STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2804

)

PAULA REDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 19, 1995, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ronald G. Stowers, Esquire

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

For Respondent: Herbert M. Cohen, Esquire

The 110 Tower, 100 Southeast Sixth Street Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against her?

   
   

   PRELIMINARY STATEMENT

   
   

   On March 21, 1995, Petitioner issued an Administrative Complaint alleging that Respondent, a certified teacher, engaged in the following conduct that was in violation of subsections (1)(c) and (1)(e) of Section 231.28, Florida Statutes, and therefore warranted the taking of disciplinary action against her:

   
   

3. On or about January 4, 1992, the Respondent, while operating a motor vehicle in Sunrise, Florida, refused to obey the directions of law enforcement officers and attempted to elude them, resulting in an automobile chase spanning several counties. The Respondent's conduct was dangerous and unlawful. Based upon this conduct, the Respondent was charged with six criminal

   violations, to wit:

   1. Three counts of aggravated assault on a law enforcement officer;

   2. One count of criminal mischief;

   3. One count of fleeing a police officer; and

   4. One count of reckless driving.

4. On or about August 8, 1994, the Respondent entered a pleas of guilty to each count set forth above. The Court withheld adjudication of guilt on the three counts of aggravated assault and adjudicated her to be guilty of all remaining counts. The Respondent was sentenced to three days in jail, with

credit for time served, and two years probation.

Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on these allegations. On June 1, 1995, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.

At the hearing, which was held on October 19, 1995, Petitioner offered into evidence three exhibits (Petitioner's Exhibits 1 through 3), which were received by the Hearing Officer. Petitioner presented no other evidence. Respondent's evidentiary presentation consisted of her own testimony, as well as the testimony of George Itzkowitz, a field staff representative employed by the teachers' union to which Respondent belongs.

At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on November 13, 1995. On November 29, 1995, Petitioner timely filed a proposed recommended order. Petitioner's proposed recommended order has been carefully considered by the Hearing Officer. It contains, among other things, what are labelled as "findings of fact." These proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Since April 19, 1991, Respondent has held Florida teaching certificate 637552, which covers the areas of business education (grades 6 through 12) and physical education (grades 6 through 12). The certificate is valid through June 30, 1996.

   
   

2. Respondent is now, and has been at all times material to the instant case, including January 4, 1992, employed as a teacher by the Broward County School Board.

   
   

3. On January 4, 1992, while operating her motor vehicle, Respondent was involved in an incident which led to her arrest and to the filing of an information against her in Broward County Circuit Court Case No. 92-2200CF10A. The information contained the following allegations, all of which were true:

   MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that [P]AULA DAWN REDO on the 4th day of January, A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant Tom McKane, a duly qualified and legally authorized officer of the City of Sunrise, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by striking the police car being

   drive[n] by Lieutenant Tom McKane with [s]aid automobile thereby placing Lieutenant Tom McKane in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c),

   
   

   COUNT II

   
   

   AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January

   A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant John George, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Lieutenant John George thereby placing John George in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c),

   
   

   COUNT III

   
   

   AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January

   A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Sergeant Gary Silvestri, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to

   wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Sergeant Gary Silvestri thereby placing Sergeant Gary Silvestri in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c),

   
   

   COUNT IV

   
   

   AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January

   A.D. 1992, in the County and State aforesaid, did then and there unlawfully, willfully and maliciously injure the property of another, to wit: a police car, property of City of Sunrise, by striking said police car with another automobile, the damage to the said property so injured being greater than two hundred dollars ($200.00) but less than one thousand dollars ($1,000.00), contrary to F.S. 806.13(1) and F.S. 806.13(2),

   
   

   COUNT V

   
   

   AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January

   A.D. 1992, in the County and State aforesaid, while being the operator of a motor vehicle upon a street or highway, and having knowledge that she had been directed to stop the said motor vehicle by a duly authorized police officer, did unlawfully and willfully refuse or fail to stop in compliance with the said directive, contrary to F.S. 316.1935,

   
   

   COUNT VI

   
   

   AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January

   A.D. 1992, in the County and State aforesaid, did then and there operate a motor vehicle in

   willful and wanton disregard for the safety of persons or property in that said Defendant

   did drive at a high rate of speed disregarding a number of traffic control devices, contrary to F.S. 316.192.

   
   

4. The incident was the subject of newspaper article published in the Metro Section of the Fort Lauderdale Sun-Sentinel on January 9, 1992.

   
   

5. Because of the publicity surrounding the incident, Respondent was asked to transfer from the school at which she had been teaching before the incident (Western High School) to another school (Pines Middle School). Respondent agreed to the transfer, which was thereafter effectuated. She has remained on the instructional staff at Pines Middle School since the transfer.

   
   

6. On August 8, 1994, after having discussed the matter with her attorney, Respondent entered a guilty plea to each of the counts of the information that had been filed against her in Broward County Circuit Court Case No. 92- 2200CF10A. Court records reflect that the plea was entered in Respondent's "best interest." 1/ Respondent was adjudicated guilty of the crimes alleged in Counts IV through VI of the information and sentenced to time served (three days in jail) for having committed these crimes. With respect to the crimes alleged in Counts I through III of the information, adjudication of guilt was withheld and Respondent was placed on two years probation.

   
   

7. To date, Respondent has conducted herself in accordance with the terms and condition of her probation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Education Practices Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against the holder of a Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed three years; imposition of an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6) and 231.28(1), Fla. Stat.

   
   

9. Subsection (1)(c) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been guilty of gross immorality or an act involving moral turpitude."

   
   

10. Chapter 231, Florida Statutes, does not define the terms "gross immorality" or "an act involving moral turpitude." See Sherburne v. School Board of Suwannee County, 455 So.2d 1057, 1061 (Fla. 1st DCA 1984).

    
    

11. Rule 6B-4.009, Florida Administrative Code, (which deals with dismissal actions initiated by school boards against instructional personnel pursuant to Section 231.36, Florida Statutes) however, provides guidance to those seeking to ascertain the meaning of these terms, as they are used in subsection (1)(c) of Section 231.28, Florida Statutes. See Castor v. Lawless, EPC Case No. 91-170-RT (EPC November 12, 1992)(Final Order).

12. Rule 6B-4.009(2), Florida Administrative Code, defines "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 in the community.

    
    

    "Gross immorality," as the term suggests, is misconduct that is more egregious than mere "immorality." It is "immorality which involves an act of conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." See Turlington v. Knox, 3 FALR 1373A, 1374A (EPC 1981)(Final Order).

    
    

13. Rule 6B-4.009(6), Florida Administrative Code, defines "moral turpitude" as

    
    

    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 doing of the act itself and not its

    prohibition by statute fixes the moral turpitude.

    
    

14. Subsection (1)(e) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation." Where adjudication of the teacher's guilt has been withheld, disciplinary action may not be taken against the teacher pursuant to this subsection. Cf. Knaus v. State, 608 So.2d 558 (Fla. 2d DCA 1992)("adjudication of guilt and sentencing were withheld, therefore neither defendant was a 'convicted person'"); Tito v. State, 593 So.2d 284, 286 (Fla. 2d DCA 1992)("[w]e believe that the word "conviction" as used in the habitual offender statute should be given its usual meaning of an adjudication of guilt, unless the circumstances of section 775.084(2) apply"); Castillo v. State, 590 So.2d 458, 461 (Fla. 3d DCA 1991)("[f]or purposes of this statute [Section 790.23, Florida Statutes], we construe 'conviction' to mean an adjudication of guilt"; "[w]here adjudication has been withheld, the offender is not a convicted felon"); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987)("[t]he record of the criminal proceedings does not reveal that appellant was 'found guilty of the commission of a crime' because adjudication of guilt was withheld"). A teacher adjudicated guilty of a crime may not defend against an administrative complaint alleging that the conviction renders the teacher subject to disciplinary action pursuant to subsection (1)(e) of Section 231.28, Florida Statutes, by relitigating the question of his or her guilt of the crime and attempting to show that the conviction was erroneous. Cf. The Florida Bar v. Vernell, 374 So.2d 473, 475 (Fla. 1979)(in bar disciplinary proceeding, attorney charged with having been convicted of misdemeanors "did not have the right to a trial de novo before the referee for the purpose of showing that his conviction was erroneous"); McGraw v. Department of State, 491 So.2d 1193, 1195 (Fla. 1st DCA 1986)(private investigator whose license was revoked pursuant to statutory provision authorizing disciplinary action where licensee has been "found guilty of the commission of a crime which directly relates to

    the business for which the license is held" was not entitled, in the disciplinary proceeding below, to relitigate the question of his guilt of the crime of which he had been found guilty in prior criminal proceeding).

    
    

15. Subsection (2) of Section 231.28, Florida Statutes, provides that "[t]he plea of guilty in 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 . . . was caused by threats, coercion, or fraudulent means." 2/ "Prima facie proof" is proof "sufficient to establish a fact unless and until rebutted." State v. Kahler,

    232 So.2d 166, 168 (Fla. 1970); See also Castleman v. Office of Comptroller,

    538 So.2d 1365, 1368 (Fla. 1st DCA 1989)("the provision in the Department's rule that administrative disciplinary orders constitute prima facie evidence of untrustworthiness does not mean such orders conclusively establish that fact, but only that the burden of going forward with evidence explaining or rebutting this information shifts to the applicants"); Merit Clothing Company v. Lees,

    218 So.2d 779, 783 (Fla. 2d DCA 1969)("[p]rima facie evidence is such as in the judgment of the law is sufficient to establish the fact, and, if unrebutted, remains sufficient for that purpose"); Castor v. Lawless, EPC Case No. 91-170- RT (EPC November 12, 1992)(Final Order)("[p]rima facie evidence is evidence that is presumed to be true and will prevail until contradicted or overcome by other evidence").

    
    

16. Section 231.28, Florida Statutes, is "in effect, a penal statute. . .

    . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it.

    Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

17. A teaching certificate may be suspended or revoked based upon the provisions of Section 231.28, Florida Statutes, only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

18. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Klein v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

19. The Administrative Complaint issued in the instant case alleges that, as a result of dangerous and unlawful conduct in which Respondent engaged on January 4, 1992, while operating her motor vehicle, and the outcome of a

    subsequent criminal proceeding relating to such conduct, there exists grounds, under subsections (1)(c) and (1)(e) of Section 231.28, Florida Statutes, for the Commission to take disciplinary action against her.

    
    

20. Through the documents Petitioner offered into evidence which reflect that Respondent had pled guilty to the crimes described in the information filed against her in Broward County Circuit Court Case No. 92-2200CF10A and which further reflect that she had been adjudicated guilty of three of those crimes (those alleged in Counts IV through VI of the information, none of which were minor traffic offenses), Petitioner clearly and convincingly established the existence of these grounds for disciplinary action. Petitioner's proof was unrebutted. Respondent presented no evidence that her guilty plea was caused by threats, coercion, or fraudulent means or that she entered the plea notwithstanding that she was not guilty of the charges. Other than her testimony that she relied upon the advice of her attorney in entering her guilty plea, in her evidentiary presentation Respondent provided no explanation at all of the circumstances surrounding her plea. Nor did she, in her evidentiary presentation, deny that she had committed the crimes to which she had pled guilty or that she had been adjudicated guilty of three of these crimes. Under such circumstances, the Commission is authorized to take disciplinary action against Respondent pursuant to Section 231.28(1), Florida Statutes. See Kiner

    v. State Board of Education, 344 So.2d 656, 657 (Fla. 1st DCA 1977).

    
    

21. In determining what disciplinary action the Commission should take, it is necessary to consult Rule 6B-11.007, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

22. Rule 6B-11.007, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. When the Education Practices Commission finds that a person has committed any act for which the Commission may impose discipline, the Commission shall impose an appropriate penalty within the ranges set forth for various acts or violations in the following disciplinary guidelines unless, based upon consideration of aggravating and mitigating factors in the individual case which are

       among those set out in subsection (3), the Commission determines that a penalty outside the range in those guidelines but within statutory limitation is appropriate. In those cases in which the Commission relies on aggravating or mitigating factors to depart from the ranges in these disciplinary guidelines, such aggravating and mitigating factors shall be stated in the record of the case and the Final Order imposing the applicable penalty.

    2. The following disciplinary guidelines shall apply to violations of the below listed statutory and rule violations and to the described actions which may be the basis for

       determining violations of particular statutory or rule provisions. Each of the following disciplinary guidelines shall be interpreted to include "probation" with applicable terms

       thereof as an additional penalty provision. . . .

       (g) Committing criminal acts and/or convictions in violation of S. 231.28(1)(c), (e) . . ., F.S.

       1. Misdemeanors Reprimand-Suspension

       2. Felonies Suspension-Revocation

       . . . .

    3. Based upon consideration of aggravat- ing and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection

       (2). The Commission may consider the following as aggravating or mitigating factors:

       1. The severity of the offense;

       2. The danger to the public;

       3. The number of repetitions of offenses;

       4. The length of time since the violation;

       5. The number of times the educator has been previously disciplined by the Commission;

       6. The length of time the educator has practiced and the contribution as an educator;

       7. The actual damage, physical or otherwise, caused by the violation;

       8. The deterrent effect of the penalty imposed;

       9. The effect of the penalty upon the educator's livelihood;

       10. Any effort of rehabilitation by the educator;

       11. The actual knowledge of the educator pertain- ing to the violation;

       12. Employment status;

       13. Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation;

       14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

       15. Actual negligence of the educator pertain- ing to any violation;

       16. Penalties imposed for related offenses under subsection (2) above;

       17. Pecuniary benefit or self-gain inuring to the educator;

       18. Degree of physical and mental harm to a student or a child;

       19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

       20. Any other relevant mitigating or aggravating factors under the circumstances. . . .

23. Having carefully considered the facts of the instant case in light of the provisions of Rule 6B-11.007, Florida Administrative Code, set forth above, the Hearing Officer concludes that the Commission should discipline Respondent for having committed the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint (which have been proven by clear and convincing evidence) by suspending her teaching certificate for 60 days and placing her on probation, subject to such terms and conditions as the Commission may deem appropriate, for a period of one year following the end of the suspension.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed these violations by suspending her teaching certificate for a period of 60 days and placing her on probation, subject to such terms and conditions as the Commission may deem appropriate, for a period of one year following the end of the suspension.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of December, 1995.

STUART M. LERNER

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 11th day of December, 1995.

ENDNOTES

1/ Pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, the guilty plea of a criminal defendant may be accepted in the absence of an acknowledgment of guilt if the defendant "acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence."

2/ Subsection (2) of Section 231.28, Florida Statutes, aside, there is case law in Florida supporting the proposition that evidence of a plea of guilty (or a plea of nolo contendre) is admissible in a civil or administrative hearing to prove that the person entering the plea committed the crime to which he or she pled guilty (or nolo contendre). See e.g. The Florida Bar v. Lancaster, 448 So.2d 1019, 1021 (Fla. 1984)(in bar disciplinary proceeding, "[a] referee may consider evidence of an attorney's pleading nolo contendre" to a misdemeanor in a prior criminal proceeding); Boshnack v. World Wide Rent-A-Car, 195 So.2d 216, 218 (Fla. 1967)("[i]n State v. DuBose, 152 Fla. 304, 11 So.2d 477, . . . we

noted the existence of the well established rule that a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but simultaneously we also noted certain recognized exceptions to said rule, one of which is that a judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest;" district court below "fail[ed] to recognize the exception"); Estate of Wallace v. Fisher, 567 So.2d 505, 508 (Fla. 5th DCA 1990)("[e]vidence of a voluntary and knowing plea of guilty to a traffic ordinance, whether it is considered a criminal or non- criminal infraction, is admissible in a civil action as an admission, by implication, of the conduct prohibited by the ordinance"); Kinney v. Department of State, 501 So.2d 129, 132 (Fla. 5th DCA 1987)("[a]lthough a plea of nolo contendre may be considered as evidence of guilt in an administrative proceeding, it is not conclusive, and due process requires that the accused be given full opportunity to explain the circumstances surrounding the plea"); MacNeil v. Singer, 389 So.2d 232, 234 (Fla. 5th DCA 1980)("[a] guilty plea is a kind of 'admission against interest;'" "[a]bsent an express exclusionary rule such as is contained in section 318.14(4)(b), it may be introduced in a civil action against a party, if relevant and material to the issues"); but see Williams v. Castor, 613 So.2d 97, 99 (Fla. 1st DCA 1993)("[t]he law is well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendre, is not admissible in a subsequent civil proceeding as proof of the facts on which it is based;" in support of this proposition, the case of State v. Dubose, 152 Fla. 304, 11 So. 2d 477 (1943), is cited); Kelly v. Department of Health and Rehabilitative Services, 610 So.2d 1375, 1377 (Fla. 2d DCA 1992)( a nolo contendre plea "does not constitute an admission of guilt and may not be used as direct evidence of guilt in a civil suit or in an administrative proceeding").

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2804

The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by Petitioner in his proposed recommended order

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2-9. To the extent that these proposed findings recite details concerning the January 4, 1992, incident that are not alleged in any of the six counts of the information filed against Respondent in Broward County Circuit Court Case No. 92-2200CF10A (to which she pled guilty), they have been rejected because (even assuming that they have sufficient evidentiary/record support) they are unnecessary. Otherwise, they have been accepted and incorporated in substance.

10-13. Accepted and incorporated in substance.

COPIES FURNISHED:

Ronald G. Stowers, Esquire The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Herbert M. Cohen, Esquir The 110 Tower

100 Southeast Sixth Street

Fort Lauderdale, Florida 33301

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, Esquire 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 this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time 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: 95-002804

Orders for Case No: 95-002804