STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as )
Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 88-1653
)
RICKY SAPP, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for formal administrative hearing, pursuant to notice, on July 26, 1988, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
FOR PETITIONER: Rex Ware, Esquire
HUEY, GUILDAY, KUERSTEINER & TUCKER, P.A.
Post Office Box 1794 Tallahassee, Florida 32302
FOR-RESPONDENT: Philip J. Padovano, Esquire
Post Office Box 873 Tallahassee, Florida 32302
BACKGROUND AND INTRODUCTION
On March 22, 1988, the Petitioner filed an administrative complaint against the Respondent, alleging various violations of statutes and rules related to educational personnel standards. The Respondent timely filed an answer and request for formal administrative hearing. The request was forwarded to the Division of Administrative Hearings which scheduled and appropriately noticed the hearing.
At the hearing, the Petitioner moved to amend in a minor respect the administrative complaint. The Respondent made no objection and the motion was granted.1/ The Petitioner presented the testimony of Shawn Dickinson, Rose Marie Childers, and Dr. Roger Clyde Mott, and had nine exhibits admitted into evidence. The Respondent testified on his own behalf, presented the testimony of Dewayne Burritt and Terry Posey, and had one exhibit admitted into evidence.
A transcript was filed on September 6, 1988. Both parties filed proposed recommended orders which were duly considered in the preparation of this Recommended Order. The proposed findings of fact are ruled upon in the appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
At all times relevant to this matter, Ricky L. Sapp held Florida Teaching Certificate number 528297, in elementary education and was employed as a math teacher at Belleview Middle School, Escambia County, Florida.
During the 1985-1986 school term, Shawn Dickinson, a 13-14 year old male, was a student in the Respondent's math class. During the fall of 1985, Sapp began to employ the student to perform tasks including yard work, car washing and other small jobs.
Dickinson went to Sapp's home both to perform odd jobs and on a social basis. The student gave gifts to Sapp and other teachers at Christmas 1985. Sapp and two other teachers gave the student a pair of jeans. During the 1985-
86 school term, Sapp assisted the student with a science project. On at least one occasion, they attended a movie together. On other occasions Sapp took the student along with a group of other students on a deep-sea fishing trip.
During the summer of 1986, Dickinson began to reduce his social contact with Sapp. While Dickinson's mother had expressed to her son her desire that he associate more often with people his own age, she did not forbid him from visiting Sapp. She did not express her concern to Sapp.
On one occasion Sapp spoke with Dickinson's mother and asked her to permit the student to have dinner at Sapp's home. She agreed to allow the student to attend with a friend of his and instructed the boys to remain together; however, the student's friend left Sapp's home. Dickinson and Sapp may have engaged in an argument.
Following that incident, Dickinson's mother refused to permit him to further associate with Sapp. In the fall of 1986, the mother spoke with the school principal about Sapp and her son. She also talked with the vice- principal and guidance counselor, apparently related to the same concerns expressed to the principal. She did not communicate with Sapp. The student testified that during this time Sapp sent messages to him through other students but there was no information as to the nature of the messages.
During the fall, both the student and his mother, according to testimony, received telephone calls from Sapp during which he relayed his feelings regarding the situation. Sapp denied making the phone calls. The mother also received calls from someone who would hang up when she answered.
She believed the calls were from Sapp. During this time period Dickinson's family had their telephone number changed. At about the same time, the mother's car tires were slashed.
In early October 1986, Sapp's home was burglarized and various items were stolen. Sapp had reason to believe that Dickinson was involved in the incident. He contacted the boy's parents and accused the student of the theft of approximately $1,300.00 of personal items. The boy's mother did not believe her son had committed the act. Sapp also contacted the police who investigated the incident. At about the same time, the police conducted an investigation into the slashed tire incident and the phone "hang-ups", during which Dickinson was apparently questioned. Dickinson was not charged in the matter. At the administrative hearing Dickinson denied stealing any of Sapp's belongings, but stated that he possibly "stole my stuff back from him."
In early November 1986, Sapp was arrested and charged with lewd and lascivious acts on a child, Shawn Dickinson. Sapp attempted to have the student and his family withdraw their accusations and apparently offered to reimburse the student's family for the cost of having their phone number changed and for replacement of the car tires, but was unsuccessful. The Respondent was subsequently tried on the charge and found not guilty. (R-1)
COUNT I
Count I of the administrative complaint alleges several instances of sexual contact between Sapp and Dickinson. Sapp denied the allegations.
The evidence did not clearly and convincingly establish that such sexual contact took place. The testimony of the student related to the allegation of sexual content was limited to the student's assertion solely that such contact, one instance wherein Sapp performed oral sex on Dickinson, and 20-
25 instances wherein Dickinson performed anal intercourse on Sapp, occurred. Dickinson stated that he told no one other than the police about the contact.
The claimed contact supposedly occurred over a period of approximately six months. Dickinson stated that he continued to participate in the activity because of alleged threats made by Sapp. The threats included having Dickinson's class schedule changed, killing his dog, having one of Dickinson's "best friends" attack him, and putting a bomb in his mother's car and killing her. Dickinson admitted that he had never revealed the threat to kill the dog prior to the administrative hearing, although he has testified several times previously about the threats.
At one point on direct examination the student testified that he first revealed the sexual contact to the police when Sapp "got arrested and I had to go talk to the police." (Tr.19) Yet Sapp was arrested for the alleged sexual contact with the student.
Dickinson stated that he terminated the alleged contact with Sapp because his parents were suspicious of the amount of money Dickinson was receiving. However, there was no evidence that funds changed hands other than as a result of the odd-jobs Dickinson performed for Sapp. The administrative complaint alleges that the student received approximately one hundred dollars over the 1985-1986 period, an amount which appears reasonable in relation to the work apparently performed.
Because the student's explanation of events and reasons for permitting the alleged contact to continue are vague and confusing, his testimony is not credible. The allegation of sexual contact between Dickinson and Sapp is rejected as not being supported by clear and convincing evidence.
COUNT II
Count II alleges several instances wherein Sapp has been convicted or had adjudication withheld in criminal offenses and has failed to disclose such facts on his application for teacher certification.
One allegation concerns a charge of telephone harassment against Sapp. The arrest supposedly was related to numerous phone calls to the home of Dickinson. While there was testimony by Dickinson and his mother which indicated that they had received phone calls which could be termed harassing, and that such calls were or were believed to be from the Respondent, there was
no evidence that he was ever arrested for such activities. The evidence introduced at hearing indicates that the arrest which occurred in November 1986 was related to the alleged sexual contact. The Petitioner did not meet the burden of proof on this allegation.
Further, the administrative complaint alleges that Sapp was charged with one count of passing worthless checks in October, 1977 and three counts of passing worthless in June, 1987. No evidence was presented on these allegations.
In October 1979, Sapp was involved in a lounge fight and was subsequently charged with simple battery. Sapp pled guilty. Adjudication was withheld, and a fine and six months probation were imposed. (P-9)
In December 1979, Sapp was involved in a parking lot altercation and was subsequently charged with criminal mischief. Sapp pled not guilty. Adjudication was withheld and six months probation was ordered. (P-8)
In December 1976,2/ Sapp was charged with leaving the scene of an accident, a criminal traffic offense. Sapp pled not guilty, but was found by a judge to be guilty. A $52.00 fine was imposed. (P-7)
On Sapp's applications for teacher certification filed in September 1982, October 1982, October 1984, June 1985 and December 1985, he replied in the negative 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?" (P-2, P-3, P-4, P-5, P-6)
On the applications Sapp acknowledged by signature that his responses on the application were true, correct, and on three applications, complete. 3/
On his applications, Sapp indicated that he had not been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation even though adjudication has been withheld in the simple battery and criminal mischief cases in 1979.
The Petitioner testified at hearing that he did not understand the relevant portion of the teaching certificate application. He testified that he did not intend to deceive the Petitioner, that he did not understand the meaning of the term "adjudication withheld," that he did not list any arrests because, prior to the lewd and lascivious charge of November 1986, he had never been handcuffed or otherwise restrained which to him signified arrest, and that he had not intended to conceal the information. However, he did indicate that on several occasions he had heard a judge say "adjudication withheld" and that he made no attempt to learn the meaning of the term.
Sapp's assertion that he did not intend to mislead the Petitioner is rejected in light of his attestation that the information he provided was complete, correct and true. Sapp failed to disclose the material facts of prior legal entanglements on his applications for the teacher certificates, in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B-1.006 (5)(h), Florida Administrative Code. Accordingly, insofar as the preceding findings of fact state, the Petitioner has met the burden of proof as to the related allegations of Count II.
COUNT III
The administrative complaint charges that Sapp has violated Section 231.28(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The evidence establishes that in 1976, Sapp was convicted of a criminal traffic offense, failure to remain at the scene of accident, and was fined fifty-two dollars.
Section 231.28(1)(e) , Florida Statutes, provides for appropriate disciplinary action where the certificate holder has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Section 316.655, Florida Statutes, establishes that failure to remain at the scene of an accident involving damage to property, a violation of Section 316.061, Florida Statutes, is included among those violations identified as criminal offenses. Other violations classified as criminal offenses include failure to remain at the scene of an accident involving death or personal injury, providing false information in circumstances where the uniform traffic control law requires that information be provided, failure to obey the orders of police and fire department officials, reckless driving, driving under the influence, fleeing or attempting to elude a police officer, obstruction of traffic for purposes of non-permitted solicitation, and failure or refusal to submit a vehicle to weight and load testing upon request.
The potential penalty for violation of Section 316.061, Florida Statutes, is a fine of not more than $500.00 or imprisonment for not more than sixty days or both.
An examination of the range of potential penalties for criminal traffic violations indicates that the penalty for violation of Section 316.061, Florida Statutes, is less severe than the penalties provided for other violations. Accordingly, it is found that the violation of Section 316.061, Florida Statutes, is a minor traffic violation. The allegation of Count III is rejected.
COUNT IV
The administrative complaint charges that Sapp, based on the prior allegations, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, pursuant to Section 231.28(1)(f), Florida Statutes. Although the Petitioner presented testimony related to the allegations and the resulting effectiveness of Sapp, such testimony was based on all of the allegations being established by the requisite burden of proof. In that such allegations were not established, this Count is rejected.
COUNT V
The administrative complaint alleges that, pursuant to Section 231.28(2), Florida Statutes, Sapp has pled guilty or been found guilty of an offense contained within Section 231.28(1) , Florida Statutes, which is prima facie proof of grounds for revocation of the certificate. Section 231.28(1)(d), Florida Statutes, includes misdemeanors, felonies, and certain other criminal charges.
The evidence established that in October 1979, Sapp pled guilty to simple battery, a first degree misdemeanor. Section 784.03(2), Florida Statutes (1975). Accordingly, the burden of proof has been met and Count V is sustained.
COUNT VI COUNT VII COUNT VIII COUNT IX COUNT X COUNT XI
The above six Counts were related to allegations of sexual contact between Sapp and Dickinson and are rejected as not established by the requisite burden of proof.
COUNT XII
The administrative complaint alleges that the Respondent has failed to maintain honesty in all professional dealings pursuant to Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), Florida Administrative Code.
As to the allegations supported by the burden of proof, Sapp failed to disclose material facts on applications filed for purposes of obtaining or retaining teacher certification even though he attested to the truthfulness of the information. The failure to provide the information is found to be a failure to maintain honesty in his professional dealings, accordingly, Count XII is sustained.
COUNT XIII
The administrative complaint alleges that in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B- 1.006(5)(g), Florida Administrative Code, Sapp submitted fraudulent information on a document in connection with his professional activities.
Sapp testified that he did not understand the question on the application for teacher certification related to prior criminal offenses, and did not intend to mislead or deceive the Petitioner. However, more than once he admitted to having heard a judge state that adjudication was withheld in connection with the various separate offenses, and that he did not know the meaning of the term. Yet he attested that the information submitted on two applications was true and correct and on three later applications that the information was true, correct and complete.
The attestation of truth, correctness and completeness implies that the attestor understands the questions and that his responses are based on such understanding. To provide false information or to make material omissions of fact on such an application constitutes the submission of fraudulent information. Accordingly, the Petitioner has met the burden and Count XIII is sustained.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceedings. Section 120.57(1), Florida Statutes.
The Education Practices Commission has the authority to suspend, or revoke a teaching certificate, or otherwise impose a penalty on a person holding a teaching certificate. Section 231.28(1), Florida Statutes.
Section 231.28(1)(h) , Florida Statutes, states in relevant part that the Petitioner may seek to impose appropriate penalties where it can be shown that a certificate holder has 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(2), Florida Statutes, states in relevant part that "[t]he plea of guilty in any court, (or) the decision of guilty by any court. of offenses listed in subsection (1) ...shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificate holder that the plea of guilty.. was caused by threats, coercion, or fraudulent means." Among the offenses listed in Section 231.28(1), Florida Statutes, are misdemeanors, felonies and certain other criminal charges.
Rule 6B-1.006, Florida Administrative Code, (the Principles of professional Conduct for the Education Profession in Florida) in relevant part provides:
(2) Violation of any of these principles shall subject the individual to revocation or suspension of the
individual teacher's certificate, or the other penalties as provided by law.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
The burden of proof is on the Petitioner to establish the allegations of the administrative complaint. The evidence in this case must be clear and convincing. Ferris v. Turlington, 510 So.2d, 292 (Fla. 1987)
The evidence clearly and convincingly establishes that the Respondent has violated Sections 231.28(1)(h) and 231.28(2), Florida Statutes and Rules 6B- 1.006(5)(a), 6B-1.006(5)(g) and 6B-1.006(5)(h), Florida Administrative Code.
The violations of such statutes and rules are alleged in Counts II, V, XII, and
XIII of the administrative complaint. The remaining Counts are not supported by clear and convincing evidence and are hereby rejected.
Allegations of Sexual Contact
The major count of the administrative complaint is related to allegations of sexual contact between Sapp and a student, Shawn Dickinson. As to the alleged sexual contact, Dickinson's testimony was not believable. The inability to clearly articulate his reasons for participating in the alleged activity and for his decision to stop participating cast doubt on the credibility of his claim that the activity occurred. His mother's testimony was based primarily on what he has told her and said to other persons. Little credibility was accorded to the portions of her testimony which were based on the information provided by Dickinson. The remainder of her testimony related to her personal contact with Sapp. While her testimony was appreciated, her recollections of the incidents are obviously filtered through her distaste of Sapp, her belief that he had inappropriate contact with her son, her belief in her son's assertions, and her dismay that the jury in the prior criminal trial found Sapp not guilty.
As to Sapp's testimony, he provided credible information related to accusations. While some portions of his testimony were more clear than others, his denials of the alleged sexual contact were more persuasive than Dickinson's claim that such contact occurred.
Based on the lack of clear and convincing evidence, the allegations of sexual contact between Sapp and Dickinson (and the related Counts I, IV, VI, VII, VIII, IX, X, and XI of the administrative complaint) are not supported and are accordingly rejected.
Failure to Disclose Information
The remaining Counts are based on Sapp's failure to disclose information related to prior criminal offenses. The counts allege several offenses for which no proof was offered and which are rejected as stated in the findings of fact.
As to the remaining alleged offenses, the evidence clearly established two instances wherein adjudication was withheld, one following a plea of not guilty (December 1979), the other following a guilty plea (October 1979). (A third offense, a minor traffic offense, resulted in a adjudication of guilty. However, such minor traffic violations are exempted from disclosure requirements and are properly left undisclosed.)
The question on the Petitioner's application which is designed to elicit information related to such activities states in relevant art, "[h)ave you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation." The space on the application requests details including the location of the "arrest", date, nature of change, and disposition. Sapp responded in the negative to the questions and provided no other information.
Sapp stated at the hearing that he did not believe he had been arrested prior to the November 1986 arrest related to the Dickinson allegations. He testified that he did not understand the meaning of the term "adjudication withheld" and that he made no effort to learn the meaning. However, he
testified that he had made court appearances, that he had been represented by counsel and had heard judges say "adjudication withheld."
Sapp's assertions at the hearing that he did not intend to deceive the Petitioner are rejected. Sapp did intend to represent that his applications were true, correct and complete. Sapp was well-aware that he did not understand the relevant question, was well-aware that he had been charged with criminal offenses, and apparently made no effort to determine whether or not his responses on the applications were true. Accordingly, the allegations stated in Counts II, V, XII, and XIII as supported by the preceding findings of fact are sustained. Count III, which relied on the adjudication of guilt in the traffic offense is rejected based on the statutory exemption of such offenses from disclosure.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Education Practices Commission enter a final order imposing a fine of $1,000.00.
DONE and ENTERED this 6th day of October, 1988, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 6th day of October, 1988.
ENDNOTES
1/ The amendment to Count I, paragraph 3, second sentence, caused the sentence to state "on one occasion..." instead of "on the first occasion..."
2/ The administrative complaint erroneously alleges the year as 1986, but it is clearly 1976.
3/ The 1982 applications state that the attestor certifies that the information provided on the applications is true and correct. The 1984 and 1985 applications state that the attestor certifies the information to be true, correct, and complete.
APPENDIX
CASE NO. 88-1653
The following constitute rulings on the proposed findings of fact submitted by the parties.
Petitioner:
Accepted.
Accepted.
Accepted.
Accepted.
Rejected, not supported by clear and convincing evidence.
Accepted.
Rejected, not supported by clear and convincing evidence.
Rejected, not supported by clear and convincing evidence.
Rejected, not supported by clear and convincing evidence.
Rejected, not supported by clear and convincing evidence.
Rejected, not supported by clear and convincing evidence.
Rejected, not supported by clear and convincing evidence.
Accepted.
Rejected, not correct characterization of testimony, not supported by clear and convincing evidence.
Rejected, the testimony is based on the information provided by her son, not any personal knowledge related to the amount of contact between her son and the Respondent. Further, her testimony related to amount of contact and extent of relationship is limited.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected, based on allegations not established by clear and convincing evidence.
Respondent:
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected. The criminal trial was limited to the lewd and lascivious charge while there were other, additional charges at issue in the administrative hearing.
Accepted.
Rejected. Testimony of witness was disregarded as unnecessary.
Rejected. Testimony of witness was disregarded as unnecessary.
Accepted.
Accepted as modified and reflected in findings of fact.
Accepted as modified and reflected in findings of fact.
Accepted as modified and reflected in findings of fact.
Accepted.
Accepted insofar as reference to prior charges, otherwise rejected. The form which asks for "arrests" to be listed follows the question requiring disclosure of offenses of which the applicant has been convicted or had adjudication withheld.
Rejected. Was apparently restrained following charges in November 1986.
Rejected. See #20.
Accepted.
Rejected. Respondent admitted that he made no attempt to determine the correctness of the information to which he attested.
Rejected. See #24.
COPIES FURNISHED:
Rex Ware, Esquire
HUEY, GUILDAY, KUERSTEINER & TUCKER, P.A.
Post Office Box 1794 Tallahassee, Florida 32302
Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
Karen Barr Wilde Executive Director
Education Practices Commission
418 Knott Building Tallahassee, Florida 32399
Martin B. Shaap Administrator
319 West Madison Street Room 3
Tallahassee, Florida 32399
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education,
Petitioner,
EPC CASE NO. 88-045-RT
vs. DOAH CASE NO. 88-1653
RICKY LYNN SAPP,
Respondent.
/
FINAL ORDER
Respondent, RICKY LYNN SAPP, holds Florida teaching certificate no. 528297.
Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on December 1, 1988, in Tampa, Florida, to take final agency action. The Petitioner was represented by Rex Ware, Esquire. The Respondent was represented Ron Meyer Esquire. The panel reviewed the entire record in the case.
The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order and declines to accept Petitioner's Exceptions to the Recommended Order. The panel rejects the recommended penalty as too lenient under the facts and circumstances in the entire record. Because of the repetitive nature of Respondent's crimes, including battery, criminal mischief, and criminal traffic offenses, it is appropriate to place Respondent on two (2) years probation upon the filing of this order. Quarterly performance reports and periodic evaluations will be required. This Order takes effect upon filing.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED, this 12th day of December, 1988.
ALBERT BLOMQUIST, Presiding Officer I HEREBY CERTIFY that a copy of the foregoing Order in the matter of
BC vs. Ricky Lynn Sapp was mailed to Phil Padovano, Esquire, 304 North Meridian, Tallahassee, Florida 32301 this 15th day of December, 1988,
U.S. Mail.
KAREN B. WILDE, CLERK
COPIES FURNISHED:
Martin Schaap, Administrator Professional Practices Service
Susan Tully Proctor, Esquire Attorney General's Office
Sydney McKenzie, III General Counsel
Florida Admin. Law Reports
Mike Holloway, Superintendent Escambia County Schools
Post Office Box 1470 Pensacola, Florida 32597
Dr. Roger C. Mott, Asst. Supt. Personnel Services
Escambia County Schools Post Office Box 1470 Pensacola, Florida 32597
Rex Ware, Esquire
215 South Monroe Street Suite 510
Tallahassee, Florida 32301
Ronald G. Meyer, Esquire Post Office Box 1547 Tallahassee, Florida 32302
William F. Quattlebaum, Hearing Officer Division of Admin. Hearings
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399
Issue Date | Proceedings |
---|---|
Oct. 06, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Dec. 12, 1988 | Agency Final Order | |
Oct. 06, 1988 | Recommended Order | Evidence fails to establish sexual contact between teacher and student, teacher failed to disclose prior criminal offenses, fined |