STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-3743

)

JOHN A. KNIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on December 8, 1995, in Orlando, Florida. The Respondent and the court reporter attended the hearing in Orlando. The Hearing Officer and counsel for the Petitioner participated by video conference from Tallahassee.

APPEARANCES

For Petitioner: Ronald G. Stowers

Office of the General Counsel Department of Education

Suite 1701, The Capitol Tallahassee, Florida 32399-0400

For Respondent: John A. Knight (pro se)

1817 Harding Avenue

Sanford, Florida 32771 STATEMENT OF THE ISSUES

Whether the Education Practices Commission [EPC] should revoke or suspend the Respondent's teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Administrative Complaint dated May 15, 1995.

PRELIMINARY STATEMENT

On May 15, 1995, the Petitioner, Commissioner of Education, filed an Administrative Complaint against the Respondent, John A. Knight, alleging violations of Section 231.28, Florida Statutes, and Florida Administrative Code Rule 6B-1.006. The allegations in the complaint relate to Respondent's criminal history and his failure to acknowledge a 1979 arrest in Orange County, Florida, for Disorderly Conduct on his 1985 application for an extension of his Florida teaching certificate, and a 1992 arrest for battery and a 1994 felony arrest and conviction.

On July 7, 1995, the Respondent submitted a letter to the Education Practices Commission (EPC) in which he changed his Election of Rights from an informal to a formal hearing. The case was referred to the Division of Administrative Hearings [DOAH], and pursuant to notice the requested formal hearing was held on December 8, 1995.

At hearing, Petitioner withdrew Paragraphs 5 and 6 of the Material Allegations against the Respondent at hearing. The Petitioner offered seven exhibits which were received into evidence. The Petitioner called no witnesses at hearing. The Respondent testified in his own behalf and offered no exhibits. The Hearing Officer took Official Notice of Knight v. State of Florida, 653 So.2d 457 (Fla. 5th DCA 1995).

Although a court reporter was present in Orlando, Florida, and transcribed the hearing, no transcript was ordered by either party. The Petitioner timely filed a Proposed Recommended Order on December 18, 1995. Respondent has not filed a proposed findings of fact as of the date of this order. My specific rulings on Petitioner's findings of fact are set forth in the Appendix attached hereto.

Based upon the clear and convincing weight of the evidence received at hearing, the following findings of fact are determined.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate 227677, covering the areas of Chemistry, Biology, and Middle Grades General Science, which is valid through June 30, 1996. Petitioner has been certified to teach in Florida since 1969.

   
   

2. On or about February 5, 1979, Respondent was arrested and charged with Disorderly Conduct, a misdemeanor, in Orange County, Florida. Respondent pled not guilty to the charge, waived a jury trial and was tried before the court and found guilty. The count withheld adjudication and on or about May 2, 1979, the Court sentenced Respondent to pay a $350.00 fine, plus court costs.

   
   

3. On or about June 24, 1985, Respondent executed, under oath, an Application for Extension of Certificate. Respondent answered "no" to the following question:

   
   

   Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?

   
   

4. Respondent was negligent in completing his application in that he failed to acknowledge his 1979 arrest for Disorderly Conduct for which the Court withheld adjudication. The renewal application was completed six years after the incident and Respondent simply forgot to list it on the form.

   
   

5. On or about December 25, 1992, Respondent was arrested and charged with Battery, a first degree misdemeanor, following a domestic disturbance with his wife in Seminole County, Florida. Respondent pled nolo contendere to the battery charge. On or about February 11, 1993, the count withheld adjudication and sentenced Respondent to serve six months probation. Probation was successfully terminated on August 23, 1993.

6. On or about September 6, 1993, Respondent was arrested and charged with Aggravated Battery, a third degree felony, and Shooting Into or At a Building, a second degree felony.

   
   

7. Respondent pled not guilty to the charges and was tried and convicted on both counts following a trial by jury.

   
   

8. On or about May 30, 1994, the Court adjudicated the Respondent guilty of Aggravated Battery and withheld adjudication on the charge of Shooting Into or At a Building. Respondent was sentenced to 3 years in prison on the battery charge (Count I). He was placed on one year probation on Count II and required to pay court costs.

   
   

9. The conviction and sentence was appealed to the Fifth District Court of Appeal of Florida. The court upheld the conviction and sentence. However, it did certify a question as one of great public importance to the Florida Supreme Court

   
   

10. Respondent testified that he has been a school teacher for more than

    25 years and has an outstanding record in the community.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause. Section 120.57(1), Florida Statutes.

    
    

12. The Petitioner has met the procedural requirements precedent to the bringing of this action as set forth in ss. 231.262, 231.28 and 231.29(5), Florida Statutes. The case before DOAH has complied with the due process requirements of Section 120.57(1), Florida Statutes.

    
    

13. The 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).

    
    

14. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983),

    
    

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion and as to the facts in issue. 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.

    
    

    Clear and convincing evidence is a greater standard of proof that the preponderance of the evidence standard. Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956, 958 (Fla. 1st DCA 1988).

    
    

15. Section 231.28(1), Florida Statutes, gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, and the statute sets out

    the basis for such action. The Petitioner has alleged that the Respondent has violated the following subsections of s. 231.28(1), Florida Statutes.

    
    

    1. Obtained the teaching certificate by fraudulent means;

       * * *

       (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;

       * * *

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules;

       * * *

       (j) Has otherwise violated the provisions

       of law, the penalty for which is the revocation of the teaching certificate.

       
       

16. Section 231.28(2), Florida Statutes, provides that the plea of guilty in any court or the decision of guilty by any court shall be prima facie proof of grounds for revocation of a teaching certificate.

    
    

17. The Petitioner has also alleged violation of State Board of Education Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida, the penalty for which includes revocation of the teaching certificate. Specifically, the Petitioner has alleged that the Respondent has violated Fla. Admin. Code R. 6B-1.006(5)(a) and (h), which provide:

    
    

    1. Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

    * * *

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

18. The Respondent may not in this proceeding attempt to relitigate the issue of his guilty or innocence on any of the criminal charges for which he has been tried and found guilty. McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986). A verdict and sentence goes to the appellate court with a presumption of correctness, and a defendant must establish that the trial court clearly and convincingly committed error. Clark v. State, 575 So.2d 1387 (Fla. 1991).

    
    

19. Gross immorality is not defined. "Immorality" is defined in Fla. Admin. Code R. 6B-4.009(2) 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 educational profession into public disgrace or disrespect and impair the individual's service in the community.

20. "Moral turpitude" is defined by Fla. Admin. Code R. 6B-4.009(6) 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 moral standards of the time a man owes to his or her fellow man or to society in general, and that the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

21. The Court in Tullidge v. Hollingsworth, 108 Fla. 607, 146 So.660 (Fla. 1933), defined moral turpitude as:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private and social relations or duties owed by man to man or man to society . . . it has also been defined as any- hing done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent . . . .

    
    

22. The Respondent's conduct in regard to his conviction for aggravated battery and shooting into a building constitutes acts of gross immorality and moral turpitude. The fact that his conduct was unconnected to his job as a school teacher is irrelevant. Tomerlin v. Dade County School Board, 316 So.2d

    159 (Fla. 1st DCA 1975).

    
    

23. Teachers, by virtue of their leadership capacity and influence they have by example upon school children, are held to a higher moral standard than other regulated professionals. Adams and Ward v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Respondent's conduct was inherently wrong and thus grossly immoral because it was in wanton disregard for the health, safety and welfare of individuals in his community. The Respondent's conduct on September 6, 1993, was willful, and in reckless disregard for the safety of persons and property. The Respondent could have seriously injured or killed the victim or innocent bystanders.

    
    

24. The evidence is not clear and convincing that Respondent fraudulently failed to report his 1979 misdemeanor arrest and is not guilty of violation the provisions of Section 231.28(1)(a), Florida Statutes, obtaining his teaching certificate by fraudulent means or of Rules 6B-1.006(5)(a) and (h), Florida Administrative Code.

    
    

25. Based upon the findings of fact set forth herein, it is concluded that the Respondent has violated certain provisions of the statute as set forth above. Accordingly, disciplinary action is warranted.

26. The disciplinary guidelines for the EPC are set forth in Rule 6B- 11.007, Florida Administrative Code. These guidelines provide for a penalty ranging from a reprimand to a period of suspension for commission and/or conviction of a misdemeanor. The guidelines provide for a penalty ranging from a period of suspension to a period of revocation for commission and/or conviction of a felony.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of violating Sections

231.28(1)(c), (e), (f), (i), (j), Florida Statutes and not guilty of violating Section 231.28(1)(a), Florida Statutes and Fla. Admin. Code R. 6B-1.006(5)(a) and (h). It is further RECOMMENDED that the Respondent's teaching certificate be revoked for a period of 5 years, followed by a period of 3 years probation should the Respondent become recertified in Florida and upon such reasonable and necessary conditions as the Commission may require.

DONE AND ENTERED this 22nd day of December, 1995, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 22nd day of December, 1995.

APPENDIX

Petitioner's Proposed findings of fact:

Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5 (in part), 6 (in part.

Rejected as hearsay and irrelevant: paragraphs 4 (in part), 5 (in part), 6 (in part).

Respondent did not file proposed findings of fact.

COPIES FURNISHED:

John A. Knight, Pro Se 1817 Harding Avenue

Sanford, Florida 32771

Barbara J. Staros, General Counsel Department of Education

Suite 1701, The Capitol Tallahassee, Florida 32399-0400

Ronald G. Stowers, Esquire Office of the General Counsel Department of Education

Suite 1701, The Capitol Tallahassee, Florida 32399-0400

Dr. Karen Barr Wilde, Executive Director Education Practices Commission

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen Richards, Administrator Professional Practices Services

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 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: 95-003743

Orders for Case No: 95-003743