STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD J. EVERT, SR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-1405

)

BETTY CASTOR, as Commissioner ) of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 21, 1990, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clifford J. Evert, Sr.

8420 West 3rd Court Apt. 201

Pembroke Pines, Florida 33025

For Respondent: J. David Holder, Esquire

1408 North Piedmont Way Suite 100

Tallahassee, Florida 32312 STATEMENT OF THE ISSUE

The issue in this case is whether Clifford J. Holder, Sr. (Petitioner) is qualified to receive a Florida educator's certificate from Betty Castor, as Commissioner of Education (Respondent), for which he applied by application filed on June 17, 1989.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and introduced five exhibits. Two exhibits were introduced on behalf of the Respondent.

The transcript of the final hearing was filed on August 29, 1990, and the parties were allowed ten days thereafter within which to file proposed recommended orders. A ruling on each timely filed proposed finding of fact set forth in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner filed an application for a Florida educator's certificate with the Respondent on June 17, 1989. In Section III of his application, Petitioner indicated that he held a permanent teaching certificate from the State of New York that entitled him to teach nursery, kindergarten and grades one through six. Petitioner signed his application for certification under oath, and thereby certified that all information contained therein was true, correct and complete.

   
   

2. On October 14, 1988, the Petitioner was served with a formal notice that proceedings were being instituted by the Commissioner of Education for the State of New York based on allegations that he had falsely claimed to the Greenport Union Free School District where he was employed in New York that he held certification as a school administrator and supervisor.

   
   

3. Rather than participate in a formal hearing on this charge, Petitioner stated his intention to voluntarily surrender his teaching certificate in the State of New York by letter dated December 16, 1988. However, when he failed to surrender his official credentials and file a statement of surrender, the Petitioner was informed by letter from the New York Department of Education dated January 13, 1989, and delivered to his last known address by certified mail, that his teaching certificate would be revoked unless he surrendered his certificate and filed the required statement. Petitioner did not comply with this request, and as a result, his New York teaching certificate was revoked on March 28, 1989.

   
   

4. The evidence in the record establishes that at the time Petitioner filed his application for Florida certification on June 17, 1989, he did not hold a valid teaching certificate in the State of New York. He had attempted to surrendered his teaching certificate on December 16, 1988, rather than participate in a formal hearing on charges of misconduct. When he failed to comply with the requirement of the New York Department of Education that he relinquish his actual teaching certificate and file a letter of surrender, his certificate was formally revoked on March 28, 1989. Petitioner knew, or should have known, that the information he provided, under oath, in Section III of his application for a Florida educator's certificate was untrue, incorrect and incomplete.

   
   

5. Petitioner never challenged the action of the New York Commissioner of Education regarding the revocation of his teaching certificate in that state. He had been placed on notice that his failure to relinquish his teaching certificate and to file a letter indicating his desire to surrender his certificate would lead to revocation. Although the Petitioner sought in this case to discredit and contradict the allegations made against him in New York, the finality of the action taken in New York cannot be collaterally attacked in this proceeding. The merits of those allegations were never litigated in New York because Petitioner chose not to proceed to hearing. He cannot now, in Florida, attempt to litigate the allegations which he had every opportunity to contest in New York, but which he decided not to contest. His New York certificate was revoked due to his failure to surrender his credentials and to file a letter of surrender, as he had agreed to do on December 16, 1988, and that action is final and not subject to challenge in this proceeding.

6. At hearing, Petitioner claimed that he had moved from New York to Virginia in early 1989, and never received the letter dated January 13, 1989, from the New York Department of Education warning him of the revocation of his New York license if he did not relinquish his credentials and file a letter of surrender, as he had stated he wished to do. However, this letter was sent to his last address of record in New York, by certified mail, and was signed for by a "J. Brown." Section VII of Petitioner's Florida application provides a character reference on Petitioner's behalf by "James G. Brown" who represents himself on said application to have been a friend of Petitioner's for 16 years, and whose address is shown as the same as Petitioner's last known New York address. Therefore, notwithstanding Petitioner's denial of having received the letter dated January 13, 1989, warning of revocation of his New York certificate, it is found that such notice was delivered to his last known address, and was received by the same person that Petitioner would have Respondent accept as a character reference on his behalf. Notice of the actual revocation of his New York license was also sent to Petitioner's last known address in New York. It can only reasonably be inferred that Petitioner's friend of 16 years, J.Brown, told him of the certified mail he had received and that, therefore, Petitioner had knowledge of the actual status of his New York certificate at the time he gave false information on his Florida application.

   
   

7. Petitioner only reluctantly admitted, at hearing, that the information he provided in Section III of his Florida application was incorrect and untrue. Instead, he insisted that he had not intended to be misleading, but had simply not read the application carefully and had been hurried when he completed the form by signing it on June 17, 1989. By his demeanor and testimony, it is clear that Petitioner does not appreciate the importance of providing true, correct and complete information on an application for a Florida educator's certificate.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Petitioner is seeking to obtain a Florida educator's certification, he had the burden of establishing that he meets all requirements for such certification. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

9. Section 231.17(6)(a), Florida Statutes, provides that the Respondent has the authority to deny an application for an educator's certificate if an applicant has committed acts, or if circumstances involving that applicant exist, for which the Education Practices Commission would be authorized to revoke an educator's certificate. The revocation of a teaching certificate in another state is grounds for revocation of a Florida educator's certificate. Section 231.28(1), Florida Statutes. In addition, the violation of the Principles of Professional Conduct for the Education Profession is also grounds for certification revocation. Rule 6B-1.006(2), Florida Administrative Code. These Principles provide, in pertinent part, that an educator shall maintain honesty in all professional dealings, shall not misrepresent his professional qualifications, and shall not submit fraudulent information on any document in connection with professional activities. Rules 6B-1.006(5)(a), (f) and (g).

   
   

10. It was established that Petitioner knowingly filed a false and misleading application with the Respondent on which he gave untrue, incorrect and incomplete information about the status of his teacher's license in New York. In addition to providing fraudulent information, under oath, Petitioner was dishonest and misrepresented his professional qualifications when he

    completed and filed his application. The revocation of his teaching certificate in New York also constitutes a separate ground for denial of his application in Florida.

    
    

11. Therefore, since it was shown that Petitioner has failed to sustain his burden of proof with regard to his qualification for certification in the State of Florida, his application must be denied. The competent substantial evidence produced at hearing supports the Respondent's position in this matter.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent's denial of the Petitioner's application for an educator's certificate be AFFIRMED by the Education Practices Commission.

RECOMMENDED this 4th day of October, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1405

Petitioner filed a Summary of Evidence, which has been considered, rather than Proposed Findings of Fact on which specific rulings can be made.

Rulings on the Respondent's Proposed Findings of Fact: 1-2. Adopted in Finding 1.

1. Adopted in Findings 4 and 6.

   
   

2. Adopted in Findings 2 and 3.

   
   

3. Adopted in Findings 2 through 5.

   
   

4. Adopted in Findings 3 and 6.

COPIES FURNISHED:

J. David Holder, Esquire 1408 North Piedmont Way Suite 100

Tallahassee, FL 32312

Clifford J. Evert, Sr. 8420 S.W. 3rd Court Apt. 201

Pembroke Pines, FL 33025

Karen B. Wilde, Exec. Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399

Martin Schaap, Administrator Professional Practices Services

325 West Gaines Street, Room 352 Tallahassee, FL 32399

Docket for Case No: 90-001405

Orders for Case No: 90-001405