STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROGER WASHINGTON,
vs.
Petitioner,
Case No. 13-3336
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a final hearing in this case was held on December 3, 2013, in Daytona Beach, Florida, before W. David Watkins, a duly-designated Administrative Law Judge, of the Florida Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jamison Jessup
Qualified Representative
557 Noremac Avenue Deltona, Florida 32738
For Respondent: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154
STATEMENT OF THE ISSUE
The issue is whether Petitioner is entitled to an athletic coaching certificate, or whether he should be denied a certificate based on the allegations in the Notice of Reasons.
PRELIMINARY STATEMENT
On or about July 26, 2010, the Florida Department of Education (DOE), Bureau of Educator Certification, received an application from Petitioner for an athletic coaching certificate (Application). The Petitioner’s Application was assigned DOE No.: 1151386.
Thereafter, on March 26, 2013, DOE advised Petitioner that his application was denied for the reasons set forth in a three- count Notice of Reasons and identifying the statutory and regulatory violations purportedly warranting denial.
On September 4, 2013, the Education Practices Commission referred the case to DOAH by a letter of referral that, in pertinent part, stated:
This case was filed with the Education Practices Commission on May 9, 2013, as an informal hearing. The hearing was scheduled for August 8, 2013. At the hearing, [the Petitioner] disputed allegations in the Administrative Complaint. The EPC is referring this case to DOAH as a formal hearing.
* * *
As there appears to be material facts in dispute, I am forwarding this matter to your office for full evidentiary hearing pursuant to section 1012.796(6), Florida Statutes.
On September 5, 2013, this matter was assigned to the undersigned, and on September 16, 2014, a Notice of Hearing was
issued, setting the matter for final hearing on December 3, 2013.
The case proceeded to hearing as scheduled. At the hearing, counsel for the Respondent stated that the Respondent was not going to offer any evidence with respect to Reason No. 3 of the Notice of Reasons. As a result, Petitioner moved, ore tenus, to strike Reason No. 3, and that motion was granted. The case proceeded on the remaining allegations in Reasons No. 1 and No. 2 in the Notice of Reasons.
At the hearing, Petitioner called three witnesses, including the Petitioner, and Respondent called one witness (by deposition in lieu of live testimony). Petitioner offered into evidence two exhibits: Petitioner Exhibits A and B. Respondent offered into evidence six exhibits: Respondent Exhibits 1 through 6. All exhibits were admitted.
At the conclusion of the hearing, Petitioner’s Qualified Representative requested an extension of the normal time frame for the filing of proposed recommended orders, and that request was granted without objection. Accordingly, proposed recommended orders were due for filing by January 13, 2014.
Thereafter, Respondent timely filed its Proposed Recommended Order. However, Petitioner’s Proposed Recommended Order was not filed until two days following the deadline, January 15, 2014. Due to Petitioner’s tardy filing, Respondent
filed a Motion to Strike Petitioner’s Proposed Recommended Order. Petitioner filed a response to the motion to strike, and the undersigned denied the motion by Order dated January 16, 2014. Accordingly, both Proposed Recommended Orders have been carefully considered in the preparation of this Recommended Order.
On February 10, 2014, a post-hearing conference call was convened at the instance of the undersigned in order to determine whether one of the exhibits entered in evidence was complete. During the call it was determined that the version of Respondent’s Exhibit 1 received in evidence was missing two pages. Without objection, Respondent provided the missing pages (pages 6 and 7) via e-mail the same day.
FINDINGS OF FACT
Based on the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
DOE is charged with the duty to issue Florida Educator’s Certificates to qualified persons seeking authorization to become schoolteachers and/or coaches in the State of Florida.
Petitioner is an African-American male, whose date of birth is August 7, 1975.
On or about July 14, 2010, Petitioner completed and signed a DOE application (Application) for a coaching certificate. Petitioner does not currently hold a certificate of eligibility or temporary Educator’s Certificate.
On or about July 26, 2010, DOE’s Bureau of Educator Certification received Petitioner’s Application.
On March 26, 2013, DOE advised Petitioner that his application was denied for the reasons set forth in a three-part Notice of Reasons. The Notice of Reasons alleged, as the basis for denying the Petitioner’s Application, that:
On or about February 21, 2001, in Volusia County, Florida, Applicant sold 7 grams of cocaine in exchange for approximately $175.00. On or about April 3, 2001, Applicant was arrested and charged with Unlawful Sale of a Controlled Substance. On or about August 7, 2001, the charge was nolle prossed.
On or about October 18, 2004, in Volusia County, Florida, Applicant pointed a handgun at an unknown male that was in a
vehicle parked outside of a residence. Applicant fired two rounds into the vehicle. One of the bullets went through the living room window of a nearby residence.
Applicant was subsequently arrested and charged with Shooting into a Building. On or about September 27, 2005, Applicant pled Nolo Contendere and adjudication was withheld.
On or about May 5, 2006, in Clayton County, Georgia, Applicant struck a female, who was under the age of eighteen years, with a leather belt.[1/]
The Notice of Reasons concluded that Petitioner had therefore violated section 1012.56(2)(e), Florida Statutes,2/ by failing to maintain good moral character (Count 1); section 1012.56(12)(a), by committing acts for which revocation would be authorized by the Education Practices Commission (Count 2); and section 1012.795(1)(d), by being guilty of gross immorality or an act involving moral turpitude (Count 3).
Petitioner will be unable to pursue a career coaching or teaching students in Florida without educator certification. Petitioner is substantially affected by the intended decision to deny his certification.
Reason No. 1: Alleged Sale of Cocaine
On or about April 3, 2001, Petitioner was arrested and charged with the Unlawful Sale of a Controlled Substance, specifically, seven grams of cocaine. On or about August 7, 2001, the charge was nolle prossed.3/
At the time of Petitioner’s arrest, William Heiser was a drug agent with the Volusia County Sheriff’s Department, and was assigned to the Volusia Bureau of Investigation. On that day the Volusia Bureau of Investigation, including Agent Heiser, conducted an undercover operation.
Agent Heiser was deposed prior to the final hearing in this matter, and his deposition was received in evidence in lieu of his live testimony.
At his deposition, Agent Heiser identified the charging affidavit as a copy of the police report that he prepared and signed. The charging affidavit, prepared and signed on April 3, 2001, states that that there is probable cause to believe the defendant [Roger Washington]:
On the 21st day of Feb, 2001, at approximately 1630 p.m. at Mason & Derbyshire Road within Volusia County, violated the law and did then and there:
Sold 7 grams of suspected cocaine to C.I. #0015 in exchange for $175.00 in Volusia County Sheriff’s Office Pre-Recorded Monies. CI #0015 and the vehicle the CI was operating was searched for weapons, monies and drugs finding none. [The CI was kept under constant surveillance and He/She traveled to the above location.] The CI was kept under constant surveillance as He/She traveled to the above location. The C.I. was observed meeting the subject Roger Washington and was given a plastic baggie that contained approx 7 grams of an off white powder substance in exchange for the
$175.00 of pre-recorded monies. The C.I. was kept under constant surveillance as He/She traveled to a predetermined meeting location where He/She handed over to Inv. Heiser the plastic bag containing the suspected cocaine. The C.I. and the vehicle the C.I. was operating was again searched for monies, weapons and drugs finding none. The off-white substance was tested by Inv.
Heiser using a Nark #13 Test Kit which resulted in a presumptive reaction for the presence of Cocaine. It was placed into evidence at VCSO.
At his deposition, Agent Heiser was unable to recall any of the particulars of the actual arrest of Petitioner for
the incident described in the charging affidavit. He did not remember if he or another law enforcement officer arrested Petitioner.
Agent Heiser testified that Confidential Informant #0015 (CI) had herself committed crimes, and participated in the undercover operation in hopes of getting out of her own legal problems. He admitted that from his position of a couple of car lengths from CI that he did not observe her entire body, and could not see inside CI’s vehicle while it traveled a “good mile” from the location of CI’s alleged interaction with Petitioner. Agent Heiser also testified that he did not personally search CI’s person nor did he witness the actual search or any strip search of CI as she was female and he is male. He testified that the off-white powder substance that he field-tested was not provided directly from the Petitioner to him, but rather through the CI who carried it approximately a mile from the buy location.
Agent Heiser explained that the reason for strip- searching CIs is that “obviously, you can hide things in the cavity or you can hide things in spots that you wouldn’t normally get if you just did a pat down.” He further admitted that CI had the opportunity to hide cocaine and the money on her person underneath her clothes, for example in her bra. No
evidence was presented in this record that CI was subjected to a strip-search in connection with the buy of February 21, 2001.
Agent Heiser further testified that the off-white powder substance was field-tested by him and not laboratory tested, and that he could not be certain that the substance tested was actually cocaine. He further testified that he had no evidence that the field test was completely reliable. He further conceded that there is no such thing as a field test that is 100 percent reliable and that a laboratory test is more reliable. He admitted that he does not remember any details regarding any laboratory reports verifying or not verifying the substance was cocaine. No evidence was submitted that any laboratory test was ever conducted on the substance.
Similarly, there was no evidence submitted that the
$175.00 in pre-recorded monies provided to the CI was ever recovered or found upon Petitioner. Further, insomuch as Agent Heiser was at least two car lengths away when observing the alleged interaction between Petitioner and the CI, it was highly improbable that he was actually able to know for certain that the monies that allegedly were given by the CI to Petitioner were indeed the same pre-recorded monies mentioned in the charging affidavit. Vision at that distance would not be good enough to make that determination.
Petitioner testified that he was arrested by Agent Heiser and another officer at his business, a car wash. At the time of the arrest, Agent Heiser initially approached a customer, Mike, and asked Mike if he was Roger Washington. Thus, Agent Heiser was not able to independently identify Roger Washington at the time of the arrest. Instead, Petitioner had to self-identify himself to Agent Heiser.
There is no evidence in this record as to the date Petitioner was arrested in connection with the cocaine sale charge. However, the Charging Affidavit was signed by Agent Heiser on April 3, 2001, more than a month after the alleged drug buy took place. Agent Heiser testified that frequently the Volusia Bureau of Investigation conducted a “bunch” of buys prior to making any arrests. Given this testimony, it is reasonable to infer that Petitioner was not arrested until sometime after the preparation of the Charging Affidavit in April 2001.
The delay in the arrest of Petitioner in connection with the cocaine buy, coupled with Agent Heiser’s inability to independently identify Petitioner at the time of his arrest, raises reasonable doubt as to whether the person who interacted with the CI was actually Petitioner.
At hearing, Petitioner denied ever selling cocaine to anyone. Based upon the credible testimony of Petitioner and the
lack of persuasive evidence that the Petitioner in fact sold cocaine, it has not been established that Petitioner engaged in the sale of cocaine. Rather, the competent substantial evidence of record only establishes that Petitioner was arrested and charged with the sale of cocaine, and that the charge was later nolle prossed.
Reason No. 2: Shooting Into Building
On June 30, 2005, Petitioner was charged by Information with shooting into a building (through a car window) in Volusia County, a second-degree felony. The shooting at issue occurred on October 18, 2004, some eight months earlier.
On September 27, 2005, the Petitioner entered a plea of nolo contendere (no contest) to the charge and adjudication of guilt was withheld. Petitioner was placed on probation for three years, ordered to make restitution to the victim, and to pay court costs.
At hearing, Petitioner testified that he was not even in the State of Florida on or about October 18, 2004, but rather was living in Atlanta at the time. He testified that he did not shoot into a building (or a parked car), nor did he shoot at anybody. Petitioner’s demeanor and body language while testifying in this regard were composed, did not appear rehearsed, and are found to be credible. Other than the court
records reflecting the charge, and Petitioner’s plea of no contest, no other evidence was offered to rebut this testimony.
At hearing, the undersigned queried Petitioner as to why he would have pled no contest to a crime he did not commit:
The Court: Mr. Washington, why did you plead no contest to a charge that you did not commit?
The Witness: Because they was offering me
15 years.
The Court: I don’t understand that. What do you mean?
The Witness: They was offering me 15 years in prison.
The Court: If you didn’t plead guilty or not – I’m sorry – no contest?
The Witness: Yes.
The Court: What was the evidence that they had against you that formed the basis for your arrest on that charge?
The Witness: I think they said someone said that it was me.
The Court: So in exchange for your no contest charge (verbatim), were not adjudicated guilty and that was the deal; is that right?
The Witness: Correct.
Under the circumstances, Petitioner’s explanation for pleading no contest to a crime he did not commit is plausible. Based upon the record before the undersigned, there is
insufficient competent evidence to conclude that Petitioner did in fact commit the crime of shooting into a building.
Petitioner’s Character
Petitioner is employed as a behavior specialist with Behavior Change Artists, an agency the Volusia County School System contracts with to provide behavior therapy to its students. In this capacity Petitioner works directly with children.
Previously, Petitioner worked for three years as a substitute teacher at Holly Hill Middle School. Although the record does not reflect exactly when he worked in this capacity, the record does show that it was after 2006 and prior to 2012.
In order to work with children as a behavior specialist and substitute teacher, Petitioner was required to undergo two Level II background screenings by the Florida Department of Law Enforcement. As a part of the background screenings he provided information related to his arrests, charges, and dispositions of the charges. As a result of those background screenings he was allowed to work in these occupations and was not disqualified from working with children or vulnerable adults.
Upon applying for the positions of substitute teacher and behavior specialist, Petitioner disclosed the arrests,
charges and dispositions of the incidents listed in Notice of Reasons No. 1 and No. 2 to those who hired him.
Diane Mathis was an office specialist at Holly Hill Middle School, whose responsibilities included coordinating substitute teachers during the period 2006 through 2011. At hearing Ms. Mathis authenticated a letter of recommendation that she authored in early 2013 with the understanding that it would be submitted in conjunction with Petitioner’s Application. The letter states:
May 13, 2013
To whom it may concern:
I’ve had the pleasure of working with Roger Washington at Holly Hill Middle School in Volusia County for approximately 3 years. I was the Substitute Teacher Coordinator from 2006-2011.
He was GREAT with the students and in the classroom. They loved him. The Faculty and Staff enjoyed having him on Campus as he helped out in other areas as needed.
The Teachers at Holly Hill Middle School would recommend Roger to cover their class if they were absent. He was in high demand.
He is dependable and showed professionalism each and every time he was on our Campus.
Sincerely,
Diane Mathis, Office Specialist Volusia County Schools
[phone number redacted]
Ms. Mathis testified that during her time working with Petitioner she did not see anything that would concern her with respect to the Petitioner being granted a Florida Educator’s Certificate. On cross-examination Ms. Mathis conceded that she was not aware of the arrests, charges and dispositions of Petitioner’s arrests and that her recommendation was limited to her own experience and knowledge interacting with Petitioner in his position as a substitute teacher.
Kenya Ford is a program specialist with the Volusia County School System. Ms. Ford’s responsibilities included interacting with the Petitioner in his position as behavior specialist. At hearing, Ms. Ford authenticated a letter of recommendation she had written on Petitioner’s behalf. The letter states:
To Whom It May Concern:
With great pleasure, I forward this letter of recommendation on behalf of Mr. Roger Washington.
I have known Mr. Washington for the past thirteen years (13), in a personal and professional manner. He has demonstrated to be ambitious, dependable, determined and hardworking young man. Knowing him personally, he has proven to be a reliable and wonderful individual.
While working alongside Mr. Washington as a behavior specialist and team parent with youth sports, I found Mr. Washington to have good work ethics and a pleasant personality as a professional, team player, and leader.
As a mentor and professional, Roger Washington has shown himself to be a creditable individual that I would put my trust in and builds great moral among his colleagues.
Roger is very active with implementing, organizing, and supervising afterschool sports programs over several years; while being a mentor for students and guide for parents.
Mr. Washington is a tenacious and straightforward individual who is determined to accomplish his goals that he has set forth for the students he mentors [sic] and nurtures, [sic] along with parents and himself. Without question Mr. Washington has been one of the most spirited individuals [sic] and professionals [sic] I have encountered while working with him as the School District Program Specialist, that work closely with the behavior specialist over the past few years of my tenure. He has taken the challenge of being a leader within the field of education, while still conquering his own challenges of continuing education. Mr. Washington would be a great asset to any organization.
Considering Mr. Washington’s commitment to hard work and dedication of excellence, I strongly recommend him for an assignment into your prestigious establishment.
Sincerely Yours,
Kenya Ford, Behavior Initiative Program Sc-EBD Program Specialist
Volusia County Schools
Ms. Ford testified that she witnessed nothing in her interactions with the Petitioner that would concern her should Petitioner receive a Florida Educator’s Certificate. Rather,
Petitioner was one of the better behavior specialists providing services for Volusia County Schools. She testified that she wrote the above letter based upon her on experience with the Petitioner, including the work he did at Volusia County Schools and through non-school activities in the community, including the Pop-Warner football youth program.
Ms. Ford further testified that she has personally known the Petitioner for 13 years and has never known him to be a user or purveyor of illegal drugs, nor has she known him to have a temper or anger management issue of any kind.
In the more than nine years that have passed since the last alleged criminal act (shooting into a building), the record establishes that Petitioner has maintained a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. He is active in his school as a behavior specialist and serves with youth sports. During his most recent employment as a substitute teacher, and then as a behavior specialist, he has performed his duties admirably, and without incident. By all accounts he is a motivated and hard-working individual, and has excellent rapport with children.
In its Proposed Recommended Order, Respondent points to several other instances in which Petitioner has been arrested. While these instances were not included in the Notice of Reasons, Respondent argues they are pertinent to the
determination of whether Petitioner is of good moral character. Specifically, Respondent cites a 1996 arrest for disorderly conduct and a 1997 arrest for battery. It is noted that Petitioner pled not guilty to both of those charges. The battery charge was nolle prossed, while adjudication was withheld on the disorderly conduct charge. Petitioner was 21 and 22 years old, respectively, at the time of these arrests, which occurred some 17 or 18 years ago. Given the remoteness in time, age of Petitioner, and disposition, these arrests are not indicative of Petitioner’s character today.
The greater weight of the evidence in this record does not support a finding that Petitioner committed the criminal acts set forth in Reasons No. 1 and No. 2. However, even had the record supported a finding that Petitioner committed those criminal acts, the record also established that in at least the past nine years Petitioner has comported himself in a responsible and professional manner. If Petitioner ever was a miscreant, he is now fully rehabilitated. Petitioner has had no further interaction with the criminal justice system since 2005, and if indeed he did commit the criminal acts accused of, they were isolated incidents, and not indicative of poor moral character.
Even if Petitioner did commit the criminal acts referenced in Reasons No. 1 and No. 2, the record established
that he is of good moral character today. A couple of isolated events that may have occurred nine or more years ago are not determinative of his character today.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.
DOE is the state agency responsible for licensure of instructional personnel for the public schools. § 1012.55, Fla. Stat.
The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against teachers. See § 1012.796(6).
DOE may deny an applicant an Educator's Certificate if the Department finds that an applicant is ineligible for licensure or if it possesses evidence that the applicant committed an act for which the Education Practices Commission (EPC) could revoke a teaching certificate. §§ 1012.315, 1012.56(12).
Petitioner is substantially affected by the Department's intended decision to deny him an Educator's Certificate and he has standing to maintain this proceeding.
As the party seeking certification, Petitioner has the burden of proving by a preponderance of evidence that he satisfies the statutory requirements for a certificate. Dep't of
Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). However, Respondent has the burden of presenting evidence of any statutory violations alleged in the Notice of Reasons as sufficient to warrant denial of the application.
Osborne Stern & Co., 670 So. 2d at 934; Comprehensive Medical
Access, Inc. v. Ofc. of Ins. Reg., 983 So. 2d 45 (Fla. 1st DCA 2008).
Petitioner applied for an Educator’s Certificate in Coaching. The criteria for licensure are found in section 1012.56(2). Except for the requirement in section 1012.56(2)(e) that a certificate holder “be of good moral character,” there has been no allegation that Petitioner does not meet the basic requirements.
Count 1: Is Petitioner of Good Moral Character?
The Florida Supreme Court, in the case of In re Fla.
Bd. of Bar Examiners, 373 So. 2d 890, 891 (Fla. 1979) considered the standard of "good moral character" noting:
The inherent defects of a standard of "good moral character" standing alone, and the saving grace of a history of judicial construction have each been recognized by the United States Supreme Court. In Konigsberg v. State Bar of California, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810
(1957), the court described the term "good moral character" as "unusually ambiguous" and held in pertinent part: It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.
Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.
In construing the term “good moral character,” a number of recommended and final orders in educator certification cases have relied upon the standard set forth in Zemour, Inc. v.
State Div. of Beverage, 347 So. 2d 1002, 1005 (Fla. 1st DCA 1977), which stated:
Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But, as shown by the evidence here, repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that . . . should not be entrusted . . . .
Hodge v. Smith, Case No. 11-3318 (Fla. DOAH Sept. 29, 2011; Fla. EPC Jan. 11, 2012); Housley v. Smith, Case No. 08-714 (Fla. DOAH
Aug. 11, 2008); Grant v. Blomberg, Case No. 06-5297 (Fla. DOAH Aug. 30, 2007; Fla. EPC Dec. 7, 2007); Santana v. Winn, Case No.
05-1302 (Fla. DOAH Aug 22, 2005; Fla. EPC Feb. 21, 2006).
Section 1012.56(2)(e), which requires that a person seeking certification “(b)e of good moral character,” is written in the present tense. Thus, the issue for determination under section 1012.56(2)(e) is whether the Petitioner is of good moral character, not whether he committed acts that would suggest a lack of good moral character at the time of their commission. This distinction is particularly significant in this instance, given the passage of time between the alleged crimes and the date of the de novo administrative hearing.
As set forth in the findings of fact herein, the Respondent failed to carry its burden of establishing that Petitioner committed any crime whatsoever. However, even had Respondent made such a showing, Petitioner has proven by a preponderance of the evidence that he is currently of good moral character. Petitioner’s past alleged misdeeds, even had they been proven, would not make him ineligible for an Educator’s Certificate under section 1012.56(2)(e).
Counts 2 and 3: Gross Immorality and Moral Turpitude
As a basis for the denial of Petitioner’s Application, Count 2 alleges that:
The Applicant is in violation of section 1012.56(12)(a), Florida Statutes, which provides that 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.
Section 1012.56(12)(a) incorporates by general reference the acts and situations for which the EPC could revoke an educator's certificate, and makes these also grounds for denial of an application. The specific acts and situations are listed in section 1012.795(1).
Although listed as a separate count, it is clear that no specific act is alleged as part of Count 2 itself. Rather, Count 2 takes those acts listed as grounds for revocation in section 1012.795(1)(d) (which acts were made the bases for denial in Count 3) and adopts them as grounds for denial of an application. Thus, the substance of Count 2 is as set forth in Count 3.
As a basis for denial of Petitioner’s Application, Count 3 alleges that:
The Applicant is in violation of section 1012.795(1)(d), Florida Statutes in that he has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
As noted by Judge F. Scott Boyd in Cappi Arroyo v.
Dr. Eric J. Smith, as Commissioner of Education, Case No. 11- 2799, ¶109 (Fla. DOAH May 31, 2012; Fla. EPC Nov. 13, 2012):
The Ethics in Education Act, chapter 2008- 108, Laws of Florida, added the phrase "as defined by rule of the State Board of Education" to what now appears as section 1012.795(1)(d). It is unclear whether this new language modifies only "an act involving moral turpitude" or if it instead modifies the entire phrase "gross immorality or an act involving moral turpitude." The absence of a comma after the word "immorality" suggests that it modifies the entire phrase. In any event, when construing penal statutes, any statutory ambiguity should be resolved in favor of Petitioner. Cilento v. State, 377 So. 2d 663, 668 (Fla. 1979)
(where criminal statute is ambiguous, construction most favorable to accused should be adopted). See also § 775.021, Fla. Stat. ("The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."). This portion of the statute is thus only violated if an educator is guilty of gross immorality as defined by rule of the State Board of Education. (emphasis added).[4/]
The Final Order in Arroyo v. Smith adopted in full the findings of fact, conclusions of law, and recommendation contained in Judge Boyd’s Recommended Order. Accordingly, the Final Order, as well as the conclusions of the Recommended Order adopted therein, must therefore be applied to this case.
The State Board of Education has not defined the term "gross immorality" by rule. No evidence was presented that Petitioner's behavior met any such rule definition. Moreover, Respondent failed to prove that Petitioner was “guilty of gross immorality” because it failed to prove the allegations found in Notice of Reasons No. 1 and No. 2.
Although Count 3 alleges Petitioner violated section 1012.795(1)(d), an applicant who does not hold an Educator’s Certificate cannot violate that provision, but rather is subject to denial of an application through the adoption standards in section 1012.56(12)(a). Although Count 3 may be technically deficient for failing to incorporate section 1012.56(12)(a), the substance of the basis for denial was clear, and Petitioner was not prejudiced in preparing for his defense.
On July 8, 2012, the State Board of Education amended rule 6A-5.056, to define “crimes involving moral turpitude” as meaning “offenses listed in section 1012.315, F.S.,” and the following crimes:
Section 775.085, Florida Statutes, relating to evidencing prejudice while committing offense, if reclassified as a felony.
Section 782.051, F.S., relating to attempted felony murder.
Section 782.09(1), F.S., relating to killing of unborn quick child by injury to mother.
Section 787.06, F.S., relating to human trafficking.
Section 790.166, F.S., relating to weapons of mass destruction.
Section 838.015, F.S., relating to bribery.
Section 847.0135, F.S., relating to computer pornography and/or traveling to meet a minor.
Section 859.01, F.S., relating to poisoning of food or water.
Section 876.32, F.S., relating to treason.
An out-of-state offense, federal offense or an offense in another nation, which, if committed in this state, constitutes an offense prohibited under section 1012.315(6), F.S.
Section 1012.315, provides that a person is ineligible for educator certification if the person has been convicted of any one of 47 enumerated offenses, including the following:
(1) Any felony offense prohibited under any of the following statutes:
* * *
(qq) Chapter 893, relating to drug abuse prevention and control, if the offense was a felony of the second degree or greater severity.
Petitioner has not been convicted of any of the crimes enumerated in section 1012.315, and is therefore not guilty of moral turpitude. Had Respondent established that Petitioner was
convicted of the unlawful sale of a controlled substance that would have constituted a violation of section 893.13, and would therefore have rendered Petitioner ineligible for an educator’s license. However, the unrebutted evidence established that Petitioner was not convicted of that crime, since the charge was ultimately nolle prossed.
While Petitioner pled no contest to the charge of shooting into a building in violation of section 790.19, he was not convicted since adjudication of guilt was withheld. Even had Respondent been convicted of shooting into a building, a section 790.19 violation is not an act involving moral turpitude as defined by rule 6A-5.056.
In summary, Respondent has failed to establish any of the statutory violations alleged in the Notice of Reasons as sufficient to warrant denial of the application. Conversely, Petitioner has established that he is of good moral character and is otherwise qualified to receive the requested Educator’s
Certificate.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is:
RECOMMENDED that the Education Practices Commission enter a final order approving Petitioner's application for a Florida Educator's Certificate.
DONE AND ENTERED this 14th day of February, 2014, in Tallahassee, Leon County, Florida.
S
W. DAVID WATKINS 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 14th day of February, 2014.
ENDNOTES
1/ As noted, Reason No. 3 was stricken at the outset of the hearing, and accordingly, will not be further addressed in this Recommended Order.
2/ All statutory references are to the 2012 version of the Florida Statutes, except as otherwise indicated. Since a final order has not yet been issued in this case, Petitioner's application for licensure is governed by the law in effect at the time the final licensure decision is made. See AHCA v.
Mount Sinai Med. Ctr., 690 So. 2d 689, 691 (Fla. 1st DCA 1997). No changes from the 2013 regular session appear relevant.
3/ In a criminal case, nolle prosequi is a formal declaration by the prosecutor that the case against the defendant will not be prosecuted. 22A C.J.S., Criminal Law, section 456, page 1.
4/ 2006 is the latest year in which it is alleged that Petitioner committed a criminal offense. Therefore, Respondent argues, the applicable statutes and cases applied should be before the 2008 amendment to section 1012.795(1)(d). Respondent cites no authority for this argument. Based upon Lavernia v.
Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993), Petitioner's argument is rejected. In Lavernia the court stated the following concerning the application of a change in a licensing law during the pendency of an application for the license:
Florida follows the general rule that a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted . . . .
516 So. 2d at 53-54.
COPIES FURNISHED:
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154
Jamison Jessup
557 Noremac Avenue Deltona, Florida 32738
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education
325 West Gaines Street, Suite 224 Tallahassee, Florida 32399-0400
Matthew Carson, General Counsel Department of Education
325 West Gaines Street, Suite 1224 Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 2014 | Agency Final Order | |
| Feb. 14, 2014 | Recommended Order | Respondent failed to establish any of the statutory violations alleged in the Notice of Reasons as sufficient to warrant denial of the educators certificate. Petitioner is of good moral character and is otherwise qualified to receive teaching certificate. |
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RALPH D. TURLINGTON, COMMISSIONER OF EDUCATION vs. SHIRLEY LAMBERT, 13-003336 (2013)
SCHOOL BOARD OF WALTON COUNTY vs ANN FARRIOR, 13-003336 (2013)
