STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1551

)

DORIS J. BLACK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Quincy, Florida, on October 11, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: David Holder, Esquire

110 North Magnolia Drive Tallahassee, Florida 32301

For Respondent: Luther C. Smith, Esquire

121 1/2 South Monroe Street Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Respondent's teacher's certificate should be revoked or Respondent otherwise disciplined for alleged violation of Section 238.28(1), F.S., as set forth in the Petition herein, dated July 24, 1978.

This proceeding arises from a petition filed by the Professional Practices Council, Department of Education, on July 24, 1978, that seeks to revoke or suspend the teaching certificate of Respondent Doris J. Black, an elementary school teacher in the public schools of Gadsden County, Florida. The petition alleges that Respondent issued a number of worthless checks during the period 1974-1978, and an instance of shoplifting in 1977. Respondent requested an administrative hearing on the charges on August 21, 1978. The petition was amended on August 31, 1978, to allege two additional bad-check charges occurring in 1978. Petitioner seeks to take disciplinary action against Respondent under Section 238.28(1), Florida Statutes, on the basis that her conduct constitutes gross immorality and personal conduct which reduces her effectiveness as an employee of the Gadsden County School Board, and under Section 231.09(2), Florida Statutes, in that she has not set a proper example for students. The petition further asserts that Respondent's conduct is sufficiently notorious to bring her and the education profession into public disgrace and disrespect.

At the commencement of the hearing, Respondent admitted the allegations contained in the petition, as amended, but reserved the right to present

extenuating and mitigating circumstances. Nevertheless, the parties agreed that evidence would be presented by both parties in support of their respective positions.

FINDINGS OF FACT

1. Respondent holds Florida Teaching Certificate No. 264506, Post Graduate, Rank II, valid through June 30, 1981, covering the area of elementary education and junior college. She has been employed in the public schools of Gadsden County at George Munroe Elementary School as an elementary teacher for eight and one-half years. (Petition, testimony of Boyd, Respondent)

   
   

2. In 1969, Respondent opened a checking account at the Quincy State Bank, Quincy, Florida, Account No. 0123237100, in the name of Doris Black. Respondent also maintained a checking account at the Citizens Bank and Trust Company, Quincy, Florida, Account No. 115027, in the name of Doris Black during the years 1977-1978. On June 3, 1975, Respondent opened Checking Account No. 700666 in the name of Doris B. Tucker in the Lewis State Bank, Tallahassee, Florida. The account was opened with a deposit of $1,000, but became overdrawn on June 18, 1975, and was closed on August 28, 1975 for being in an overdrawn status whereby service charges of $182.51 had accrued. During the period June-August, 1975, the bank returned 37 checks for insufficient funds. Respondent continued writing checks on the closed account for approximately two years after it had been closed. (Testimony of Smith, Dawson, Hutchinson, Respondent, Petitioner's Exhibits 2-5)

   
   

3. Pursuant to stipulation of the parties, as supported by Petitioner's Composite Exhibit 1, the following facts are found as to certain checks issued by Respondent on the above-cited checking accounts:

   
   

   1. On or about July 15, 1974, Doris J. Black presented a check in the amount of $14.55 to A. L. Wilson Company in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same on presentation. Doris J. Black was arrested on or about September 9, 1974, and posted a bond in the amount of $40.00. The bond was estreated on October 15, 1974.

      
      

   2. Between the period November 25, 1974, to January 4, 1975, Doris J. Black presented six checks in the amount of $41.75 to Kelley Junior Store of Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such checks that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. On September 20, 1975, Doris J. Black was arrested and charged with six counts of issuing worthless checks; she posted a $50.00 bond which was estreated on November 3, 1975.

      
      

   3. On or about March 15, 1975, Doris J. Black presented a check in the amount of $33.02 to Rose's Supermarket in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The check (#2) was returned marked insufficient funds and notices requesting payment were ignored.

      
      

   4. On or about June 14, 1975, Doris J. Black presented a check in the amount of $35.00 to the Class of `65 in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the

      maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check was returned marked insufficient funds and notices requesting payment were ignored.

      
      

   5. On or about August 2, 1975, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The Respondent posted a

      $25.00 bond on each count. The bonds were estreated on September 2, 1975.

      
      

   6. On or about January 26, 1976, Doris J. Black presented a check in the amount of $45.65 to the Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#150) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on February 19, 1976, and posted a bond in the amount of

      $40.00. The bond was estreated on March 1, 1976.

      
      

   7. On or about January 18, 1976, Doris J. Black presented a check in the amount of $21.45 to Discount Grocery in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#149) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on March 2, 1976, and charged with uttering a worthless check. She posted a $40.00 bond which was estreated on April 12, 1976.

      
      

   8. On or about December 23, 1977, Doris J. Black presented a check in the amount of $29.04 to Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#116) was returned marked insufficient funds and notices requesting payment were ignored.

      
      

   9. On or about December 29, 1977, Doris J. Black presented a check in the amount of $32.84 to Auto Supply in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#117) was returned marked insufficient funds and notices requesting payment were ignored.

      
      

   10. On or about February 12, 1978, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The respondent plead guilty on March 8, 1978, to both counts for which she was sentenced to one year's probation, ordered to make restitution and pay $75.00 court costs.

       
       

   11. On or about January 19, 1978, Doris J. Black presented a check in the amount of $12.48 to the Yankee Peddlar in Leon County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on April 18, 1974, on $40.00 court costs and restitution.

       
       

   12. On or about January 13, 1975, Doris J. Black presented a check in the amount of $23.81 to the National Shirt Shop of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy

       State Bank to pay same upon presentation. The charge was dismissed on March 12, 1975, on $40.00 court costs and restitution.

       
       

   13. On or about November 18, 1974, Doris J. Black presented a check in the amount of $13.28 to Millers of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on $40.00 court costs and restitution on May 28, 1975.

       
       

   14. On or about August 1, 1975, Doris J. Black presented a check in the amount of $14.00 to Ford's Shoe Store, Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation Doris J. Black entered a plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined

       $15.00.

       
       

   15. On or about June 21, 1975, Doris J. Black presented a check in the amount of $42.66 to K-Mart Store of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. Doris J. Black entered a Plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined

       $15.00.

       
       

   16. On or about February 24, 1978, Doris J. Black presented a check in the amount of $93.49 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with Citizens Bank and Trust Company of Quincy to pay same upon presentation.

       
       

   17. On or about March 3, 1978, Doris J. Black presented a check in the amount of $109.24 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company of Quincy to pay same upon presentation.

       
       

4. On August 17, 1977, Respondent took unpurchased merchandise, to wit: three bottles of Charlie Cologne, one bottle of Musk, one bottle of Mink and Pearls, one bottle of British Sterling, one bottle of Old Spice Musk, one Moon Drops Body Oil, one Vigorol 8, one Afrosheen, from the premises of a mercantile establishment, Skaggs Albertsons, located at 1925 North Monroe Street, Tallahassee, Florida, with the intent to convert said merchandise to personal use without paying the purchase price. She was apprehended by the assistant store manager after placing the above-described articles in a straw bag and leaving the store with the articles which were valued at approximately $48.00. She was subsequently arrested and, on November 30, 1977, entered a plea of Nolo Contendere to the charge of petty theft. Adjudication of guilt was withheld and she was placed on thirty days probation by the County Court for Leon County, Florida. At the hearing, Respondent admitted taking the merchandise at the suggestion of a friend of hers whom she met while she was in the store. (Stipulation, Testimony of Giberson, Respondent, Petitioner's Exhibit 1)

   
   

5. In the opinion of the Principal of George W. Monroe Elementary School, the Superintendent of Schools of Gadsden County, and the Chairman of the Gadsden County School Board, Respondent's effectiveness as an employee of the Gadsden

   County school system had been reduced as a result of her past conduct. They were further of the opinion that her actions failed to set a proper example for students and was in violation of ethical standards of the teaching profession. The school principal has received approximately fifty telephone calls at the school in the past five years from Respondent's creditors and, on several occasions, individuals had come on to school premises to discuss delinquent obligations with the Respondent. (Testimony of Boyd, Greene, Bishop)

   
   

6. In her testimony at the hearing, Respondent attributed her financial difficulties primarily to her ex-husband Matthew Tucker, whom she met in May, 1974, and married in October, 1974. She testified that she had given her paycheck to Tucker on various occasions to deposit in her bank account, but he failed to do so, thereby providing an insufficient balance when she wrote checks on the account. She maintained that he would come to the elementary school on payday and induce her to turn over her check to him, and that he would intercept her mail so that she was unable to become aware of the status of her account by mailed bank statements. She further testified that her husband had been violent on occasion and had assaulted her at which times she had called the local police for assistance. Although records of the Gadsden County Sheriff's Office and the Quincy Department of Public Safety failed to reveal that any such incidents had been reported, Respondent's testimony was corroborated in part by the testimony of a friend, Catherine James, who saw the Respondent on an unspecified occasion with bruises on her face. Mrs. James had loaned money to Respondent on several occasions and had given as reasons for the loans the fact that her husband had not deposited money or had taken money from her. Respondent's mother, Fanny Black, had loaned money to her and her husband on several occasions in the past. She was further aware that Respondent's husband frequented dog and race tracks where he gambled with money earned by the Respondent. Although the Respondent divorced Tucker in August, 1977, she later learned that she was pregnant and continued to live with him until April, 1978. (Testimony of Respondent, F. Black, James, Woodham, Beach)

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 231.28, Florida Statutes, authorizes the Department of Education to suspend or revoke a teaching certificate on certain specified grounds. Among such grounds are those alleged in the petition, i.e., that Respondent's conduct constitutes "gross immorality" and personal conduct which reduces her effectiveness as an employee of the school board. Section 231.28(1), however, states that such personal conduct must "seriously" reduce the effectiveness of the employee and this is the standard against which Respondent's conduct must be measured.

   
   

8. The term "immorality" is defined for purposes of teacher dismissals in Petitioner's Rule 6B-4.09(2), F.A.C., 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 impairs the individual`s service in the community." It is considered that this definition may also be applied in matters affecting the certification of a teacher. The term "gross" in the statutory term "gross immorality" is deemed to mean immorality of greater magnitude than an isolated act or transaction or which embodies an act or conduct that is serious in nature. Within the confines of the foregoing definitions, it is clear that the admitted acts of Respondent constituted "gross immorality" within the meaning of the statute. Her numerous arrests and convictions or forfeiture of bond on worthless check charges over a period extending more than four years in duration, coupled with her admitted commission

   of petty larceny in 1977, manifest a course of conduct so inconsistent with good morals and acceptable community standards as to bring her and the education profession into public disrespect and to seriously impair and reduce her effectiveness as a teacher in the Gadsden County school system. Accordingly, it is concluded that proper grounds exist as alleged under Section 231.28(1).

   Respondent's contention that she was unable to control her finances by reason of her husband's actions cannot prevail due to the fact that her conduct extended over such a lengthy period of time and there were ample alternate means of insuring the sufficiency of her various bank accounts. The evidence reflects that Respondent's issuance of bad checks began before she had met her husband and continued after her divorce. The evidence fails to reveal that Respondent made any serious efforts to alter her financial situation over an extended period.

   
   

9. Petitioner also seeks to ground its proposed discipline of Respondent on an alleged violation of Section 231.09(2), F.S., in that she has not set a proper example for students by her course of conduct. Section 231.09 sets forth certain duties of instructional personnel of the public schools in general terms and subsection (2) thereof provides as follows:

   
   

   (2) EXAMPLE FOR PUPILS.-- Labor faithfully and earnestly for the advancement of the pu- pils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the prac- tice of every Christian virtue.

   
   

   Although Respondent's conduct cannot reasonably be said to have inculcated the principles of truth and honesty in her pupils by her own example, no evidence was presented to show that her students were, in fact, aware of her financial difficulties and various appearances in court. In any event, Section 231.28, which spells out the grounds for suspension or revocation of teaching certificates, fails to include violations of Section 231.09 as a basis for such action.

   
   

10. In assessing the penalty for Respondent's derelictions as stated above, it is necessary to take into consideration the fact of her relatively long tenure and the testimony of her principal who described her as a good teacher. Additionally, her difficulties with her ex-husband are mitigating factors in this regard. In consideration of all the circumstances, it is not believed that revocation of her teaching certificate is warranted, but that suspension of the same for a period of one year is justified and appropriate.

RECOMMENDATION

That the teaching certificate of Respondent be suspended for a period of one year, pursuant to Section 231.28, Florida Statutes.

DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building

Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Holder, Esquire

110 North Magnolia Drive Tallahassee, Florida 32301

Luther C. Smith, Esquire Hugh Ingram, Administrator

121 1/2 South Monroe Street Professional Practices Council Tallahassee, Florida 32301 Department of Education

Room 3, 318 W. Madison Street

Tallahassee, Florida 32304

Docket for Case No: 78-001551

Orders for Case No: 78-001551