STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6151

)

WILLIAM J. STEWART )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case on April 12, 1991, in Tallahassee, Florida, pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

For Respondent: David Brooks Kundin, Esquire

DOBSON & KUNDIN, P.A.

210 North Monroe Street

P.O. Box 430

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The general issue is whether the Education Practices Commission (EPC) should revoke the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Amended Administrative Complaint dated November 15, 1990. Determination of this issue is dependent upon the interpretations and application of Section 231.28(1)(c) and (e), Florida Statutes. Specifically the legal issues are: Whether a plea of nolo contendere with adjudication deferred of a charge of Indecency with a child by contact:

1. Constitutes a conviction of a crime or

   
   

2. Constitutes proof of guilt of gross immorality or an act involving moral turpitude.

PRELIMINARY STATEMENT

On August 21, 1990 the Petitioner, Betty Castor, as Commissioner of Education, filed the Administrative Complaint against the Respondent, William J. Stewart, alleging that the Respondent had violated provisions of Section 231.28(c), Florida Statutes (1990). 1/ The Petitioner subsequently amended the Administrative Complaint on November 15, 1990, adding paragraph 7 which alleged that the misconduct by the Respondent also violated Section 231.28(e), Florida Statutes, because the Respondent had been convicted of a criminal charge. The allegations specified that the Respondent had been guilty of gross immorality or an act involving moral turpitude and that he had been convicted of a criminal charge other than a minor traffic violation.

The Respondent filed an Election of Rights which denied the allegations of the Administrative Complaint and requested a formal hearing in connection with the charges. The case was forwarded to the Division of Administrative Hearings on September 21, 1990.

On December 18, 1990, the Petitioner filed a Motion to Remand requesting an order remanding this matter to the EPC for purposes of conducting an informal hearing. The Petitioner filed a certified copy of Mr. Stewart's Felony Deferred Adjudication Probation and contended that there were no disputed issues of material fact based upon the legal interpretation by the EPC of Section 231.28, supra, in Castor v. Marilyn Joan Pelaez, FALR (1990), final order issued on July 22, 1990. In Pelaez, supra, the EPC held a certificate holder, who pleaded nolo contendere and had adjudication withheld, had been "convicted" of a misdemeanor, felony, or other criminal charge contrary to Section 231.28, supra. Therefore, the Petitioner argued that a prima facie case had been presented by introducing the court records, and there was nothing further for the trier of fact to consider.

On January 18, 1991, the Hearing Officer issued an Order Denying Remand.

By order of February 1, 1991, Petitioner's Motion to Reconsider the Order Denying Remand was granted and the denial of remand was stayed. Upon revisiting the denial of remand, by Order of February 15, 1991, the Hearing Officer again denied remand of this matter to the EPC for an informal hearing and reset a formal evidentiary hearing. Also denied in the same order was Respondent's Motion to Strike Portions of the Amended Administrative Complaint filed on December 11, 1990. Respondent had urged that paragraphs 5 and 7 of the Amended Administrative Complaint be stricken in their entirety.

At the formal hearing, the Petitioner did not present any testimony by witnesses. The Petitioner's Exhibit 1 2/ was the certified record of the Texas Court, which was excluded from evidence but was proffered. The certified record is contained in the Division's official file. The Respondent presented the testimony of William J. Stewart by telephone. The transcript of the proceeding was filed with the Division of Administrative Hearings on April 23, 1991. Both parties submitted proposed findings of fact, which were read, considered, and adopted.

FINDINGS OF FACT

1. The parties have stipulated that the Respondent holds Florida teaching certificate 309730, covering the area of guidance which is valid through June 30, 1994.

   
   

2. William J. Stewart is now and has been continuously employed as a guidance counselor at New Smyrna Beach High School, in Volusia County, Florida for the past 19 years.

   
   

3. The parties further stipulated that Petitioner's Exhibit Number 1 (PE-

   1) is a true and accurate copy certified by the Clerk of the District Court within and for Brazoria County, Texas (the original certified court documents are in the Division of Administrative Hearings file). (TR 21-23). 3/ PE-1 was excluded from the record because it was considered irrelevant; however, the Petitioner was permitted to make a proffer. See, Holland v. Florida Real Estate Commission, 352 So.2d 914 (1st DCA 1977), and Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (1st DCA 1977).

   
   

4. In order to prevent the necessity of a remand should an appellate court determine that PE-1 was improperly excluded under Ayala, the proffer was considered as establishing that the Respondent entered a plea of nolo contendere and that the court deferred adjudication.

   
   

5. The testimony of the Respondent, which was in response to the proffer of PE-1, shows that he entered a plea of nolo contendere to a charge of indecency with a child by contact in the District Court of Brazoria County, Texas in the case of State of Texas v. William J. Stewart, Cause No. 16,759, on July 28, 1989 as a matter of convenience to resolve charges based upon the complaint of his ex-wife which had been pending for several years in Texas. In was easier for the Respondent to enter the plea and accept the adjudication deferred that it would have been to litigate the case in Texas. (TR 25-26) The Respondent denied any wrongdoing. His credible testimony was unrebutted.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

   
   

7. The Educational Practices Commission is authorized to take disciplinary action against teachers who obtain teaching certification. See Section 231, 261, 231, 262, and 231.28, Florida Statutes. Petitioner has the burden of proof in this proceeding. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. Section 231.28, Florida Statutes, provides, in pertinent part:

   
   

   1. The Education Practices Commission shall have 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 immortality or an act involving moral turpitude;

      (e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.

      (emphasis supplied.)

      
      

9. Petitioner proved that the Respondent entered a plea of nolo contendere and was subsequently placed on Felony Deferred Adjudication Probation. Petitioner argues that this constitutes proof that William J. Stewart was convicted of a criminal charge other than a minor traffic violation contrary to Subparagraph (e), above, and is guilty of gross immorality or an act involving moral turpitude contrary to Subparagraph (c), above.

   
   

10. The Petitioner's argument, her misplaced reliance on Castor v. Pelaez, and misapprehension of the case law regarding the entry of pleas of nolo contendere and the impact of a court withholding adjudication 4/ were discussed at length in the Order Denying the Petitioner's Motion for Remand.

    
    

11. The Order Denying Remand set forth the history of the court's interpretation of nolo contendere pleas and adjudications withheld. Portions of that order are republished below with slight revisions in response to the Petitioner's renewal of these arguments in its post-hearing briefs.

    
    

12. The Petitioner argues that the Hearing Officer must defer to the holding of the Education Practices Commission construing Section 231.28(1)(e), Florida Statutes, in the Final Order in Castor v. Marilyn Joan Pelaez, 12 FLAR 4613, which held a plea of nolo contendere with adjudication withheld was equivalent to a conviction as a matter of law in the administrative forum.

    
    

13. Although the rulings of an administrative agency head are entitled to great weight, they are not a basis for a Hearing Officer to follow clearly erroneous interpretations by an agency head which do not follow established case law.

    
    

14. Contrary to the Commission's assertion, the impact of a plea of nolo contendere in a collateral case was determined by the court in Holland v. Florida Real Estate Commission, 352 So.2d 914 (1st DCA 1977), to have no evidentiary effect beyond the action in which it was entered. See headnote 1, page 915. In Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (1st DCA 1977), the court rejected the interpretation of adjudication withheld as a conviction. Therefore, the Commission's interpretation in Pelaez, supra, is contrary to accepted case law.

    
    

15. After Rifkin and Holland, supra, Section 485.25(1)(f), Florida Statutes, was amended to permit the Real Estate Commission to discipline anyone who, "has been convicted or found guilty, regardless of adjudication, of a crime...[.]" (Emphasis supplied.)

16. In Ayala v. Department of Professional Regulation, 478 So.2d 1116 (1st DCA 1985), the court interpreted the impact of language similar to the language above, which had been added to many licensing statutes after Holland and Rifkin, supra. 5/ The Board of Medical Examiners held that Dr. Ayala, who entered a plea of nolo contendere, "was guilty as a matter of law of violation the standards of professional conduct ....[.]" The court held that this interpretation by the Board of Medical Examiners was constitutionally suspect because the language added to the statutes was potentially violative of the separation of powers doctrine. Therefore, the court interpreted the "shall" in Section 458.331(1)(c), Florida Statutes, to mean "may", to avoid the constitutional conflict. This had the effect of permitting the Board of Medical Examiners to consider the nolo contendere plea as evidence of a conviction for the purposes of Chapter 458; however, the Board must allow the appellant the opportunity to rebut this presumption and assert his innocence. It is a fact question which the trier of fact, being statutorily authorized to consider nolo contendere pleas, can weigh against the facts surrounding the entry of the plea.

    
    

17. Ayala, supra, sets forth the standard applied in cases in which a statute specifically directs that nolo contendere pleas and adjudications withheld be treated as convictions. Unlike the various statutes cited by Petitioner, Chapter 238, Florida Statutes, does not authorize the EPC to consider nolo pleas as convictions. In the absence of such statutory authority, the law in Rifkin and Holland, supra, applies. Section 231.28(1), supra, does not mention the term nolo contendere, or address adjudication withheld. This is not an oversight because the legislature mentions nolo contendere pleas in Section 231.28(5)(a), Florida Statute.

    
    

18. The Florida legislature did not intend to grant to the EPC the authority it granted to the Real Estate Commission and the Medical Board. The EPC's administrative adjudication in Pelaez, supra, cannot create extra statutorial authority to interpret "nolo contendere" pleas as pleas of guilty and adjudication withheld as convictions. Such power exercised by an executive agency not only violates Chapter 120, Florida Statutes, but is equally suspect of infringing the separation of powers. See Ayala.

    
    

19. The Florida Evidence Code, Section 90.410, Florida Statutes, provides that evidence of a nolo contendere plea in inadmissible in any subsequent civil or criminal proceeding as proof of guilt.

    
    

20. The Florida Rules of Criminal Procedure provides that evidence of a nolo contendere plea in inadmissible in any subsequent civil or criminal proceeding as proof of guilty. Fla. R. Crim. Proc., Rule 3.172.

    
    

21. The Florida Supreme Court has held that evidence of a nolo contendere plea is inadmissible in any subsequent civil or criminal proceeding as proof of guilty. Cheesbrough v. State, 255 So.2d 675, 676-677, (Fla. 1971).

    
    

22. The Florida Rules of Criminal Procedure define criminal conviction as a determination of guilty resulting from a plea or trial. Fla. R. Crim. Proc., Rule 3.701.

    
    

23. Since a nolo contendere plea is not admissible in any subsequent civil or criminal proceeding, it cannot be viewed as evidence of a conviction in any subsequent civil or criminal proceedings in the absence of specific statutory authorization, and when admissible, then only for limited purposes. See, Ayala, supra.

24. Section 231.28(1)(e), supra, requires a conviction in order to take action against an individual's teaching certificate, and does not authorize the EPC to consider nolo contendere pleas or adjudications withheld. A nolo contendere plea is not a conviction or evidence of a conviction. The Petitioner has not proved the Respondent violated Section 231.28(1)(e), supra.

    
    

25. Turning to the alleged violation of Section 231.28(1)(c), Florida Statutes, the Petitioner argues that the court records prove guilt of an immoral act. Without statutory authorization, the plea of nolo contendere cannot be considered proof of guilt of an immoral act. However, even if the plea of nolo contendere were considered, its probative value is refuted by the Respondent's testimony that he entered the plea as a matter of convenience to avoid litigating the matter in a foreign jurisdiction, and did not admit any of the allegations against him. This is vastly different from entering a plea of guilty as required by Section 231.28(1)(c), supra. Guilt, as required by the statutes, was neither admitted by the Respondent, nor found by the court. The Petitioner has failed to prove a violation of Section 238.28(1)(c), Florida Statutes.

    
    

26. Since this is a license revocation proceeding, the Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has failed to meet this burden.

    
    

27. The Petitioner has failed to present any evidence to sustain the allegations of misconduct contained in Amended Administrative Complaint Number 89318-D. However, if the plea is considered to be evidence of such misconduct, the Respondent's unrebutted and credible testimony, presented in response to the proffer, denies the conduct.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the charges contained in the Amended Administrative Complaint Number 89318-D, dated November 15, 1990, against William J. Stewart, be dismissed.

DONE and ENTERED this 15th day of May, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990.

ENDNOTES

1/ All references to chapters, sections, and subsections are to Florida Statutes (1990) unless otherwise provided.

2/ The Petitioner's Exhibit Number 1 will be referred to as PE-1.

3/ Citations to pages in the transcript held in this matter will be referred to as (TR).

4/ Both parties agree that the Texas court's adjudication deferred is the essentially the same as an adjudication withheld by a Florida court.

5/ Section 238.28, Florida Statutes does not contain language of the type added to Section 475.25, supra, but retains the older language, "has been convicted or found guilty ... interpreted in Holland and Rifkin.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6151

Petitioner's Proposed Findings of Fact

The Petitioner submitted proposed findings of fact which were read, considered, and adopted.

Respondent's Proposed Findings of Fact

The Respondent submitted proposed findings of fact which were read, considered, and adopted.

COPIES FURNISHED:

George A. Bowen, Acting Executive Director Department of Education

301 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Sydney H. McKenzie, Esq. General Counsel Department of Education The Capitol, PL-08

Tallahassee, FL 32399-0400

Robert J. Boyd, Esq. Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A.

210 South Monroe Street

P. O. Box 430 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-006151

Orders for Case No: 90-006151