STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4264

)

DAVID L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on February 17, 1995.

APPEARANCES

For Petitioner: Nathan L. Bond, Esquire

2121 Killarney Way, Suite G Tallahassee, Florida 32308

For Respondent: David L. Smith, pro se

2521 Oak Leaf Lane, Condo D Clearwater, Florida 34623

STATEMENT OF THE ISSUE

Whether the Education Practices Commission (EPC) should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Administrative Complaint dated April 5, 1994.

PRELIMINARY STATEMENT

On April 5, 1994, Petitioner, Doug Jamerson, as Commissioner of Education, on behalf of the EPC, filed an Administrative Complaint against the Respondent, David L. Smith, alleging that the Respondent had violated provisions of Section 231.28, Florida Statutes (1993) and Rule 6B-1.006, Florida Administrative Code. The allegations of the Administrative Complaint related to a period of time when the Respondent was employed by the School Board of Pinellas County, Florida, and specified that the Respondent failed to comply with prior Final Orders of the EPC which constituted a violation of the provisions of law or rules of the State Board of Education.

Respondent filed a letter with the EPC requesting a formal hearing in connection with the charges. The case was referred to the Division of Administrative Hearings (DOAH) on July 27, 1994. Pursuant to notice, a formal hearing was conducted February 17, 1995.

At the hearing, the Petitioner presented the testimony of no witnesses.

The Petitioner presented four (4) exhibits. All the exhibits were marked, moved, and accepted into evidence.

At the hearing, the Respondent, David L. Smith, testified on his own behalf, and presented the testimony of no other witnesses. The Respondent presented two (2) exhibits. All the exhibits were marked, moved, and accepted into evidence.

A transcript of the hearing was filed March 2, 1995. Petitioner and Respondent submitted Proposed Recommended Orders on March 3, 1995.

Based upon the stipulations of parties, the answers to Requests for Admissions, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made:

FINDINGS OF FACT

1. Respondent holds Florida teaching certificate 326738, covering the areas of History, Political Science, and Economics, which was valid through June 30, 1994. Respondent's teaching certificate has not been renewed for failure to complete three additional course credits.

   
   

2. On or about November 1989, Respondent was reported to Professional Practices Services (PPS) for failure to maintain honesty.

   
   

3. The basis for the report was that on a teacher in-service day, Respondent did not report to work, but had a co-worker sign in for him.

   
   

4. As a result of this report, the Pinellas County School District suspended the Respondent for three (3) days without pay.

   
   

5. On or about August 21, 1990, Respondent entered into a Deferred Prosecution Agreement with the Department of Education that extended through the end of the 1990-1991 school year.

   
   

6. The Deferred Prosecution Agreement included in its terms the requirements that the Respondent:

   
   

   1. violate no criminal laws and shall fully comply with all district school board regula- tions, school rules and State Board of Education Rule 6B-1.006, F.A.C.;

   2. perform assigned duties and responsibilities in a professional manner and which is satisfactory to the county school board and in compliance with the rules of the Florida Department of Education; and

   3. satisfactorily complete a workshop/inservice training course or college level course in developing positive relationships with others.

      
      

7. On July 24, 1991, then Commissioner of Education, Betty Castor, revoked the Respondent's Deferred Prosecution Agreement with the Department of Education and filed an Administrative Complaint against the Respondent.

8. On June 30, 1992, the Education Practices Commission (EPC) issued a Final Order regarding the July 24, 1991 Administrative Complaint against the Respondent.

   
   

9. On or about August 12, 1992, Karen Wilde, Executive Director of the EPC, notified the Respondent of the terms of the Respondent's probation as provided by the June 30, 1992 EPC Final Order.

   
   

10. On May 4, 1992, Betty Castor, Commissioner of Education filed a second Administrative Complaint against the Respondent.

    
    

11. The second Administrative Complaint referenced the first pending Administrative Complaint entered against the Respondent and further alleged that the Respondent had engaged in inappropriate and unprofessional conduct.

    
    

12. The second Administrative Complaint also alleged that on or about October 25, 1991, the Pinellas County School Board suspended the Respondent with pay and recommended that the Respondent be terminated.

    
    

13. On August 18, 1992, the Respondent entered into a Settlement Agreement with the EPC whereby the Respondent elected not to contest the allegations set forth in the May 4, 1992 Administrative Complaint. This agreement required the Respondent among other things to:

    
    

    1. submit to an evaluation by licensed psychiatrist mutually acceptable to the EPC and the Respondent within sixty (60) days of the date of this agreement.

    2. submit to an evaluation by a licensed physician other than [Respondent's] regular physician. This exam must include a medical review to determine the cumulative effects of medication which has been prescribed to [the Respondent], and to determine whether any medications or combinations thereof with each other or with alcohol may contribute to the behaviors which are the basis of the Adminis- trative Complaint.

       
       

14. On November 6, 1992, the Education Practices Commission issued a Final Order with regard to the Second Administrative Complaint.

    
    

15. The November 6, 1992 Final Order incorporated the terms of the August 18, 1992 Settlement Agreement.

    
    

16. On or about December 11, 1992, Karen Wilde, Executive Director of the EPC, notified the Respondent of the terms that the Respondent agreed to in his Settlement Agreement.

    
    

17. On or about March 10, 1993, Karen Wilde again notified the Respondent of the requirements of the Respondent's Settlement Agreement and the Respondent's non-compliance with terms of that latest settlement agreement.

    
    

18. The Respondent has not complied with the terms of the Final Order of November 6, 1992 which incorporated the Settlement Agreement insofar as the evaluations from a physician and from a psychiatrist have not been submitted.

19. On or about April 1, 1993 Karen Wilde notified the Respondent that the Respondent was being reported to the PPS for non-compliance with the terms of the Final Order of November 6, 1992.

    
    

20. On June 30, 1993, the PPS initiated an action against the Respondent for violation of the Respondent's EPC probation.

    
    

21. Respondent has taught school for over twenty years.

    
    

22. On September 7, 1992, Respondent seriously injured his back in the course of his employment as a result of intervening to prevent a fight between two students.

    
    

23. Respondent's injury required him to undergo surgery to repair a herniated disc, and resulted in a 9 percent permanent partial impairment rating to the body as a whole.

    
    

24. During this time Respondent was on prescribed pain medication.

    
    

25. Respondent filed a worker's compensation claim which was settled by the Pinellas County School Board. The settlement stipulated that Respondent would resign his employment with the Pinellas County School Board, and further provided that the School Board has no objection to deletion of paragraph 8(f) and 8(g) of the settlement agreement.

    
    

26. On August 18, 1993, the Respondent resigned his teaching position with the Pinellas County School Board.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

28. 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).

29. Section 231.28, Florida Statutes, provides in pertinent part: (1)The Education Practices Commission shall

    have authority to suspend the teaching certi- ficate 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:

    (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.

    
    

30. Rule 6B-1.006, Florida Administrative Code provides in pertinent part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certi-

    ficate or the other penalties as provided by law.

    * * *

    (5) Obligation to the profession of education requires that the individual:

    (o) shall comply with the conditions of an order of the Education Practices Commission

    imposing probation, imposing a fine, or restricting the authorized scope.

    
    

31. The evidence of record is clear and convincing that David L. Smith has not complied with the stipulated conditions of the Final Order entered November 6, 1992, and is therefore in violation of Sections 231.28(1)(i), Florida Statutes and Rule 6B-1.006(5)(o), Florida Administrative Code.

    
    

32. The evidence specifically shows that the Respondent failed to comply with the conditions of an order of the EPC imposing probation, imposing a fine or restricting the authorized scope of practice in violation of Rule 6B- 1.006(5)(o) when the Respondent failed to submit evaluations from a licensed physician and psychiatrist as required by the EPC's Final Order of October 30, 1992.

    
    

33. In mitigation of the charges, Respondent sustained a serious injury immediately prior to the adoption of the Final Order of November 6, 1992, and was taking prescribed pain medication during the reporting period. Respondent is presently able and willing to comply with the conditions of the Final Order of November 6, 1992.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The Respondent be barred from reapplying for a teaching certificate for a period of one (1) year from the final disposition by the Education Practices Commission;

That prior to reapplication the Respondent be required to provide the certificates that were required by Paragraph 5 and 6, and shall comply with Paragraphs 8(f) and 8(g), all of the Final Order entered by the Education Practices Commission on November 6, 1992;

That upon reemployment in the teaching profession that he be placed on a term of probation of three years on the terms outlined in Paragraphs 7, 8(a), 8(b), 8(c), 8(d), 8(e), and 9, all of the Final Order entered by the Education Practices Commission on November 6, 1992; and

That an administrative fine of $500.00 be paid by the Respondent to the Petitioner within the first twelve months of the probationary period.

RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of March, 1995.

RICHARD HIXSON

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 16th day of March, 1995.

APPENDIX

The following constitute rulings on the Findings of Fact proposed by the parties.

Petitioner's Proposed Findings 1.-10. Adopted.

11. Adopted in part.

12.-18. Adopted.

1. Incorporated in paragraph 18. 20.-22. Adopted.

   
   

   Respondent's Proposed Order

   
   

   1. Adopted in part.

   2. Reject as not supported by the evidence.

   3. Rejected as irrelevant.

   4. Adopted.

COPIES FURNISHED:

Nathan L. Bond, Esquire 2121 Killarney Way Suite G

Tallahassee, Florida 32308

David L. Smith 2521 Oak Leaf Lane Condo D

Clearwater, Florida 34623

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Barbara J. Staros, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 94-004264

Orders for Case No: 94-004264