STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL BEARFIELD, )

)

Petitioner, )

)

vs. ) Case No. 98-0594

)

FRANK T. BROGAN, )

Commissioner of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on April 28, 1998.

APPEARANCES

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a permanent teaching certificate.

PRELIMINARY STATEMENT

By undated Notice of Reasons issued prior to February 18, 1997, Respondent informed Petitioner that he was denying her application for a Florida educator's certificate. Less than

two weeks before the hearing, Respondent filed a motion for leave to file an Amended Notice of Reasons. The administrative law judge granted the motion at the hearing.

The Amended Notice of Reasons filed April 17, 1998, states that Respondent denied Petitioner's application because, on or about December 31, 1992, Petitioner allowed minors to consume alcohol at her home and one of the minors suffered an allergic reaction to the alcohol and required medical attention. The same minor also claimed to have been raped during the party. The Amended Notice asserts that, early in the morning of January 1, 1993, Petitioner allowed her son, a 16-year-old whom she allegedly had known had consumed alcohol earlier that evening, to drive the ill minor to the hospital.

The Amended Notice adds that, on April 27, 1993, Petitioner was arrested on the charge of having an open house party. Petitioner allegedly pleaded no contest to the charge, and the court allegedly withheld adjudication, imposed a $100 fine and six months' probation, and required Petitioner to submit to evaluation by a court counselor.

Lastly, the Amended Notice charges that Petitioner submitted a fraudulent statement to the Office of Professional Practices Services, by letter dated March 17, 1996, in the course of seeking the certificate that is the subject of this case.

On the basis of these allegations, the Amended Notice alleges that Petitioner violated Section 231.17(1)(c)6, Florida Statutes, which requires good moral character; Section 231.17(5)(a), Florida Statutes, which prohibits acts for which the Education Practices Commission could revoke a certificate; Section 231.28(1)(i), Florida Statutes, which prohibits the violation of the Principles of Professional Conduct for the Education Profession; Rule 6B-1.006(3)(a), Florida Administrative Code, which requires that certificate holders make a reasonable effort to protect students from conditions harmful to learning or to the students' mental health or physical safety; Rule 1.006(5)(a), Florida Administrative Code, which prohibits the submission of fraudulent information on a document related to professional activities; and Rule

6B-1.006(5)(a), which requires honesty in all professional dealings.

At the hearing, Petitioner called one witness and offered into evidence eight exhibits. Respondent called three witnesses and offered into evidence three exhibits. All exhibits were admitted except Respondent Exhibits 1 and 2.

The court reporter filed the transcript on May 21, 1998.

FINDINGS OF FACT

1. The first factual issue involves the application that is in dispute. There are a July 1994 application for a temporary, or two-year, certificate and a January 1994

   application for a permanent, or five-year, certificate. The record contains the July 1994 application for a temporary certificate, but not the January 1994 application for a permanent certificate.

2. The record also contains a temporary certificate issued by Respondent on November 28, 1994, and effective for two years starting July 1, 1994. It thus appears that Respondent granted the July 1994 application.

3. As is apparent from the two notices of reasons, Respondent has also denied an application of Petitioner. The first Notice of Reasons, which is undated, but presumably precedes the demand for a hearing signed February 18, 1997, refers to Department of Education Number 603025, which is the number borne by the July 1994 application and July 1994 temporary certificate. The Amended Notice of Reasons filed April 17, 1998, also refers to Department of Education Number 603025.

4. If the Department of Education Number is specific to an application, rather than an applicant, then the notices of reasons either mistakenly refer to Number 603025 or represent an attempt to deny an already-granted application. If the Department of Education Number is specific only to an applicant--i.e., Respondent assigns the same number to all applications submitted by the same applicant--then the number

   is useless in trying to identify the application that is the subject of this case.

5. This case obviously arose in connection with the application that Respondent denied; the circumstances suggest that the denied application was the January 1994 application for a permanent certificate.

6. Petitioner testified that she had a two-year temporary certificate from about August 1992 through about June 1994. (Tr. p. 30) She testified that in January 1994 she applied for a five-year permanent certificate (Tr. p. 31), although she later testified that the January 1994 application was for another two-year temporary certificate (Tr. p. 32).

7. Most likely, Petitioner misspoke when she described the January 1994 application the second time as an application for another temporary certificate. More likely, she applied, as she first indicated, for a permanent certificate in January 1994. One would expect that, six months later with school about to recommence, Petitioner filed for another temporary certificate because Respondent had still not issued the permanent certificate for which she had applied in January 1994.

8. This recommended order therefore treats the subject application as the January 1994 application for a permanent certificate. Resolution of issues regarding Petitioner's candor in the application process obviously would have been

   facilitated by the inclusion in the record of the January 1994 application, but, consistent with the parties' handling of the matter, the recommended order will address the contents of the July 1994 application on the assumption that Petitioner completed the two applications similarly in making this disclosure.

9. Without regard to the confusion concerning the applications, for reasons explained in the conclusions of law, Respondent, in granting Petitioner's July 1994 application for a temporary certificate, necessarily determined, or should have determined, that Petitioner was of sufficient moral character as to be permitted to teach for another two years in Florida's public schools.

10. Petitioner received her first teaching certificate in Massachusetts in 1974. This certificate allowed her to teach kindergarten through sixth grade. In 1978, Petitioner moved to Naples.

11. Petitioner first became employed by the Collier County School District in 1987 when she taught homebased Head Start, which did not require a teaching certificate. The following year, Petitioner taught Head Start in the classroom until the law changed and required that a person in this position hold a certificate. So, sometime in 1988, Petitioner began working at Gulf View Middle School, where she worked as an teacher or aide for in-school suspension, a teacher or aide

    for students with learning disabilities, and an aide for students who were severely emotionally disturbed.

12. In 1992, Petitioner transferred to Lely Elementary School, where she continued to work as the aide to the teacher who had taught severely emotionally disturbed students at Gulf View. This teacher now had a class of emotionally handicapped students.

13. Starting in August 1992, when Petitioner obtained her first temporary two-year teaching certificate in middle school math, she worked out-of-field at Lely as a teacher for emotionally handicapped students. She continued to teach at Lely through the end of the 1994-95 school year.

14. At the end of the 1994-95 school year, the Collier County School District terminated the emotionally handicapped unit at Lely and asked Petitioner to teach in varying exceptionalities at Manatee Elementary School for kindergarten through fourth grade. Agreeing to do so, Petitioner began the 1995-96 school year at Manatee, but transferred back to Lely when, after a couple of months, the Collier County School District reopened the emotionally handicapped program at Lely. Petitioner finished the 1995-96 school year at Lely.

15. At this point, Petitioner had worked nine years for the Collier County School Board: five years as an aide and four years as a teacher of emotionally handicapped students.

    Petitioner had worked in the classroom for all but the first of these years.

16. Prior to the start of the 1996-97 school year, Petitioner received a letter from the Collier County School District stating it was not renewing her contract. The letter contained no explanation for this action. However, Petitioner's second temporary certificate had expired, and the Collier County School District may have been concerned about Petitioner's certificate status.

17. The record does not disclose Petitioner's employment during the 1996-97 school year. However, since November 1997, Petitioner has been employed by the David Lawrence Mental Health Center. She works as a behavioral technician at Golden Gate Middle School, which is a school of the Collier County School District. Petitioner works on campus as a peer group counselor with boys who have been removed from school for behavioral problems.

18. Early in 1996, Petitioner had inquired of Respondent as to the status of her two-year-old application for a permanent certificate. There is no evidence in the record to suggest that Respondent had taken any of the actions contemplated by Section 120.60, Florida Statutes, that would prevent licensure by default on the January 1994 application. To the contrary, the most reasonable inference from the long period of inaction is that Respondent did not request

    additional information within 30 days of receipt of the January 1994 application. It is obvious that Respondent did not grant or deny the January 1994 application within 90 days of receiving it.

19. In response to Petitioner's effort to reactivate her application, by letter dated March 1, 1996, one of Respondent's investigators requested from Petitioner a copy of the initial police report and her statement.

20. In response to some information that Petitioner forwarded and possibly her complaint as to the slow progress in reviewing her application, Respondent's investigator wrote Petitioner a letter dated April 8, 1996. He wrote that he could "give no explanation as to why you were not contacted about this incident in 1994 since you did acknowledge it on your application. Applicants are required to acknowledge arrest/revocation incidents on all applications." The April 8 letter restates requests, made only weeks earlier, for a statement of Petitioner and a copy of the police report.

21. The July 1994 application discloses that Petitioner had received a "citation" for an open house party, and the court had "terminated" the case withholding adjudication.

22. The two quoted statements in the April 8 letter are important on the issue of licensing by default. These statements reveal that the subject application disclosed the

    open house party and that Respondent had not requested information of Petitioner for over two years.

23. By letter dated March 29, 1996, Petitioner provided Respondent's investigator, as he had requested in his April 8 letter, with a statement explaining the court documents that evidently had already been sent to Respondent. This letter either was misdated "March" when it should have been "April" or it responded to the earlier request--still in 1996--for additional information. In part, Petitioner's March 29 letter states:

    The open house charge was issued four months after a teenager was taken to the hospital for stomach problems and it was discovered that alcohol had been consumed. There had been a total of five teens at my house on that night, two were my children. All four students drove/accompanied the ill one to the hospital with my knowledge and permission, with no thought or suspect [sic] of alcohol use by any of us.

24. The incident involving the "open house party" took place during the evening hours of New Year's Eve, 1992, and predawn hours of New Year's Day, 1993. The only persons in attendance were Petitioner, her two sons, N. and M.; N.'s girlfriend, S.; and a couple of boys who were M.'s friends.

    N. and S. were 16 years old, and M. and his two friends were

    
    

    14 years old.

    
    

25. For a couple of months ending the preceding Thanksgiving, S. had lived with Petitioner and her two sons. Her mother had told her to leave her house for undisclosed

    reasons. Petitioner, who had known S. as a student when Petitioner taught at Gulf View Middle School, agreed to allow

    S. to live with her family, but ended this arrangement when

    
    

    S. and N. began sleeping together over Petitioner's objections. S. then moved in with an aunt.

26. S. and N. continued to date after she moved in with her aunt. During Christmas break, N., M., and M.'s two friends had a soccer tournament in Miami, and Petitioner drove them back and forth each day of the tournament. On the final day of the tournament, New Year's Eve, S. attended the games with Petitioner and N.'s games. When the games ended, Petitioner drove N., M., S., and M.'s two friends back to Naples, where they arrived sometime around 10:00 p.m.

27. On New Year's Eve, after returning home, N. frequently left the house to visit a girl babysitting across the street. In general, Petitioner and the children watched television and played cards.

28. From this point, the material points of the stories begin to diverge. Only two of the six witnesses testified: S. and Petitioner. Petitioner may reasonably have elected not to require that her two sons testify in order to avoid the reopening of a more serious matter that developed later that evening. Respondent could not secure the testimony of M.'s two friends, one of whom reportedly resides in New York and the other in Orlando.

29. S. testified that she drank openly in front of Petitioner to the point that she became so drunk that, on a scale of 0-10 for impairment, she was a 10. She described her behavior as "loud and obnoxious." She testified that she was falling down.

30. Interestingly, S. testified on direct examination that she did not recall if M. or Petitioner drank, but N. was drinking. She later testified that everyone, including M., was drinking, but immediately changed this testimony back to the original assertion that she did not know if M. was drinking.

31. S. admitted that her recollection of the events of the evening was highly imperfect and did not include such memorable events as a trip to the hospital later in the evening after midnight. Also, S. is biased against Petitioner. Initially, she testified that Petitioner had known that she and N. were sleeping together--knowing that such an assertion would paint Petitioner in a bad light--but later she testified that she and N. had surreptitiously entered each other's bedroom unnoticed by Petitioner.

32. Petitioner testified that, before midnight, she discovered that a bottle of vodka was down "a little bit" beyond the level that Petitioner had left it, after consuming two drinks. Petitioner testified that she announced to the

    group that she was putting the bottle back and no one was to drink anything.

33. Petitioner knew at the time that S. had already had an extremely serious alcohol-abuse problem. Her father had died from a drug overdose, and her mother was an alcoholic. While in sixth grade, S. had been in the alcohol rehabilitation program at the David Lawrence Mental Health Center due to her drinking.

34. Petitioner testified that the boys were not acting different during the evening, but S. was. Petitioner testified that S. was giddy, falling down, complaining, prior to midnight, of physical illness. S. began to vomit repeatedly. Petitioner helped her shower, gave her some ice, and then put her to bed in the still-empty bedroom that she had vacated a month earlier.

35. Initially, Petitioner had thought that S. was simply trying to get attention, perhaps jealous of N.'s visits to the girl babysitting across the street. When the vomiting began, though, Petitioner realized that S. was not acting to get attention.

36. At some point after Petitioner had gone to bed, after having gotten S. to bed, M. entered S.'s bedroom and had sexual intercourse with her. S. testified that the sex act was nonconsensual.

37. At some point well after the act of sexual intercourse between S. and M., N. determined that S. was so ill that she had to go to the hospital, so he informed his mother of the fact. Fatigued from her trips to Miami, Petitioner gave N. the keys to her car, and, with M. and his two friends, N. drove S. to the hospital, where she did not require much, if any, treatment for her intoxication and evidently received no treatment for the sexual assault of which she later complained.

38. The evidence fails to establish that N. had drunk any alcoholic beverages that evening. Moreover, even if N. had drunk alcoholic beverages, there is no evidence that, when Petitioner gave him the keys to the car, he was in any way impaired.

39. The next morning, after leaving the hospital and returning to her aunt's home, S. told her aunt that M. had raped her. S. later filed a complaint with law enforcement alleging sexual battery, but she dropped the charges five weeks later.

40. It is impossible on this record to determine whether the act was consensual or not, although S. clearly believes that it was not. Relatively little time in the questioning of

    S. was devoted to this aspect of her testimony. M., who has not admitted even that he had sexual intercourse with S., did

    not testify. As already noted, S.'s credibility is undermined by her poor memory and bias.

41. About six months later, also while intoxicated, S., now 17 years old, was sexually assaulted by her mother's ex- boyfriend, who was nearly 30 years old. She filed and, two years later, dropped charges of sexual battery in this case too. Petitioner finds this and the earlier incident involving

    M. as part of a pattern of behavior in which S. files false charges of sexual battery in remorse after drunken sexual intercourse. Perhaps, but on this record, it is as likely that the intoxicated S. is sexually exploited by predatory males, presses charges, and then lacks the strength to pursue the matter.

42. Although any sexual intercourse between 14-year-olds and 16-year-olds is not conducive to their health or welfare, this record does not permit a finding that the much more grave behavior--rape--took place in this case. Further, nothing in the record suggests that Petitioner should reasonably have anticipated that M. would have sexual intercourse with S. later in the evening. To the contrary, S. had recently lived with the family for a couple of months without any such problem with M. or a relationship between S. and M.

43. About ten days after the incident, Petitioner spoke with an investigating officer from the Naples Police Department. She said that she might have used "poor judgment"

    in allowing the minors to drink "a little" alcohol. She added, in her statement to the officer:

    . . . I spent most of the evening with [S.], put her in the shower, got her out of the shower. She threw up outside; she threw up in the bathroom; she threw up in the waste basket. It was excessive, you know. I did not understand it. I did not think she could have been drunk from what she had to drink unless you say--you say, you know that she is allergic.

44. Petitioner later tried to explain that her reference to what S. had drunk that night was based on information obtained after the night in question. However, the statement does not support Petitioner's explanation of after-acquired information. She said, "I did not think she could have been drunk from what she had to drink . . .." The tense suggests that the thought was contemporaneous to the events taking place that evening. Given Petitioner's knowledge of S.'s serious problems with alcohol, Petitioner could not have failed to make the connection between S.'s drunken-like behavior, including vomiting, and her consumption of alcohol, although this does not mean that Petitioner had witnessed S. consume more than a small amount of alcohol.

45. More in demeanor than in testimony, Petitioner displayed no great fondness for S. This is not surprising, given the complaint that S. made to the police. However, it is likely that Petitioner's relationship with S. had deteriorated by the time that Petitioner, having discovered

    that S. and N. were sleeping together in Petitioner's house, had told her to leave. By New Year's Eve, Petitioner was unlikely to cater to S. by serving her any alcohol or even tolerate her consumption of anything near the amount of alcohol it took to get her as sick as she did. It is more likely that Petitioner did watch S., and possibly N., consume "a little" alcohol, but then S. consumed much more alcohol without Petitioner's knowledge.

46. When Petitioner later was charged with an open house party, she retained an attorney and decided to plead no contest to the charge. Withholding adjudication of guilt, the court imposed a fine of $100 and six months' probation and required Petitioner to be evaluated by a court counselor. Although Petitioner testified that she believed that M. had not had sexual intercourse with S. that evening, she wanted to spare M. the turmoil of a trial, which undoubtedly would have raise the issue of his actions with S. on that night and possibly exposed him to criminal liability.

47. The sole problem with Petitioner's behavior on New Year's Eve is that she failed to take reasonable steps to stop

    S. from drinking the little quantity of alcohol, of which Petitioner was aware that S. had drunk. Many options were available to Petitioner: taking S. to her aunt's home, insisting that S. go to bed in Petitioner's room, removing all known alcohol to Petitioner's bedroom, or discarding all known

    alcohol. However, although these options would have protected Petitioner from criminal liability, none--not even the first-- would have necessarily prevented S. from drinking that evening.

48. Petitioner's failure has a bearing on her liability for the violation of the law prohibiting open house parties, although, for reasons explained in the conclusions of law, her plea and the court's withholding of adjudication cannot serve as a basis of denial, in themselves.

49. Petitioner's failure also does not constitute a failure to protect a student. Petitioner was not in the relationship of a certificate-holder dealing with a student when the activities took place, in Petitioner's home, on New Year's Eve. S. was present due to her relationship with N. and secondarily her relationship with Petitioner's family. This relationship was not a teacher-student relationship. Petitioner's sole role on the evening in question was as a parent or a parent to a friend of a guest in the home.

50. The failure to prevent S. from drinking a little alcohol on New Year's Eve and her subsequent plea of no contest to a violation of the law against open house parties-- which, though perhaps a plea of convenience, was certainly warranted under the facts--do not constitute a failure of moral character, which requires consideration of a broader range of behavior.

51. Petitioner has worked nine years for the Collier County School District without any reported problems. During the four most recent of these years, she has worked in the classroom with temporary certificates issued by Respondent, which granted the second temporary certificate following disclosure of the arrest for the open house party and, as noted in the conclusions of law, following a determination that Petitioner had sufficient good moral character to work with schoolchildren. After losing her job with the School District, Petitioner found a job with a mental-health center that effectively returned her to the classroom for at least one, and possibly two, years, including the most recent

    1997-98 school year. Again, there have been no reports of problems. On this record, Petitioner has demonstrated sufficient good moral character to qualify for a permanent certificate.

52. The statement in the March 17, 1996, letter that there was "no thought or suspect of alcohol use by any of us" means that Petitioner, her sons, and M.'s two friends did not suspect S. of drinking alcohol. This statement was untrue. No later than when S. started vomiting, Petitioner knew that

    S. had consumed alcohol. However, Petitioner had disclosed the incident. When considered in the larger context of the underlying disclosure, this isolated misstatement--the product of two years' self-justification--does not constitute

    dishonesty or fraud, which are better illustrated by an attempted concealment of the incident.

53. One more matter requires factfinding. During the deposition of Petitioner, which Respondent's counsel conducted by telephone, Petitioner's counsel, who was present with Petitioner and the court reporter, passed notes to his client during the questioning without disclosing to Respondent's counsel that he was doing so. The affidavit of the court reporter asserts uncontrovertedly that counsel passed repeated notes to Petitioner during the deposition, sometimes while Petitioner was in the middle of an answer.

54. As noted in the conclusions of law, this practice is an abuse of discovery. As for findings of fact, two points emerge. First, the note-passing has not undermined Petitioner's credibility as a witness. It is impossible to find a loss of credibility without knowing at least the questions or answers during which counsel passed notes to the witness.

55. In passing, the administrative law judge agrees with Petitioner's counsel that it was unnecessary to bring up the gesture made by Petitioner in the direction of the telephone-- i.e., directed toward Respondent's counsel. Coarseness in the relative privacy of a deposition room occupied only by Petitioner, her attorney, and a court reporter is not grounds for denial. Such a gesture is no more likely to reveal a lack

    of credibility than an excess of frustration coupled with a problem in impulse-control that, in this setting, is minor. If frustration and minor impulsivity, these characteristics would not assist the factfinder in his factfinding responsibilities.

56. Second, the note-passing, while an abuse of discovery, was almost certainly not material. The administrative law judge has resolved most of the nonultimate factual disputes in this case favorably to Respondent, such as whether Petitioner was aware that S. had consumed any alcohol. It is unlikely that a deposition free of note-passing would have resulted in the resolution of the remainder of the direct or ultimate factual disputes favorably to Respondent. As to direct facts, it is highly unlikely that, absent a timely note, Petitioner would have testified that she watched S. drink herself sick or that she knows that M. raped S. As to ultimate facts, it is equally unlikely that, absent a timely note, Petitioner would have admitted, for instance, that her acts and omissions constituted a lack of good moral character or that her misstatement in the March 17 letter constituted dishonesty or fraud.

    CONCLUSIONS OF LAW

    
    

57. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida

    Statutes. All references to Rules are to the Florida Administrative Code.)

58. Petitioner has the burden of proof concerning her entitlement to a Florida educator's certificate. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

59. Two of the subsections cited in the Amended Notice of Reasons have changed numbering, although not content. Former Sections 231.17(1)(c)6 and 231.17(5)(a) has become Sections 231.17(3)(c)6 and 231.17(10)(a), respectively. This recommended order uses the current numbering of the cited statutes.

60. Section 231.17 provides, in relevant part:

    
    

    1. Temporary certificate.--

       
       

       1. The department shall issue a temporary certificate to any applicant who submits satisfactory evidence of possessing the qualifications for such a certificate as prescribed by this chapter and by rules of the state board. Each temporary certificate is valid for 2 years after the date of its issuance and is nonrenewable, except as otherwise provided in subsection (6).

          
          

       2. Issuance of the temporary certificate shall occur when the department:

          1. Receives the applicant's fingerprint reports from the Department of Law Enforcement and the Federal Bureau of Investigation pursuant to s. 231.02, and

          2. Determines that the applicant is qualified for the temporary certificate.

       3. To qualify for a temporary certificate, the applicant must:

          1. File a written statement under oath that the applicant subscribes to and will uphold the principles incorporated in the Constitutions of the United States and of the State of Florida.

          2. Be at least 18 years of age.

          3. Document receipt of a bachelor's or higher degree from an accredited institution of higher learning. The bachelor's or higher degree may not be required in areas approved in rule by the State Board of Education as nondegreed areas. Each applicant seeking initial certification must have attained at least a 2.5 overall grade point average on a 4.0 scale in the applicant's major field of study. The applicant may document the required education by submitting official transcripts from institutions of higher education or by authorizing the direct submission of such official transcripts through established electronic network systems.

          4. Meet such academic and professional

             requirements based on credentials certified by standard institutions of higher learning, including any institutions of higher learning in this state accredited by an accrediting association that is a member of the Commission on Recognition of Postsecondary Accreditation, as prescribed by the state board.

          5. Be competent and capable of performing the duties, functions, and responsibilities of a teacher.

          6. Be of good moral character.

             
             

    2. Professional certificate.--The department shall issue a professional certificate for a period not to exceed 5 years to any applicant who meets the requirements for a temporary certificate and documents mastery of the minimum competencies required by subsection (5). Mastery of the minimum competencies must be documented on a comprehensive written examination or through other criteria as

       specified by rules of the state board. Mastery of minimum competencies required under subsection (5) must be demonstrated in the following areas:

       1. General knowledge, including the ability to read, write, and compute.

       2. Professional skills and knowledge of the standards of professional practice.

       3. The subject matter in each area for which certification is sought.

61. Section 231.28 provides, in relevant part:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate 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; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that such person:

       1. Obtained the teaching certificate by fraudulent means;

       2. Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

       3. Has been guilty of gross immorality or an act involving moral turpitude;

       4. Has had a teaching certificate revoked in another state;

       5. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       6. Upon investigation, has been found guilty of personal conduct which seriously

          reduces that person's effectiveness as an employee of the school board;

       7. Has breached a contract, as provided in s. 231.36(2);

       8. Has been the subject of a court order directing the Education Practices Commission to suspend the certificate as a result of a delinquent child support obligation;

       9. Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules; or

       10. Has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate.

       
       

    2. The plea of guilty in any court, the decision of guilty by any court, the forfeiture by the teaching certificateholder of a bond in any court of law, or the written acknowledgment, duly witnessed, of offenses listed in subsection (1) to the superintendent or a duly appointed representative or to the school board 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, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.

       
       

    3. The revocation by the Education Practices Commission of a teaching certificate of any person automatically revokes any and all Florida teaching certificates held by that person.

    
    

    (4)(a) A teaching certificate which has been suspended under this section is automatically reinstated at the end of the suspension period, provided such certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefor and by meeting the

    certification requirements of the state board current at the time of the application for the new certificate. A teaching certificate suspended pursuant to a court order for a delinquent child support obligation may only be

    reinstated upon notice from the court that the party has complied with the terms of the court order.

    (b) A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

    1. Each district superintendent and the governing authority of each developmental research school, state-supported school, or nonpublic school shall report to the department the name of any person certified pursuant to this chapter or employed and qualified pursuant to s. 231.1725:

       1. Who has been convicted of, or who has pled nolo contendere to, a misdemeanor, felony, or any other criminal charge, other than a minor traffic infraction;

       2. Who that official has reason to believe has committed or is found to have committed any act which would be a ground for revocation or suspension under subsection (1); or

       3. Who has been dismissed or severed from employment because of conduct involving any immoral, unnatural, or lascivious act.

62. Rule 6B-1.006 sets forth the Principles of Professional Conduct for the Education Profession in Florida. This rule states, in relevant part:

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

       
       

    2. 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.

       2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

       3. Shall not unreasonably deny a student access to diverse points of view.

       4. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

       5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       6. Shall not intentionally violate or deny a student's legal rights.

       7. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       8. Shall not exploit a relationship with a student for personal gain or advantage.

       9. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

    3. Obligation to the public requires that the individual:

       1. Shall take reasonable precautions to distinguish between personal views

          and those of any educational institution or organization with which the individual is affiliated.

       2. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

       3. Shall not use institutional privileges for personal gain or advantage.

       4. Shall accept no gratuity, gift, or favor that might influence professional judgment.

       5. Shall offer no gratuity, gift, or favor to obtain special advantages.

          
          

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

       1. Shall maintain honesty in all professional dealings.

    * * *

    1. Shall not submit fraudulent information on any document in connection with professional activities.

    2. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.

    
    

63. Section 865.015(2) provides:

    
    

    No adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the adult knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the adult fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.

64. Section 865.015(4) provides that a violation of subsection (2) constitutes a second degree misdemeanor.

65. The Amended Notice of Reasons alleges four sets of facts: Petitioner allowed minors to consume alcohol at her home and S. was later raped; Petitioner pleaded no contest to a violation of the law prohibiting open house parties; Petitioner allowed N. to drive S. to the hospital knowing that he had been consuming alcohol that evening; and Petitioner made a fraudulent statement to Respondent's investigator dated March 17, 1996.

66. Based on the findings of fact, Petitioner allowed S. to drink a small amount of alcohol, but, unknown to Petitioner, S. drank a great deal more. Although the evidence fails to establish a rape, it does establish that Petitioner's 14-year-old son had sexual intercourse with the 16-year-old, intoxicated, ill S., although Petitioner could not have anticipated this sex act.

67. Petitioner pleaded no contest to conducting an open house party.

68. Petitioner did not improperly allow N. to drive S. to the hospital. The evidence does not establish that N. had drunk alcoholic beverages that evening, although it is possible. Even if the evidence had established that N. had drunk that evening, the evidence fails to establish that N. was impaired in anyway by the time that Respondent gave him the keys to drive S. to the hospital.

69. In the context of the disclosure already made by Petitioner, her misstatement concerning her knowledge of S.'s actions that night did not constitute fraud or dishonesty.

70. The Amended Notice of Reasons alleges that the four factual allegations violate three statutes and three rules: Section 231.17(1)(c)6, which requires good moral character; Section 231.17(5)(a), which allows denial for any reason that would authorize revocation if the applicant already held a certificate; Section 231.28(1)(i), which authorizes revocation for the violation of any of the Principles of Professional Conduct for the Education Profession; Rule 6B-1.006(3)(a), which requires that Petitioner make a reasonable effort to protect students; Rule 6B-1.006(5)(a), which prohibits the submission of fraudulent information in a document in connection with professional activities; and Rule

    6B-1.006(5)(a), which requires certificate holders to maintain honesty in all professional dealings.

71. As already mentioned, Petitioner has demonstrated good moral character in her years of employment with the Collier County School District.

72. The facts establish that Petitioner did not make a reasonable effort to protect S. from any drinking whatsoever, although Petitioner cannot be held responsible for S.'s drinking more than a small amount of alcohol. However, Rule 6B-1.006(3) applies to responsibilities that certificate

    holders owe students; Rule 6B-1.006(4) applies to the responsibilities that certificate holders owe the public. The latter responsibilities are much more narrowly focused than the responsibilities that certificate holders owe students.

    On the evening in question, Petitioner was not in a certificate holder-student relationship with S., who was, as a girlfriend of one of Petitioner's sons, a member of the public, to whom Petitioner owed only the duties outlined in Rule 6B-1.006(4).

73. As already mentioned, Petitioner has established that she did not act dishonestly or fraudulently in applying for a permanent certificate.

74. The facts establish that Petitioner pleaded no contest to a violation of the open house party statute, which constitutes a misdemeanor. The facts also establish that Petitioner violated this statute, although the court withheld adjudication of guilt.

75. The findings and conclusions concerning the open house party violation would not authorize Respondent to revoke a teaching certificate. Section 231.28(1)(e) authorizes the revocation of a certificate for being convicted of a misdemeanor, felony, or other criminal charge besides a minor traffic violation. However, the court withheld adjudication of guilt.

76. Section 231.28(2) provides that a plea of guilty, as to any offense listed in Section 231.28(1), serves as prima facie proof of grounds for revocation, unless the certificate holder shows that the plea of guilty was the result of threats, coercion, or fraud. However, Petitioner did not plead guilty.

77. Section 231.28(5)(a) requires a district superintendent to inform Respondent of any certificate holder who enters a plea of no contest to charges other than a minor traffic offense, but this provision is only to notify Respondent of the possibility that grounds for discipline may exist; this provision does not establish grounds for discipline.

78. Thus, the plea of no contest to the misdemeanor of conducting an open house party and the withholding of adjudication of guilt do not authorize revocation. Even if Petitioner had entered a guilty plea or the court had convicted Petitioner, revocation would not be authorized, under Respondent's rules, in the absence of aggravating circumstances that do not exist here, given the failure to show that Petitioner's failure to take reasonable steps to stop S. from drinking foreseeably resulted in the later sexual intercourse between S. and M.

79. Even if Petitioner had entered a guilty plea or the court had convicted her, Rule 6B-11.007(1) states that the

    Education Practices Commission "shall" impose a penalty within the following ranges, after consideration of aggravating and mitigating circumstances. Rule 6B-11.007(2)(g) provides that the disciplinary range for a misdemeanor conviction is a reprimand to suspension. In this case, Petitioner's three years in the classroom with a temporary certificate, coupled with several years in close proximity to students--all without any reported disciplinary problems--would constitute mitigating circumstances that would far outweigh any aggravating circumstances. Additionally, Petitioner has already effectively served a two-year suspension by reason of the loss of her classroom teaching job.

80. Lastly, on the merits, Petitioner is entitled to her permanent teaching certificate under the authority of Section

    120.60. Respondent did not timely ask for more information, nor did Respondent timely grant or deny the application. Under the law, the application is granted by default.

81. If this case were treated as a revocation proceeding, which is governed by the evidentiary standard of clear and convincing evidence, Respondent might not have prevailed on the factual issue of whether Petitioner was aware that S. had consumed even a little alcohol.

82. Respondent has filed a Motion for Sanctions, seeking the costs and attorneys' fees associated with taking Petitioner's deposition and seeking sanctions. Because of the

    immateriality of the note-passing by Petitioner's counsel, this motion is denied.

83. However, Petitioner's counsel badly misunderstands his role in telephone depositions. In the event that it becomes necessary to communicate to a client or witness during telephone testimony with one or more counsel not able to see the witness, counsel should announce the fact that he needs to communicate, rather than, relying on the inability of the opposing counsel to see his actions, slipping the witness a note. Litigation within the Division of Administrative Hearings not infrequently incorporates testimony by telephone in depositions and at hearing. Attorneys passing unannounced notes to witnesses during the testimony undermine this cost- saving element of litigation. Any showing of materiality would have resulted in sanctions imposed against Respondent's counsel, who is as incorrect in his assertion that administrative law judges lack the authority to impose monetary sanctions for discovery abuses, as he is in his assertion that unannounced note-passing is not an abuse of discovery.

84. Petitioner filed a motion to strike Respondent's response to Petitioner's proposed recommended order. The motion is denied.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a five-year permanent teaching certificate.

DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998.

COPIES FURNISHED:

David Brooks Kundin Attorney at Law Post Office Box 430

Tallahassee, Florida 32302

Matthew K. Foster Brooks LeBoeuf

863 East Park Avenue Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director Professional Practices Commission Department of Education

224E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education

224E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-000594

Orders for Case No: 98-000594