STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM KIRKLAND,

Petitioner,

vs.

GERARD ROBINSON, AS COMMISSIONER OF EDUCATION,

Respondent.

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) Case No. 12-1798

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 7, 2012, in Tallahassee, Florida, before

Susan Belyeu Kirkland, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Kirkland, pro se

118 Katydid Drive Athens, Georgia 30601

For Respondent: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application for a Florida Educator's Certificate should be granted.

PRELIMINARY STATEMENT

Petitioner, William Kirkland (Mr. Kirkland), filed an application for a Florida Educator's Certificate with the Department of Education (Department) on November 5, 2008. By Notice of Reasons dated April 5, 2012, the Department advised Mr. Kirkland that his application was denied, stating that Mr. Kirkland had violated sections 1012.56(2)(e), 1012.56(12)(a), and 1012.795(1)(d), Florida Statutes (2011).1/

Mr. Kirkland requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge to conduct the final hearing. The case was originally assigned to Administrative Law Judge Lisa Shearer Nelson, but was reassigned to Administrative Law Judge Susan Belyeu Kirkland to conduct the final hearing.

The final hearing was scheduled for July 25, 2012. On July 12, 2012, Respondent filed Respondent's Motion to Permit Pre-Trial Depositions in Lieu of Live Testimony at Hearing and Motion for Continuance. The motion was granted by Order dated July 23, 2012. The final hearing was rescheduled for September 7, 2012.

At the final hearing, Mr. Kirkland did not present any witnesses or exhibits for admission in evidence. Respondent called Mr. Kirkland and Randy John Amos as witnesses.

Respondent's Exhibits 1 through 14 were admitted in evidence. Respondent's Exhibits 12 and 13 are the deposition transcripts of Richard Boyle and Raul Montano, respectively. The depositions, which were submitted at the final hearing were not certified copies, and Respondent was given leave to file certified copies of the transcripts after the final hearing.

Certified copies of Respondent's Exhibits 12 and 13 were filed on October 5, 2012. After reading Respondent's Exhibit 11, which is the transcript of Thomas Winston Dangler, the undersigned became aware that the Mr. Dangler was not under oath when he gave his testimony. Therefore, his testimony cannot be considered because it is in violation of section 120.569(2)(g), which requires that "all testimony of parties and witnesses shall be made under oath."

The one-volume Transcript of the final hearing was filed on September 25, 2012. The parties were given ten days after the filing of the Transcript to submit proposed recommended orders. Respondent filed his proposed recommended order on October 5, 2012. As of the date of this Recommended Order, Mr. Kirkland has not filed any post-hearing submittals.

FINDINGS OF FACT

1. On November 5, 2008, Mr. Kirkland filed an application for a Florida Educator's Certificate with the Department. By Notice of Reasons dated April 5, 2012, the Department advised

   
   

   Mr. Kirkland that his application was being denied for violations of sections 1012.56(2)(e), 1012.56(12)(a), and 1012.795(1)(d). The Notice of Reasons alleges the following as the basis for the denial of Mr. Kirkland's application:

   On or about November 17, 2010, in Athens- Clarke County, Georgia, Applicant stole four t-shirts valued at $18.00 each from a University of Georgia bookstore. The applicant entered into a pretrial diversion program in which the State Attorney agrees to dismiss charges if the Applicant completes the conditions of the program.

   
   

   On or about November 17, 2010, in Athens- Clarke County, Georgia, Applicant obstructed a law enforcement officer by failing to comply with the directives given by the officer, which led to Applicant having to be taken down to the ground by the officer.

   Once down on the ground, Applicant rolled away from the officer and started to run, causing the officer to have to apprehend Applicant. These events took place after Applicant had jumped from a moving vehicle, which was driven by a bail bondsman after Applicant had been released from jail for the earlier theft charge. It was later determined that Applicant had not paid his bond fee when he jumped from the vehicle.

   The charge was nolle prossed on April 25, 2011, pursuant to Applicant's negotiated plea agreement in the previous theft case.

   
   

2. On or about November 17, 2010, in Athens-Clarke County, Georgia, Mr. Kirkland went into a University of Georgia bookstore. Mr. Kirkland went to the cashier's counter, and his transaction with the store clerk was recorded by a surveillance camera. When he approached the counter, he had four tee-shirts

   
   

   with him. He placed the tee-shirts on the counter and gave the clerk a card for payment. The clerk swiped the card, and the card was declined.

3. Although Mr. Kirkland testified that he swiped another card for payment, the surveillance recording shows that

   Mr. Kirkland did not swipe another card nor did he give another card to the clerk. The clerk returned the card to Mr. Kirkland, and Mr. Kirkland picked up the tee-shirts and left the counter. Contrary to Mr. Kirkland's testimony, the tee-shirts were not placed in a bag, and the clerk did not give Mr. Kirkland a receipt as evidenced by the surveillance recording.

4. As Mr. Kirkland was leaving the store, the clerk called to him. Mr. Kirkland turned, looked at the clerk, and continued out of the store. The clerk left his post at the cashier's counter and followed Mr. Kirkland.

5. Mr. Kirkland testified that the first card that was used was declined. The video recording shows that no additional card was given, the tee-shirts were not placed in a bag, and

   Mr. Kirkland was not given a receipt. Based on the video surveillance recording, it is clear that Mr. Kirkland left the store without paying for the tee-shirts.

6. After Mr. Kirkland left the bookstore, he headed down Lumpkin Street. He was stopped by a University of Georgia police officer, arrested for theft by shoplifting, and taken to

   
   

   a University of Georgia police substation, where he was transferred to the Clark County jail.

7. On November 17, 2010, Mr. Kirkland, while at the Clark County jail, called Raul Montano, who is a bail bondsman with Classic City Bonding. Mr. Kirkland told Mr. Montano that he was a University of Georgia student who had been charged with shoplifting and he needed a $1,500 bond. Mr. Kirkland told

   Mr. Montano that he could pay Mr. Montano with a debit card.

   
   

   Mr. Montano told Mr. Kirkland that the fee for the bond would be

   
   

   $150 plus $20 for the processing fee, and Mr. Kirkland agreed to the arrangement.

8. Mr. Montano came to the jail and posted the bond for Mr. Kirkland. Mr. Kirkland was released from custody.

   Mr. Montano took Mr. Kirkland across the street from the jail, and Mr. Kirkland tried to use his debit card at an ATM machine, but the machine kept declining the card.

9. Mr. Kirkland got into Mr. Montano's car and they drove away from the ATM. Mr. Montano informed him that he needed to call someone so that Mr. Montano could be paid over the telephone with a debit or credit card. Mr. Kirkland told

   Mr. Montano that he did not have anyone and asked to be taken back to the bookstore. Mr. Montano told Mr. Kirkland that he could not take Mr. Kirkland back to the bookstore because

   Mr. Kirkland had been banned from the store for shoplifting.

   
   

10. Mr. Montano told Mr. Kirkland that if he did not pay for the bond, that he would be taken back to jail. At that point, Mr. Kirkland jumped out of the moving car and started running across the traffic. Mr. Montano tried to follow

    Mr. Kirkland in his car. Mr. Montano saw a police officer, William Richard Boyles, coming in a marked police car and flagged him down. He told the police officer that Mr. Kirkland was running.

11. Officer Boyles turned on the blue light on his vehicle and approached Mr. Kirkland, who was across the road.

    Officer Boyles showed Mr. Kirkland his badge and told

    
    

    Mr. Kirkland that he was a police officer. Mr. Kirkland started backing up towards the traffic and yelled, "I don't know him." Mr. Kirkland appeared to be disoriented to Officer Boyles, and Officer Boyles thought that it would be prudent to handcuff

    Mr. Kirkland to keep him from running back into the traffic.

    
    

12. Officer Boyles asked Mr. Kirkland to come to him and turn around so that Mr. Kirkland could be handcuffed. The officer grabbed Mr. Kirkland's wrist, but Mr. Kirkland had a cellular telephone in his left hand. Officer Boyles told him to drop the telephone. Mr. Kirkland did not drop the telephone, but pulled away from Officer Boyles and said that he did not know either Mr. Montano or Officer Boyles. Officer Boyles took Mr. Kirkland's wrist and pulled it up to the lower part of his

    
    

    neck and told him to stop resisting or Officer Boyles would have to take him to the ground and handcuff him. Officer Boyles took out his radio to call for backup.

13. Mr. Kirkland continued to struggle with Officer Boyles, who forced Mr. Kirkland to the ground. Mr. Kirkland landed on top of the police radio. When

    Officer Boyles went to roll Mr. Kirkland over to get the radio, Mr. Kirkland got up and ran another 50 feet. Officer Boyles ran after Mr. Kirkland, telling Mr. Kirkland to stop and identifying himself as a police officer. The police officer caught

    Mr. Kirkland and handcuffed him. While Mr. Kirkland was being walked back to the police car, he continued to throw himself back and forth. Officer Boyles put Mr. Kirkland into the back of the police car. At that time, Mr. Montano told the police officer that Mr. Kirkland had failed to pay his bond fee.

    Mr. Kirkland was taken back to jail and charged with obstruction or hindering a law enforcement officer.

14. On April 25, 2011, Mr. Kirkland entered into a Pretrial Intervention Program Agreement in which the state attorney agreed to dismiss the charges, if Mr. Kirkland completed the conditions of the program. Mr. Kirkland is required to complete the program by October 25, 2012.

15. Mr. Kirkland did take the four tee-shirts from the University of Georgia bookstore without paying for them. His

    
    

    testimony that he paid for them with a second card is not credible. Mr. Kirkland did obstruct and hinder a law enforcement officer when he tried to run away from Officer Boyles after he ran from Mr. Montano's car. Mr. Kirkland testified that he ran from Mr. Montano's car because Mr. Montano had made a sexual advance towards him. This testimony is not credible. Mr. Kirkland did not tell the police officer that

    Mr. Montano had made a sexual advance toward him when Officer Boyles was trying to take Mr. Kirkland into custody.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2012).

17. Mr. Kirkland has the burden of presenting evidence of his fitness for a Florida Educator's certificate. The Department had the burden of presenting evidence that

    Mr. Kirkland violated sections 1012.56(2)(e), 1012.56(12)(a), and 1012.795(1)(d). However, as the applicant, Mr. Kirkland bears the burden of ultimate persuasion that his application should be granted. Dep't of Banking & Fin. v. Osborne Stern &

    Co., 670 So. 2d 932, 934 (Fla. 1996).

    
    

18. Section 1012.56(2)(e) requires that to be eligible to seek an educator's certificate, the person must be of good moral character. The evidence established that Mr. Kirkland

    
    

    shoplifted four tee-shirts from a University of Georgia bookstore. The evidence also established that Mr. Kirkland failed to follow the directives of a police officer after

    Mr. Kirkland fled from Mr. Montano's car when Mr. Montano told Mr. Kirkland that he would be taken back to jail because he could not pay the bond fee. Mr. Kirkland ran after being informed that Officer Boyles was a police officer; he resisted being placed into handcuffs; and he ran a second time after Officer Boyles had put him on the ground in the process of handcuffing him. These acts show lack of good moral character.

19. In Florida Board of Bar Examiners, Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978), the Florida Supreme Court considered the definition of a lack of good moral character and stated:

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of 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.

    
    

20. Mr. Kirkland's theft and his actions while Officer Boyles was trying to detain him are acts which would cause a reasonable person to have substantial doubts about

    
    

    Mr. Kirkland's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

21. Section 1012.56(12)(a), provides:

    
    

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

    
    

22. Section 1012.795(1)(d) provides:

    
    

    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 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 10 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 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:

       
       

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

       
       

23. Retail theft or shoplifting is a crime involving moral turpitude because it is contrary to principle and to one's duty to society. See In re: Garrett, 613 So. 2d 463 (Fla. 1993); Broward Co. Sch. Bd. v. Von Hagan, Case No. 11-0567 (Fla. DOAH June 12, 2011; Sch. Bd. of Broward Co. August 16, 2011);

    Dr. Eric J. Smith, as Comm'r of Educ. v. Arrington, Case No. 08-3475 (Fla. DOAH Mar. 24, 2009; Fla. EPC July 13, 2009).

24. Respondent has presented evidence to establish that Mr. Kirkland has violated sections 1012.56(2)(e), 1012.56(12)(a), and 1012.795(1)(d), which constitute grounds for denial of Mr. Kirkland's application for an educator's certificate. Mr. Kirkland has not demonstrated that he is eligible for an educator's certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Mr. Kirkland violated sections 1012.56(2)(e), 1012.56(12)(a), and 1012.795(1)(d), and denying

his application of a Florida Educator's certificate.

DONE AND ENTERED this 17th day of October, 2012, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 17th day of October, 2012.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2011 version.

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

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154 ron@ronweaverlaw.com

William Kirkland

118 Katydid Drive Athens, Georgia 30601

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: 12-001798

Orders for Case No: 12-001798