STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3203

)

LEROY L. BASS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on May 20, 1982. Respondent did not appear personally or through counsel. Thereafter, it was made to appear that respondent, who has not been represented by counsel in these proceedings, was confused about the time or place for final hearing; and proceedings were resumed in Tallahassee on July 19, 1982, over petitioner's objection, in order that respondent could present his case. A transcript of these proceedings was filed with the Division of Administrative Hearings on July 27, 1982.

Petitioner was represented by counsel: Thomas F. Woods, Esquire

1030 East Lafayette Street Suite 112

Tallahassee, Florida 32301.

By administrative complaint filed with the Education Practices Commission on October 1, 1981, petitioner alleged that respondent, holder of a substitute teacher's certificate, in filling out his most recent "Application for Teacher's Certificate" which was received by the Department of Education, Office of Certification on or about December 15, 1980, "answered 'No' to Section V, indicating that he had never been convicted or had adjudication withheld in a criminal offense other than a minor traffic offense," even though he had been convicted on four occasions of driving while intoxicated in proceedings arising out of arrests on May 22, 1976, February 4, 1977, April 8, 1977, and August 30, 1978, all in violation of Section 231.28, Florida Statutes, in that [he] obtained his Florida teacher's certificate by fraudulent means"; and "contrary to Section 231.09, Florida Statutes, in that he failed to provide a proper example for students"; and in violation of "Rule 6B-1.01(2), Florida Administrative Code . . . in that [he] has not practiced his profession according to the highest ethical standards."

FINDINGS OF FACT

1. Respondent Leroy Luther Bass, Jr., applied for a secondary substitute teacher's certificate by application filed August 4, 1965, with the Florida Department of Education. Petitioner's Exhibit No. 1. This application was granted, and teacher's certificate No. 167548 was issued to respondent on August 13, 1965, effective through June 30, 1975. Petitioner's Exhibit No. 1.

   
   

2. On June 29, 1967, respondent filed an application for a full-time teacher's certificate as a secondary social studies teacher. Petitioner's Exhibit No. 1. This application was also granted, and another teacher's certificate numbered 167548 was issued to respondent on August 15, 1967, effective through June 30, 1968.

   
   

3. On December 15, 1980, the Department of Education received a third application from respondent. Petitioner's Exhibit No. 1. By this application, respondent sought certification as a substitute teacher for grades one through twelve. In response to the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?", respondent checked "No" on the application, which he signed on November 18, 1980, certifying the truth and correctness of all information supplied. Petitioner's Exhibit No. 1. Petitioner granted this application; and teacher's certificate No. 167548 was issued to respondent, with an expiration date of June 30, 1985. Petitioner's late-filed composite exhibit.

   
   

4. Respondent Bass was arrested on May 22, 1976, on charges of driving while intoxicated and failure to stay within a single lane. On June 29, 1976, he was convicted, on a plea of nolo contendere, of violating Section 316.028, Florida Statutes (1975), by driving while intoxicated, a misdemeanor. He was fined one hundred fifty dollars ($150) and ordered to attend "DWI School." Case No. 76-22651 (Duval Cty Ct). Petitioner's Exhibit No. 1.

   
   

5. Respondent was arrested on February 4, 1977, on charges of driving under the influence and running a red light. On April 8, 1977, he was convicted, on a plea of guilty, of violating Section 316.028, Florida Statutes (1975), by driving under the influence, a misdemeanor. He was sentenced to ten days in jail, and his driver's license was revoked for six months. Case No. 77- 7635MM (Duval Cty Ct). Petitioner's Exhibit No. 1.

   
   

6. Respondent was arrested on August 30, 1978, on charges of driving under the influence of alcohol and of "Violation of Right-of-Way." Petitioner's Exhibit No. 1. On January 9, 1979, he was convicted, on a plea of guilty, of violating Section 316.193, Florida Statutes (1977), by driving while intoxicated, a misdemeanor. He was sentenced to six months in jail, but the sentence was suspended, except for ten days, and he was placed on unsupervised probation for six months. Case No. 78-39501 (Duval Cty Ct). Respondent worked on weekends rather than serving this sentence at one stretch in a jail cell.

   
   

7. Respondent applied on January 22, 1981, for employment with the Duval County School Board. On an application form he submitted, he indicated he had not been arrested for any offense other than minor traffic violations. About a month later, Paul Roberts, employed by the Duval County School Board as Director of Personnel Systems and Records, was furnished a list of respondent's arrests about a page-and-a-half long. Driving while intoxicated and disorderly conduct were among other charges listed.

8. Petitioner filed its proposed order on August 2, 1982. Where relevant, proposed findings of fact have been adopted, in substance.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner is authorized to "suspend . . . to revoke . . .or to revoke permanently the teaching certificate of any person," Section 231.28, Florida Statutes (1981), shown to have "obtained the teaching certificate by fraudulent means," Section 231.28(1), Florida Statutes (1981), or who

   
   

   has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation; [or] 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 or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

   
   

   Section 231.28(1), Florida Statutes. Another "provision of law" pleaded in the amended administrative complaint in Section 231.09, Florida Statutes (1981) , which requires, among other things, that teachers

   
   

   [l]abor 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 patriotism and the practice of every Christian virtue.

   
   

   Petitioner has alleged that respondent failed to set a proper example for students, in violation of Section 231.09, Florida Statutes.

   
   

10. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary proceedings like the present case are always potentially license revocation proceed- ings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

    
    

11. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed acts alleged in the administrative complaint justifying disciplinary action. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). The evidence adduced established that respondent has been convicted of three misdemeanors, all of which involved driving while inebriated. None of these offenses was "a minor traffic violation," within the meaning of Section 231.28, Florida Statutes

    (1981). Respondent's failure to list any of them on his most recent application for a teacher's certificate made him guilty of obtaining a teaching certificate by fraudulent means. That this failure was deliberate has been inferred in part from his failure later on to list his arrests when applying to the Duval County School Board for work. The convictions themselves are an independent basis for disciplinary action, pursuant to Section 231.28(1), Florida Statutes (1981) .

    
    

12. There was no showing in the present case, however, that any school pupil ever learned of the bad example that respondent set by driving under the influence of alcohol. Cf. Boyette v. State Professional Practices Council, 346 So.2d 598, 601 (Fla. 1st DCA 1977).

    
    

13. Petitioner has also charged respondent with violating Rule 6B-1.01(2), Florida Administrative Code, which provides:

(2) The educator recognizes the magnitude of the responsibility he has accepted

in choosing a career in education, and engages himself, individually and collectively with other educators, to judge his colleagues,

and to be judged by them, in accordance with the provisions of this code.

This rule provision affords no basis for disciplinary action against a teacher.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondent's teacher's certificate.

DONE AND ENTERED this 25th day of August, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1982.

COPIES FURNISHED:

Thomas F. Woods, Esquire Suite 112

1030 East Lafayette Street Tallahassee, Florida 32301

Leroy L. Bass, Jr.

1308 West Seventh Street Jacksonville, Florida 32209

Donald Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-003203

Orders for Case No: 81-003203