STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED PRIESTER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-192

)

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) and RALPH D. TURLINGTON, )

COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 14, 1982, in Jacksonville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon Respondents' denial of the Petitioner's application for a teacher's certificate based upon alleged violations of Sections 231.09 and 231.28, Florida Statutes.

APPEARANCES

For Petitioner: Fred M. Priester, pro se

1657 West 30th Street Jacksonville, Florida 32209

For Respondent: George L. Waas, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

ISSUE

The issue as drawn by the letter of denial was whether Petitioner had lost his effectiveness as a teacher and was a moral person. The facts showed that there was substantial delay in the Respondents' decision on Petitioner's application. The real issue is whether said delay certified Petitioner by operation of law.

FINDINGS OF FACT

1. The Petitioner, Fred Priester, made application for a teacher's certificate on August 8, 1979, to the Department of Education. On this application, Petitioner did not reveal any of his arrests or his conviction. See Respondents' Exhibit #2.

   
   

2. Subsequently, the Duval County School Board and Florida's Department of Education became aware of Petitioner's arrests from record checks based on Petitioner's fingerprints and from Petitioner's correspondence to the Department of Education and the Governor's office. See Petitioner's Exhibit #3, Gary

   Simmons' (Duval County School Board) memorandum of August 2, 1979; Respondents' Exhibit #3, Petitioner's letter to Simmons of November 26, 1979; Respondents' Exhibit #4, Petitioner's letter to Governor Bob Graham of August 18, 1980; and Petitioner's Exhibit #4, Petitioner's letter to Donald Griesheimer of October 13, 1980.

   
   

3. No official action was ever taken on this first application for certification.

   
   

4. Petitioner made a second application for teacher's certification on June 16, 1981, which was received by the Department of Education on June 22, 1981. See Respondents' Exhibits #5A and 5B. Petitioner revealed on this application his several arrests, but not his conviction.

   
   

5. Petitioner's uncontroverted testimony was that he was asked by Griesheimer to refile and respond to those arrests which were the subject of Simmons' memorandum, which Petitioner did. Petitioner's arrest for which he was convicted was not part of that FBI record reported in Simmons' memorandum, and Petitioner did not respond to it. Petitioner referenced his early release in his letter of August 18, 1980, to Governor Graham. The Petitioner was not trying to conceal anything on his second application, but was following the directions he received in responding to the question about his arrests.

   
   

6. The Department of Education did not take any action regarding Petitioner's second application until January 6, 1982. See Respondents' Exhibit #6. There is no record of any interim inquiry from the Department of Education for additional information from the Petitioner or for correction of any errors or omissions.

   
   

7. The Department of Education did not take action on Petitioner's second application until well after 90 days of the date the Department received Petitioner's application.

   
   

8. The parties submitted proposed findings of fact and memoranda of law. To the extent the proposed findings have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Department of Education is charged by Chapter 231, Florida Statutes, with the certification of teachers in the State of Florida. Petitioner made his second application for certification on June 16, 1981, and the Department received the application on June 22, 1981. The Department did not deny Petitioner's application until January 6, 1982, well after the 90 days from the date it received the application.

   
   

10. Section 120.60(2), Florida Statutes, provides that an agency must approve or deny an application for licensure within 90 days of its receipt, or the applicant is deemed to have been approved and the license shall be issued. Therefore, Petitioner is deemed approved as a teacher by statute. The Department of Education should perform the ministerial act of issuing Petitioner his certificate.

11. Respondents argue that there was a fraud involved and therefore the time limit in Section 120.60(2), Florida Statutes, should not start to run until the fraud was discovered. The facts reveal that the state had notice of all the Petitioner's arrests and his conviction prior to the filing of his second application. The facts do not support Respondents' contention of concealment and fraud. Further, the provisions of Section 120.60(2), supra, provide that the 90 days will run from the receipt of the application or the receipt of timely requested information or correction of errors or omissions. The statute recognizes the agency's right to request additional data; however, the statute does not recognize fraud as a basis for tolling the running of the 90 days. Fraud may be a basis for revocation but not for tolling the 90 days in which the Department may require an applicant to show his qualifications or deny his application.

    
    

12. In the instant case, Petitioner first applied in 1979. No official action was ever taken on that application. The Petitioner filed a second application in June of 1981. In January, 1982, more than two years after the first application, and nearly six months after the second application, the Department "denied" Petitioner's application. Section 120.60(2), Florida Statutes, was intended to prevent exactly this type of agency "nonaction," which is as adverse to an application as agency action which at least initiates an applicant's right to a hearing.

RECOMMENDATION

The Petitioner's application having been approved by operation of law, the Department of Education should follow the provisions of Section 120.60(2), Florida Statutes, and issue the Petitioner's certificate.

DONE and ORDERED this 4th day of June, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.

COPIES FURNISHED:

Mr. Fred M. Priester 1657 West 30th Street

Jacksonville, Florida 32209

George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Donald L. Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

FRED PRIESTER,

Petitioner,

DOAH CASE NO. 82-192

vs. EPC FILE #82-004-D

RALPH D. TURLINGTON as

Commissioner of Education.

/

FINAL ORDER

On June 16, 1981 Petitioner Fred W. Priester made application to the Department of Education for certification as a teacher. On January 6, 1982 the Commissioner of Education denied Petitioner's application. Petitioner filed an appeal; a hearing was held on this appeal before Stephen F. Dean, a hearing officer for the Division of Administrative Hearings, on April 14, 1982. His recommended order was forwarded to the Education Practices Commission under the provisions of Section 231.17 and 231.262, F.S.

A duly constituted panel of the Education Practices Commission met on July 21, 1982 to consider this recommended order. The Petitioner was not present, and the Respondent was represented by George Waas, Esquire.

FINDINGS OF FACT

The panel adopts as its own the findings of fact in paragraphs 1, 2, 3, 6, and 7 of the Recommended Order. The panel adopts all of paragraph 4 except the last sentence; this sentence is not based on competent substantial evidence since the application failed to reveal the arrest which led to Petitioner's conviction.

As to finding of fact number 5 the panel finds it was not based on competent substantial evidence. The statements of the hearing officer on page

5, line 15, and pages 21 and 22 of the hearing transcript are part of the basis for this conclusion; the statements are to the effect that the agency has the burden of proof in the proceedings. Model Rule 28-6.08(3), F.A.C., clearly places the burden of proof in a license denial proceedings on the Petitioner.

Additionally, when a Petitioner makes statements at the hearing such as "if I had kept my mouth closed, they never would have known" (page 15, line 6) and statements in letters such as "I failed to report this decade - old matter" (see exhibit 4A), the explanations given by Petitioner at the hearing are not competent evidence or substantial evidence to prove his application was not fraudulent.

CONCLUSIONS OF LAW

The panel concludes that the Department of Education did not comply with Section 210.60, F.S. in the issuance of his license; action was not taken until after ninety days from filing of the complete application. This applicant must be licensed under terms of Chapter 120, F.S. It is, therefore,

ORDERED that a teaching certificate be issued to Petitioner Fred W. Priester. Such certificate shall appropriately reflect the subject areas and level of Petitioner's academic attainment.

DONE AND ORDERED in Tallahassee, Florida this 4th day of August, 1982.

Richard Rich, Presiding Officer

Filed in the records of the Education Practices Commission this 5th day of August, 1982.

Donald L. Griesheimer, Clerk

COPIES FURNISHED:

Arthur Wallberg

Attorney General's Office

Ms. Marlene Greenfield Professional Practices Services

Mr. Rodney Davis

Division of Certification

Ms. Judith Brechner General Counsel Department of Education

Mr. Herb Sang, Superintendent Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32707

Mr. Fred Priester 1657 West 30th Street

Jacksonville, Florida 32209

Stephen F. Dean, Hearing Officer DOAH

The Oakland Building

Docket for Case No: 82-000192

Orders for Case No: 82-000192