STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8251

)

JOHN T. HAGLER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 9, 1992. Petitioner's proposed findings of fact have been adopted, in substance, insofar as material.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: John T. Hagler

101 San Carlos Avenue

Gulf Breeze, Florida 32561 STATEMENT OF THE ISSUES

Whether petitioner should take action against respondent's teaching certificate for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint filed October 10, 1991, petitioner alleges that respondent held a teaching certificate valid on July 7, 1990, and through June 30, 1991; that, on "or about July 7, 1990, the Respondent was arrested . . . and charged with one count of child abuse following an incident wherein the Respondent engaged in excessive physical force with E. C., a mentally handicapped minor male in the Respondent's care as a foster child"; that respondent "entered a plea of nolo contendere . . . [was] adjudicated . . . guilty . . . and placed . . . on probation for six (6) months"; that respondent "was subsequently removed from the Santa Rosa School District's list of authorized substitute teachers"; that expiration of respondent's certificate does not preclude disciplinary proceedings, under Section 231.262(1)(a), Florida Statutes; that respondent "has been guilty of gross immorality or an act involving moral turpitude" in violation of Section 231.28(1)(c), Florida Statutes; that respondent "has been convicted of a criminal charge" in violation of Section 231.28(1)(e), Florida Statutes; that respondent "has been found

guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board", in violation of Section 231.28(1)(f), Florida Statutes; and that respondent's conviction constitutes "prima facie proof of grounds for revocation of the teaching certificate" under Section 231.28(2), Florida Statutes.

When respondent requested a formal administrative hearing on the allegations of the administrative complaint, petitioner referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

FINDINGS OF FACT

1. Respondent John T. Hagler held Florida teacher's certificate No. 241870 covering the areas of biology, English and general science, valid through June 30, 1991. He worked as a substitute teacher for the Santa Rosa County School Board during the 1989-90 and 1990-91 school years.

   
   

2. Afflicted with Downs syndrome, respondent's thirteen-year-old foster son, E. C., also had pronounced behavioral problems. Slender but not weak, he made sexual advances toward teachers and others, overturned desks, destroyed property, emerged from the school bathroom naked, lay down on a table and refused to move, threw things, engaged in self abuse, and was generally aggressive toward others, both verbally and physically, according to Catherine Irwin, a behavior specialist who saw him weekly.

   
   

3. It was more than E. C.'s mother, an alcoholic, could cope with on her own, so she voluntarily relinquished custody of him. Under contract to the Department of Health and Rehabilitative Services (HRS), Lakeview Center, Inc. in Pensacola trained respondent John Thomas Hagler and his wife in crisis prevention intervention and otherwise helped them secure licenses as foster parents, before HRS placed E. C. in their care, in March of 1990.

   
   

4. According to the behavior specialist who monitored E. C. during his time with the Haglers, his undesirable behavior decreased. She reported seeing "laughing moments, tender moments and structure" in the foster home Mr. and Mrs. Hagler provided for E. C.

   
   

5. Respondent and his wife Kathleen "Kitty" Hagler deal in antique glass, selling "depression ware" and other glass objects at flea markets. They took E.

   C. with them on several of these occasions, including on Saturday, July 7, 1990, when they went to the T & W Flea Market in Pensacola and set up their display at Table 210, under a big oak tree. Irene Rathbone, who left before all the excitement, saw E. C. at the flea market that day sitting at a TV table calmly eating a hot dog.

   
   

6. Later E. C. had moved to the front seat of the Haglers' Ford pickup, driver's side. Without warning, he lunged for Mrs. Hagler, grabbing her crotch and a breast, or so she told Mr. Hagler afterwards. By the time Mr. Hagler, who heard her scream and came running to her assistance, reached her, she had pushed

   E. C. to the ground and was fending him off with her leg. E. C. was seated on the ground with his back against the truck, holding on to Mrs. Hagler's leg.

   
   

7. Respondent leaned down, slipped his arms under E. C.'s from behind, grabbed his own wrist, lifted and dragged E. C. into an unshaded clearing a few feet away, and told him to stay there. Concerned citizen(s) notified the Escambia County Sheriff's office. Deputies rescued E. C. from his "time out"

   after about 25 minutes, and arrested Mr. and Mrs. Hagler. What they mistook for blood around Eric's mouth turned out to be cherry-flavored Kool-Aid (of which E.

   C. had drunk about a half gallon that day.) At the time of the arrest, the temperature was about 95 or 96 degrees F., but E. C. was not dehydrated or sunburnt.

   
   

8. In the Circuit Court for Escambia County, an unsigned, amended information was filed alleging eight counts against both Mr. and Mrs. Hagler, who retained Gary Porch, Esquire, to assist in their defense. As the trial approached, the State offered to drop the charges it had laid against Mrs. Hagler. At the hearing in the present case, Mr. Porch testified that he advised Mr. Hagler his chances of acquittal were better than 50-50.

   
   

9. Even though the State did not condition its offer not to prosecute Mrs. Hagler on Mr. Hagler's cooperation, Mr. Hagler felt the prosecutor might go forward against her if he did not cooperate, so he pleaded nolo contendere to count four, which alleges that he deprived E. C. "of necessary food or shelter or inflicted physical injury to E. C. by failing to provide water or shade to the child during excessive summer heat, in violation of Section 827.04(2), Florida Statutes."

   
   

10. On April 17, 1990, Judge Collier adjudicated John Thomas Hagler guilty of count four, "negligent child abuse," Petitioner's Exhibit No. 1, and placed him on six months' probation, "on condition [that he] pay $75.00 court cost[s], and have no contact with similar type children, or be a foster parent." Id.

    
    

11. Escambia County school officials first learned of events at the flea market from the Pensacola News Journal which published an account on July 9, 1990. Dr. Charles Boyd removed his name from the roster of substitute school teachers. The Escambia County School Board will not employ teachers convicted criminally of child abuse.

    
    

    CONCLUSIONS OF LAW

    
    

12. Since the Department of Education referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

13. Although respondent has not renewed the teacher's certificate he held at the time of his conviction, Section 231.262(1)(a), Florida Statutes (1991) provides:

    
    

    The department may investigate or continue to investigate and take action on a complaint filed against a person whose teaching certificate has expired if the act or acts which are the basis for the complaint were allegedly committed while that person possessed a teaching certificate.

    
    

    At final hearing, petitioner's counsel abandoned count one, which alleges a violation of Section 231.28(1)(c), Florida Statutes (1991), and announced that, as to count three, which alleges a violation of Section 231.28(1)(f), Florida Statutes (1991), she was relying only on the conviction. The evidence showed that the conviction occurred before respondent's certificate expired.

14. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

    393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

15. Section 231.28(1), Florida Statutes (1991) confers broad authority on the Education Practices Commission to discipline a teacher,

    
    

    provided it can be shown that such person:

    
    

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

    
    

    . . .

    
    

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

       
       

    2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

Section 231.28, Florida Statutes (1991) goes on to provide:

(2) The plea of guilty in any court, the decision of guilty by any court, . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.

Here the court found respondent guilty, despite the lack of any admission on respondent's part, and the evidence did not show that threats, coercion or fraud induced his plea of nolo contendere. Petitioner has established grounds for disciplinary action under Section 231.28(1)(e), Florida Statutes (1991).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner suspend respondent's teacher's certificate for five days. DONE and ENTERED this 16th day of September, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 16th day of September, 1992.

COPIES FURNISHED:

Honorable Betty Castor Commission of Education The Capitol

Tallahassee, FL 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08 Tallahassee, FL 32399-0400

Margaret E. O'Sullivan

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

John T. Hagler

101 San Carlos Avenue Gulf Breeze, FL 32561

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.

================================================================= AGENCY ORDER OF REMAND FOR CLARIFICATION

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner ,

vs. CASE NO. 91-212-RT

DOAH CASE NO. 91-8251

JOHN T. HAGLER,

Respondent.

/

ORDER OF REMAND FOR CLARIFICATION

This cause came before a panel of the Education Practices Commission (EPC) on December 17, 1992 for consideration of and action on a Recommended Order issued by the Division of Administrative Hearings for formal hearing on an Administrative Complaint filed against the Respondent on October 10, 1991. A copy of the Administrative Complaint and the Recommended Order are attached and made a part of this Order. Petitioner was represented before the EPC by Margaret O'Sullivan, Esquire. Respondent was not present nor represented by counsel. In considering the Recommended Order, the panel found that the hearing officer did not clearly make a Conclusion of Law ruling on whether Respondent violated count three of the Administrative Complaint, to wit:

The allegations of misconduct set forth herein are in violation of Section 231.28(1)(f), Florida Statutes, in that the Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

Wherefore, without objection of the Petitioner, this cause is REMANDED to the Hearing Officer of the Division of Administrative Hearings who issued said Recommended Order with the request that he clarify or restate Conclusions of Law and any other appropriate part of the Recommended Order to specifically address whether the Respondent should be found guilty of violating Section 231.28(1)(f) Florida Statutes.

DONE AND ORDERED, this 29th day of December, 1992.

COPIES FURNISHED:

Jerry Moore, Program Director Professional Practices Services BETSY KAPLAN, Presiding Officer

Daniel Bosanko, Esquire Attorney General's Office

Sydney McKenzie, III I HEREBY CERTIFY that a copy of

General Council the foregoing Order in the matter of BC vs. John T. Hagler

Margaret O'Sullivan, Esquire was mailed to John T. Hagler, Department of Education 101 San Carlos Ave. Gulf Breeze, 1701, The Capital Florida 32561, this 29th day of Tallahassee, Florida 32399 December 1992, by U.S. Mail.

Robert T. Benton, II, Hearing Officer KAREN B. WILDE, Clerk

Division of Administrative Hearings

1230 Apalache Parkway

Tallahassee, Florida 32399-1550

(with transcript from Proceedings of December 17, 1992 before the Education Practices Commission.)

John T. Hagler - reg. and cert.

BETTY CASTOR, as

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

Commissioner of Education,

Petitioner ,

vs. CASE NO. 90199-D

JOHN T. HAGLER,

Respondent.

/

ADMINISTRATIVE COMPLAINT

Petitioner, BETTY CASTOR, as Commissioner of Education, files this Administrative Complaint against JOHN T. HAGLER, Respondent. The Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, pursuant to Sections 120.60, 231.261, 231.262, 231.28, 231.36(2), and 231.546(2), Florida Statutes, and pursuant to Rule 6B- 1.906, F.A.C., Principles of Professional Conduct for the Education Profession in Florida.

The Petitioner alleges:

1. The Respondent holds Florida teaching certificate 241870, covering the areas of biology, English and general science, which was valid through June 30,1991.

   
   

2. The act or acts alleged herein were committed while the Respondent held a teaching certificate as determined through an investigation of the complaint filed by the school district. At all times pertinent hereto, the Respondent was an authorized substitute teacher for the Santa Rosa County School District.

   
   

3. On or about July 7, 1990, the Respondent was arrested in Escambia County, Florida, and charged with one count of child abuse following an incident wherein the Respondent engaged in excessive physical force with E.C., a mentally handicapped minor male in the Respondent's care as a foster child.

   
   

4. On or about April 17, 1991, the Respondent entered a plea of nolo contendere to the charge in Escambia County Circuit Court. The court adjudicated the Respondent guilty of the charge and placed him on probation for six (6) months. The court ordered the Respondent to pay $75.00 in court costs and have no contact with mentally handicapped students and never become a foster parent.

   
   

5. The Respondent was subsequently removed from the Santa Rosa School District's list of authorized substitute teachers.

   
   

6. The allegations of misconduct set forth herein are subject to investigation and action pursuant to Section 231.262(1)(a), Florida Statutes, which authorizes the Department of Education to investigate or continue to investigate and take action on a complaint filed against a person whose teaching certificate has expired, if the act or acts which are the basis for the complaint were allegedly committed while that person possessed a teaching certificate.

The Petitioner charges:

FIRST COUNT: The allegations of misconduct set forth herein are in violation of Section 231.28(1)(c), Florida Statutes, in that the Respondent has been guilty of gross immorality or an act involving moral turpitude.

SECOND COUNT: The allegations of misconduct set forth herein are in violation of Section 231.28(1)(e), Florida Statutes, in that the Respondent has been convicted of a criminal charge.

THIRD COUNT: The allegations of misconduct set forth herein are in violation of Section 231.28(1)(f), Florida Statutes, in that the Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

FOURTH COUNT: The Petitioner alleges that, in accordance with Section 231.28(2), Florida Statutes, the finding of guilty by a court of the misconduct set forth herein shall be prima facie proof of grounds for revocation of the teaching certificate.

WHEREFORE, the Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 231.262(6) and 231.28(1), Florida Statutes, which penalty may include a

reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension, revocation, or permanent revocation of the teaching certificate, or combination thereof, or any other penalty provided by law, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms which are attached to and made part of this Administrative Complaint.

EXECUTED on this 8th day of October, 1991.

BETTY CASTOR, as Commissioner of Education

State of Florida

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

DOAH ORDER ON REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8251

)

JOHN T. HAGLER, )

)

Respondent. )

)

ORDER ON REMAND FOR CLARIFICATION

The recommended order entered in this matter on September 16, 1992, found no violation of Section 231.28(1)(f), Florida Statutes (1991). Petitioner had alleged, in count three of the administrative complaint, a violation of this subsection, which provides that disciplinary action against a teacher may be taken whenever

[u]pon investigation, [the teacher] has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.

Section 231.28(1)(f), Florida Statutes (1991). At the hearing, counsel for petitioner announced her intention to rely only on respondent's conviction, and abandoned any attempt to prove the underlying facts, including the specific nature of the "personal conduct."

The evidence did not show that the fact of respondent's misdemeanor conviction, as opposed to his "personal conduct" or the publicity surrounding his arrest, actually affected his performance as a teacher. He did not, indeed, perform as a teacher at any time after his arrest, as far as the evidence showed.

Under Section 231.28(1)(e), Florida Statutes (1991), the conviction itself constitutes grounds for disciplinary action, but the evidence did not establish any other ground for disciplinary action.

DONE and ENTERED this 5th day of January, 1993 in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

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 5th day of January, 1993.

COPIES FURNISHED:

Margaret E. O'Sullivan, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

John T. Hagler

101 San Carlos Avenue

Gulf Breeze, Florida 32561

Docket for Case No: 91-008251

Orders for Case No: 91-008251