months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has
failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida.
This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977.
On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida.
Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle.
In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made.
As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence.
The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in
Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away.
The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.)
For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not.
The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2)
F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows:
"EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue."
This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d
559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence.
In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language:
* * *
"(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has
otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re-
gulations of the State Board of Education or the school board in the district in which he is employed."
In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976.
Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident.
The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976.
By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
For the reasons as set forth in the Findings of Fact, the Respondent is in violation of Section 231.09(2), F.S., and Section 231.28(1), F.S., for the events which took place on January 7th, 1976 and the subsequent disposition through the Court of those charges. Therefore, the Petitioner is entitled to take action against the Respondent's certificate in keeping with the authority expressed in Section 231.28, F.S.
For the reasons as set forth in the Findings of Fact, the Respondent is in violation of Section 231.09(2), F.S., and Section 231.28(1), F.S., for the events which took place on December 25th, 1976 and the subsequent disposition through the Court of those charges. Therefore, the Petitioner is entitled to take action against the Respondent's certificate in keeping with the authority expressed in Section 231.28, F.S.
