STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5918

)

FREEDA BRIDGES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 17, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William Du Frense, Esquire

2929 S. W. Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what penalty, if any, should be imposed against Respondent.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against Respondent on July 24, 1991. Respondent requested a formal hearing on September 13, 1991.

The matter was referred to the Division of Administrative Hearings on September 17, 1991, for assignment of a hearing officer, and assigned to Hearing Officer Michael M. Parrish on September 19, 1991. A formal hearing was scheduled for January 17, 1992, pursuant to a Notice of Hearing issued on October 24, 1991. The matter was transferred to the undersigned prior to the formal hearing.

At the formal hearing, Petitioner presented the testimony of Detective Michael E. Segarra, a police officer with the City of Pembroke Pines.

Petitioner submitted seven exhibits for admission in evidence. Petitioner's exhibits were admitted in evidence without objection. 1/

Respondent testified in her own behalf and presented the testimony of Helen

F. Viviand, Coordinator for the Dade County Public School Employee Assistance Program ("EAP"), 2/ Dr. Joyce Annunziata, Director of the Dade County Public Schools Office Of Professional Standards, 3/ and Yvonne Perez, Bargaining Agent and Representative for the United Teachers of Dade (the "UTD"). Respondent submitted two exhibits for admission in evidence. 4/

A transcript of the formal hearing was requested by Petitioner and filed with the undersigned on January 27, 1992. Respondent timely filed her proposed findings of fact and conclusions of law on January 31, 1992. Petitioner timely filed her proposed findings of fact and conclusions of law on February 6, 1992. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent holds a valid teaching certificate from the State of Florida, number 512951. Respondent's teaching certificate is valid through June 30, 1993. Respondent is certified to teach elementary education.

   
   

2. Respondent is employed by the Dade County Public School Board (the "School Board"). Respondent was employed as a teacher at Palm Springs Elementary School in Dade County, Florida ("Palm Springs") for the school years 1989-1990 and 1990-1991.

   
   

3. On or about April 30, 1991, Detective Michael Segarra, a police officer in Pembroke Pines, Florida, was investigating a bank robbery in that city at the site of the robbery. Respondent approached Detective Segarra and gave him relevant information concerning two men who may have committed the robbery.

   
   

4. Respondent was riding in an automobile with two men who said they were going to rob a bank. Respondent was able to get out of the car by telling the two men that she wanted to go into a McDonald's restaurant across the street from the bank for some orange juice. The two men let her out of the car, and Respondent hid from them. They returned after the robbery was committed, searched without success for Respondent, and left. Respondent walked across the street and gave Detective Segarra the information she had.

   
   

5. Based upon Respondent's unusual demeanor and behavior, Detective Segarra asked if he could inspect Respondent's purse. Respondent consented to the search, and Detective Segarra found nine small plastic bags of cocaine and a small cigarette with 20 grams or less of cannabis. Respondent admitted to Detective Segarra that she had used both controlled substances.

   
   

6. Detective Segarra did not arrest Respondent at the time of the consent search because Respondent agreed to help him trace the source of the cocaine and the whereabouts of the two men during the previous day and a half. Detective Segarra questioned Respondent further at the police department, took her written statement, and then dropped her off at her residence. 5/

   
   

7. An Information was filed against Respondent on July 24, 1990, for possession of cocaine and cannabis. Respondent pled guilty to both charges on December 5, 1990. Adjudication of guilt was withheld. Respondent was ordered

   to pay a fine of $240 and placed on probation for two years. The terms of probation included random drug testing and regular drug evaluations.

   
   

8. Respondent violated the terms of her probation by failing to timely pay her fine, by testing positive for cocaine, and by failing to report for regular drug evaluation. She was charged by affidavit dated February 15, 1991, with violating the terms of her probation. On April 5, 1991, Respondent pled guilty to violating her probation and to one count of possession of cocaine. Adjudication of guilt was again withheld, and her probation was revoked. Respondent was sentenced to two years of probation and required to complete a drug rehabilitation program at Mount Sinai Hospital.

   
   

9. Respondent was removed from the classroom without pay sometime in August, 1990. She returned to the classroom in February, 1991, and was removed again without pay in April, 1991. Although Respondent has not returned to the classroom, the School Board never terminated her employment. She has remained on leave without pay for approximately a year and a half. 6/

   
   

10. Respondent is the first employee of the School Board to qualify for and participate in the Alternative Discipline Program (the "ADP"). The ADP is designed to rehabilitate employees with superior performance histories who have developed a chemical dependency and return them to the classroom as effective teachers. The program is adopted from a similar program developed at Mount Sinai Hospital for physicians with a chemical dependence. The ADP was developed in consultation with Dr. John Eustace, an addictionologist at Mount Sinai Hospital, and through the combined efforts of the School Board's Employee Assistance Program ("EAP"), the School Board's Office Of Professional Standards, and the United Teachers of Dade (the "UTD"). Respondent entered the ADP on August 15, 1991.

    
    

11. The ADP is a two year program that places qualified employees with a chemical dependence on leave without pay. If the participant has no connection with a chemical substance for a period of two years, there is a very strong possibility of permanent recovery. Approximately 80 percent of the individuals who have no connection with a chemical substance for two years recover permanently.

    
    

12. A participant in the ADP is not entitled to utilize hardship benefits or extra pay benefits while on leave without pay but retains other fringe benefits, including hospitalization. During his or her leave, the participant is hospitalized and receives medical treatment. The participant is required to live in a halfway house, then a three-quarter house, and then to participate in programs of recovery such as Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"). If the participant completes that part of the program successfully, the participant is entitled to return to the classroom on a part time basis and then on a permanent basis subject to probation for a year or more. During probation, the participant's performance, attendance, and participation in a program of recovery is strictly monitored. The terms of probation require that the participant sign a letter of resignation and waiver of right to appeal any termination of employment if the participant fails to successfully complete the ADP.

    
    

13. In order to participate in the ADP, an employee must enter into a written agreement in which he or she agrees to:

    
    

    1. participate in a drug screening program utilizing random urine and blood testing within 24 hours of

       notification;

    2. abstain from all mood altering substances, including alcohol, marijuana, crack/cocaine, over the counter preparations, stimulants, street drugs, and pharmaceuticals;

    3. participate in a structured chemical dependance program recommended by the EAP or designated program administrator;

    4. follow all recommendations of the treatment facility, including a residential long term treatment in a half-way house or other appropriate facility;

    5. participate in weekly aftercare upon completion of primary care at Mount Sinai Hospital;

    6. provide documentation of attendance at a minimum of five meetings a week at an appropriate program of recovery;

    7. obtain an AA or NA sponsor and complete a 12 step recovery program;

    8. encourage family members to attend their own 12 step support groups;

    9. utilize the comprehensive services available through EAP and the hospital for personal, physical, family, and stress related problems;

    10. seek part-time employment upon completion of the structured treatment program only with permission of the program;

    11. attend monthly monitoring conferences with a designated fitness supervisor, union representative, and EAP coordinator; and

    12. be responsible for all treatment fees not covered by insurance.

        A participant in the ADP further agrees to resign their employment and waive their right to appeal in the event the participant fails to successfully complete the terms of the ADP.

        
        

14. Respondent is the first School Board employee to qualify for the ADP. Only teachers with good performance records qualify for the ADP. Prior to her substance abuse, Respondent had a good performance record. She was more than acceptable. She had very good performance evaluations and recommendations.

    
    

15. Respondent executed the first written agreement utilized in the ADP. The written agreement executed by Respondent is substantially equivalent to but not identical to the form Settlement Agreement developed since Respondent entered the program. The form Settlement Agreement includes a letter of resignation which a participant must sign upon entering the ADP and which becomes effective immediately without appeal if the participant fails to complete the ADP successfully.

    
    

16. Respondent has successfully completed the major portion of the ADP. She is currently eligible to return to the classroom as a substitute teacher for three days a week. If she successfully completes her part time employment, she will be eligible to return to full time teaching in August, 1992, on a probationary basis. Respondent will be required to execute a Settlement Agreement prior to returning to full time teaching on a probationary basis. Respondent, with the advice and consent of her attorney, agreed under oath

    during the formal hearing to immediately and voluntarily relinquish her teaching certificate if she failed to complete the remainder of the ADP.

    
    

17. The ADP will not be successful if a participant has his or her teaching certificate revoked or suspended prior to completion of the program. Full time teaching on a probationary period for at least one year is an integral part of the ADP. If the participant has his or her teaching certificate revoked or suspended, he or she cannot complete the full time probationary phase of the ADP.

    
    

18. Revocation of Respondent's teaching certificate would cause her to lose her continuing contract status. If she obtained a teaching certificate following revocation, she would be required sign an annual contract.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

20. 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).

    
    

21. The Administrative Complaint filed against Respondent in this proceeding charged Respondent with violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. The Administrative Complaint cited Section 231.28(2) for the proposition that a plea of guilty in any criminal court shall be prima facie proof of grounds for revocation of Respondent's teaching certificate.

    
    

22. Section 231.28(1)(c), Florida Statutes, provides in relevant part that the Education Practices Commission (the "Commission") may suspend a person's teaching certificate for up to three years, revoke a person's teaching certificate for up to 10 years, revoke a person's teaching certificate permanently, or impose any other penalty provided by law if the Commission can show that such person:

    
    

    . . . has been guilty of gross immorality or an act involving moral turpitude . . . .

    (emphasis added)

    
    

23. Petitioner failed to show by clear and convincing evidence that Respondent is guilty of gross "immorality" for possessing or using cocaine or cannabis. Florida Administrative Code Rule 6B-4.009(2) defines the term "immorality" as:

    
    

    . . . conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service to the community.

    
    

    Petitioner failed to present clear and convincing evidence that Respondent's conduct was ". . . sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect . . ." within the

    meaning of Rule 6B-4.009(2). 7/ Even if Respondent's conduct was "immoral" within the meaning of Florida Administrative Code Rule 6B-4.009(2), it was not "grossly" immoral within the meaning of Section 231.28(1)(c), Florida Statutes.

    
    

24. Section 231.28(1)(c), Florida Statutes, also provides that the Commission may suspend or revoke a person's teaching certificate if the person has been found guilty of an act of moral turpitude. Florida Administrative Code Rule 6B- 4.009(6) defines moral turpitude in the following manner:

    
    

    Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. (emphasis added)

    
    

    By its own rule, Petitioner restricts the scope of Section 231.28(1)(c) to acts that are crimes. 8/ Petitioner requires that Respondent must be found guilty of a crime in order to be found guilty of an "act of moral turpitude" within the meaning of Section 231.28(1)(c). Moreover, the crime must be one that is evidenced by an act of baseness, vileness, or depravity.

    
    

25. Petitioner failed to show by clear and convincing evidence that Respondent is guilty of a crime evidenced by an act of moral turpitude within the meaning of Section 231.28(1)(c), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(6). In Pearl v. Florida Board of Real Estate,

    394 So.2d 189, 192 (Fla. 3d DCA 1981), the court found that mere possession of a controlled substance is not a crime involving an act of moral turpitude. 9/ The only charges that were ever filed against Respondent were charges of possession of controlled substances. 10/ Moreover, the act of possessing a controlled substance is not a base, vile, or depraved act within the meaning of Rule 6B- 4.009(6). 11/

    
    

26. Section 231.28(1)(e), Florida Statutes, provides in relevant part that the Commission may suspend or revoke a person's teaching certificate if the Commission can show that such person:

    
    

    . . . has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation . . . .

    
    

27. Petitioner showed by clear and convincing evidence that Respondent was convicted of a crime in violation of Section 231.28(1)(e). Adjudication of guilt was withheld in the criminal cases against Respondent. In Kinney v. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA 1987), the court held that the respondent in that case was not found guilty of a crime when the respondent entered a plea of nolo contendere and adjudication of guilt is withheld. 12/ In the criminal cases against Respondent, however, Respondent entered a plea of guilty. Furthermore, Respondent presented no evidence in this proceeding to show that she was not guilty of the criminal charges filed against her.

    
    

28. Petitioner is not required to suspend or revoke Respondent's teaching certificate as a result of Respondent's violation of Section 231.28(1)(e), Florida Statutes. Section 231.28(1) authorizes the Commission to suspend or revoke Respondent's teaching certificate under prescribed circumstances but does

    not require such action. Section 231.28(1)(e) provides in relevant part that the Commission ". . . shall have authority . . . " to suspend or revoke a person's teaching certificate under certain circumstances. The quoted language means that the Commission may suspend or revoke a teaching certificate but is not required to do so. 13/

    
    

29. Section 231.28(2), Florida Statutes, provides in relevant part that a plea of guilty in any court or a decision of guilt in any court:

    
    

    . . . shall be prima facie proof of grounds for revocation of the certificate . . . in the absence of proof by the certificate holder that the plea of guilty . . . was caused by threats, coercion, or fraudulent means.

    
    

    Respondent's plea of guilty in Circuit Court constitutes prima facie proof of grounds for revocation of Respondent's teaching certificate.

    
    

30. The language in Section 231.28(2), Florida Statutes, which provides that a plea of guilty or a decision of guilt ". . . shall be prima facie proof of grounds for revocation . . . " does not require that Respondent's teaching certificate be revoked. In Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), the court considered the following provision in Section 458.331(1)(c), Florida Statutes:

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken: (emphasis added)

    * * *

    (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime . . . which directly relates to the practice of medicine or the ability to practice medicine.

    
    

    The court held that a statutory provision that a plea of nolo contendere "shall constitute grounds" for revocation of a physician's license, was properly construed as creating only a rebuttable presumption of the licensee's guilt of the underlying criminal offense.

    
    

31. In Kinney, 501 So.2d 129, the court considered language in former Section 493.319(1), Florida Statutes, which provided that having been found guilty of the commission of a crime ". . . constitutes grounds for . . . disciplinary action . . . ." 14/ (emphasis added) In Kinney, the court held that the respondent was not found guilty of a crime when adjudication of guilt is withheld, even though former Section 493.319(1)(c) provided that conviction of a crime, regardless of adjudication of guilt, "constitutes grounds" for disciplinary action.

    
    

32. Prima facie evidence is evidence that is presumed to be true and will prevail until contradicted or overcome by other evidence. 15/ It differs from a rebuttable presumption in that a rebuttable presumption may be created statutorily and need not be established by evidence. 16/ The difference between a rebuttable presumption and facts that are characterized by statute as prima facie grounds for revocation is a difference without a distinction to the extent that both may be rebutted or overcome by other evidence. 17/

33. Mitigating factors that should be considered to overcome the prima facie grounds for revocation of Respondent's teaching certificate and to determine the penalty to be imposed against Respondent are not prescribed in either Chapter 231, Florida Statutes, or in Petitioner's own rules. 18/ Nor was any persuasive evidence of the policy or factors, written or otherwise, which should be applied for either purpose submitted by Petitioner during the formal hearing. 19/

    
    

34. In the absence of a written rule, an agency is required to explain on a case by case basis its discretionary action which affects a party's substantial interests. McDonald v. Department of Banking and Finance, 346 So.2d 569, 582-584 (Fla. 1st DCA 1977). Petitioner must explain the agency's rationale and must address countervailing arguments developed in the record. Even when policy considerations are involved, it is the agency's duty to explicate its policy and address countervailing arguments in the record. Fraser v. Lewis, 360 So.2d 1116, 1118 (Fla. 1st DCA 1978).

    
    

35. Petitioner presented no persuasive evidence during the formal hearing that explicated the policy or factors, written or otherwise, that are to be considered to overcome the prima facie grounds for revocation of Respondent's teaching certificate and to determine the penalty to be imposed against Respondent. Furthermore, Petitioner did not present evidence that the issue of which factors should be considered to overcome prima facie grounds for revocation and the issue of what penalty should be imposed are issues within any special expertise possessed by Petitioner.

    
    

36. The reasons and circumstances surrounding Respondent's criminal conviction may be considered in mitigation of any punishment which the Commission is authorized to impose. Ayala v. Department of Professional Regulation, 478 So.2d 1116, 1119 (Fla. 1st DCA 1985). Evidence of whether the conviction directly relates to Respondent's effectiveness as a teacher or her ability to teach is another consideration frequently used in licensing statutes pertaining to licensees in other occupations or professions. 20/ The totality of circumstances, including treatment and rehabilitation, is also a relevant and material consideration. Pearl, 394 So.2d at 192. Respondent has already been placed on leave without pay for more than one year by the School Board and has successfully completed a significant portion of the ADP. Revocation or suspension of Respondent's teaching certificate at this time would preclude Respondent from completing the remainder of the ADP. Respondent has no prior disciplinary history and, in fact, has a superior performance evaluation prior to her substance abuse. Revocation of Respondent's teaching certificate would cause Respondent to lose her continuing contract status even if she is subsequently granted a new teaching certificate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of violating Section 231.28(1)(e), Florida Statutes, and that Respondent be placed on probation pursuant to Section 231.262(6)(d), Florida Statutes. It is further recommended that the terms and conditions of Respondent's probation should be the same terms and conditions as those prescribed in the agreement entered into between Respondent and the Employee Assistance Program when Respondent entered the Alternative Discipline Program (the "ADP") and any additional terms and conditions contained in the Settlement Agreement Respondent will be required to enter into upon resumption of full time employment. As a further condition of probation, it is recommended that Respondent be required to successfully complete the ADP and, in the event

Respondent fails to do so, voluntarily and immediately resign her employment from the Dade County School Board and surrender her teaching certificate to Petitioner.

RECOMMENDED this 19th of February 1992, in Tallahassee, Florida.

DANIEL MANRY

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 19th day of February 1992.

ENDNOTES

1/ Petitioner's Exhibit 1 is a certified copy of an Information for possession of cocaine and cannabis filed against Respondent in the Circuit Court Of The Seventeenth Judicial Circuit In And For Broward County, Florida, Case No. 90- 015499CF10A. Petitioner's Exhibit 2 is a certified copy of a Court Status statement, dated December 5, 1990. Petitioner's Exhibit 3 is a certified copy of the Order of Probation dated December 5, 1990. Petitioner's Exhibit 4 is a copy of an Affidavit Violation Of Probation dated February 15, 1991.

Petitioner's Exhibit 5 is a certified copy of a Court Status statement dated April 5, 1991. Petitioner's Exhibit 6 is a certified copy of an Order Of Probation dated April 25, 1991. Petitioner's Exhibit 7 is a certified copy of Certification Status, dated January 16, 1992, for Respondent's teaching certificate.

2/ The EAP is a program established to assist employees of the Dade County Public School System with personal problems ranging from chemical dependency to marital discourse.

3/ The Office Of Professional Standards is responsible for monitoring and disposing of all employee problems, including fitness issues.

4/ Respondent's Exhibit 1 is a copy of an agreement between the Respondent and the EAP entered into on August 15, 1991. Respondent's Exhibit 2 is a copy of a form Settlement Agreement which the Dade County School Board intends to use prospectively in cases similar to this proceeding.

5/ The actual date of the arrest is not disclosed in the record. Detective Segarra stated that after he dropped Respondent off at her residence he filed a warrant for seizure to make the arrest.

6/ The approximation of a year and a half is based upon Respondent's removal from the classroom from August, 1990, until February, 1991, and from April, 1991, to the present.

7/ Petitioner showed by clear and convincing evidence that Respondent pled guilty to criminal charges of possession of cocaine and cannabis. It is axiomatic that a criminal act is inconsistent with the public conscience and good morals. Furthermore, Petitioner showed by clear and convincing evidence that Respondent's conduct, in the form of her substance abuse, impaired her service to the community served by the School Board.

8/ The distinction between acts involving moral turpitude and crimes involving moral turpitude was recognized in Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981). After discussing the definition of moral turpitude established by the Florida Supreme Court in other cases, the court stated, "Next, we address the question of whether appellant is guilty of crimes which involve moral turpitude."

9/ In Pearl, 394 So.2d at 191, the court discussed numerous crimes that involved an act of moral turpitude. The court did not determine whether the use of a controlled substance was an act of moral turpitude. The court suggests that a determination of whether an act is one of moral turpitude is based, at least in part, upon the fact that the perpetrator is motivated by "personal gain." Pearl, 394 So.2d at 192. A determination of whether the use of a controlled substance is motivated by personal gain is more problematic than a determination of whether the sale of a controlled substance is motivated by personal gain. In any event, Respondent was not charged with using a controlled substance and no clear and convincing evidence was presented that Respondent was convicted of such a crime.

10/ Respondent was also charged with violation of her probation. That charge is found not to involve an act of moral turpitude within the meaning of Petitioner's rule.

11/ Respondent was charged with possession of controlled substances. For such an act to be considered base, vile, and depraved, it would be necessary to equate the possession of cocaine with such base, vile, and depraved acts as murder, rape, theft, sexual or physical abuse of children, and the distribution, by sale or other means, of controlled substances to children. To equate Respondent's the mere possession of controlled substances with the foregoing base, vile, and depraved acts is spurious. While Respondent admitted she also used the controlled substances, she was never charged and found guilty of crime involving the use of controlled substances.

12/ The statute at issue in Kinney was former Sec. 493.319(1)(c) which provided that conviction of a crime, regardless of adjudication of guilt, "constitutes grounds" for disciplinary action.

13/ Compare the language in Sec. 626.611, Fla. Stat., which provides grounds for compulsory disciplinary action, with that in Sec. 626.621, which provides grounds for discretionary disciplinary action.

14/ Former Sec. 493.319(1), Fla. Stat., provided in relevant part:

(1) The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

* * *

(c) Having been found guilty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication of guilt.

15/ Black's Law Dictionary, p.1189 (West Publishing Co. 1990) [hereinafter "Black's"].

16/ Black's at 1185.

17/ The type of statutory scheme found in Ch. 231 and Ch. 458, Fla. Stat., is distinguishable from the type of statutory scheme found in Ch. 943, Fla. Stat. In McNair v. Criminal Justice Standards And Training Commission, 518 So.2d 390 (Fla. 1st DCA 1987), the court considered a provision in Sec. 943.1395(5) which provided that the Criminal Justice Standards and Training Commission ". . . shall revoke the certificate of any officer . . . not in compliance with s.

943.13(1)-(10) . . . . Sec. 943.13(4) precluded any person who pled guilty to a criminal offense from being employed as a correctional officer. The court stated:

A plea of nolo contendere or guilty is not evaluated under section 943.13(4) as conclusive evidence of the commission of a wrongdoing. Instead, entry of the plea itself creates noncompliance with section 943.13(4) . .

. This statutory scheme is distinguishable from that in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), in which a mandatory interpretation of section 458.331(1)(c), providing that a nolo plea "shall be considered a conviction," did impermissibly convert the plea into a conviction.

The provision in Sec. 231.28(2) is the type of statutory scheme found in Sec. 458.331(1)(c) because it evaluates a plea of guilty as prima facie grounds for revocation.

18/ Sec. 231.262(6), Fla. Stat., sets alternate penalties but does not prescribe facts and circumstances to be considered for the purpose of imposing one or the other penalty.

19/ The only evidence of such a policy or such factors was the expert opinion testimony presented by Petitioner. That evidence was not persuasive and was inconsistent with the approved policy represented by the Employee Assistance Program ("EAP") which is used to assist teachers who have substance abuse problems to return to their role as effective employees.

20/ See Secs. 458.331(1)(c), 626.6215(3), and 493.6118(1)(c), Fla. Stat.

(1991), and former Sec. 493.319(1), Fla. Stat.(1987). Compare Sec. 626.621(8), Fla. Stat. (1991), which prescribes grounds for non-discretionary discipline and does not contain the qualification that the offense for which the licensee is convicted must be related to the practice of insurance.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5918

The parties submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 2

3. Accepted in Findings 3, 5

4. Accepted in Findings 4-5

5. Accepted in Finding 7

6. Accepted in Finding 9

7-8 Accepted in Finding 7

9 Accepted in Finding 9

10-11 Accepted in Finding 8

1. Accepted in Finding 9

2. Accepted in Finding 10

3. Accepted in Finding 15

15-17 Accepted in Finding 16

18 Rejected as recited

testimony

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 5

3. The date of the arrest

   is not evidenced in

   the record. See Finding 7

4. Accepted in Finding 7

5. Rejected as to the date

   in Finding 8

6. Accepted in Finding 2

7. Accepted in Finding 14

8. Accepted in Finding 13

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Karen B. Wilde, Executive Director Education Practices Commission

325 West Gaines Street, #301 Tallahassee, Florida 32399

Margaret E. O'Sullivan, Esquire Education Practices Commission

301 Florida Education Center

325 West Gaines Street Suite 352

Tallahassee, Florida 32399-0400

William Du Fresne, Esquire Du Fresne and Bradley, P.A.

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

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. Some agencies allow a larger period within 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: 91-005918

Orders for Case No: 91-005918