STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-811

)

DORIENNE B. ROBERTSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case on 27 September 1979 at Jacksonville, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: William F. Kachergus, Esquire

603 Florida Theatre Building Jacksonville, Florida 32202

By Petition dated 25 January 1979 the Professional Practices Council, Petitioner, seeks to revoke, suspend or otherwise discipline the teaching certificate of Dorienne Robertson Respondent. As grounds therefore it is alleged that on or about May 5, 1978 Respondent took merchandise from Ivey's Department Store, Jacksonville, Florida with intent to appropriate same to her own use, that she was arrested and charged with this offense, pleaded nolo contendere and was placed on six months probation.

At the hearing, four witnesses were called by Petitioner. Three witnesses were called by Respondent and six exhibits were admitted into evidence.

Objection to the admission of the deposition of a witness who was present and testified was sustained.

FINDINGS OF FACT

1. On 5 May 1978 Dorienne B. Robertson was observed by a security officer at Ivey's Department Store, Jacksonville, Florida, to take clothing items into a dressing room in the store, remove the labels therefrom and put the clothing in a wicker basket she was carrying. When Ms. Robertson exited the store with these items she was accosted by the security officer and taken back to the security office in the store. The police were called and upon arrival took Respondent into custody and returned with her to the police department where she was booked for petit larceny.

2. Respondent was subsequently brought to trial and, following a plea of nolo contendere, was placed on six months probation. By Order entered 19 December 1978, the county court, before whom Respondent had been tried, expunged all official records relating to the arrest, investigation and prosecution of Respondent. (Exhibit 2.)

   
   

3. Following standard procedure employed when personnel working for the Duval County school system are involved in criminal proceedings, a copy of the arrest report was passed to the Director of School Security, who in turn passed the information to the Director of Certificated Personnel when the case was completed. (Exhibit 3.)

   
   

4. The Duval County School Administration passed the information to Respondent's principal and to the Professional Practices Council. In Exhibit 5, the principal advised that she did not desire to pursue disciplinary action because the incident was not known at the school so as to detract from Respondent's effectiveness and Respondent was an excellent classroom teacher.

   
   

5. The three witnesses who testified on behalf of Respondent, one of whom was her principal, agreed that the incident involving the shoplifting was not known by teachers, parents or pupils at the school; that Respondent had an excellent reputation for truth and honesty; and that she was an outstanding classroom teacher. Her principal, in explaining why she retained a high opinion of Respondent after becoming aware of the incident, stated on page 72 of the transcript:

   
   

   It would not affect my opinion because even had it been adjudicated that she did, indeed, do this, my knowledge of her leads me to feel that it would have been an isolated incident and probably one which I'm sure she regrets-- would regret deeply. All of us, I think, at times and certainly as a principal and teacher, we have students who make mistakes and certainly if I had been condemned at my first mistake, we pay for those, but then we have the opportunity to start again. My judgment at the time when I was made aware of the charge, was based upon several items.

   First of all, her outstanding performance for me as a teacher; her outstanding work with students. Secondly, that it was not a publicized incident and consequently I did not feel that the community would be aware of it and she was going on a year's maternity leave.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

7. Grounds for disciplinary action against a teaching certificate are contained in Section 231.28, Florida Statutes, which authorizes such disciplinary action provided:

   It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude . . . 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 law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board of the district in which he is employed.

   
   

8. Rule 6B-4.09 Florida Administrative Code provides definitions for some of the terms used in the above-quoted statutory provision:

   
   

   (b)(2) Immorality is defind 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 to the community.

   
   

   (b)(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system.

   
   

9. Larceny is an act involving moral turpitude even though the amount stolen may be such that the crime is a misdemeanor. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966).

   
   

10. It is noted that the statute provides that Respondent must be guilty of an act involving moral turpitude before revocation of a certificate is authorized. Here there was no adjudication of guilt since adjudication was withheld. This statute is similar to the statute regulating real estate licensees. Section 475.25(1)(e) provides for suspension of registration for up to two years upon a finding that the registrant has:

    
    

    Been guilty of a crime against the laws of this state . . . involving moral turpitude .

    . . and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt. . . .

    
    

11. In Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2nd DCA 1977) the Florida Real Estate Commission sought to suspend the registration of Holland under this provision of the statute. Court records were introduced at the hearing showing that Holland entered a plea of nolo contendere, the court accepted the plea, found Holland guilty but withheld adjudication of guilt and

    placed Holland on probation. Following the administrative hearing the Commission suspended Holland's license. On appeal the court held at p. 916:

    
    

    Since the petitioner was never adjudicated guilty by the Miami Court, his license could not be suspended under section 475.25(1)(e).

    
    

12. While these two cases indicate that disciplinary action may be taken against Respondent in these proceedings, there is a significant difference in Section 475.25(1)(e) and Section 231.28. The former requires the licensee be guilty of a crime involving moral turpitude while the latter only requires the licensee be guilty of an act involving moral turpitude.

    
    

13. Here the evidence clearly establishes the Respondent was guilty of shoplifting which is an act involving moral turpitude. There is no requirement here that the Respondent be found guilty of a crime involving moral turpitude. The court's action in withholding adjudication of guilt would prelude this hearing officer from finding Respondent committed a crime but does not preclude a finding that Respondent committed certain acts. These acts of which Respondent has been found guilty involve moral turpitude.

    
    

14. There was no evidence that the personal conduct of Respondent seriously reduced her effectiveness as an employee of the school board. To the contrary, the evidence presented was that Respondent's effectiveness was unimpaired following the shoplifting incident.

    
    

15. From the foregoing it is concluded that Respondent is guilty of shoplifting, an act involving moral turpitude, that she is an effective and productive member of the teaching staff of the Duval County School system, and that her effectiveness has not been reduced because of this incident.

    
    

16. In view of the total lack of notoriety of the event leading to the charges here preferred, and the strong recommendation and support provided by Respondent's principal, revocation of Respondent's certificate is not indicated. It is therefore

RECOMMENDED that Dorienne B. Robertson's certificate be suspended for a period of one year. It is further

RECOMMENDED that this suspension be stayed for a period of one year, at which time, unless the suspension is sooner revoked for good cause shown, this suspension be set aside and Respondent be restored to a position of good standing.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of December, 1979.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1979.

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

William F. Kachergus, Esquire 603 Florida Theatre Building Jacksonville, Florida 32202

Docket for Case No: 79-000811

Orders for Case No: 79-000811