STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4125

)

MONIQUE CARTER, )

)

Respondent. )

)

ORDER RELINQUISHING JURISDICTION

THIS CAUSE came on for formal hearing on December 13, 1995, in Fort Pierce, Florida, pursuant to Notice of Hearing entered October 19, 1995. There was no appearance by the Respondent. Petitioner established that it served Requests for Admissions on the Respondent on August 31, 1994, and that the Respondent has not responded thereto. Petitioner moved that the matters contained in the Requests for Admissions be deemed admitted. Pursuant to Rule 1.370, Florida Rules of Civil Procedure, Petitioner's motion was granted and the matters contained in the Requests for Admissions were deemed admitted. Petitioner thereafter moved that the Division of Administrative Hearings relinquish jurisdiction of this proceeding to the Petitioner for final disposition of the matter. Petitioner asserted the position that because of these admitted facts, there is no longer a disputed issue of material fact to be resolved by the Division of Administrative Hearings. The following ruling should not be construed to be a determination by the undersigned that the admitted facts establish the violations alleged in the administrative complaint. The premises considered, it is ORDERED:

1. The motion to relinquish jurisdiction is granted.

2. The file of the Division of Administrative Hearings is CLOSED. DONE AND ORDERED this 14th day of December, 1995, in Tallahassee, Leon

County, Florida.

CLAUDE B. ARRINGTON

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 14th day of December, 1995.

COPIES FURNISHED:

Ronald G. Stowers, Esquire Suite 1701, The Capitol

Tallahassee, Florida 32399-0400

Monique Carter

1901 Valencia Avenue

Ft. Pierce, Florida 34946

Sam Carter

1901 Valencia Avenue

Ft. Pierce, Florida 34946

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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AGENCY ORDER OF REMAND

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Before the Education Practices Commission of the State of Florida

FRANK BROGAN, as

Commissioner of Education, Petitioner,

vs. EPC CASE NO. 94-117-RT

DOAH CASE NO. 94-4125

MONIQUE CARTER,

Respondent.

/

ORDER OF REMAND TO HEARING OFFICER

Respondent, MONIQUE CARTER, holds Florida educator's certificate no.

716424. Petitioner's predecessor in office filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. Respondent failed to attend.

Pursuant to such hearing a hearing officer issued an order relinquishing jurisdiction, a copy of which attached hereto and by reference made a part hereof.

In said order, the hearing officer made a finding of fact that the factual matters contained in Petitioner's request for admissions filed in that proceeding were deemed admitted therefore the hearing officer found there to be no disputed issue of fact to be resolved by the Division of Administrative Hearings.

The order, however, recited that the "ruling should not be considered to be a determination by the undersigned that the admitted facts established the violations alleged in the Administrative Complaint." But, it has been held that the question of whether facts as found by a hearing officer constitute violations for which discipline may be administered is itself a question of ultimate fact and not a question of law. See Langston v. Jamerson, 653 So.2d

489 (Fla. 1st DCA 1995)

Section 231.262(5), Florida Statutes, states, in pertinent part:

Upon the finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. A hearing officer shall be assigned by the Division of Administrative Hearings of the Department Of

Management Services to hear the complaint if there are disputed issues of material fact.

The record before the Commission fails to disclose that there is no dispute as to the factual issue of whether the facts admitted by the Respondent constitute violations for which discipline can be imposed.

It is therefore ORDERED that this matter is hereby remanded to the hearing officer for a determination of the question of ultimate fact of whether the facts admitted by the Respondent constitute violations as charged and if so, the question of the proper penalty to be imposed.

DONE AND ORDERED, this 14th day of March, 1996.

COPIES FURNISHED TO:

Kathleen Richards, Program Director Toni Brummond, Presiding Officer

Professional Practices Services

Ronald G. Stowers I HEREBY CERTIFY that a copy

Attorney at Law of the foregoing Order in the

1701 The Capitol matter of Brogan vs. Monique Tallahassee, Florida 32399 Carter, was mailed to Monique

Carter, 1901 Valencia Ave., Ft.

Monique Carter, Reg. and Cert. Pierce, FL34946, this 18th day

of March, 1996, by U.S. Mail.

KAREN B. WILDE, Clerk

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RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4125

)

MONIQUE CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came to be considered on the "Order of Remand to the Hearing Officer" filed by Petitioner on March 22, 1996.

APPEARANCES

For Petitioner: Ronald G. Stowers, Esquire

Carl J. Zahner, II, Esquire Suite 1701, The Capitol Tallahassee, Florida 32399-0400

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent, a school teacher, committed the offenses set forth in the Administrative Complaint

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint that alleged certain facts and, based on those facts, charged that Respondent violated the provisions of Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a), Florida Administrative Code.

Respondent timely denied the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

This case is in an unusual procedural posture. This matter came on for formal hearing pursuant to notice in Fort Pierce, Florida, on December 13, 1995.

Respondent did not appear at the formal hearing. In lieu of presenting any evidence at the formal hearing, Petitioner moved that the requests for admissions that Respondent failed to answer be deemed admitted. After that motion was granted, Petitioner asserted that there were no further disputed issues of material fact and moved that the undersigned relinquish jurisdiction of the proceeding to the Petitioner for final disposition. Petitioner's motion was granted, the file of the Division of Administrative Hearings was closed, and jurisdiction was relinquished to the Petitioner. Thereafter, Petitioner entered its Order of Remand to the Hearing Officer. In response to the order of remand, the undersigned entered an "Order to Show Cause" on April 9, 1996, which required the parties to show cause on or before May 10, 1996, why a Recommended Order should not be entered in this proceeding based solely on the facts deemed admitted by Respondent's failure to respond to requests for admissions. The parties were advised by the Order to Show Cause that "[f]ailure to show cause on or before May 10, 1996, will result of the entry of a recommended order without further notice to either party." The Respondent has not responded to the Order to Show Cause. The Petitioner has responded to the Order to Show Cause by requesting the entry of a recommended order based solely on the facts deemed admitted as a result of the Respondent's failure to respond to requests for admissions.

The provisions of Section 120.57(1), Florida Statutes, apply, by the express language of the statute, to proceedings that involve a "disputed issue of material fact." Because of the facts that have been deemed admitted in this proceeding pursuant to the provisions of Rule 1.370, Florida Rules of Civil Procedure, there are no underlying factual disputes in this proceeding.

Petitioner deems the entry of a recommended order necessary to determine whether the underlying facts constitute the violations alleged in the Administrative Complaint. While it appears that Petitioner has the authority to dispose of this proceeding by the entry of a final order pursuant to Section 120.57(2), Florida Statutes, the just, speedy and inexpensive determination of the remaining aspects of this proceeding will be served by the entry of a recommended order at this juncture of the proceedings. See, Rule 60Q-2.024, Florida Administrative Code.

The following findings of fact are based entirely on the requests for admissions that Respondent failed to answer.

FINDINGS OF FACT

1. Respondent currently holds Florida teaching certificate 716424, covering the area of Economics. This teaching certificate is valid through June 30, 1995 (sic).

   
   

2. During the 1993-1994 school year, Respondent was employed as a teacher at Ft. Pierce Westwood High School, in St. Lucie County School District.

   
   

3. On or about December 15, 1993, Respondent showed an "R" rated video, Posse, to her students. The video contained profanity, nudity and scenes depicting sexual acts.

   
   

4. On or about January 6, 1994, Respondent was issued a Letter of Reprimand and was suspended for one (1) day without pay effective June 9, 1994, for demonstrating poor judgment and violating school procedures in showing the video.

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The Administrative Complaint filed by Petitioner against Respondent alleged, based on the foregoing facts, that Respondent violated the provisions of Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a), Florida Administrative Code.

   
   

7. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989).

   
   

8. Section 231.28(1), Florida Statutes, provides in pertinent part, as follows:

   
   

   1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person . . . 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 . . . provided it can be shown that such person:

      * * *

      (i) Has otherwise violated the provisions

      of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

      
      

9. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

   2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's cert- ificate, or the other penalties as provided by law.

   3. Obligation to the student requires that the individual:

      1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

10. While it can be concluded that displaying a video of this type to students of any age violates the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and, consequently, subjects Respondent to being disciplined pursuant to Section 231.28(1)(i), Florida Statutes, there was no evidence that this offense rises to the level that would justify the suspension or revocation of Respondent's teacher's certificate. Specifically, there was no evidence as to the age of the students in the Respondent's class or that any child was actually harmed as a result of watching this video.

    
    

11. Rule 6B-11.007, Florida Administrative Code, provides disciplinary guidelines, but those guidelines do not contain a specific range of penalties for the type violation involved in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and conclusions of law contained herein. It is FURTHER RECOMMENDED that

Respondent be issued a written reprimand for violating Rule 6B-1.006(3)(a), Florida Administrative Code, and Section 231.28(1)(i), Florida Statutes.

DONE AND ENTERED this 15th day of May, 1996 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON, 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 15th day of May, 1996.

COPIES FURNISHED:

Carl J. Zahner, II, Esquire Ronald G. Stowers, Esquire Department of Education Suite 1701, The Capitol

Tallahassee, Florida 32399-0400

Monique Carter

1901 Valencia Avenue

Fort Pierce, Florida 34946

Sam Carter

1901 Valencia Avenue

Fort Pierce, Florida 34946

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen P. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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 ten 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: 94-004125

Orders for Case No: 94-004125