STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-506

)

CHARLES P. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was scheduled for April 7, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties subsequently requested that the hearing be cancelled and that the Hearing Officer base his Recommended Order on a stipulated evidentiary record. The request was granted and the stipulated evidentiary record was filed on June 29, 1989.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

1201 U.S. Highway One Suite 315

North Palm Beach, Florida 33408-3581

For Respondent: William DuFresne, Esquire

2929 S.W. Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offense set forth in the administrative complaint filed against him by Petitioner? If so, what punishment should he receive?

PRELIMINARY STATEMENT

On October 31, 1989, Petitioner issued an administrative complaint against Respondent. The complaint alleged that, while he was employed as a guidance counselor with the Dade County School Board, "Respondent, on or about May 22, 1987, did endeavor or in fact did purchase cocaine from an undercover agent with the City of Miami Police Department, in Dade County, Florida, in violation of Chapter 893, Florida Statutes." According to the complaint, this was an act "involving gross immorality and/or involving moral turpitude as proscribed by Section 231.28(1)(c), Florida Statutes," and therefore disciplinary action should be taken against Respondent's teaching certificate. Pursuant to Respondent's request, the matter was referred to the Division of Administrative

Hearings for the assignment of a Hearing Officer on January 30, 1989. A Hearing Officer was subsequently assigned and thereafter the case was set for hearing.

On May 10, 1989, the parties filed a stipulation requesting that there be no formal hearing in this case and that the Hearing Officer "enter his recommended order in this cause based on the transcript and record received by the Division of Administrative Hearings in that cause styled: SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CHARLES P. WILLIAMS, Respondent, DOAH Case No. 87- 4119, and the proposed recommended orders filed by counsel for the respective parties." The parties' request was granted by order issued May 16, 1989. The order directed the parties to submit the aforementioned "transcript and record" within twenty days and to file their proposed recommended orders within ten days following the submission of the "transcript and record."

The "transcript and record" were filed on June 29, 1989. A review of these materials reflects that the charges lodged against Respondent by the Dade County School Superintendent in DOAH Case No. 87-4119 were founded upon the same alleged incident which gave rise to the instant administrative complaint: Respondent's alleged purchase of cocaine from an undercover police officer on May 22, 1987. At the hearing held in Case No. 87-4119 on June 30, 1988, the Dade County School Superintendent presented the testimony of four witnesses, including the undercover officer who allegedly sold cocaine to Respondent. He also offered six exhibits into evidence, all of which were admitted. In addition, he was permitted to submit as a late-filed exhibit the deposition of the School Board's Executive Assistant Superintendent in charge of the Office of Professional Standards. The only witness to testify on Respondent's behalf at this hearing was Respondent himself. He denied having purchased any cocaine from the undercover officer. He claimed that on the evening in question he was looking for a funeral home to ascertain the time that a family friend's funeral would be held the following day, when he was approached by the undercover officer and placed under arrest for no apparent reason. This testimony was in direct conflict with that given by the undercover officer, who testified that she sold Respondent two rocks of cocaine for $20 after he had approached her and indicated his interest in making such a purchase. Respondent also proffered two exhibits, both of which were received into evidence.

On June 28, 1989, Respondent filed his proposed recommended order in the instant case. This document reveals a fundamental change in Respondent's position. He no longer maintains his innocence. He admits that he purchased cocaine from the undercover officer, as charged in the administrative complaint, and that the testimony to the contrary which he gave at the hearing in Case No. 87-4119 should be discredited. He further concedes that he deserves to be disciplined by the Education Practices Commission for his part in this illicit drug transaction. He suggests that an appropriate punishment is the suspension of his teaching certificate for a period of two years retroactive to August 19, 1987. Petitioner filed her proposed recommended order on July 10, 1989. She proposes that Respondent be found guilty as charged and that his teaching certificate "be revoked for a period of three years followed by the requirement that the Respondent prove to be drug free at least six (6) months prior to his reapplication for the issuance of a teaching certificate by the Department of Education for the State of Florida, and that following reemployment on a full time basis as a regular or substitute teacher, he be on a term of probation for three (3) years, and that during that period of time he . . . submit to random urinalysis test[ing], the cost of which [shall] be borne by the Respondent."

Both Respondent's and Petitioner's proposed recommended orders contain proposed findings of fact. These proposed factual findings have been carefully considered and they are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the stipulated record, the Hearing Officer makes the following Findings of Fact:

1. Prior to the incident which led to the issuance of the instant administrative complaint, Respondent had been employed as an instructor with the Dade County School Board for 20 years.

   
   

2. His last assignment was as a guidance counselor at South Miami Heights Elementary School, where he worked with troubled students. He also was in charge of the school's "Say No To Drugs" and "Youth Crime Watch" programs.

   
   

3. Respondent performed his duties at South Miami Heights Elementary School in a satisfactory manner, as reflected by the evaluations he received from the principal of the school.

   
   

4. On the evening of May 22, 1987, the City of Miami Police Department conducted a reverse sting operation in an area of the city notorious for its illicit drug activity. Undercover officers posed as drug dealers. They sold cocaine and marijuana to unsuspecting buyers whom they arrested immediately following the consummation of the deal.

   
   

5. Officer Sharon Troy was one of the undercover officers who participated in this reverse sting operation. Respondent was one of her customers.

   
   

6. At around 11:00 p.m. on May 22, 1987, Respondent walked up to Officer Troy, who was standing on a street corner in plainclothes, and asked her if she knew where he could "find some narcotics." Officer Troy replied, "Well, what do you want?" Respondent responded that he wanted "some cocaine." When offered a choice between rock and powder cocaine, Respondent indicated a preference for the former. Officer Troy then sold Respondent two rocks of cocaine for $20. Immediately following this transaction, she placed Respondent under arrest for possession of cocaine in violation of Section 893.13, Florida Statutes, and transported him to a makeshift holding facility.

   
   

7. Respondent's arrest was not the subject of widespread media attention. A Spanish language radio station in Miami did report that a guidance counselor at South Miami Heights Elementary School had been arrested in connection with the May 22, 1987, reverse sting operation, but Respondent was not mentioned by name as the arrestee. Nonetheless, most of the faculty and staff at the school learned of Respondent's arrest. There is no indication, however, that the school's students, their parents, or other members of the community became aware of Respondent's brush with the law.

   
   

8. After his arrest, Respondent participated in a pretrial intervention program. He remained in the program for approximately six months. As part of the program, he was subjected to drug testing on a periodic basis. He tested negative on every test he was given. Following his successful completion of the program, the court withheld adjudication of guilt and ordered the expunction and sealing of the records relating to his arrest and the subsequent criminal proceedings instituted against him.

9. Respondent's purchase of cocaine from Officer Troy on May 22, 1987, has seriously impaired his effectiveness as a teacher and counselor.

   
   

10. Respondent has recently taken additional college coursework in an attempt to sharpen his teaching skills.

    
    

    CONCLUSIONS OF LAW

    
    

11. In the instant administrative complaint, the Commissioner of Education asserts that disciplinary action should be taken against Respondent's teaching certificate pursuant to Section 231.28(1)(c), Florida Statutes, because of his dealings with Officer Troy on the evening of May 22, 1987.

    
    

12. Section 231.28(1)(c), Florida Statutes, provides as follows:

    
    

    1. The Education Practices Commission shall have the authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to

       revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       * * *

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

13. The proof establishing such guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. In the instant case, the Commissioner of Education has shown by clear and convincing evidence that Respondent purchased cocaine from Officer Troy on the evening of May 22, 1987, in violation of Section 893.13, Florida Statutes. This was an act involving gross immorality and moral turpitude for which Respondent should be punished pursuant to Section 231.28(1)(c), Florida Statutes. See Walton v. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984) (three year revocation of teaching certificate for possession of marijuana, affirmed); Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981) (revocation of two teaching certificates for possession of 52 marijuana plants, affirmed).

    
    

15. The Education Practices Commission is statutorily authorized to impose one or more of the following penalties upon a licensed teacher found guilty of such misconduct: permanent license revocation; license revocation for a period not to exceed ten years; license suspension for a period not to exceed three years; imposition of an administrative fine of no more than $2,000 for each

    count or separate offense; placement of the teacher on probation "for a period of time and subject to such conditions as the commission may specify;" restriction of the teacher's authorized scope of practice; and a written reprimand. Section 231.262(6) and 231.28(1), Fla. Stat.

    
    

16. If a teacher's license is revoked as a disciplinary measure for a period of ten years or less, the teacher "may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for a new certificate." Section 231.28(4)(b), Fla. Stat.

    
    

17. Taking into consideration all of the pertinent circumstances concerning this matter, it appears that the appropriate punishment in the instant case is the revocation of Respondent's teaching certificate for a period of three years and the placement of Respondent on probation for an additional three years if and when he is issued a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes. 1/ During this probationary period, Respondent should be required to submit to random drug- testing to demonstrate that he has not used any illicit drugs. Respondent should further be required to bear the cost of any such testing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of the offense set forth in the instant administrative complaint and revoking his teaching certificate for a period of three years and placing him on probation for an additional three years as more fully described above.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July, 1989.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989.

ENDNOTE

1/ To obtain such a certificate, Respondent need only submit an application and meet "the certification requirements of the state board current at the time of the application for a new certificate." The Education Practices Commission is

without authority to impose any additional requirements on Respondent. Section 231.28, Fla. Stat.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-506

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties:

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated in substance in this Recommended Order.

2. Accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Second and third sentences: Accepted, but not incorporated because they add only unnecessary detail.

6. Rejected as constituting a summary of testimony rather than a finding of fact based on such testimony.

7. Rejected as constituting a summary of testimony rather than a finding of fact.

8. First, third and fourth sentences: Rejected as constituting a statement of the case and summary of testimony rather than a finding of fact; Second sentence: Accepted, but not incorporated because it adds only unnecessary detail.

9. Rejected as constituting a statement of the case and summary of the testimony rather than a finding of fact.

10. Rejected as constituting a summary of the testimony rather than a finding of fact.

11. Rejected as constituting a summary of the testimony rather than a finding of fact.

Respondent's Proposed Findings of Fact

1. Accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Remaining sentences: Accepted, but not incorporated because they add only unnecessary detail.

6. Accepted, but not incorporated because it adds only unnecessary detail.

7. Accepted, but not incorporated because it adds only unnecessary detail.

8. Accepted and incorporated in substance.

9. Rejected as constituting a summary of testimony rather than a finding of fact.

10. Rejected as a summary and commentary on the credibility of testimony rather than a finding of fact.

11. First and second sentences: Accepted and incorporated; Remaining sentences: Rejected as constituting a summary of testimony and evidence rather than a finding of fact.

12. First sentence: Rejected as constituting a summary of testimony rather than a finding of fact; Second sentence: Rejected as not supported by the greater weight of the evidence, but only to the extent that it states that the

drug tests were given on a weekly basis; Third and fourth sentences: Accepted and incorporated in substance.

COPIES FURNISHED:

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Craig R. Wilson, Esquire 1201 U.S. Highway One Suite 315

North Palm Beach, Florida 33408-3581

William DuFrense, Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

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

AGENCY FINAL ORDER

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

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education, Petitioner,

vs.

CHARLES P. WILLIAMS,

Final Order

Respondent. EPC CASE NO. 88-210-RT

/ DOAH CASE NO. 89-0506

Respondent, CHARLES P. WILLIAMS, holds Florida educator's certificate No.

197025. 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 a hearing officer of the Division of Administrative Hearings. A Recommended Order was forwarded to the Commission pursuant to Section 120.57(1), F.S., which is attached to and made a part of this Order.

A panel of the Education Practices Commission met on October 26, 1989,in Tampa, Florida, to take final agency action. Petitioner was represented by Craig Wilson, Esquire. Respondent was represented by William DuFresne, Esquire. The panel reviewed the entire record in the case.

Respondent filed exceptions to the Recommended Order objecting to the Hearing Officer's preliminary statement which recounted his conclusion regarding Respondent's position regarding the changes and objecting to the Hearing Officer's recommendation of penalty. Respondent's exception to the preliminary statement is denied. The Hearing Officer's statement was supported by the record, specifically Respondent's Proposed Recommended order. In the context of a preliminary statement, Respondent's exception to the preliminary statement and to penalty constitutes argument rather than exception to the Findings of Fact.

The panel adopts the Hearing Officer's Findings of Fact and Conclusions of Law as set forth.

The panel rejects the Hearing Officer's recommended penalty. The Hearing Officer in this cause did not hear the testimony of witnesses but merely reviewed a stipulated evidentiary record which was made in a previous case against Respondent relating to his employment but based upon the same conduct. Accordingly, the Commission which also reviewed the entire record finds that it should adopt the recommended penalty of the Hearing officer who heard the testimony of witnesses. Further, the record reflects that Respondent had remained drug free during his pre-trial intervention program. Therefore, it is ORDERED AND ADJUDGED that Respondent has violated section 231.28(1)(c), Florida Statutes, by having been guilty of gross immorality or an act involving moral turpitude. Respondent is suspended for two years, the suspension taking effect on August 19, 1987. Upon Respondent's recertification and reemployment in a position requiring a teacher's certificate, he shall be placed on probation for three years. As terms and conditions of probation Respondent shall: notify the Education Practices commission upon employment as an educator in any public or private school in the State of Florida; arrange for his immediate supervisor to submit performance reports to the EPC at least every three months; submit true copies of all formal observation/evaluation forms within ten days of issuance; not consume, inject, or ingest alcohol or any controlled substance unless prescribed or administered for legitimate medical purposes; submit to random blood and urine testing for the purpose of ascertaining compliance with conditions of probation, at the direction of the EPC or the employing school district, and authorize direct reporting of results to both agencies. 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 20th day of November 1989.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices Services ANN NEISWENDER, Presiding

Officer

Julia Forrester, Esquire I HEREBY CERTIFY that a copy Attorney General's Office of the foregoing Order in the

matter of BC vs. Charles P. Sydney McKenzie,

III, Williams was mailed to William

General Counsel DuFresne, Esquire, 2929 S. W. Third Avenue, Suite One, Miami

Florida Admin. Law Reports Florida this 28th of November

1989 by U. S. Mail.

Dr. Joseph A. Fernandez, Supt.

Dade County Schools

1450 N.E. 2nd Avenue KAREN B. WILDE, Clerk

Patrick Gray

Executive Asst. Superintendent Office of Professional Standards Dade County Schools

1444 Biscayne Blvd. Suite 215

Craig Wilson, Esquire 1201 U. S. Highway 1

Suite 315

North Palm Beach, Florida 33408-3581

Stuart M. Lerner

Division of Admin. Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 89-000506

Orders for Case No: 89-000506