STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 96-5696

)

LISA COHEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on June 16, 1997, by video teleconference, at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

For Respondent: No Appearance

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 October 28, 1996, Petitioner issued an Administrative Complaint alleging that Respondent had engaged in conduct warranting "the appropriate disciplinary sanction of the Respondent's educator's certificate pursuant to Section[s]

   231.262 and 231.28, Florida Statutes, and pursuant to Rule 6B- 1.006, Florida Administrative Code, Principles for Professional Conduct for the Education Profession in Florida." Respondent denied the allegations of wrongdoing made in the Administrative Complaint and requested a "formal hearing" on the matter. On December 5, 1996, the case was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a Section 120.57(1) hearing.

   On January 27, 1997, Petitioner filed a Motion to Amend Administrative Complaint. The motion was unopposed. By order issued February 12, 1997, the undersigned granted the motion.

   The Administrative Complaint, as amended, alleges that Respondent engaged in the following "misconduct":

3. On or about December 29, 1986, Respondent was tried for the charge of battery in Dade County. The Court found Respondent Guilty, withheld adjudication of guilt and ordered Respondent to pay $77.00 in Court Costs."

   
   

4. On her 1990, 1992, and 1993 applications for a Florida Educator's License, Respondent failed to disclose the 1986 Battery charge.

   
   

5. On or about February 7, 1994, Respondent chased student C.J. down a hallway, pushed

   C.J. and caused C.J. to hit her nose on a concrete bench. Respondent also called C.J. a "black bitch."

   
   

6. On or about March 31, 1994, the school district concluded [its] investigation of the incident. The district's finding was that Respondent did chase, push, and cause injury to C.J. and that Respondent used improper language.

   
   

7. Respondent's teaching contract with the Dade County School District was not renewed for the 1994-1995 school year.

According to the Administrative Complaint, such conduct was in violation of Section 231.28(1)(a), Florida Statutes (Count 1), Section 231.28(1)(f), Florida Statutes (Count 2), Section 231.28(1)(i), Florida Statutes (Count 3), Rule 6B-1.006(3)(a), Florida Administrative Code (Count 4), Rule 6B-1.006(3)(e), Florida Administrative Code (Count 5), Rule 6B-1.006(5)(a), Florida Administrative Code (Count 6), Rule 6B-1.006(5)(h), Florida Administrative Code (Count 7), and Rule 6B-1.006(5)(i), Florida Administrative Code (Count 8).

The final hearing in the instant case was originally scheduled for March 4, 1997, but was continued after Leslie A. Meek, Esquire, was granted leave to withdraw as counsel of record for Respondent. Thereafter, the hearing was rescheduled for June 16, 1997. Petitioner and Respondent were provided with written notice of the rescheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes.1

The Department appeared at the hearing, which was held as scheduled on June 16, 1997, through Bruce P. Taylor, Esquire.

Respondent did not make an appearance at the hearing, either in person or through counsel or an authorized representative.

At the hearing, Petitioner presented the testimony of four witnesses: Lisa Doyle, a program director in the Department of Education's Bureau of Teacher Certification; Andrea Fain, a teacher at Golden Glades Elementary School in Dade County; Anna Jackson, the principal of Golden Glades Elementary School; and James Monroe, the executive director of the Dade County Public School's Office of Professional Standards. Petitioner also offered into evidence twelve exhibits (Petitioner's Exhibits 1 through 11 and 13). All twelve of Petitioner's exhibits were received by the undersigned.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than ten days after the undersigned's receipt of the transcript of the hearing. The undersigned received the transcript of the hearing on

July 9, 1997. On July 18, 1997, Petitioner filed a Proposed Recommended Order, which the undersigned has carefully considered. 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. Respondent held Florida teacher's certificate number 681506, covering the areas of Pre-K through Grade 3, which was valid until June 30, 1995.

2. On or about November 4, 1986, Respondent was charged with battery by information filed in Dade County Court Case No. 86-79409.

3. On December 29, 1986, following a non-jury trial, Respondent was found guilty as charged. Adjudication of guilt was withheld and Respondent was ordered to pay $77.00 in court costs.

4. In 1990, Respondent submitted an Application for Florida Educator's Certificate to the Bureau of Teacher Certification of the Department of Education (Bureau). On the application, she checked "no" in response to the following question:

   Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld? Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of certification.

   
   

   Please Check One: Yes No If yes, you must give complete details for each charge.

   
   

   As Respondent was aware, her negative response to this question was untrue inasmuch as, in 1986, she had been found guilty of the crime of battery in Dade County Court Case No. 86-79409.

5. In 1992, Respondent submitted another Application for Florida Educator's Certificate to the Bureau. On the

   application, knowing that her response was false, she answered "no" in response to the following question:

   
   

   Yes No

   
   

   Have you ever been convicted, found guilty, or entered a plea of nolo contendre (no contest) to a crime other than a traffic violation? A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge

   
   

6. In 1993, Respondent submitted a third Application for Florida Educator's Certificate to the Bureau. On the application, she knowingly gave false information by checking "no" in response to the following question:

   
   

   Yes No

   Have you ever been convicted, found guilty, entered a plea of nolo contendre (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to s.943.058, F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge.

7. On February 7, 1994, while working as a teacher at Golden Glades Elementary School, a public school located in Dade County, Respondent was involved in an altercation with a student, C.K., in the doorway to Respondent's classroom.2

   CONCLUSIONS OF LAW

   
   

8. The Education Practices Commission (Commission) is statutorily empowered to take punitive action against the holder of a valid or an expired Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such punitive 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), Florida Statutes.

9. Punitive action may be taken against the holder of an expired teacher's certificate only "if the acts which are the basis for [such action] were . . . committed while that person possessed a [valid] teaching certificate." Section 231.262(1)(a), Florida Statutes.

10. Subsection (1)(a) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who has "[o]btained the teaching certificate by fraudulent means."

11. Subsection (1)(f) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board."3

12. Subsection (1)(i) of Section 231.28, Florida Statutes, authorizes the Commission to take punitive action against a teacher who "[h]as 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."

13. Rule 6B-1.006, Florida Administrative Code, contains the "Principles of Professional Conduct for the Education Profession in Florida." Certificate revocation is one of the penalties prescribed in the rule for violation of these principles. Rule 6B-1.006(2), Florida Administrative Code.

14. Subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "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."

15. Subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not intentionally expose a student to unnecessary embarrassment or disparagement."

16. Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "maintain honesty in all professional dealings."

17. Subsection (5)(h) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not submit fraudulent information on any document in connection with professional activities."

18. Subsection (5)(i) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position."

19. The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. 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).

20. Punitive action may be taken against a teacher based upon the foregoing statutory and rule provisions only if the grounds for such action are established by clear and convincing evidence. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387,

    388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); 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). Such proof must be submitted regardless of whether the teacher makes an appearance at the final hearing. See Scott v. Department of Professional Regulation, 603 So. 2d 519 (Fla. 1st DCA 1992)(registered nurse's failure to appear at final hearing in licensure disciplinary proceeding "did not relieve [the prosecuting agency] of its obligation to substantiate the charges by presenting sufficient evidence").

21. "'[C]lear and convincing evidence 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 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.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

22. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

23. In the instant case, the Administrative Complaint issued against Respondent, as amended, alleges that she knowingly provided false information on her 1990, 1992, and 1993 Applications for Florida Educator's Certificate by indicating on these applications that she had never been found guilty of a crime, notwithstanding that, in 1986, she had been found guilty of the crime of battery in Dade County Court Case No. 86-79409.

24. The record evidence clearly and convincingly establishes that Respondent engaged in such deceptive and dishonest conduct.

25. By doing so, Respondent violated Section 231.28(1)(a), Florida Statutes, and Rules 6B-1.006(5)(a), (h) and (i), Florida Administrative Code, and therefore also Section 231.28(1)(i), Florida Statutes, as alleged in the Administrative Complaint, as amended. See Castor v. Pilla, EPC Case No. 92-178-RT (Education Practices Commission February 14, 1995); Castor v. Murphy, EPC Case No. 87-029-RT (Education Practices Commission

    October 29, 1987).

26. Accordingly, the Commission is authorized to take punitive action against Respondent pursuant to Section 231.28(1), Florida Statutes.

27. The Administrative Complaint issued against Respondent, as amended, additionally alleges (in paragraph 5 thereof) that, on or about February 7, 1994, while serving as a teacher at Golden Glades Elementary School, she engaged in misconduct when she "chased student C.J. down a hallway, pushed C.J. and caused

    C.J. to hit her nose on a concrete bench" and "also called C.J. a black bitch."

28. While Petitioner established that Respondent was involved in an altercation with "student C.J." on

    February 7, 1994, in the doorway to Respondent's classroom at Golden Glades Elementary School, the only record evidence that Respondent engaged in the specific conduct alleged in paragraph 5 of the Administrative Complaint, as amended, is hearsay evidence (in the form of written statements of "student C.J." and others) that would not be admissible over objection in a civil proceeding in Florida. Such hearsay evidence is insufficient to support a finding that Respondent engaged in the conduct alleged in paragraph 5 of the Administrative Complaint, as amended. See Department of Environmental Protection v. Department of Management Services, Division of Administrative Hearings, 667 So. 2d 369, 370 (Fla.1st DCA 1995)(hearsay "may not be the sole support for a finding"); Scott v. Department of Professional

    Regulation, 603 So. 2d 519 (Fla. 1st DCA 1992)(appellate court reversed final order of Board of Nursing suspending license of registered nurse who "did not appear at the hearing, and did not otherwise respond to the complaint against her," where "only evidence presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action" and which therefore "was not sufficient in itself to support the Board's findings"); Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 809 (Fla. 1st DCA 1986)("[T]he material contained in the investigator's report could not be relied upon by the Commission to support its findings" because it was hearsay and did "not fall under any hearsay exception. . . .

    A party's failure to object to [the] admissibility [of hearsay evidence] does not foreclose him from subsequently asserting under [former Section 120.58(1), Florida Statutes, now Section 120.57(1)(c), Florida Statutes] that such hearsay evidence was insufficient because there was no competent evidence introduced which the hearsay evidence could, in the language of the statute, 'supplement or explain.'"); Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

29. Accordingly, to the extent that the Administrative Complaint issued against Respondent, as amended, alleges that

    punitive action should be taken against Respondent based upon her conduct toward "student C.J." on February 7, 1994, it should be dismissed.

30. In determining what punitive action the Commission should take against Respondent for falsifying her certification applications, 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 required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

31. 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.

       
       

       1. 1. Obtaining a Florida educator's certificate or employment by fraudulent means in violation of S. 231.28(1)(a), F.S.

          
          

          Probation -- Suspension. . . .

          
          

    3. Based upon consideration of aggravating 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 pertaining 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 pertaining 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.

       
       

32. 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 undersigned concludes that the Commission should punish Respondent for having committed the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint, as amended, concerning her falsification of the 1990, 1992, and 1993 certification applications she submitted to the Bureau (which violations have been proven by clear and convincing evidence) by barring Respondent from applying for certification for a period of three years.

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order: (1) finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint, as amended, concerning her falsification of the 1990,

1992, and 1993 certification applications she submitted to the Bureau; (2) barring Respondent from applying for certification for a period of three years for having committed these violations; and (3) dismissing the remaining counts of the Administrative Complaint, as amended.

DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.

ENDNOTES

1 Such notice was in the form of a Notice of Hearing by Video Teleconference mailed to Petitioner and Respondent on April 21, 1997, and an Amended (as to Tallahassee Video Teleconference Site Only) Notice of Hearing by Video Teleconference mailed to Petitioner and Respondent on June 11, 1997.

2 It is not clear from the evidentiary record exactly what occurred during the altercation or how the altercation started.

3 A teacher may be found guilty of violating subsection (1)(f) of Section 231.28, Florida Statutes, even in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

COPIES FURNISHED:

Bruce P. Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

Lisa Cohen

14263 Memorial Highway

Miami, Florida 33161

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 Such notice was in the form of a Notice of Hearing by Video Teleconference mailed to Petitioner and Respondent on April 21, 1997, and an Amended (as to Tallahassee Video Teleconference Site Only) Notice of Hearing by Video Teleconference mailed to Petitioner and Respondent on June 11, 1997.

2 It is not clear from the evidentiary record exactly what occurred during the altercation or how the altercation started.

3 A teacher may be found guilty of violating subsection (1)(f) of Section 231.28, Florida Statutes, even in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee," where the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

Docket for Case No: 96-005696

Orders for Case No: 96-005696