petitioner admitted only to not living a "perfect" life and associating with bad persons. This seems a little lean for two misdemeanor weapons convictions and a withholding of adjudication of guilt on a felony weapon charge--all in the span of seven years. As Respondent points out, Petitioner has displayed minimal contrition for the bad choices that he made during this period. At minimum, he missed an opportunity to describe how he has changed when he "admitted" only that he was not perfect or implied that his legal problems were caused by bad associations.
In these three instances, Petitioner sought to escape personal responsibility by claiming or implying that other persons prepared the flawed Application that he was somehow compelled to sign, other persons forced him to perform songs with five salacious titles in 2001 and 2006, and other persons got him into trouble during the bad period over 25 years ago. Although not evidence of a lack of honesty, Petitioner's failure to affirmatively own up to these acts suggest a lack of self- insight and perhaps even a misapprehension of the extent to which he must subject himself to the regulatory oversight that
is imposed on applicants for certificates and, later, certificateholders.
The other justification for adding conditions to any certificate issued to Petitioner is the prospect of his return to adult entertainment. In addition to part-time coaching at Miami Northwestern, Petitioner also owns a company, Luke Holdings, which deals in movie scripts and produces elements of television commercials, among other pursuits in the entertainment industry. In recent years, extreme examples of adult entertainment, such as pornography, have emerged bearing the Luther Campbell brand, but Petitioner denied that he has been involved in the production of such material. His denial is credited, although it would have been more persuasive, absent Petitioner's failings described in the preceding paragraphs. As noted above, Petitioner lost exclusive control of his brand after the bankruptcy in 1996, and, presumably, given the shadowy nature of the pornography industry, illegal use of his name is not out of the question.
The distinction between past and present involvement in adult entertainment is an important one. In a recent case, EPC did not treat past involvement in the adult entertainment industry the same as involvement while a certificateholder. See In re: The Denial of the Application for Teacher's Certificate
of Shawn J. Loftis, EPC Case No. 11-0464D (April 5, 2012) available at
http://www.myfloridateacher.com/discipline/icmsorders/101-2590- FO-040512155402.pdf).
In Loftis, Respondent denied Mr. Loftis's application for a Florida Educator's Certificate on the grounds of a lack of good moral character, gross immorality, and moral turpitude, as well as personal conduct that seriously reduces one's effectiveness as a school board employee, which violates section 1012.795(1)(g). The factual bases for the denial was that, between 2006 and 2008, Mr. Loftis had appeared in over 20 pornographic films featuring him engaged in explicit sexual activity, and the films were still available for viewing, including on the internet, although this employment had ended prior to Mr. Loftis's temporary employment as an instructor in Miami-Dade County public schools.
After an informal hearing, EPC ordered that Mr. Loftis be allowed to continue to pursue certification. EPC stated that, if "found qualified," Mr. Loftis would be issued a Florida Educator's Certificate, subject to the conditions that he obtain from an approved, Florida-licensed provider written verification that he poses no risk to children and is capable of assuming the responsibilities of an educator and that, upon employment that requires possession of a Florida Educator's Certificate,
Mr. Loftis be placed on probation, subject to the following conditions: 1) he immediately notify the DOE investigative office upon employment or termination of employment requiring a Florida Educator's Certificate; 2) his immediate supervisor send annual performance reports to the DOE investigative office;
he pay EPC $150 for the costs of monitoring his probation; and 4) he violate no law or rules, satisfactorily perform all assigned duties in a professional manner, and bear all costs of compliance with the final order.
The Loftis final order illustrates EPC's ability to issue a conditional certificate, even without a finding that the applicant had failed to meet the qualifications for certification. In considering the requirement stated in section 1012.795(1)(g) concerning personal conduct that seriously reduces the effectiveness of the certificateholder as a school board employee, the Notice of Reasons in Loftis, when compared to the Amended Notice of Reasons in the subject case, more closely approaches the most elastic requirement of Florida Administrative Code Rule 6B-1.006(3)(a) that a certificateholder (or applicant) "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."
Juxtapose this broader, objective requirement of protecting the student from conditions harmful to learning or
harmful to the student's mental health with: 1) Petitioner and Coach Field's efforts to inculcate in their at-risk students such values as strength of character, perseverance, dedication, and hard work in the pursuit of ambitious goals and 2) the future release of more artistic or entertainment efforts along the lines of "Suck This Dick," "We Want Big Dick," "Hoes," "Pop That Pussy," and "South Beach Bitches." Consider the bewildering effect on students if, one afternoon, in the weight room and on the field, Coach Campbell were to promote rectitude and grit and, that night, the same man were to don the garb of the sex-song impresario and promote the escapist pursuit of sexual gratification. The addition of music or elements of African boasting and literary allusion in, say, "Pop That Pussy" or "Suck This Dick," which would rightfully spare these works from successful prosecution as obscenity, would not have any bearing on the extent to which the superficial appeal of this form of adult entertainment could undermine the hard, patient work of these students' coaches, teachers, and parents in trying to shape them into responsible young men. Impressionable inner- city youth might be easily confused by these competing messages, as they compared the paltry sums paid their contract coaches and modest sums paid their regular coaches and teachers with the riches lavished upon the producers of adult entertainment.
Although the Loftis final order emphasizes that the applicant no longer is engaged in the making of pornographic films, neither that authority nor the record in this case provides a sufficient basis for attaching a condition to Petitioner's certificate prohibiting his engaging in the adult entertainment industry. Such litigation awaits another day and, one hopes, another certificateholder than Petitioner or
Mr. Loftis. However, conditions attached to Petitioner's certificate could focus his attention on the ethical obligations that he has assumed as a certificateholder and the very real possibility that that his return to the performance or production of adult entertainment, while a certificateholder, would be at crosspurposes with the broad mission of education and expose his certificate to suspension or revocation.
Petitioner should receive an athletic coaching certificate because he generally meets the substantive certification requirements that call for consideration of such broad criteria as good moral character and the absence of gross immorality and moral turpitude, he possesses unique attributes for reaching at-risk, inner-city youth, and he has demonstrated his commitment to, and effectiveness with, working with these children for at least seven years.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.
Section 1012.55(2)(a), Florida Statutes, provides:
Each person who is employed and renders service as an athletic coach in any public school in any district of this state shall hold a valid temporary or professional certificate or an athletic coaching certificate. The athletic coaching certificate may be used for either part-time or full-time positions. The provisions of this subsection do not apply to any athletic coach who voluntarily renders service and who is not employed by any public school district of this state.
Florida Administrative Code Rule 6A-4.004(4) states:
Certificates covering only athletic coaching (grades K-12).
A certificate valid for three (3) school fiscal years reflecting only athletic coaching may be issued to an applicant who does not meet the requirements specified in paragraph (4)(b) of this rule. The certificate may be issued one (1) time to an applicant who meets the following requirements:
Completes the application requirements as specified in Rule 6A-4.0012, F.A.C., and
Submits fingerprint reports as specified in subparagraph (1)(a)3., of this rule.
A certificate valid for five (5) school fiscal years reflecting only athletic coaching may be issued to an applicant who meets the following requirements:
Completes the application requirements as specified in Rule 6A-4.0012, F.A.C.
Satisfies specialization requirements as specified in subsections (2) and (3) of Rule 6A-4.0282, F.A.C., and
Submits fingerprint reports as specified in subparagraph (1)(a)3., of this rule.
Florida Administrative Code Rule 6A-4.0282 provides in
part:
Nine (9) semester hours in athletic coaching to include the areas specified below:
Three (3) semester hours in care and prevention of athletic injuries and the effects and dangers of drug use including performance enhancing drugs,
Three (3) semester hours in coaching theory,
A course in theory and practice of coaching a specific sport, and
A valid cardiopulmonary resuscitation course completion card or certificate issued by the American Heart Association or the American Red Cross or an equivalent cardiopulmonary resuscitation course completion card or certificate issued by an entity approved by the Florida Department of Health pursuant to Rule 64J-1.022, F.A.C.
Section 1012.56(2)(e) requires that a person seeking certification under chapter 1012, Florida Statutes, "must . . . be of good moral character." Section 1012.56(12)(a) provides that DOE "may" deny an application for certification if it possesses "evidence satisfactory to it that the applicant has committed an act or acts, or that a situation exists, for which
the [EPC] would be authorized to revoke a teaching certificate." Section 1012.56(12)(b) provides that an applicant may request EPC to review any decision of DOE.
Section 1012.795(1) provides in part:
The [EPC] may suspend the educator certificate . . .; may revoke the educator certificate . . . for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate . . .; may suspend the educator certificate, upon an 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 rule of the State Board of Education.
(f) Has been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.
(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Section 1012.795(2) states:
The plea of guilty in any court, the decision of guilty by any court, the forfeiture by the teaching certificateholder of a bond in any court of law, or the written acknowledgment, duly witnessed, of offenses listed in subsection (1) to the district school superintendent or a duly appointed representative of such superintendent or to the district school board shall be prima facie proof of grounds
for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.
Florida Administrative Code Rule 6B-1.006(5) provides:
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
(h) Shall not submit fraudulent information on any document in connection with professional activities.
No statute or rule requires that an applicant for an athletic coaching certificate demonstrate knowledge of or even familiarity with the ethical obligations imposed upon him as a certificateholder.
As an applicant, Petitioner bears the ultimate burden of proving his entitlement to an athletic coaching certificate. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). However, Respondent bears the burden of proving one or more specific reasons for denying the Application. Dep't of
Bank. & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932, 934 (Fla. 1996) (per curiam). The standard of proof in both instances is a preponderance of the evidence. Id. at 934.
As noted by Respondent in its proposed recommended order, its burden of proving a lack of good moral character is
generally easier to meet than its burden of proving moral turpitude. Respondent cites Fla. Bd. of Bar Exam'rs re:
G. W. L., 364 So. 2d 454 (Fla. 1978), in which the court held that a bar applicant's lawful application of a personal bankruptcy petition, while short of moral turpitude, reflected a lack of good moral character on the facts of the case. Id. at
458. The court adopted the following definition of a lack of good moral character: "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Id. This definition of a lack of good moral character has been applied to other statutes requiring good moral character of applicants. See Bachynski v.
Dep't of Prof'l Reg., 471 So. 2d 1305, 1310 (Fla. 1st DCA 1985) (applicant for licensure as a physician).
Notwithstanding the fact that the relevant definition of moral turpitude, as noted below, requires a showing of more than mere doubts about a person's honesty, fairness and respect for the rights of others and the law, in one respect, it may be easier to prove moral turpitude than a lack of good moral character. See Cirnigliaro v. Fla. Police St'ds & Train. Comm'n, 409 So. 2d 80, 84 (Fla. 1st DCA 1982):
Whether someone possesses good moral character is a somewhat subjective question and the answer may vary from time to time; however, a conviction of embezzlement
provides objective proof of the impossibility of maintaining the qualification of not having been convicted of a misdemeanor involving moral turpitude.
In other words, a determination of Petitioner's moral character typically requires a balancing of the good and bad over time, but a determination of whether he has been guilty of an act of moral turpitude requires only a finding of whether, at any time, he has committed such an act.
The question of whether an individual possesses good moral character is a fact question for the Administrative Law Judge. See, e.g., Vill. Zoo, Inc. v. Div. of Alc. Bev. & Tobacco, 450 So. 2d 920 (Fla. 4th DCA 1984). As noted above, section 1012.795(1)(d) defers to the State Board of Education the task of defining "gross immorality" and "moral turpitude." These definitions--though of "immorality," not "gross immorality"--are at Florida Administrative Code Rule 6B-4.009, which provides:
(2) Immorality is defined as conduct 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.
* * *
(6) 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 statute fixes the moral turpitude.
The findings necessary to apply these definitions, though, are fact questions for the Administrative Law Judge. Bush v.
Brogan, 725 So. 2d 1237 (Fla. 2d DCA 1999).
In its proposed recommended order, Respondent identifies three bases for denying the Application:
Petitioner's criminal history; 2) Petitioner's involvement in the adult entertainment industry; and 3) Petitioner's lack of candor in the application process and lack of contrition for his past misdeeds.
A close reading of the Amended Notice of Reasons reveals a couple of problems with Respondent's identification of the third issue. First, Respondent has insinuated that a lack of contrition is a standalone reason for denial. Lack of contrition is relevant to other properly raised issues and, as such, has been considered in the Findings of Fact, but this factor, in isolation, may not support a denial of the Application for two reasons: no statute or rule requires that an applicant with an uneven past demonstrate contrition and, even if a statute or rule so provided, the Amended Notice of Reasons did not cite it as a reason for denial.
Second, in a similar vein, Respondent has tried to expand an allegation of Petitioner's lack of honesty in his Application to a wider-ranging allegation of a lack of candor in the entire application process and, in particular, the hearing. Again, this larger issue has been considered, where appropriate, in the Findings of Fact, but this factor, in isolation, may not support a denial of the Application for two reasons: the Amended Notice of Reasons did not cite it as a reason for denial and, to whatever extent Petitioner's unwillingness to accept personal responsibility has been proved, it has not constituted a lack of honesty.
Otherwise, though, the Administrative Law Judge generally agrees with Respondent's identification of the issues. More precisely, the issues raised in the Amended Notice of Reasons are: 1) whether Petitioner, in his Application, failed to maintain honesty or submitted fraudulent information;
whether Petitioner's involvement in the adult entertainment supports a finding of a lack of good moral character, gross immorality, or moral turpitude; and 3) whether Petitioner's criminal history includes any offenses, as to which Respondent has the discretion to deny certification, or supports more generally a finding of a lack of good moral character, gross immorality, or moral turpitude.
For the reasons discussed in the Findings of Fact, Respondent has failed to prove that Petitioner, in his Application, failed to maintain honesty or submitted fraudulent information.
For the reasons discussed in the Findings of Fact, Respondent has failed to prove that Petitioner's past involvement in the adult entertainment industry constitutes gross immorality, moral turpitude, or a failure to maintain good moral character. Petitioner has failed to prove that the 2LC songs and Respondent's releases in 2001 and 2006 were obscene. As for "gross immorality," the above-cited rule requires 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." There is no evidence that Petitioner's past performance or production of sexually explicit songs brings him or the education profession into public disgrace or disrespect or impairs Petitioner's service in the community. As for "moral turpitude," there is no evidence that Petitioner's performance or production of sexually explicit songs constituted a "crime," as required by the above- cited rule.
Respondent relies on Petitioner's criminal history to prove four violations: a lack of good moral character under section 1012.56(2)(e), gross immorality and moral turpitude
under section 1012.795(1)(d), and a violation of section 1012.795(1)(f).
Under the case law, a criminal conviction, even if based on a plea of guilty, does not establish the underlying facts in a disciplinary case. See, e.g., Williams v. Castor, 613 So. 2d 97, 99 (Fla. 1st DCA 1993) (judgment of conviction on criminal offense, even if based on plea of guilty or no contest, does not establish the underlying facts of the offense for purposes of disciplining certificateholder). The plea of guilty may be admissible only as an admission against interest that may be weighed by the trier of fact in the civil proceeding. Nunez v. Gonzalez, 456 So. 2d 1336, 1338 (Fla. 2d DCA 1984).
Section 1012.795(2) relieves Respondent of the restrictions of this case law, if a court has found the applicant or certificateholder guilty or the applicant or certificateholder has pleaded guilty, but this statutory relief from the case law applies only to claims of violations of section 1012.795(1). This means that, in establishing the claim of a lack of good moral character, which is not under section 1012.795(1), Respondent may rely only on the admission against interest inherent in the 1986 Misdemeanor because this is the only offense to which, based on the record, Petitioner pleaded guilty.
For the claims arising under section 1012.795(1)-- gross immorality, moral turpitude, and a violation of section 1012.795(1)(f)--Respondent may rely on the 1979 Misdemeanor and the 1986 Misdemeanor, but no other criminal incidents. All the other charges were dismissed, except for one case in which the court withheld adjudication. These other dispositions do not fall within section 1012.795(2) and are therefore governed by the case law. The irrelevance of the child-support case, as proof of a lack of good moral character, gross immorality, or moral turpitude, is evidenced by its special treatment in section 1012.795(1), which provides that EPC may suspend a certificate upon order of court or notice from the Department of Revenue "relating to the payment of child support" (presumably meaning nonpayment). In any event, the circumstances of Petitioner's nonpayment are not disclosed in the record to prove a lack of good moral character, gross immorality, or moral turpitude, even if a child-support case were proof of such violations.
For the reasons discussed in the Findings of Fact, Respondent has failed to prove that Petitioner lacks good moral character, even considering his plea of guilty to the 1986 Misdemeanor.
Because of the inclusion of gross immorality and moral turpitude within section 1012.795(1), the 1979 Misdemeanor
and 1986 Misdemeanor are available to establish these violations. As noted above in connection with Petitioner's past performance or production of sexually explicit songs, there is no evidence that these misdemeanor weapons offenses, over 25 years ago, bring him or the education profession into public disgrace or disrespect or impairs Petitioner's service in the community. Obviously, these offenses satisfy the requirement of a "crime" set forth in the above-cited definition of "moral turpitude," but nothing suggests that these offenses approached the "baseness, vileness or depravity in the private and social duties," so as to violate the rule defining "moral turpitude."
But the 1979 Misdemeanor and 1986 Misdemeanor are violations of section 1012.795(1)(f), which provides that DOE (or EPC) "may" suspend or revoke a certificate and, thus, may deny the Application, under section 1012.56(12)(a), for a finding of guilt by the court or plea of guilty by Petitioner as to any misdemeanor, among other offenses.
Some statutes direct the Administrative Law Judge to review an agency's exercise or intended exercise of discretion. See, e.g., section 435.07(3)(c) (Administrative Law Judge to review agency's intended action to deny a request for an exemption from disqualification from employment with vulnerable populations for "abuse of discretion"); section 120.57(3)(f) (Administrative Law Judge to conduct de novo hearing in bid case
to determine if intended bid decision is, among other things, "arbitrary"). Absent such statutory directives, the role of the Administrative Law Judge is more restricted when a statute, such as section 1012.56(12)(a), establishes a clear criterion, for which the agency has the authority, but is not required, to take disciplinary action or deny an application.
The better practice is for the Administrative Law Judge to provide findings of fact to inform EPC's exercise of its discretion, but not for the Administrative Law Judge to determine whether the intended agency action to deny is--or, worse, a later, final agency action to deny would be--an abuse of the discretion vested in DOE and EPC--a matter that is left to judicial review, if any.
Nevertheless, the recommendation below to issue a certificate is based on the failure of the proof to establish dishonesty or fraud in the Application or a lack of good moral character, gross immorality, or moral turpitude from Petitioner's past involvement with adult entertainment, 1979 Misdemeanor, and 1986 Misdemeanor. The recommendation is based also on the years of valuable service, without reported incident, that Petitioner has provided at-risk, inner-city youth in coaching high school and youth football.
The recommendation to attach conditions to the certificate is based on two factors: shortcomings in
Petitioner's acceptance of personal responsibility for the flaws in the Application, his bad period over 25 years ago, and the sexually explicit material that he has performed and produced; and the prospect of Petitioner's return to the adult entertainment industry without giving due consideration to his ethical obligation--far more encompassing than merely not to commit gross immorality--to make "reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety," as required by Florida Administrative Code Rule 6B-1.006(3)(a).
While it is true that the leverage of EPC--if any is needed--to impose these conditions is derived from two weapons misdemeanors committed over 25 years ago, and the conditions have nothing to do with weapons, EPC imposed conditions in Loftis without any determination that the applicant was not entitled to certification.
It is
RECOMMENDED that EPC issue an athletic coaching certificate to Petitioner, subject to the following conditions:
The certificateholder shall be placed on probation for five years, immediately upon issuance or, if later, employment that requires a certificate.
Upon issuance of the certificate and on each anniversary of issuance, during the
term of probation, EPC or its agent shall contact the Department of Revenue and inquire if Petitioner owes any child support arrearages. Upon receipt of written notice of such arrearages from the Department of Revenue or a circuit court, EPC shall immediately suspend the certificate until the arrearages are paid in full. The payment of a purge amount that leaves an arrearage owing does not satisfy this condition.
Within six months of issuance of the certificate and within six months of each anniversary of issuance, during the term of probation, Petitioner shall complete 10 hours in coursework in the area of ethics with emphasis on the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006 and shall deliver to the DOE investigative office written proof of such coursework.
At the start of every school year, during the term of probation, Petitioner and his immediate supervisor will sign a statement certifying that each has read the Principles of Professional Conduct and deliver the signed statement to the DOE investigative office within 20 days of the first day of school. The supervisor's statement shall confirm that he or she understands that his or her professional obligations include the obligation of Rule 6B-1.006(5)(l) that he or she "shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules." Petitioner's statement shall confirm that he understands that his professional obligations include the obligation of Rule 6B-1.006(3)(a) that he "shall make reasonable effort to protect the student from conditions harmful to learning
and/or to the student's mental and/ or physical health and/or safety." If Petitioner's immediate supervisor changes during the school year, the new supervisor shall sign a supervisor's statement within
30 days of his or her assumption of supervisory duties over Petitioner and deliver the signed statement to the DOE investigative office within 60 days of his or her assumption of supervisory duties over Petitioner.
Within 30 days of the preparation and delivery of an evaluation to Petitioner, during the term of probation, he shall submit a copy to the DOE investigative office.
During the term of probation, if Petitioner becomes actively involved in the adult entertainment industry, in any manner, he shall notify the DOE investigative office, in writing, within 30 days of first involvement. For the purpose of this paragraph, the performance or production of a sexually explicit song that would be inappropriate for the football team weight room or the appearance at an autograph- signing event promoted on the basis of Petitioner's former involvement with 2LC is active involvement in the adult entertainment industry.
During the term of probation, the certificateholder shall reimburse EPC or its agent its reasonable costs of monitoring.
If any of these conditions, except for the condition stated in paragraph 2, are not timely performed by Petitioner or, if applicable, his supervisor, EPC may suspend the certificate until Petitioner demonstrates compliance (or the term of the certificate expires) or, at its discretion, revoke the certificate.
DONE AND ENTERED this 15th day of May, 2012, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
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 15th day of May, 2012.
COPIES FURNISHED:
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Turlington Building, Suite 224
325 West Gaines Street Tallahassee, Florida 32399-0400
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief Bureau of Professional
Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
Michael John Carney, Esquire Kubicki Draper, P.A.
Wachovia Bank Building, Suite 1600 One East Broward Boulevard
Fort Lauderdale, Florida 33301 mjc@kubickidraper.com
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E
300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 07, 2012 | Agency Final Order | |
| May 15, 2012 | Recommended Order | Failure to justify denial of athletic coaching cert to former hip-hop performer/producer with minor criminal record on basis of lack of good moral char. Though 2 old misdemeanors are technical grounds for denial, recommend issuance of cert w/conditions. |
BROWARD COUNTY SCHOOL BOARD vs. ROBERT C. BEALE, 11-004533 (2011)
JERRY KAPUSTA vs. SCHOOL BOARD OF HARDEE COUNTY, 11-004533 (2011)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs JEFFERY HANLON, 11-004533 (2011)
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs NICOLE D. ROKOS, 11-004533 (2011)
ORANGE COUNTY SCHOOL BOARD vs. RAZZI LEE SMITH, 11-004533 (2011)
